        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                Fifth Circuit

                                                                  FILED
                                                               November 17, 2010

                         Nos. 05-70028 and 09-70018              Lyle W. Cayce
                                                                      Clerk


FELIX ROCHA,

                                           Petitioner – Appellant

v.

RICK THALER, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,

                                           Respondent – Appellee



                Appeals from the United States District Court
                     for the Southern District of Texas



                    ON PETITION FOR REHEARING
       (Opinion September 9, 2010, 5th Cir. 2010 _______F.3d________)
Before JOLLY, HIGGINBOTHAM, and HAYNES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      We treat Petitioner-Appellant Felix Rocha’s petition for rehearing en banc
as a petition for panel rehearing pursuant to Fifth Circuit Internal Operating
Procedures under Federal Rule of Appellate Procedure 35. We deny Rocha’s
petition for rehearing for the same reasons we held he is not entitled to have a
federal court review the merits of his federal constitutional claim for habeas
relief, reasons which this opinion clarifies and elaborates.
       The Texas Court of Criminal Appeals (“the CCA”) determined that Rocha’s
state habeas application could not satisfy the requirements of Texas Code of
Criminal Procedure art. 11.071 § 5(a)(3) and dismissed it as an abuse of the writ
under art. 11.071 § 5(c). Rocha’s petition for rehearing contends that we erred
by holding that the CCA’s dismissal of his state habeas application rested on an
independent and adequate state-law ground. As we explain in Part I, Rocha’s
contention is without merit. It is true that § 5(a)(3) incorporates a federal
standard—specifically, the actual-innocence-of-the-death-penalty standard
articulated by Sawyer v. Whitley.1 However, a claim of actual innocence of the
death penalty under Sawyer is not itself a claim for relief under the
Antiterrorism and Effective Death Penalty Act (“AEDPA”).2 It is a gateway
claim that, if successful, authorizes a federal court to review the merits of a
habeas claim that would otherwise be procedurally barred. With only a few
possible exceptions,3 a gateway claim of actual innocence of the death penalty
and a federal constitutional claim for habeas relief are not equivalent. Section
5(a)(3) allows the CCA to decide the former without reaching the merits of the
latter. A determination by the CCA that a successive habeas application does
not satisfy the requirements of § 5(a)(3) does not empower us to reach the merits
of the underlying claim.           All it empowers us to do is make a de novo



       1
           505 U.S. 333 (1992).
       2
           See generally 28 U.S.C.A. § 2254 (West 2006).
       3
         An actual-innocence claim is not a claim of constitutional error. It is a procedural
device that authorizes the adjudication of a federal constitutional claim that would otherwise
be procedurally defaulted. However, the federal constitutional claim of a habeas petitioner
who argues that the Constitution renders him ineligible for the death penalty is, in substance,
a claim that the petitioner is actually innocent of the death penalty. In cases presenting such
claims, the gateway issue and the underlying constitutional issue largely merge into a single
inquiry. See infra notes 46-51 and accompanying text.

                                               2
determination of whether the petitioner is actually innocent of the death
penalty—the same determination we make whenever we are asked to excuse a
procedural default.
         Rocha contends that our decision cannot be reconciled with this Court’s
prior decisions in Rivera v. Quarterman,4 Ruiz v. Quarterman,5 and Balentine
v. Thaler.6 The state responds that Hughes v. Quarterman7 is evidence of the
correctness of our approach. Neither argument is fully sound. The cases the
parties rely on construe Texas Code of Criminal Procedure article 11.071
§ 5(a)(1). The CCA dismissed Rocha’s state habeas application because his
application did not satisfy § 5(a)(3). As we explain in Part II, our precedent
interpreting § 5(a)(1) does not compel us to conclude that the CCA did not
employ an independent state-law ground of decision when it determined that
Rocha could not satisfy § 5(a)(3). When the CCA determines that a successive
state habeas application does not satisfy § 5(a)(1) and dismisses it as an abuse
of the writ, it sometimes does so because it has concluded that the federal
constitutional claim on which the application seeks relief is meritless. We have
previously held that in such cases the CCA’s decision is interwoven with the
merits of the federal constitutional claim and thus does not rest on an
independent state-law ground. By contrast, when the CCA determines that a
successive state habeas application does not satisfy § 5(a)(3), it does so because
it has concluded that the habeas applicant cannot establish that he is actually


         4
             505 F.3d 349 (5th Cir. 2007), cert. denied, 129 S. Ct. 176 (2008).
         5
             504 F.3d 523 (5th Cir. 2007).
         6
             609 F.3d 729 (5th Cir. 2010), vacated on rehearing, No. 09-70026 (5th Cir. Nov. 17,
2010).
         7
             530 F.3d 336 (5th Cir. 2008), cert. denied, 129 S. Ct. 2378 (2009).

                                                  3
innocent of the death penalty. To arrive at that conclusion, the CCA need not,
and does not, consider the merits of the underlying federal constitutional claim.8


                                               I.
       A full summary of the facts is provided in our opinion; only those most
pertinent are included here. A jury convicted Rocha of capital murder, and on
the jury’s answers to the special issues the trial court sentenced him to death.
Rocha filed multiple unsuccessful habeas applications in the Texas state courts.
He then filed a federal habeas petition, which the district court denied and
dismissed. Rocha then filed a final habeas application with the CCA, the first
of his state habeas applications in which he raised for the first time the
ineffective-assistance-of-counsel-at-sentencing claim9 that he presses here. The
Texas Court of Criminal Appeals found that the allegations of Rocha’s final state
habeas application “do not satisfy the requirements of Article 11.071, section
5(a)(3)” and therefore dismissed his application “as an abuse of the writ.”10 After
the CCA dismissed his successive application, Rocha returned to the district
court and filed a motion for relief from judgment under Rule 60(b) of the Federal
Rules of Civil Procedure. In it, he contended that the CCA’s order decided his
Wiggins claim on the merits, thereby opening it up for plenary review by a
federal court. The district court disagreed and found the claim was procedurally
defaulted. We affirmed.


       8
         Again, subject to the possible exception of cases in which the applicant’s federal
constitutional claim is itself a claim that the applicant is ineligible to receive, and therefore
actually innocent of, the death penalty. See infra notes 46-51 and accompanying text.
       9
           See generally Wiggins v. Smith, 539 U.S. 510 (2003).
       10
         Ex parte Rocha, No. WR-52,515-04, 2008 WL 5245553, at *1 (Tex. Crim. App. Dec.
17, 2008) (unpublished).

                                               4
                                                A.
       A federal court generally cannot review the merits of a state prisoner’s
habeas petition if the claims in the petition are procedurally defaulted.11 A
habeas claim can be procedurally defaulted in either of two ways.12 First, if the
prisoner has never fairly presented that claim to the highest available state
court, the claim is unexhausted.13 The parties agree that Rocha exhausted his
Wiggins claim by presenting it to the CCA in a state habeas application. Second,
if the prisoner has presented the claim to the highest available state court but
that court has dismissed the claim on a state-law procedural ground instead of
deciding it on the merits, the claim has been decided on an independent and
adequate state-law ground.14 The parties vigorously dispute whether the CCA’s
dismissal of Rocha’s Wiggins claim as an abuse of the writ rested on an
independent and adequate state law-ground.
       “If a state court clearly and expressly bases its dismissal of a prisoner’s
claim on a state procedural rule, and that procedural rule provides an
independent and adequate ground for dismissal, the prisoner has procedurally




       11
          See, e.g., Magwood v. Patterson, 130 S. Ct. 2788, 2801 (2010) (“If a petitioner does not
satisfy the procedural requirements for bringing an error to the state court's
attention—whether in trial, appellate, or habeas proceedings, as state law may
require—procedural default will bar federal review.”). This rule is subject to two exceptions,
which are discussed infra at notes 26-30 and in the accompanying text. In addition, AEDPA
allows a federal court to deny a habeas petition on its merits even if the claims it contains are
unexhausted. See 28 U.S.C. § 2254(b)(2).
       12
         Coleman v. Dretke, 395 F.3d 216, 220 (5th Cir. 2004), cert. denied, 546 U.S. 938
(2005). See generally O’Sullivan v. Boerckel, 526 U.S. 838, 850-56 (1999) (Stevens, J.,
dissenting) (explaining the differences between the two varieties of procedural default).
       13
            See, e.g., Kittelson v. Dretke, 426 F.3d 306, 315-16 (5th Cir. 2005)
       14
            See, e.g., Harris v. Reed, 489 U.S. 255, 262 (1989).

                                                 5
defaulted his federal habeas claim.”15 The state procedural rule must be “both
independent of the merits of the federal claim and an adequate basis for the
court’s decision.”16 A state procedural rule is an adequate basis for the court’s
decision only if it is “strictly or regularly applied evenhandedly to the vast
majority of similar claims.”17 The parties agree that a state habeas application
that is dismissed because it does not satisfy § 5(a)(3) has been dismissed on an
adequate state-law ground. A state procedural rule operates independently of
the merits of the federal claim when a federal court could reverse the state
court’s disposition of any federal-law issues presented by the petition and,
because of the state court’s resolution of the state-law issues, the outcome of the
case would not change.18 Rocha’s petition for rehearing argues that the CCA’s
determination that Rocha’s state habeas application did not satisfy § 5(a)(3) did
not operate independently of the merits of his Wiggins claim.
          Before turning to our discussion of § 5(a)(3), we pause for a precise
explanation of how Texas’s abuse-of-the-writ statute operates. Texas Code of


          15
               Nobles v Johnson, 127 F.3d 409, 420 (5th Cir. 1997), cert. denied, 523 U.S. 1139
(1998).
          16
               Finley v. Johnson, 243 F.3d 215, 218 (5th Cir. 2001).
          17
        Amos v. Scott, 61 F.3d 333, 339 (5th Cir.) (emphasis omitted), cert. denied, 516 U.S.
1005 (1995).
          18
           See CHARLES ALAN WRIGHT ET AL., 16B FED. PRAC. & PROC. JURIS. § 4019 (2d ed.
Westlaw current through the 2010 update) (“Review is . . . precluded if state substantive law
is sufficient to support the judgment no matter how the federal question is resolved . . . .”). For
example, the Supreme Court would lack jurisdiction to review a state-high-court decision
invalidating a state statute on both state and federal constitutional grounds. Even if the Court
reversed the federal constitutional decision, the statute would remain invalid under the state
constitution. See RICHARD H. FALLON, JR. ET AL., HART & WESCHLER’S THE FEDERAL COURTS
AND THE FEDERAL SYSTEM 463-64 (6th ed. 2009). Similarly, a federal court sitting in habeas
will decline to decide a federal constitutional claim that the state court rejected on procedural
grounds because even if the federal claim is meritorious, the federal court will decline to grant
relief on it out of deference to the state court’s procedural ruling.

