                                                                                               WR-26,178-03
                                                                               COURT OF CRIMINAL APPEALS
                                                                                                AUSTIN, TEXAS
                                                                               Transmitted 5/26/2015 3:31:51 PM
                                                                                 Accepted 5/27/2015 9:04:12 AM
                                     IN THE                                                      ABEL ACOSTA
                                                                                                         CLERK
                        TEXAS COURT OF CRIMINAL APPEALS
                                                                                RECEIVED
                                                §                       COURT OF CRIMINAL APPEALS
                                                §                               5/27/2015
Ex parte ARTHUR BROWN, JR.                      §                          ABEL ACOSTA, CLERK
                                                                   Cause No. WR-26,178-03
                                                §
                                                §


               MOTION REQUESTING COURT TO FILE AND SET CAUSE

       NOW COMES, Applicant, Arthur Brown, Jr. (“Mr. Brown”), and files this motion

requesting that the Court file and set this cause on the important and pressing issue whether the

Court will reconsider Ex parte Graves, 70 S.W.3d 103 (Tex. Crim. App. 2002), and apply the

equitable principles set out in the recent and groundbreaking decisions in Martinez v. Ryan, 132

S. Ct. 1309 (2012), and Trevino v. Thaler, 133 S. Ct. 1911 (2013), to allow the filing of a

subsequent application for writ of habeas corpus alleging a substantial claim of ineffective

assistance of trial counsel (“IATC”). In support of this motion, Mr. Brown would show the

Court the following:

                                        I. Introduction

       Mr. Brown was convicted of capital murder and sentenced to death in November 1993.

After his conviction and sentence were affirmed on direct appeal and his claims in state and

federal post-conviction proceedings were denied, the trial court set an execution date for October

29, 2013. The trial court subsequently withdrew the execution date in order to allow Mr. Brown

to retest ballistics evidence that the State used to obtain a conviction. On October 29, 2014, Mr.

Brown filed a subsequent application for writ of habeas corpus in the trial court. See Subsequent

Application for Writ of Habeas Corpus Filed in Accordance with Article 11.071, Section 5,

Texas Code of Criminal Procedure [hereinafter Subsequent Habeas Application]. Mr. Brown



                                                1
asserted that the State presented false testimony and withheld favorable and material evidence in

violation of Mr. Brown’s rights under the Due Process Clause of the Fourteenth Amendment to

the United States Constitution. He also asserted that he was denied his Sixth Amendment right

to counsel because his trial counsel provided ineffective assistance by failing to investigate

mitigation evidence for use in the punishment phase of the trial. 1 This application is now

pending before the Court to determine whether it complies with Article 11.071, § 5(a), of the

Texas Code of Criminal Procedure. See TEX. CODE CRIM. P., art. 11.071, § 5(c).

       In the writ application, Mr. Brown acknowledged that he could not satisfy any of the §

5(a) requirements with respect to the Wiggins claim, given the Court’s current construction of the

provision; however, he urged the Court to reconsider Graves, as well as Ex parte Davis, 947

S.W.2d 216 (Tex. Crim. App. 1996), in which the Court upheld § 5(a) against a claim that it

unconstitutionally suspended the writ with respect to subsequent writ applications.                           See

Subsequent Writ Application, at 9-35. Recently, three judges of this Court expressed sympathy

with the argument that the Court should reconsider Graves in order to allow Texas courts to

adjudicate, in the first instance, substantial but otherwise defaulted IATC claims, thus restoring

the deferential review scheme for federal court review of this claims, as embodied in 28 U.S.C. §

2254(d). See Ex Parte Alvarez, No. WR-62,426-04, 2015 WL 1956254, *1 (Tex. Crim. App.

Apr. 29, 2015) (Yeary, J., joined by Johnson & Newll, JJ., concurring) (“I am sympathetic to the

argument that we should reexamine Graves . . . .”). Though the concurrence believed the time

had come for the Court to take up this important and pressing issue, the judges agreed that

Alvarez was not a proper case for resolving it because the petitioner presented his IATC claims

in a second subsequent writ application and provided no explanation for why he could not have

pressed the claim in the first subsequent writ application filed previously. Id. at *9. Unlike
1
       This species of claim is often referred to as a Wiggins claim. See Wiggins v. Smith, 539 U.S. 510 (2003).

                                                       2
Alvarez, Mr. Brown’s case provides an ideal vehicle for this Court to consider this issue—this is

the first subsequent writ application,2 which raises both a substantial IATC claim and significant

evidence that the original state habeas attorney provided ineffective assistance in failing to

investigate the Wiggins claim and support it with fully developed evidence.