                                                   6
Criminal Procedure art. 11.071 § 5(c) requires a successive state habeas
application to be dismissed as an abuse of the writ unless it can satisfy the
requirements of one of the three subsections of art. 11.071 § 5(a). The rule
codified in §5(c)—that a Texas habeas applicant must bring all of his claims in
his first application—is grounded in state law and is procedural in nature.
Standing alone, § 5(c) inarguably would be an independent state-law ground for
decision.19 But § 5(c) does not stand alone. Its applicability is conditioned on a
finding that none of the three subsections of § 5(a) has been satisfied. Our core
inquiry thus reduces to this: Does a finding that § 5(a)(3) has not been satisfied
transform a dismissal under § 5(c) from one that rests on state law to one that
rests on federal law?
       Section 5(a)(3) provides that when a Texas prisoner files a successive
habeas application after having previously filed 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: . . . (3) by clear and convincing evidence, but for a
       violation of the United States Constitution no rational juror would have
       answered in the state's favor one or more of the special issues that were
       submitted to the jury in the applicant's trial under Article 37.071, 37.0711,
       or 37.072.20



       19
          See, e.g., Murch v. Mottram, 409 U.S. 41, 45-46 (1972) (per curiam) (“In Sanders v.
United States, 373 U.S. 1, 18 (1963), this Court said, in speaking of habeas corpus for federal
prisoners: ‘Thus, for example, if a prisoner deliberately withholds one of two grounds for federal
collateral relief at the time of filing his first application . . . , he may be deemed to have waived
his right to a hearing on a second application presenting the withheld ground.’ . . . There can
be no doubt that States may likewise provide . . . that a prisoner seeking post-conviction relief
must assert all known constitutional claims in a single proceeding.”); see also Fearance v. Scott,
56 F.3d 633, 642 (5th Cir.) (explaining that Texas’s rule requiring a habeas applicant to
present all of his claims in his initial habeas application is state procedural requirement that
functions as an independent and adequate state-law ground), cert. denied, 515 U.S. 1153
(1995).
       20
            TEX. CODE CRIM. PROC. ANN. art. 11.071 § 5(a)(3) (Vernon’s 2005).

                                                     7
We are obliged to construe and apply § 5(a)(3) as the CCA construes and applies
it.21 Therefore we begin our analysis with a discussion of Ex parte Blue,22 the
CCA’s seminal interpretation of the statute.
       In Blue, the CCA held that § 5(a)(3) necessitates “a threshold showing of
evidence that would be at least sufficient to support an ultimate conclusion, by
clear and convincing evidence, that no rational factfinder would fail to find” that
the applicant is ineligible for the death penalty.”23 In other words, the CCA
makes a threshold determination of whether the facts and evidence contained
in the successive habeas application, if true, would make a clear and convincing
showing that the applicant is actually innocent of the death penalty.24 The CCA
concluded that performing this kind of threshold review was consistent with the
fact that, in enacting § 5(a)(3), the Texas “Legislature apparently intended to
codify, more or less, the doctrine found in Sawyer v. Whitley.”25
       Sawyer embodies a federal standard. Under the federal common law of
procedural default, the general rule that a federal court cannot review the merits
of a state prisoner’s habeas claim if the claim is procedurally defaulted is subject




       21
          See, e.g., Price v. City of San Antonio, 431 F.3d 890, 892 (5th Cir. 2005); F.D.I.C. v.
Abraham, 137 F.3d 264, 267-28 (5th Cir. 1998). “As we have stated, ‘[i]t is not our function
as a federal appellate court in a habeas proceeding to review a state’s interpretation of its own
law’, and ‘we defer to the state courts’ interpretation’ of its statute.” Arnold v. Cockrell, 306
F.3d 277, 279 (5th Cir. 2002) (quoting Weeks v. Scott, 55 F.3d 1059, 1053 (5th Cir. 1995)).
       22
            230 S.W.3d 151 (Tex. Crim. App. 2007)
       23
            Id. at 163 (emphasis omitted).
       24
            Id.
       25
        Id. at 160; see also id. (“Section 5(a)(3) of Article 11.071 represents the Legislature's
attempt to codify something very much like this federal doctrine of ‘actual innocence of the
death penalty’ for purposes of subsequent state writs.”).

                                               8
to two exceptions.26 First, a federal court can undertake merits review if the
prisoner can show cause for and prejudice from the procedural default.27 Rocha
does not contend that he can make a showing of cause and prejudice. Second,
a federal court can review the merits of the claim if the prisoner can show that
failure to do so would result in a fundamental miscarriage of justice.28 The
prisoner can satisfy the fundamental-miscarriage-of-justice exception in either
of two ways. First, he can show by a preponderance of the evidence that he is
actually innocent of the crime of which he has been convicted.29 Alternatively,
Sawyer allows him to show by clear and convincing evidence that he is “actually
innocent of the death penalty.”30              The Texas legislature incorporated into
§ 5(a)(3) both Sawyer’s definition of “actual innocence of the death penalty”31 and
Sawyer’s clear-and-convincing standard of proof for such a claim.32
       The precise meaning of the phrase “actually innocent of the death
penalty,” as defined by the Supreme Court in Sawyer, is important to our
disposition of Rocha’s petition. Acknowledging that the concept of “actual
innocence ‘does not translate easily into the context of an alleged error at the

       26
            See, e.g., Dretke v. Haley, 541 U.S. 386, 388 (2004).
       27
            Wainwright v. Sykes, 433 U.S. 72, 87 (1977).
       28
            Murray v. Carrier, 477 U.S. 478, 495-96 (1986).
       29
          See Schlup v. Delo, 513 U.S. 298, 327 (1995) (“To establish the requisite probability,
the petitioner must show that it is more likely than not that no reasonable juror would have
convicted him in the light of the new evidence.”); In re Briscoe Enterprises, Ltd., II, 994 F.2d
1160, 1164 (5th Cir. 1993) (“‘Preponderance’ means that it is more likely than not.”).
       30
            505 U.S. at 350.
       31
           See Ex parte Blue, 230 S.W.3d at 159 (“‘The Legislature quite obviously intended
[§ 5(a)(3)], at least in some measure, to mimic the federal doctrine of ‘fundamental miscarriage
of justice.’”).
       32
            See TEX. CODE CRIM. PROC. art. 11.071 § 5(a)(3).

                                                 9
sentencing phase of a trial on a capital offense,’”33 the Supreme Court held in
Sawyer that a prisoner is actually innocent of the death penalty only if he can
“show by clear and convincing evidence that but for constitutional error at his
sentencing hearing, no reasonable juror would have found him eligible for the
death penalty under [state] law.”34             Sawyer thus “‘expressly rejected the
argument that a constitutional error that impacts only the jury’s discretion
whether to impose a death sentence upon a defendant who is unquestionably
eligible for it under state law can be considered sufficiently fundamental as to
excuse the failure to raise it timely in prior state and federal proceedings.’”35


                                              B.
       Rocha argues that when the CCA concluded that his successive state
habeas application did not satisfy the requirements of § 5(a)(3), it necessarily
also concluded that his Wiggins claim is without merit. Rocha effectively invites
us to treat an actual-innocence claim under Sawyer as synonymous with an
ineffective-assistance claim under Wiggins. Our panel opinion declined his
invitation, and we decline it again here. The CCA did not have to reach the
merits of Rocha’s Wiggins claim to conclude that he is not actually innocent of
the death penalty.36 A state court does not undermine the independent state-law

       33
            Sawyer, 505 U.S. at 340 (quoting Smith v. Murray, 477 U.S. 527, 537 (1986)).
       34
            Id. at 350.
       35
         Haynes v. Quarterman, 526 F.3d 189, 197 (5th Cir. 2008) (granting a certificate of
appealability) (quoting Ex parte Blue, 230 S.W.3d at 160), habeas relief conditionally granted
by 561 F.3d 535 (5th Cir. 2009), conditional grant of habeas relief reversed sub nom. Thaler v.
Haynes, 130 S.Ct. 1171 (2010).
       36
         Accord Williams v. Thaler, 602 F.3d 291, 305-07 (5th Cir. 2010) (concluding that an
unexhausted successive habeas petition the merits of which the CCA would refuse to consider
on the ground that it did not satisfy the requirements of § 5(a)(3) was procedurally defaulted

                                              10
character of its procedural-default doctrine by using a federal standard to
determine whether an otherwise defaulted successive habeas application should
be permitted to bypass a procedural bar.
       A claim of actual innocence is “‘not itself a constitutional claim, but instead
a gateway through which a habeas petitioner must pass to have his otherwise
barred constitutional claim considered on the merits.’”37 This statement is no
mere shibboleth. It teaches that consideration of a petitioner’s gateway claim
of innocence precedes consideration of his federal constitutional claim not just
temporally but analytically. Only if the petitioner can show that he is actually
innocent of the death penalty can a federal court proceed to consider the merits
of the alleged underlying constitutional violation.                  If a petitioner cannot
establish his actual innocence, a federal court cannot, and does not, consider the
merits of his habeas claim.
       The eleven federal courts of appeals that regularly entertain habeas
petitions under 28 U.S.C. § 2254 have unanimously held that a federal court’s
determination that a petitioner cannot prove his actual innocence does not
constitute a decision on the merits of the petitioner’s constitutional claim for
habeas relief.38 Quite the contrary: such a determination precludes a federal


and precluded from merits review in federal court), cert. denied, __S. Ct.__, 2010 WL 2917636
(Nov. 1, 2010); Nobles, 127 F.3d at 422 (same); see also Busby v. Dretke, 359 F.3d 708, 724 (5th
Cir.) (treating a petition that could not satisfy any of the three subsections of § 5(a) as
procedurally barred), cert. denied, 541 U.S. 1087 (2004).
       37
            Schlup, 513 U.S. at 315 (quoting Herrera v. Collins, 506 U.S. 390, 404 (1993)).
       38
          See, e.g., Simpson v. Matesanz, 175 F.3d 200, 215 (1st Cir. 1999) (“Because there is
neither ‘cause’ nor ‘actual innocence,’ . . . the federal court sitting in habeas is precluded from
hearing the merits of Simpson's challenge.”), cert. denied, 528 U.S. 1082 (2000); Jones v. Keane,
329 F.3d 290, (2d Cir.) (“In the case of procedural default, we may reach the merits of the claim
only if the defendant can first demonstrate either cause and actual prejudice, or that he is
actually innocent. Since Jones has not attempted to meet this standard, we do not reach the
merits of his claim.” (internal citation and quotation marks omitted)), cert. denied, 540 U.S.

                                               11
court from even considering the merits of the habeas claim. Rocha does not argue
that this rule is or should be different when it is a state court instead of a federal
court that determines that a habeas petitioner cannot prove his actual
innocence.      Rather, he flatly asserts that a decision on actual innocence
constitutes a decision on the merits. That assertion blinks the distinction
between a innocence claim that functions as a gateway into AEDPA and a
constitutional claim that functions as a ground for habeas relief under AEDPA.




1046 (2003); Tice v. Wilson, 276 F. App’x 125, 126 (3d Cir.) (“[The petitioner] failed to establish
his actual innocence for purposes of the fundamental miscarriage of justice standard, and we
cannot overlook his procedural default and reach the merits of his ineffective assistance of
justice claim.”), cert. denied, 129 S. Ct. 402 (2008); Watkins v. Murray, 998 F.2d 1011, 1993 WL
243692, at *5 (4th Cir. 1993) (per curiam) (unpublished table decision) (“Because Watkins has
demonstrated neither cause and prejudice nor actual innocence, we cannot reach the merits
of his defaulted Edwards claim.”), cert. denied, 510 U.S. 1056 (1994); Montoya v. Collins, 988
F.2d 11, 13 (5th Cir.) (“Montoya . . . has not even alleged, much less demonstrated, that a
‘miscarriage of justice’ regarding actual innocence or ‘actual innocence of the death penalty’
could be established in his case. This petition . . . may not be considered on its merits.”), cert.
denied, 507 U.S. 1002 (1993); Harris v. Lindamood, 355 F. App’x 940, 943 (6th Cir. 2009)
(“Because Harris has failed to demonstrate her actual innocence for first degree felony murder,
her procedurally barred ineffective assistance of counsel claim cannot be considered on the
merits.”); Balsewicz v. Kingston, 425 F.3d 1029, 1035 (7th Cir. 2005) (“Because Balsewicz
cannot demonstrate the actual innocence necessary to pass through this “gateway,” we will not
reach the merits of his ineffective assistance of counsel claims.”), cert. denied, 546 U.S. 1144
(2006); McCoy v. Norris, 125 F.3d 1186, 1192 (8th Cir. 1997) (“McCoy cannot make his way
through the actual innocence gateway, so we will not consider his constitutional claims on the
merits.”), cert. denied, 523 U.S. 1008 (1998); Smith v. Baldwin, 510 F.3d 1127, 1139 (9th Cir.
2007) (en banc) (“Because we conclude that Smith has demonstrated neither actual innocence
nor cause and prejudice, we cannot consider the merits of Smith's procedurally defaulted
federal habeas petition.”), cert. denied sub nom. Smith v. Mills, 129 S. Ct. 37 (2008);
Richardson v. Dept. of Corrections, 198 F.3d 258, 1999 WL 820221, at *4 (10th Cir. Oct. 14,
1999) (unpublished table decision) (“Richardson does not supplement his claim with any
allegation of actual innocence. Therefore, the district court properly held that federal review
of the issues in his habeas petition was procedurally barred, and Richardson's claims cannot
be considered on the merits.”); Dowling v. Sec’y for Dept. of Corrections, 275 F App’x 846, 848
(11th Cir. 2008) (“Dowling claims that he is actually innocent of the offense with which he has
been convicted. However, Dowling offered no new evidence of actual innocence. . . . As Dowling
has not overcome the procedural default of his claim, we do not reach the merits of his claim.”).

                                               12
       The Supreme Court’s decision in House v. Bell39 illustrates the lack of
overlap between a gateway claim of actual innocence and an underlying
constitutional claim for habeas relief. The Court concluded in House that the
petitioner had made a sufficient gateway showing of actual innocence to justify
having his federal habeas claim considered on the merits.40 But the Court did not
grant habeas relief. Instead, it remanded the petition to the district court,41
which subsequently considered the merits of House’s claim.42 If Rocha were
correct that a decision on the gateway innocence claim is tantamount to a
decision on the underlying constitutional claim, there would have been no need
for the Court to remand House’s petition for further proceedings below.
       The distinction between a gateway innocence claim and an underlying
constitutional claim is perhaps nowhere more clear than in the context of a
Wiggins claim of ineffective assistance of counsel at sentencing. When we
consider a properly presented Wiggins claim, we determine whether the
petitioner was prejudiced by counsel’s deficient performance by reweighing “‘the
evidence in aggravation against the totality of the available mitigating evidence’”
and asking whether the petitioner “has shown that, had counsel presented all
the available mitigating evidence, there is a reasonable probability that a juror
would have found that the mitigating evidence outweighed the aggravating




       39
            547 U.S. 518 (2006).
       40
        Id. at 522 & 553-54. House contended that he was actually innocent of the crime for
which he had been convicted, not that he was actually innocent of the death penalty, but the
procedural steps are the same for both types of claims.
       41
            Id. at 555
       42
         See House v. Bell, No. 3:96-cv-883, 2007 WL 4568444, at *1 (E.D. Ten. Dec. 20, 2007)
(unpublished) (conditionally granting habeas relief).

                                            13
evidence.”43 The contrast between that analysis and our analysis of an actual-
innocence-of-the-death-penalty claim is stark. The quality of the mitigation
evidence the petitioner would have introduced at sentencing has no bearing on
his claim of actual innocence of the death penalty. Evidence that might have
persuaded the jury to decline to impose the death penalty is irrelevant under
Sawyer. The only question is whether the petitioner was eligible for the death
penalty. The distinction between these two inquiries further underscores the
basic point that the CCA did not decide the merits of Rocha’s Wiggins claim
when it concluded that Rocha is not actually innocent of the death penalty.44
       There may well be some exceptions to the rule that a decision on the
gateway innocence claim does not constitute a decision on the underlying
constitutional claim. As Judge Dennis has previously recognized, an Atkins



       43
            Gray v. Epps, 616 F.3d 436, 442 (5th Cir. 2010) (quoting Wiggins, 539 U.S. at 534).
       44
           Our view that the actual-innocence-of-the-death-penalty review that the CCA
conducts under § 5(a)(3) does not undermine the independent, state-law character of the
Texas’s abuse-of-the-writ statute is in accord with the views of seven of our sister circuits. See
Rocha v. Thaler, 619 F.3d 387, 403 nn.52-58 (5th Cir. 2010) (slip op. at 21 nn.52-58) (compiling
cases). Many state high courts review otherwise procedurally defaulted habeas claims for plain
error, fundamental error, a fundamental miscarriage of justice, or manifest injustice. Id.
Those standards of review are largely one and the same, and they entail a level of review that
is substantially similar to actual-innocence review. See Thirty-Ninth Annual Review of
Criminal Procedure: Appeals, 39 GEO. L.J. ANN. REV. CRIM. PROC. 856, 887 n.2630 (2010)
(collecting cases from the federal courts of appeals using the terms “plain error,” “miscarriage
of justice,” and “actually innocent” to define one another).
        This kind of review does not constitute a decision on the merits of the underlying
constitutional claim. A state high court can conclude that there was no plain error or
miscarriage of justice without concluding that the underlying claim for habeas relief is without
merit. Such review “may require a glance at the merits,” but “it does not open up the merits
to plenary consideration by the federal court.” See Neal v. Gramley, 99 F.3d 841, 844 (7th Cir.
1996) (Posner, C.J.), cert. denied, 522 U.S. 834 (1997). Plain-error-style review allows state
high courts to avoid deciding the merits of a habeas claim by concluding that, even if
meritorious, the claim does not establish an error so fundamental that it seriously affects the
fairness and integrity of the judicial proceedings in which the defendant was convicted. Actual-
innocence review under § 5(a)(3) allows the CCA to do the same.

                                               14
claim45 is a claim that the petitioner is ineligible for the death penalty.46 So too
is a claim that the petitioner was under eighteen at the time of his crime,47 is
insane,48 or has some other characteristic that the Supreme Court has held
categorically justifies exemption from the death penalty.49 In such cases, the
inquiry into the gateway innocence claim will substantially overlap with the
inquiry into the merits of the underlying constitutional claim.50 Our panel
opinion’s holding does not implicate this limited class of cases, as Rocha’s
Wiggins claim is not a claim of categorical ineligibility for the death penalty.
       Finally, it follows that this Court reviews de novo the CCA’s determination
that Rocha cannot establish that he is actually innocent of the death penalty.




       45
         See Atkins v. Virginia, 536 U.S. 304, 321 (2002) (holding that the Eighth Amendment
prohibits the execution of the mentally retarded).
       46
          See Moore v. Quarterman, 491 F.3d 213, 230 (5th Cir. 2007) (Dennis, J., dissenting)
(“[A] petitioner can invoke the ‘miscarriage of justice’ exception if, but for the failure to
exhaust, the petitioner would have not been eligible for the death penalty because some
constitutional or state statutory prerequisite for the imposition of a death sentence could not
have been satisfied. Moore easily satisfies this exception because . . . the district court properly
found that Moore is mentally retarded.” (internal citations and quotation marks omitted)),
rev’d en banc, 533 F.3d 338 (5th Cir. 2008).
       47
            See Roper v. Simmons, 543 U.S. 551 (2005).
       48
            See Ford v. Wainwright, 477 U.S. 399 (1986).
       49
         See generally Nelson v. Quuarterman, 472 F.3d 287, 318-19 (5th Cir. 2006) (en banc)
(Dennis, J., concurring in the judgment) (cataloguing the various categorical exemptions from
death-penalty eligibility recognized by the Supreme Court), cert. denied, 551 U.S. 1141 (2007).
       50
          This is not to say that the two inquires become entirely identical. Compare Ex parte
Blue, 230 S.W.3d at 163 (explaining that because the standard of proof under § 5(a)(3) is
clear-and-convincing evidence, “[a] threshold showing that would allow the finder of fact to
conclude no more than that the evidence preponderates in favor of a finding of mental
retardation will obviously not suffice” on a successive application), with Ex parte Briseño, 135
S.W.3d 1, 12 (Tex. Crim. App. 2004) (adopting a preponderance-of-the-evidence standard of
proof for Atkins claims raised in an original state habeas application).

                                                15
A gateway claim of actual innocence is not a basis for relief under AEDPA.51
Such a claim stands outside of AEDPA and offers to open a door into the statute
that the petitioner’s lack of diligence otherwise would have closed. Gateway
claims of innocence are part of the federal common law of procedural default. De
novo review is the norm in this area.52 Just as we make de novo determinations
of whether a state-law ground of decision is independent of federal law or
adequate to support the judgment,53 so too do we decide afresh whether a federal
habeas petitioner is actually innocent of the death penalty.