        Given the importance of the issue to this State’s death penalty jurisprudence and the ideal

nature of this case for addressing it, this Court should set this cause, order any additional briefing

that the Court may deem necessary, and permit the parties to present the issues in oral argument.

See TEX. CODE CRIM. P., art. 11.071, § 11 (“The court of criminal appeals shall expeditiously

review all applications for a writ of habeas corpus submitted under this article. The court may

set the cause for oral argument and may request further briefing of the issues by the applicant or

the state.”). See also Ex parte Briseño, 135 S.W.3d 1, 11 n.43 (Tex. Crim. App. 2004).

                                                II. Discussion

        A.       The interplay of this Court’s continued commitment to Graves with the equitable
                 exception to federal procedural default doctrine in Martinez and Trevino gives
                 rise to a federalism dilemma in which defaulted IATC claims can receive de novo
                 review in federal court without any prior state court consideration.

        In Martinez, the Supreme Court created an equitable exception3 to the general rule, set

out in Coleman v. Thompson, 501 U.S. 722, 752-53 (1991), that ineffective assistance of state

habeas counsel could not provide cause to excuse the default of a claim in state court. “This

opinion qualifies Coleman by recognizing a narrow exception: Inadequate assistance of counsel

at initial-review collateral proceedings may establish cause for a prisoner’s procedural default of
2
        Though the cause number assigned to this case designates it as “-03,” Mr. Brown’s first writ application
under Article 11.071 received a designation “-02.” The “-01” cause number relates to a mandamus action filed in
1994.
3
          The Court declined to reach the constitutional question left open in Coleman whether there might be a
constitutional right to counsel in state post-conviction proceedings when those proceedings represented the first
opportunity to raise an IATC claim. Martinez v. Ryan, 132 S. Ct. at 1315. Thus, it remains an open question
whether the Constitution might impose a right to counsel, whether sourced in the Sixth Amendment guarantee of
counsel or in the Due Process Clause, in first round post-conviction proceedings in order to develop and present a
potential IATC claim.

                                                        3
a claim of ineffective assistance at trial.” Martinez v. Ryan, 132 S. C.t at 1315. The Court

expressly limited the exception to IATC claims that could only be raised, as a practical matter, in

initial state post-conviction proceedings. Id. Because adjudication of IATC claims bypassed

direct appellate review and occurred at a point in which there was no constitutionally guaranteed

right to counsel, the Court was primarily concerned that violations of the right to counsel, which

the Court characterized as the fundamental, bedrock principle underlying the proper functioning

of the entire criminal justice system, could escape review at any level—in both state and federal

court—unless an exception to the usual rules of procedural default were created. Id. at 1317-18.

In Trevino, the Court held that the Martinez exception applied to Texas cases, given that this

Court actively discouraged raising IATC claims in direct review and effectively routed virtually

all such claims to state post-conviction proceedings for initial and exclusive review. Trevino v.

Thaler, 133 S. Ct. at 1920. Thus, Martinez and Trevino recognized that the right to counsel is

not only singularly important in ensuring the fairness of criminal trials and the production of

reliable results, violations of the right are singularly unique in that the enforcement mechanism is

fixed at a point in the proceedings when there is no constitutionally guaranteed right to counsel.

This circumstance placed the necessary judicial remedy in jeopardy as a systemic matter.

       In Graves, this Court held that ineffective assistance of state habeas counsel could not

constitute an independent, cognizable claim under Article 11.071, § 5(a)(1). Ex parte Graves, 70

S.W.3d at 104-05. Essentially, because there was no “right” to counsel in post-conviction

proceedings, there could be no cognizable “claim” in 11.071 proceedings. Prior to Graves, the

Supreme Court, in Murry v. Giarratano, 492 U.S. 1 (1989), and Pennsylvania v. Finley, 481 U.S.

551 (1987), had held that a capitally sentenced habeas petitioner, as a general rule, did not have a

constitutional right to effective assistance of counsel in state habeas proceedings, and this Court



                                                 4
held in Graves that Article 11.071, § 2(a), which guaranteed “competent” rather than “effective”

counsel, did not create a statutory right to effective assistance of counsel. 70 S.W.3d at 113-17.

Without a right to effective counsel, sourced in either the Constitution or a statute, the Court

believed it was constrained from fashioning a new exception to the bar on subsequent writ

applications contained in § 5. Of course, the inevitable consequence of Graves was that a

petitioner with a substantial IATC claim, if burdened with incompetent counsel in state habeas

proceedings, would lose the right to have any court, state and federal, review the merits of the

claim. See id. at 124-25 (Price, J., joined by Holcomb, J., dissenting) (“Applicants only get one

shot at habeas corpus relief. If the attorney appointed on his first writ is incompetent, then a

defendant, who was deprived of effective assistance of counsel at trial, has no means to enforce

his constitutional right to effective assistance of counsel at trial.”).