                                                 C.
       Rocha raises three challenges to our conclusion that the CCA’s dismissal
of his state habeas application rested on an independent and adequate state-law
ground. First, he contends our conclusion is in conflict with the rule announced
in Ake v. Oklahoma.54 In Ake, the defendant’s sanity was likely to be in issue at
his trial. The defendant argued that the Constitution required the state to grant


       51
         See, e.g., Wilkerson v. Cain, 233 F.3d 886, 893 (5th Cir. 2000) (Garza, J., specially
concurring) (“The claim of actual innocence does not itself provide a basis for relief.”). Nothing
we say today pertains to a freestanding, Herrra-style claim of actual innocence that is not
tethered to a claim of constitutional error at trial.
       52
         See, e.g., Sigala v. Quarterman, 338 F. App’x 388, 393 (5th Cir. 2009) (per curiam)
(“Because procedural default does not constitute an ‘adjudication on the merits’ for AEDPA
purposes, the state court’s finding of procedural default itself is reviewed de novo . . . .” (citing
Valdez v. Cockrell, 274 F.3d 941, 946-47 (5th Cir. 2001))), cert. denied sub nom. Sigala v.
Thaler, 130 S. Ct. 1506 (2010).
       53
        See, e.g., Wright v. Quarterman, 470 F.3d 581, 586 (5th Cir. 2006), cert. denied, 551
U.S. 1134 (2007).
       54
          470 U.S. 68 (1985). Although the Supreme Court has declined to decide that Ake
applies in the habeas context, see Coleman, 501 U.S. at 741, we have held that it does, see
Rivera, 505 F.3d at 359. See also Stewart v. Smith, 536 U.S. 856, 860 (2002) (per curiam)
(assuming without deciding that the rule announced in Ake, a direct-review case, also applies
in habeas cases).

                                                16
him access to a psychiatrist to assist him in preparing his defense.           The
Oklahoma state courts held that he had waived this argument.55 However,
Oklahoma’s waiver rule did not apply to fundamental trial error, and under
Oklahoma law any violation of a federal constitutional right was fundamental
trial error.56 As a result, the Supreme Court concluded that the Oklahoma
courts’ waiver ruling was not an independent and adequate state-law ground:
      [T]he State has made application of the procedural bar depend on an
      antecedent ruling on federal law, that is, on the determination of
      whether federal constitutional error has been committed. Before
      applying the waiver doctrine to a constitutional question, the state
      court must rule, either explicitly or implicitly, on the merits of the
      constitutional question. . . . [W]hen resolution of the state
      procedural law question depends on a federal constitutional ruling,
      the state-law prong of the court's holding is not independent of
      federal law.57
Ake stands for the proposition that when a state court’s application of a
procedural rule rests on an antecedent decision of an issue of federal law, a
federal court can review or decide the same federal issue that the state court
decided.
      The difference between Ake and this case is that the federal-law issue the
CCA decided when it applied § 5(a)(3) is not the same federal-law issue on which
Rocha seeks habeas relief. By applying the waiver rule to Ake, the Oklahoma
courts concluded that the federal constitutional claim that was the basis of Ake’s
habeas petition was meritless. By dismissing Rocha’s state habeas application
as an abuse of the writ, the CCA formed no conclusion about Rocha’s Wiggins
claim. Rather, it determined that (1) Rocha’s Wiggins claim should be dismissed

      55
           Ake, 470 U.S. at 74.
      56
           Id. at 74-75.
      57
           Id. at 75.

                                       17
on an independent and adequate state-law ground unless Rocha could satisfy
Sawyer’s actual-innocence-of-the-death-penalty standard; and (2) Rocha could
not satisfy Sawyer. State law—specifically, § 5(c)— was the basis for the CCA’s
dismissal. Unlike the Oklahoma courts in Ake, the CCA applies §§ 5(c) & 5(a)(3)
to all successive state habeas applications that cannot demonstrate actual
innocence of the death penalty, regardless of the merits of the federal
constitutional claims contained in those applications. Nothing in Ake suggests
that a state court’s resolution of a single issue of federal law allows a federal
habeas court to decide any and all issues of federal law that the state court
might have, but did not, reach.58
      Second, Rocha contends that we are wrong to conclude that § 5(a)(3) adopts
a definition of actual innocence of the death penalty that is coextensive with the
definition announced in Sawyer. We disagree for two reasons. First, in Haynes
v. Quarterman a panel of this Court held that § 5(a)(3) codifies Sawyer’s
requirement that the petitioner must present evidence that he is ineligible for the
death penalty.59 Haynes is a published opinion, so its holding binds us. But we
would have reached the same conclusion even if we were writing on a clean slate.
As we explained in our opinion,60 in Ex parte Blue the CCA expressly declined to


       58
          Cf. ROMUALDO P. ECLAVEA, ET AL., 4 AM. J UR. 2 D APP. REV. § 46 (Westlaw current
through July 2010) (“An adequate state ground may preclude Supreme Court review of some
federal issues which the state court refused to reach on state procedural grounds, while not
precluding review of other federal issues which the state supreme court did decide, finding that
there was no procedural bar to deciding those issues.” (citing Cramp v. Bd. of Pub. Instruction,
368 U.S. 278 (1961))).
       59
          See 526 F.3d at 197 (“Haynes alleges that mitigating evidence could have influenced
the jury’s discretion but does not argue that evidence not presented due to alleged ineffective
assistance of counsel would render him ineligible for the death penalty. Therefore, he has no
meritorious argument that the Texas Court of Criminal Appeals would allow him to file a
successive application for post-conviction relief . . . .”).
       60
            See Rocha, 619 F.3d at 406 (slip op. at 24-26).

                                               18
hold that § 5(a)(3) is anything more than a codification of Sawyer.61 We think it
is beyond unlikely that the CCA announced a novel theory of § 5(a)(3) sub silentio
in the course of dismissing Rocha’s petition as an abuse of the writ.
      Third, Rocha argues that our decision conflicts with this Court’s previous
decisions in Rivera, Ruiz, and Balentine. In effect, Rocha contends that prior
decisions of both the CCA and this Court have robbed Texas’s abuse-of-the-writ
statute of its independent state-law character. We conclude otherwise. A full
explanation of the reasons for our contrary conclusion requires us to trace the
history of Texas’s abuse-of-the-writ doctrine in some detail. We turn to that
history now.


                                              II.
                                              A.
      We have long acknowledged that a state’s abuse-of-the-write doctrine can
sometimes qualify as an independent and adequate state-law ground that
functions as a procedural bar to federal-court merits review of habeas claims.62
The Texas Court of Criminal Appeals first created an abuse-of-the-writ doctrine
in 1974.63 But for the first twenty years of the doctrine’s existence, Texas courts




       61
          See Ex parte Blue, 230 S.W.3d at 160 n.42 (“[I]t is arguable that, in theory at least,
. . . [§ 5(a)(3)] would also permit a subsequent state habeas applicant to proceed under
circumstances that would not excuse a federal petitioner under Sawyer v. Whitley. We need
express no ultimate opinion on this question here.”).
       62
        See, e.g., Emery v. Johnson, 139 F.3d 191, 195 (5th Cir. 1997), cert. denied, 525 U.S.
969 (1998).
       63
         See Ex parte Carr, 511 S.W.2d 523 (Tex. Crim. App. 1974). See generally Charles M.
Mallin, Death Penalty: Texas Law—Subsequent Writs and Abuse of the Writ Doctrine in Texas,
6 TEX. WESLEYAN L. REV. 151, 163-67 (2000) (tracing the origins and history of Texas’s abuse-
of-the-writ doctrine).

                                              19
failed to apply it in a strict or regular manner.64 This failure rendered the
doctrine an inadequate state-law ground, and “therefore, we . . . refused to honor
it.”65 That changed in 1994, when the Court of Criminal Appeals “announced the
adoption of a strict abuse-of-the-writ doctrine, tempered only by an exception for
cause.”66 Post-Barber, Texas’s abuse-of-the-write doctrine became “an adequate
procedural bar for purposes of federal habeas review,”67 and we honored it
accordingly.
      Just one year later the Texas legislature codified the CCA’s abuse-of-the-
writ doctrine in Article 11.07 § 4(a)—which applies to non-capital felonies —and
Article 11.071 § 5(a), which applies to capital cases such as Rocha’s. Initially, we
were uncertain whether § 5(a) supplanted or merely supplemented the CCA’s
abuse-of-the-writ doctrine.68 The CCA soon clarified that § 5(a) is a codification
of the judicially created abuse-of-the-writ doctrine.69 Over the next several years


       64
            See Emery, 139 F.3d at 195.
       65
            Id. (citing Lowe v. Scott, 48 F.3d 873, 876 (5th Cir. 1995)).
       66
            Id. (citing Ex parte Barber, 879 S.W.2d 889, 891 n.1 (Tex. Crim. App. 1994) (en banc)).
       67
         Emery, 139 F.3d at 196; see also Fearance, 56 F.3d at 642 (“After Barber, dismissals
of Texas habeas petitions as an abuse of the writ should create a procedural bar under the
Coleman standard.”).
       68
          See, e.g., Nobles, 127 F.3d at 423 n.32 (“In view of the dearth of judicial interpretation
of Article 11.071 § 5(a), however, we cannot definitively say, and therefore do not venture to
guess, whether that section was intended to codify the preexisting abuse-of-writ doctrine.”).
       69
           See Barrientes v. Johnson, 221 F.3d 741, 759 n.10 (5th Cir. 2000) (“We treat article
11.071 as a codification of the Texas abuse-of-the-writ doctrine.” (citing Ex parte Smith, 977
S.W.2d 610, 611 n.4 (Tex. Crim. App. 1998))), cert. denied, 513 U.S. 1134 (2001); see also Ex
parte Kerr, 64 S.W.3d 414, 418 n.11 (Tex. Crim. App. 2002) (“[T]his Court had long ago
recognized the jurisprudential problems attendant to multiple writ filings and hinted of judicial
invocation of the ‘abuse of the writ’ doctrine . . . . Articles 11.07 and 11.071 now statutorily
require the consistent application of the “abuse of the writ” doctrine to subsequent writ
filings.”); Ex parte Davis, 947 S.W.2d 216, 226 (Tex. Crim. App. 1996) (en banc) (McCormick,
P.J., concurring) (“The successive writ provisions of Article 11.071, Section 5(a), for the most

                                                20
we developed an unbroken line of precedent holding that a successive state
habeas application that had been dismissed as an abuse of the writ because it
failed to satisfy § 5(a) had been dismissed on an independent and adequate state-
law ground.70
      Then, in 2002, the Supreme Court held in Atkins v. Virginia that the
Eighth Amendment prohibits the execution of mentally retarded persons.71 This
new rule of constitutional law was made retroactive on habeas review.72 Section
5(a)(1) permits the filing of “a subsequent application for a writ of habeas corpus”
if the claim that the application presents could not have been presented in a
previous application “because the . . . legal basis for the claim was unavailable on
the date the applicant filed the previous application.”73 By its terms, then,
§ 5(a)(1) would have entitled any Texas death-row inmate who had filed an initial
habeas application before June 20, 2002, to file a successive application.74
      Confronted with the specter of state district courts being forced to consider


part are merely a legislative codification of the judicially created ‘abuse of the writ’ doctrine.”).
       70
          See, e.g., Aguilar v. Dretke, 428 F.3d 526, 533 (5th Cir. 2005) (“This court has
consistently held that Texas’ abuse-of-writ rule is ordinarily an ‘adequate and independent’
procedural ground on which to base a procedural default ruling. (citing Matchett v. Dretke, 380
F.3d 844, 848 (5th Cir. 2004), Henderson v. Cockrell, 333 F.3d 592, 605 (5th Cir. 2003), and
Horsley v. Johnson, 197 F.3d 134, 137 (5th Cir. 1999))), cert. denied, 547 U.S. 1136 (2006).
       71
            536 U.S. at 321.
       72
            Bell v. Cockrell, 310 F.3d 330, 332 (5th Cir. 2002).
       73
            TEX. CODE CRIM. PROC. art. 11.071 § 5(a)(1).
       74
          See Ex parte Williams, No. 43,907-02, 2003 WL 1787634, at *3 (Tex. Crim. App. Feb.
26, 2003) (unpublished) (Price, J., dissenting) (“The applicant filed this subsequent application
for writ of habeas corpus under Texas Code of Criminal Procedure Article 11.071. He alleges
that he is mentally retarded, that the United States Constitution prohibits execution of the
mentally retarded, and that the legal basis for this claim, Atkins v. Virginia, 536 U.S. 304,
(2002), was not available when his initial application was filed. According to the plain meaning
of Article 11.071, the applicant’s case should be remanded for the convicting court to determine
the merits of his claim.”).

                                                21
large numbers of successive habeas applications raising meritless Atkins claims,75
the Court of Criminal Appeals made a choice.                     It opted to create a new
requirement for habeas applicants who sought to bring a subsequent Atkins
petition under§ 5(a)(1):
       A second or subsequent writ must contain ‘sufficient specific facts’
       to support an applicant’s Atkins claim. . . . The mere assertion of a
       valid legal claim, unsupported by sufficient specific factual
       allegations which, if true, would entitle the applicant to relief, is not
       enough to overcome a Section 5 bar. . . . [The applicant] must
       provide evidence of a prima facie case, sufficient evidence to
       withstand a directed verdict or a ‘no evidence’ summary judgment
       motion that he has a factual basis for his claim under
       newly-established law.76
With this preliminary screening, the Court responded to an anticipated flood of
meritless Atkins claims.
      This choice came with costs. The CCA’s screening function entailed a



       75
           See id. at *1 (Cochran, J., concurring) (“A second or subsequent . . . which makes the
naked assertion, ‘I am mentally retarded,’ obviously does not suffice [under § 5(a)(1)]. If it did,
every inmate on death row would be equally entitled to file a subsequent writ in the hope that
something, somewhere might turn up to support this bare assertion.”); see also Ex Parte
Brooks, 219 S.W.3d 396, 400 (Tex. Crim. App. 2007) (“While Article 11.071, section 5(a)(1) does
not state that the application must include facts establishing that the applicant has a prima
facie Atkins claim, it would be absurd to consider applications in which the applicant does not
show that the previously unavailable legal basis applies to his claim. To read the statute
otherwise would mean that every time a new law is passed or precedent is set, every inmate
could file a subsequent application for writ of habeas corpus, regardless of whether the newly
available legal basis applied to his situation, and the court would have to consider the merits.
This clearly undermines the purpose of the subsequent-writ provisions.”); Ex Parte Staley, 160
S.W.3d 56, 64 (Tex. Crim. App. 2005) (per curiam) (explaining that “a death-row inmate may
file a subsequent writ application based upon the newly available legal claim of mental
retardation under Atkins v. Virginia, but if his application states that his I.Q. has repeatedly
been tested at 120-130, he has failed to state sufficient specific facts establishing a cognizable
claim under Atkins” and his application should be dismissed under § 5(a)(1) (footnote omitted)).


       76
            See Ex parte Williams, 2003 WL 1787634, at *1 (Cochran, J., concurring) (footnote
omitted).

                                               22
prima facie review of the substantive merits of each applicant’s Atkins claim.77
This prima-facie review meant that CCA decisions dismissing Aktins claims for
failure to satisfy § 5(a)(1) rested on the merits of those claims. Consequently, the
federal courts were not procedurally barred from considering federal habeas
petitions advancing Atkins claims that had been dismissed as abuses of the writ
for failure to satisfy § 5(a)(1).78 We first recognized that this new, Atkins-specific
screening function had robbed § 5(a)(1) dismissals of their independent, state-law
character in our 2005 decision in Morris v. Dretke.79
      Change was afoot. Over the next several years we reached the merits of at
least four Atkins claims notwithstanding the fact that the CCA had determined
that they failed to satisfy § 5(a)(1) and dismissed them as abuses of the writ.80


       77
         See, e.g., Ex parte Johnson, No. 36,139-04, 2003 WL 21715265, at *2 (Tex. Crim. App.
June 6, 2003) (unpublished) (Johnson, J., concurring) (detailing what kind of evidence is
necessary “[t]o fulfill the prima facie requirement for an Atkins claim” and concurring in the
dismissal because of the “applicant's failure to produce ‘sufficient specific facts’ to support an
Atkins claim”).
       78
         This new requirement that Atkins claims make a prima facie showing of merit was,
as the CCA itself recognized, judicial gloss on § 5(a)(1) not mandated by the text of the statute.
See Williams, 2003 WL 1787634, at *3-*6 (Price, J., dissenting) (criticizing the majority for
departing from the text of the statute). But its judge-made character did not, and does not,
make it any less binding on the federal courts. See supra note 21 and cases cited therein.
       79
         See 413 F.3d 484, 500 n.4 (5th Cir. 2005) (Higginbotham, J., concurring) (“A dismissal
under article 11.071(5)(a) normally constitutes an adequate and independent procedural bar
to federal review. However, in the Atkins context, Texas courts have imported an antecedent
showing of ‘sufficient specific facts’ to merit further review, rendering dismissal of such claims
under article 11.071(5)(a) a decision on the merits.” (internal citations omitted)).
       80
          See Eldridge v. Quarterman, 325 F. App’x 322, 324 (5th Cir.), cert. denied sub nom.
Eldridge v. Thaler, 130 S. Ct. 536 (2009); Williams v. Quarterman, 293 F. App’x 298, 301-02
(5th Cir. 2008) (per curiam); Rosales v. Quarterman, 291 F. App’x 558, 562 (5th Cir. 2008), cert.
denied, 129 S. Ct. 1317 (2009); Rivera, 505 F.3d at 359-60; see also Moreno v. Dretke, 450 F.3d
158, 165 n.3 (5th Cir. 2006) (noting a division among the district courts of this circuit over
whether a CCA dismissal on the grounds that a petitioner failed to allege sufficient facts to
establish a prima facie Atkins claim was a procedural or merits-based dismissal, but declining
to resolve the question), cert. denied, 549 U.S. 1120 (2007).

                                              23
The first case in which we did so was Rivera v. Quarterman:81
       [T]o decide whether an Atkins claim is an abuse of the writ, the CCA
       examines the substance of the claim to see if it establishes a prima
       facie case of retardation . . . . Thus, a decision that an Atkins
       petition does not make a prima facie showing—and is, therefore, an
       abuse of the writ—is not an independent state law ground. . . .
       Although Texas’ abuse of the writ doctrine is superficially
       procedural . . ., it steps beyond a procedural determination to
       examine the merits of an Atkins claim. For an Atkins claim, the
       merits determination is at a minimum “interwoven” with the
       constitutional prohibition against executing the mentally retarded.82
But even as we announced this holding we took care to limit its reach: “Of
course, this court has held in other circumstances that Texas’ abuse of the
writ doctrine is an adequate and independent state law ground, but the
merits showing now incorporated for Atkins claims changes the character
of the doctrine.”83
      Rivera did not overrule our numerous previous holdings that
successive state habeas applications that were dismissed because they
could not satisfy § 5(a) were dismissed on an independent and adequate
state-law ground.84 The new prima-facie-showing requirement the CCA
had engrafted onto § 5(a)(1) was specific to Atkins claims.                    It bears


       81
           Although it does not say so explicitly, Rivera dealt specifically with dismissals under
§ 5(a)(1). See Ex parte Rivera, No. 27,065-02, 2003 WL 21752841, at *1 (Tex. Crim. App. July
25, 2003) (en banc) (per curiam) (unpublished) (“Our habeas corpus statute, Article 11.071,
Section 5(a), states that: 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
... because the factual or legal basis for the claim was unavailable on the date the applicant
filed the previous application.” (quoting TEX. CODE CRIM. PROC. Art. 11.071 § 5(a)(1))).
       82
            505 F.3d at 359-60 (footnotes omitted).
       83
            Id. at 359 n.37 (citations omitted).
       84
            See supra note 70 and cases cited therein.

                                            24
emphasizing that the state of Texas itself—well aware that it could gain
the substantial benefits of AEDPA deference by treating dismissals under
§ 5(a)(1) as dismissals on the merits—took the tack that an Atkins claim
dismissed under § 5(a)(1) was dismissed on the merits and therefore not
procedurally barred.85 But even as we were reaching the merits of Atkins
claims that had been dismissed under § 5(a)(1), we continued to treat other
kinds of petitions that had been dismissed under § 5(a)(1) as having been
dismissed on an independent and adequate state-law ground.86 The prima
facie showing requirement was, at the time, strictly confined to the Atkins
context.
      That began to change in April 2005 when the CCA decided Ex parte
Staley.87 Staley involved a successive habeas application that raised a
Penry II claim.88 The CCA declined to decide whether the Penry II claim

       85
          See, e.g., Response in Opposition to Request for Certificate of Appealability at 12,
Eldridge v. Quarterman, 325 F. App’x 322 (5th Cir. 2009) (No. 08-70012) (“The Court of
Criminal Appeals denied Eldridge’s subsequent state petition finding that he failed to establish
‘a prima facie claim’ . . . . Accordingly, the Texas court’s dismissal of Eldridge’s successive
application was an adjudication on the merits entitled to deference by this Court.”); Brief of
Respondent-Appellant at 33-35, Moore v. Quarterman, 491 F.3d 213, 219 (5th Cir. 2007), rev’d
en banc, 533 F.3d 338 (5th Cir. 2008) (No. 05-70038) (“[A] review of the state court’s treatment
of subsequent Atkins claims indicates a significant reliance on the underlying merits of the
claim. The cases reveal that the state court is actively reviewing the quantity and the quality
of the evidence presented and considering whether the evidence is
sufficient to support a claim of mental retardation. . . . Therefore, in the instant case, the
lower court was not empowered to apply a de novo standard.”).
       86
          See, e.g., Moore v. Quarterman, 534 F.3d 454, 463 (5th Cir. 2008) (“Here, the CCA
explicitly dismissed Moore’s successive application (where he first raised Brady) as an abuse
of the writ, and ‘Texas’s abuse of the writ doctrine is a valid state procedural bar foreclosing
federal habeas review.’” (quoting Coleman v. Quarterman, 456 F.3d 537, 542 (5th Cir. 2006),
cert. denied, 549 U.S. 1343 (2007)).
       87
            160 S.W.3d 56 (Tex. Crim. App. 2005) (per curiam).
       88
          Id. at 62. See generally Penry v. Johnson, 532 U.S. 782 (2001) (holding that Texas’s
nullification jury instruction at the sentencing phase of capital-punishment cases violated the

                                          25
was legally unavailable at the time the applicant filed his first application,
holding instead that the successive application did not “‘contain sufficient
specific facts establishing that’ his claim is cognizable.”89                The CCA
explained that “it is not sufficient to allege that a legal claim was
unavailable at the time of the applicant’s original filing if the facts alleged
in the subsequent application do not bring the constitutional claim under
the umbrella of that ‘new’ legal claim.”90
      Two years later, § 5(a)(1)’s transformation was complete. In Ex parte
Campbell,91 the CCA extended the prima-facie-showing requirement it had
developed under Atkins to all successive habeas claims brought under
§ 5(a)(1). Campbell argued that he was entitled to habeas relief under
Brady v. Maryland and Barefoot v. Estelle.92 The CCA concluded that the
factual basis for his claims was unavailable at the time he filed his original
application93 but nonetheless dismissed his successive application, holding:
             To satisfy section 5(a)(1), . . . 1) the factual or legal 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




Eighth Amendment by failing to give juries adequate opportunity to give effect to mitigating
circumstances).
       89
            Ex parte Staley, 160 S.W.3d at 63 (quoting TEX. CODE CRIM. PROC. Art. 11.071 § 5(a)).
       90
            Id.
       91
            226 S.W.3d 418 (Tex. Crim. App. 2007).
       92
         Id. at 422 (citing Brady v. Maryland, 373 U.S. 83 (1963), and Barefoot v. Estelle, 463
U.S. 880 (1983)).
       93
            Id. at 421-22.

                                            26
       conviction or sentence.94

Post-Campbell, a two-step inquiry—unavailability, then merits—is required
before any successive habeas application can be permitted to proceed under
§ 5(a)(1).95
       One feature of the CCA’s decision in Campbell warrants particular
attention. Campbell establishes that the two requirements of § 5(a)(1) should be
applied sequentially.96 The CCA first examines whether the factual or legal basis
of the claim was unavailable at the time of the original application. Only if the
applicant can surmount the unavailability hurdle does the CCA proceed to ask
whether the application makes out a claim that is prima facie meritorious.
Understanding this second point is critical to our own jurisprudence. If an
applicant fails to satisfy the unavailability requirement, the § 5(a)(1) inquiry is
over, and no merits determination takes place.97
       It did not take us long to register the significance of the change announced




       94
            Id. at 421 (footnote omitted).
       95
          See, e.g., Ex parte Alba, 256 S.W.3d 682, 691 n.28 (Tex. Crim. App. 2008) (applying
the two-part unavailability–merits test under § 5(a)(1) to an Eighth Amendment challenge to
Texas’s lethal-injection protocol); see also Williams, 602 F.3d at 306 (noting that the CCA “has
grafted an additional requirement on the first prong of 11.071 § 5(a)”).
       96
          See Ex parte Campbell, 226 S.W.3d at 422 (“Applicant also must jump over the rest
of the section 5(a)(1) bar. That is, his application must allege sufficient specific facts that, if
proven, establish a federal constitutional violation sufficiently serious as to likely require relief
from his conviction or sentence.” (emphasis added))
       97
           See, e.g., Ex parte Hood, 211 S.W.3d 767, 770 (Tex. Crim. App.) (concluding that
§ 5(a)(1) did not authorize the CCA to consider the merits of a claim presented in a successive
habeas application “because the legal bases upon which applicant relies were available at the
time he filed his second application” and undertaking no discussion of the prima facie merits
of the applicant’s claim), cert. denied, 552 U.S. 829 (2007), reconsideration granted on other
grounds, No. WR-41,168-11, 2008 WL 4946276 (Tex. Crim. App. Nov. 19, 2008) (per curiam).

                                                27
in Campbell. A few months later, in Ruiz v. Quarterman,98 we took note, in
passing, of the change in the law that Campbell had wrought:
             The Texas Code of Criminal Procedure, as interpreted by the
      CCA, provides for subsequent applications where (1) the factual or
      legal basis for the subsequent claim was previously unavailable and
      (2) where the facts alleged would constitute a federal constitutional
      violation that would likely require relief from either the conviction
      or sentence. The boilerplate dismissal by the CCA of an application
      for abuse of the writ is itself uncertain on this point, being unclear
      whether the CCA decision was based on the first element, a
      state-law question, or on the second element, a question of federal
      constitutional law.99
      In his petition for rehearing, Rocha misreads this passage from Ruiz in
three ways. First, he reads it to be binding precedent that controls our
interpretation of all three subsections of § 5(a), including § 5(a)(3). That reading
is more than Ruiz will bear. As its citation to Campbell made clear,100 Ruiz
spoke only of dismissals under § 5(a)(1). Subsections 5(a)(1) and 5(a)(3) carry
different meanings—different enough that in Ex parte Blue, the CCA’s seminal
decision interpreting § 5(a)(3), the CCA did not even cite to, much less discuss,
its prior decision in Campbell.101
      Second, Rocha ignores the fact that our decision in Ruiz was a product of
the unique procedural posture in which the case arrived at our court. Ruiz
emerged from a fractured CCA that produced three separate opinions,102 two of


      98
           504 F.3d 523 (5th Cir. 2007).
      99
           Id. at 527 (footnote omitted).
      100
            See id. at 527 n.11.
      101
            See Ex parte Blue, 230 S.W.3d at 159-63.
      102
          See Ex parte Ruiz, No. WR-27,328-03, 2007 WL 2011023, at *1 (Tex. Crim. App. July
6, 2007) (per curiam) (unpublished).

                                             28
which discussed the merits of Ruiz’s state habeas application.103 Only four
judges joined in the plurality opinion’s dismissal of Ruiz’s application as an
abuse of the writ. The necessary fifth vote for the CCA’s decision104 came from
Judge Womack, whose concurring opinion concluded that Ruiz had failed to
allege a meritorious claim of ineffective assistance of counsel at sentencing.105
As such, Judge Womack’s concurrence was inarguably merits-based. We thus
concluded that the CCA’s decision as a whole rested not on § 5(a)(1) but on its
rejection of Ruiz’s Wiggins claim on the merits: “Judge Womack’s opinion,
necessary to the court’s judgment, pushes the court toward a clear merit ruling,
and in any event deprives the plurality of a fifth vote on an independent and
adequate state ground.”106 We reached the merits of Ruiz’s claim because Judge
Womack—and hence the CCA’s decision—reached the merits, not because of any
conclusion we drew about the state- or federal-law character of a dismissal under


       103
           See Ex parte Ruiz, No. WR-27,328-03 (Tex. Crim. App. July 6, 2007) (per curiam)
(unpublished) (Womack, J., statement respecting dismissal) (“Ruiz . . . alleges that he was
denied effective assistance of counsel when his trial attorneys failed to present certain evidence
at the punishment hearing . . . . The evidence in question was of two kinds: certain facts about
the applicant's experiences during childhood and the opinion of a psychologist. Trial counsel
hired the psychologist, considered his report, and chose not to call him at trial because his
findings about the applicant would do more harm than good. This was not an unreasonable
decision.”),         available at http://www.cca.courts.state.tx.us/opinions/
HTMLOpinionInfo.asp?OpinionID=15705; id. (Holcomb, J., dissenting) (“[T]he applicant in this
case has suffered a violation of his Sixth Amendment right to counsel . . . .”), available at
http://www.cca.courts.state.tx.us/opinions/HTMLOpinionInfo.asp?OpinionID=15706.
       104
          When the CCA is convened en banc, “‘the concurrence of five Judges shall be
necessary for a decision.’” Ruiz, 504 F.3d at 527 n.12 (quoting TEX. CONST. art. 5, § 4(b)).
       105
          See supra note 103. Under binding CCA precedent, “the rule for determining a
majority holding in a case decided by a fragmented court” in which “‘no single rationale
explaining the result enjoys the assents of five Justices’” is that “‘the holding of the Court may
be viewed as the position taken by those Members who concurred in the judgment on the
narrowest grounds.’” Haynes v. State, 273 S.W.3d 183, 188-89 (Tex. Crim. App. 2008)
(emphasis omitted) (quoting Marks v. United States, 430 U.S. 188, 193 (1977)).
       106
             Ruiz, 504 F.3d at 528.

                                               29
§ 5(a)(1).
      Third, Rocha argues that Ruiz obliges us to conclude that § 5(a)(1) is
dependent on federal law in all cases. Not so. It is true that prior to Campbell,
our decisions had assumed that a dismissal under § 5(a)(1) always rested on an
independent and adequate state-law ground. That assumption cannot survive
Campbell. At the same time, it is not the case that a post-Campbell dismissal
under § 5(a)(1) never rests on an independent and adequate state-law ground.
Whether a § 5(a)(1) dismissal is independent of federal law turns on case-specific
factors. If the CCA’s decision rests on availability, the procedural bar is intact.
If the CCA determines that the claim was unavailable but that the application
does not make a prima facie showing of merit, a federal court can review that
determination under the deferential standards of AEDPA.
      We correctly interpreted the CCA’s application of its “unavailability, then
merits” approach to § 5(a)(1) in Hughes v. Quarterman.107 There, the CCA had
issued a boilerplate abuse-of-the-writ order dismissing a successive application
that raised a Penry II claim.108 We held that the claim was procedurally barred,
reasoning that “[n]o application or interpretation of federal law is required to
determine whether a claim has, or could have, been presented in a previous
habeas application.”109 There was “nothing in [the CCA’s] perfunctory dismissal
of the claims that suggest[ed] that it actually considered or ruled on the
merits.”110 Especially in light of the CCA’s holding that the legal basis for a



      107
            530 F.3d 336 (5th Cir. 2008), cert. denied, 129 S. Ct. 2378 (2009).
      108
            Id. at 340.
      109
            Id. at 342.
      110
            Id.

                                               30
Penry claim had been available since 1989,111 everything about the CCA’s
perfunctory dismissal of Hughes’s claim under § 5(a)(1) suggested that the
dismissal rested an independent state-law ground—specifically, on the fact that
the factual and legal bases for the claim were available when Hughes filed his
first state habeas application.            Under Campbell, if a successive habeas
application cannot satisfy the requirement of unavailability, the court need not
inquire any further.
       Hughes illustrates the proper application of Coleman v. Thompson112 to a
CCA determination that a successive habeas application does not satisfy
§ 5(a)(1). Under Coleman, we are required to presume that a state-court habeas
decision does not rest on an independent state-law ground only if we first
determine that the state-court decision we are reviewing “‘fairly appears to rest
primarily on federal law, or to be interwoven with the federal law.”113 We

       111
          See Ex parte Hood, 211 S.W.3d at 778 (“Penry I stood as a Supreme Court decision
from which an applicant could ‘reasonably formulate’ the contention that he was entitled to
jury consideration of any type of mitigating evidence.” (citing Penry v. Lynaugh, 492 U.S. 302
(1989), rev’d in part on other grounds by Atkins v. Virginia, 536 U.S. 304 (2002))); id. at 779
(“Penry I afforded a legal basis for contending that the defendant’s mitigating evidence was
constitutionally relevant to determining whether he should receive the death penalty.”).
       112
           501 U.S. 722, 735 (1991) (“In habeas, if the decision of the last state court to which
the petitioner presented his federal claims fairly appeared to rest primarily on resolution of
those claims, or to be interwoven with those claims, and did not clearly and expressly rely on
an independent and adequate state ground, a federal court may address the petition.”); see also
Michigan v. Long, 463 U.S. 1032 (1983) (holding that a state-court decision that fairly appears
to rest on or be interwoven with federal law will be presumed to be based on federal law unless
the state high court whose judgment the Supreme Court is reviewing makes a clear and
express statement to the contrary); Harris v. Reed, 489 U.S. 255 (1989) (extending the Long
presumption to the federal-habeas context).
       113
          Coleman, 501 U.S. at 735 (quoting Long, 463 U.S. at 1040-41); see also Young v.
Herring, 938 F.2d 543, 553 (5th Cir. 1991) (en banc) (“‘A predicate to the application of the
Harris presumption . . . is that the decision of the last state court to which the petitioner
presented his federal claims must fairly appear to rest primarily on federal law or to be
interwoven with federal law.’” (quoting Coleman, 501 U.S. at 735)), cert. denied, 503 U.S. 940
(1992).

                                              31
observed in Ruiz that “[t]he boilerplate dismissal by the CCA of an application
for abuse of the writ [under § 5(a)(1)] is . . . unclear whether the CCA decision
was based on [unavailability], a state-law question, or on [prima facie lack of
merit], a question of federal constitutional law.”114 It does not follow from that
observation that every dismissal under § 5(a)(1) fairly appears to rest on or be
interwoven with federal law. A CCA decision fairly appears to rest on state law
if it dismisses a subsequent habeas application under § 5(a)(1) because the
application does not raise a claim that was factually or legally unavailable.115
       Coleman does not require us to check our common sense at the door when
we read an opinion of the CCA with an eye toward ascertaining its decisional
basis. The Supreme Court’s overarching aim in Coleman was to reduce the
number of habeas cases in which the lower federal courts applied the Harris
presumption.116 Adopting the rule that all post-Campbell § 5(a)(1) dismissals are
based on federal law “would greatly and unacceptably expand the risk that
federal courts will review the federal claims of prisoners in custody pursuant to



       114
             Ruiz, 504 F.3d at 527.
       115
           See, e.g., Maldonado v. Thaler, No. 10-70003, 2010 WL 3155236, at *6-*7 (5th Cir.
Aug. 10, 2010) (per curiam) (unpublished) (“Maldonado has never, in this court or before the
district court, contended that the factual or legal bases for these Fifth and Sixth Amendment
claims were unavailable when he filed his initial habeas petition, and there is no basis in the
record to conclude that they were. . . . Accordingly, we conclude that the dismissal of
Maldonado's subsequent habeas application was premised on an adequate and independent
state procedural ground.”).
       116
           See, e.g., Coleman, 501 U.S. at 740 (“There is . . . little that the federal courts will
gain by applying a presumption of federal review in those cases where the relevant state court
decision does not fairly appear to rest primarily on federal law or to be interwoven with such
law, and much that the States and state courts will lose. We decline to so expand the Harris
presumption.”); id. at 736 (“Coleman urges a broader rule: that the presumption applies in all
cases in which a habeas petitioner presented his federal claims to the state court. This rule
makes little sense.”); id. at 739-40 (“In the absence of a clear indication that a state court
rested its decision on federal law, a federal court’s task will not be difficult.”).

                                               32
judgments resting on independent and adequate state grounds.”117 We should
be especially mindful of that concern as we interpret § 5(a), a state statute whose
express purpose is to reduce the number of successive habeas applications that
receive full merits review.118 When the CCA dismisses a successive habeas
application on the ground that it does not satisfy § 5(a)(1), we can—and
should—read its order of dismissal to determine which of the two elements of
§ 5(a)(1) was the basis of the court’s dismissal. A boilerplate dismissal might be
ambiguous on this point, but finding clarity in ambiguity is the bread-and-butter
work of a federal court of appeals.
       The opinion on rehearing in Balentine v. Thaler (hereinafter, “Balentine
II”)119 lies comfortably with our analysis.            Balentine’s successive habeas
application raised a Wiggins claim of ineffective assistance of counsel at
                 120
sentencing.            The Court of Criminal of Appeals issued a perfunctory three-
paragraph order dismissing his successive application on the ground that it
“failed to satisfy the requirements of Article 11.071 § 5.”121 The CCA did not
specify which of § 5(a)’s three subsections it was addressing. Balentine had not
argued that he did not commit the crime for which he had been convicted, so




       117
             See id. at 739.
       118
          See Ex parte Brooks, 219 S.W.3d at 399 (“The purpose of the Habeas Corpus Reform
Act of 1995 was to . . . limit[] the availability of subsequent applications . . . .”).
       119
          See Balentine v. Thaler, No. 09-70026 (5th Cir. Nov. 17, 2010) (“Balentine II”).
Balentine II withdraws Balentine I, see Balentine v. Thaler, 609 F.3d 729 (5th Cir. 2010),
thereby mooting Rocha’s objection that our panel opinion conflicts with Balentine I.
       120
          See id. slip op. 19. Balentine’s successive state habeas application also raised a
Batson claim, but Balentine did not continue to pursue that claim in federal court. Id.
       121
           Ex parte Balentine, No. WR-54,071-01, 2009 WL 3042425, at *1 (Tex. Crim. App.
Sept. 22, 2009) (per curiam) (unpublished).

                                            33
§ 5(a)(2) did not apply.122           The CCA must have dismissed his successive
application because it did not satisfy the requirements of either § 5(a)(1) or
§ 5(a)(3). Balentine II determined that this dismissal did not constitute a merits
determination.
       As to § 5(a)(1), Balentine II acknowledged that the two-part
unavailability–merits inquiry announced in Campbell introduces some
uncertainty into dismissals under § 5(a)(1), but it rejected the position that this
“uncertainty should be transformed into a presumption that the state court
reached the merits.”123 As Judge Southwick observed, such a presumption would
run afoul of the Supreme Court’s holding in Coleman that we may not presume
that there is no independent and adequate state-law grounds for a state court’s
decision unless we first determine that “‘it fairly appears that the state court
addressed’” the merits of the prisoner’s federal constitutional claims for habeas
relief.124 Campbell teaches that, absent an express indication otherwise, the
CCA assesses the merits of a successive state habeas application only if it first
concludes that the factual or legal basis for the claim was unavailable. There
was no question that the legal basis for Balentine’s claims was available when
he filed his first state habeas application in 2001,125 and nothing suggested that
Balentine could not have discovered the factual basis for his Wiggins claim
through the exercise of reasonable diligence before he filed his first



       122
             Balentine II, No. 09-70026, slip op. 20.
       123
             Id. slip op. 18.
       124
             Id.
       125
           The Supreme Court first “established the legal principles that govern claims of
ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984).” Wiggins,
539 U.S. at 521.

                                                 34
application.126 As a result, Balentine II concluded that the CCA had not reached
the merits of Balentine’s Wiggins claim in determining that his successive state
habeas application did not satisfy the requirements of § 5(a)(1).127
       As to § 5(a)(3), Balentine II noted that Balentine did not argue in his
successive state habeas application that he could satisfy § 5(a)(3) and that, in
any event, Balentine’s Wiggins claim was not a claim of ineligibility for the death
penalty.128 In this latter regard, Balentine II’s conclusion and analysis are
identical to our own.
       In sum, Rivera holds that the CCA reaches the merits of an Atkins claim
when it determines that the Atkins claim is prima facie without merit and
dismisses the claim for failure to satisfy § 5(a)(1). Ruiz holds that we can reach
the merits of a successive habeas claim that the CCA does not dismiss as an
abuse of the writ under §5(c) but rather denies on the merits. Hughes holds that
a dismissal for failure to satisfy the “factual or legal unavailability” requirement
of § 5(a)(1) rests on state-law grounds. And Balentine II holds first that we
should not treat every dismissal under § 5(a)(1) as a dismissal on the merits and
second that a Wiggins claim is not a claim of actual innocence of the death
penalty.


                                                B.


       126
            See generally TEX. CODE CRIM. PROC. art. 11.071 § 5(e) (“For purposes of Subsection
(a)(1), a factual basis of a claim is unavailable on or before a date described by Subsection (a)(1)
if the factual basis was not ascertainable through the exercise of reasonable diligence on or
before that date.”).
       127
           See Balentine II, No. 09-70026, slip op. 21 (“Balentine’s subsequent application made
no effort to show that the facts or law underlying his Wiggins claim were unavailable to him
at the time of his first state application. . . . Therefore, Section 5(a)(1) was not satisfied.”).
       128
             See id. slip op. 21-23.

                                                35
      There is no dissonance between any of those cases and our holding that we
cannot reach the merits of Rocha’s Wiggins claim, which the CCA determined
did not satisfy § 5(a)(3) and dismissed as an abuse of the writ. The CCA’s
conclusion that Rocha’s successive habeas application did not satisfy § 5(a)(3)
encompassed two separate determinations: (1) because Rocha did not raise his
Wiggins claim in his initial state habeas application, the claim was procedurally
defaulted; and (2) because Rocha could not establish that he is actually innocent
of the death penalty, his procedural default should not be excused. The first of
those determinations is based on a § 5(c), state procedural rule that is
independent of federal law. Indeed, the rule that a prisoner waives any claim
he does not present in his first state habeas application is the quintessential
example of a state-law procedural rule that, when strictly and regularly applied,
bars the federal courts from reaching the merits of a habeas claim.
      The second of those determinations is based on the federal actual-
innocence-of-the-death-penalty standard announced in Sawyer. But the fact that
§ 5(a)(3) incorporates a federal standard for determining when a procedural
default should be excused did not empower the district court—and does not
empower this Court—to review the merits of the federal constitutional claim
that has been procedurally defaulted. A claim that a prisoner is actually
innocent of the death penalty is legally distinct from a claim that a prisoner’s
trial counsel was constitutionally ineffective at sentencing. When the CCA
rejects the former, it does not simultaneously decide the merits of the latter. As
a result, the CCA’s determination that Rocha is not actually innocent of the
death penalty did not open up Rocha’s Wiggins claim for merits review under
AEDPA.
      Rivera and Ruiz do not compel a contrary conclusion. When the CCA
dismisses a successive habeas application because it cannot satisfy the “merits”

                                       36
prong of § 5(a)(1),129 it has conditioned the applicability of § 5(c)’s procedural bar
on an antecedent determination that the federal constitutional claim on which
the applicant seeks relief is without merit. Under Ake,130 such a dismissal fairly
appears to rest on or be interwoven with the merits of the federal constitutional
claim and thus triggers a presumption under Harris that the dismissal was not
based on an independent and adequate state-law ground.131 By contrast, the
CCA’s order dismissing Rocha’s habeas application does not satisfy the “fairly
appears” requirement that is a predicate to the application of the Harris
presumption.132 The CCA’s dismissal of Rocha’s habeas application does not
fairly appear to rest on or be interwoven with resolution of the merits of Rocha’s
Wiggins claim. Rather, the CCA’s dismissal fairly appears to—and in fact
does—rest on its twin determinations that Rocha had previously filed other state
habeas applications and that Rocha cannot establish that he is actually innocent
of the death penalty under § 5(a)(3).
       By enacting § 5(a)(3), the Texas Legislature ceded nothing to the federal
courts that they did not already possess. Sawyer is a federally mandated escape
valve from the doctrine of procedural bar. Sawyer obligates the federal courts
to decide the merits of any claim presented in the first federal habeas petition133


       129
             See supra notes 94-97 and accompanying text.
       130
             See supra notes 54-58 and accompanying text.
       131
             See Coleman, 501 U.S. at 734-35 (citing Harris, 489 U.S. at 266).
       132
           See id. at 736 (“Harris . . . [applies] only in those cases in which ‘it fairly appears that
the state court rested its decision primarily on federal law.’ (quoting Harris, 489 U.S. at 261)).
       133
          Contra 28 U.S.C. § 2244(b)(2) (barring consideration of a successive federal habeas
petition unless the petitioner can show either legal unavailability or newly discovered evidence
plus actual innocence of the underlying offense); In re Webster, 605 F.3d 256, 258-59 (5th Cir.
2010) (concluding in a § 2255(h) case that the use of the phrase “guilt of the offense” in 28
U.S.C. § 2255(h)(1) and § 2244(b)(1)(B)(ii) bars a federal habeas petitioner from bringing a

                                                 37
filed by a state prisoner who can make a clear and convincing showing of actual
innocence of the death penalty, irrespective of whether a state court has
previously decided the claim on its merits. There is no law the Texas Legislature
could have passed that would have insulated successive habeas applications
from the rule announced in Sawyer. Section § 5(a)(3) merely gives Texas’s courts
the first crack at applying the Sawyer escape valve. To conclude that the Texas
Legislature somehow expanded the scope of the Sawyer escape valve merely by
importing it into state law would be to turn the legislative effort on its head.
       The district court denied Rocha’s Rule 60(b) motion on the ground that his
Wiggins claim remains procedurally defaulted. We granted a certificate of
appealability because jurists of reason could have debated the correctness of the
district court’s decision in light of the uncertainty in this area of our
jurisprudence.134 A careful review of our precedent reveals that Judge Harmon
did not err by concluding that Rocha procedurally defaulted his Wiggins claim.
A fortiori, her decision to deny Rocha’s Rule 60(b) motion was not an abuse of
discretion.
       In the end, Rocha finds himself in the same position he was in when he
first filed this federal habeas petition in 2003. At that time, his Wiggins claim
was unexhausted and thus procedurally defaulted; he could have overcome that
procedural default by showing that he is actually innocent of the death penalty.
Rocha did not cure his procedural default by obtaining a ruling from the CCA
that his successive state habeas application was subject to dismissal as an abuse


successive petition based only on a claim of actual innocence of the death penalty), cert. filed,
No. 10-150 (July 27, 2010).
       134
          See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (“When the district court denies a
habeas petition on procedural grounds without reaching the prisoner’s underlying
constitutional claim, a COA should issue when the prisoner shows . . . that jurists of reason
would find it debatable whether the district court was correct in its procedural ruling.”).

                                               38
                            Nos. 05-70028 & 09-70018

of the writ under § 5(c) because it did not satisfy § 5(a)(3). That § 5(a)(3) employs
a federal standard to determine when a procedural default should be excused
does not change the fact that the CCA dismissed Rocha’s Wiggins claim on an
independent and adequate state-law ground. Consequently, our role is limited
to performing the same threshold review under Sawyer that the CCA performed
under § 5(a)(3): for actual innocence of the death penalty. Rocha’s petition for
rehearing does not argue that we erred by concluding that he cannot establish
that he is actually innocent of the death penalty. Therefore, his petition for
rehearing is denied.




HAYNES, Circuit Judge, specially concurring:
      I concur in the actual denial of panel rehearing, while noting that
the petition for rehearing en banc remains pending. I respectfully do not
join in the lengthy opinion accompanying the order denying panel
rehearing because, I submit, it is largely unnecessary. The concern that

                                     39
                                Nos. 05-70028 & 09-70018

animated my original dissent to the portion at issue came to pass: Balentine I
has now been transmuted into Balentine II with a different result and rationale
that, somewhat ironically, encompasses some of the original reasoning of the
original opinion in this case. Rather than adding to this volley of opinions, I
conclude that we are required to follow the decision of Balentine II, specifically,
the last few pages addressing § 5(a)(3), the only subsection at issue in our case,
given the CCA’s wording.
       Under Balentine II’s reading of prior precedent (including our original
opinion in Rocha), the CCA’s perfunctory dismissal of an application raising only
mitigation issues is to be read as a conclusion that Rocha’s state writ application
did not raise issues “sufficiently fundamental as to excuse the failure to raise it
timely in prior state and federal proceedings.” Balentine II, slip op. at 21-22
(internal citations and quotation marks omitted). Unfortunately, this leads to
the anomalous result that denial of a writ expressly referencing a statute that
actually mentions the federal constitution – “by clear and convincing evidence,
but for a violation of the United States Constitution no rational juror would have
answered in the state’s favor one or more of the special issues that were
submitted to the jury in the applicant’s trial under Article 37.071,1 37.0711, or
37.072”2 – is nonetheless not sufficiently intertwined with the United States


       1
           This section is the operative one for Rocha and provides for certain aggravating
circumstances to be presented to the jury in a sentencing hearing following a guilty verdict in
a capital case where the death penalty is sought. After the jury in Rocha’s case unanimously
answered “yes” to the aggravating circumstances questions, the following question, known as
the “mitigating circumstances” question was asked: “Whether, taking into consideration all of
the evidence, including the circumstances of the offense, the defendant’s character and
background, and the personal moral culpability of the defendant, there is a sufficient
mitigating circumstance or circumstances to warrant that a sentence of life imprisonment
rather than a death sentence be imposed.” TEX. CODE CRIM. PROC. ANN. art. 37.071, § 2(e)
(West 1998). The current version of the mitigating circumstances question is identical except
in that it now provides for life imprisonment “without parole.” See TEX. CODE CRIM. PROC.
ANN. art. 37.071, § 2(e)(1) (West 2010).
       2
           TEX. CODE CRIM. PROC. ANN. art. 11.071, §5(a)(3)(West 2010)(emphasis added).

                                              40
                                Nos. 05-70028 & 09-70018

Constitution to allow our review. “One of the special issues” in question is the
mitigation one. It is this one to which Rocha’s Wiggins claim is focused. Because
the Texas statute itself intertwines all special issues – mitigating and
aggravating – with the federal constitutional violation without distinction, I do
not see a basis for treating the mitigating issues differently than any other
arising under this statute for the purpose of deciding which ones involve federal
constitutional issues and which do not.3 But that is where we are. Perhaps our
court will reconsider this subject en banc. Perhaps the Texas Court of Criminal
Appeals will elaborate on the tantalizing Blue footnote 42.4 Given where we are
now, however, I am bound to join in the determination to deny panel rehearing.




       3
        The statute itself intertwines the question of a federal constitutional violation with
the answer to special issues, including the mitigation issue. This circumstance is thus different
from Sawyer, a case which, of course, predates Wiggins. Wiggins, though not a subsequent
habeas case, was, of course, a habeas case about an attorney’s failure to investigate and
present mitigating evidence in a death penalty case.
       4
        Balentine II necessarily concludes that the CCA has closed the door that footnote 42
left open. Blue declined to address the issue because it was an Atkins case that did not raise
a mitigation issue. See 230 S.W.3d at 159, 160 n.42. Presented squarely with a § 5(a)(3)
mitigation claim here and in Balentine II, the CCA dismissed the applications. In order to
declare § 5(a)(3) inapplicable, the CCA must either have concluded (1) that the statute
prohibited consideration of the mitigation question or (2) that the statute required assessment
of the merits of the petitioners’ mitigation claims and found them lacking; § 5(a)(3) is not
discretionary in nature. I acknowledge that Balentine II views the former possibility as more
likely and binds us here, but I note that in doing so we have implicitly held that the CCA has,
without comment, rejected the grounds for review suggested by footnote 42.

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