        This, of course, changed with Martinez and Trevino. Now IATC claims can receive

federal review, thus bypassing the state court system altogether. Moreover, the principles of

federalism, comity, and finality animating the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”) do not apply to federal consideration of defaulted IATC claims falling under

the Martinez/Trevino exception. As a result, with respect to these claims, this Court is deprived

of its primary role to correct constitutional infirmities affecting Texas judgments. See Rose v.

Lundy, 455 U.S. 501, 518 (1982) (“Because ‘it would be unseemly in our dual system of

government for a federal district court to upset a state court conviction without an opportunity to

the state courts to correct a constitutional violation,’ federal courts apply the doctrine of comity,

which ‘teaches that one court should defer action on causes properly within its jurisdiction until

the courts of another sovereignty with concurrent powers, and already cognizant of the litigation,

have had an opportunity to pass upon the matter.’” (quoting Darr v. Burford, 339 U.S. 200, 204



                                                    5
(1950))). As a number of judges on this Court have recognized, 4 the Court should reassess the

situation under Graves and restore the opportunity to review substantial but otherwise defaulted

IATC claims in the first instance to this Court.

         B.       This Court has a number of options available to it to create a rule that would
                  permit state court review of defaulted IATC claims and thus restore the federal-
                  state balance underlying AEDPA.

         The Alvarez concurrence was not only concerned that right to counsel claims can so

simply escape review, but with the larger implication that effective representation for developing

and presenting IATC claims in state post-conviction proceedings is vitally important to the

operation of the criminal justice system: “Thus, although there is (as yet) no constitutionally

recognized right to counsel for post-conviction proceedings, the advisability of the participation

of counsel at that stage—at least for claims that can be raised for the first time only at that

stage—is as urgent as on direct appeal, where there is a constitutional right to counsel (and

indeed, constitutionally effective counsel) so long as a state provides for direct appellate review.”

Ex parte Alvarez, 2015 WL 1956254, at *3. The concurrence believed a compelling argument

could be made for recognizing a right to effective representation in initial-review collateral

proceedings under Article 11.071, premised on the entitlement doctrine under the Due Process

Clause. Id. at *4 (quoting Evitts v. Lucey, 469 U.S. 387, 401 (1985), for the proposition that

4
         See Ex parte Alvarez, 2015 WL 1956254, at *1-*2 (Yeary, J., joined by Johnson & Newell, JJ., concurring)
(“In my view, recent developments in federal habeas procedure, as well as, to a certain extent, the rationale
underlying those new developments, counsel that the Court should revisit the holdings of Graves.”); Ex parte Diaz,
No. WR-55,850-02, 2013 WL 5424971, at *4-*7 (Tex. Crim. App. Sept. 23, 2013) (urging the Court to stop turning
“a blind eye to the failure—even the abject failure—of initial state habeas counsel to safeguard the constitutional
rights of his client” and fashion a remedy the Court could apply to such cases); id. at *1-*2 (Alcala, J., joined by
Cochran, J., concurring) (asserting that the Court should fashion an equitable exception to § 5 to allow state court
review of defaulted IATC claims; but opining that this case was not the proper vehicle for fashioning the remedy);
Ex parte McCarthy, No. WR-50,360-04, 2013 WL 3283148, at *7-*8 (Tex. Crim. App. Jun. 24, 2013) (Alcala, J.,
joined by Johnson, J., dissenting) (stating that based upon the sea-change in federal law marked by Martinez and
Trevino, the Court should create an “equitable exception that would mirror the federal exception recognized in
Trevino”); id. at *1 (Price, J., joined by Meyers, J., concurring) (though that “not unsympathetic with [Judge
Alcala’s] idea that principles of federalism would justify this Court in taking a second look at the construction it
gave Article 11.071 . . . in Ex parte Graves, in light of . . . Martinez and Trevino, opining that this case was not an
adequate vehicle for doing so).

                                                          6
when the “State opts to act in a field where its action has significant discretionary elements, it

must nevertheless act in accord with the dictates of the . . . Due Process Clause”). Because

Texas guarantees counsel in capital post-conviction proceedings under Article 11.071, “it may

not arbitrarily take [this absolute right to counsel] away without impinging on the applicant’s due

process rights,” as would occur if it tolerated “counsel who was ineffective.”           Id.   The

concurrence distinguished Giarratano because, unlike Texas, Virginia did not provide “an

absolute statutory right to state habeas counsel in capital cases.”        Id. at *5.   Thus, the

concurrence demonstrated that this Court could step in and recognize a constitutional right to

state habeas counsel that the Supreme Court alluded to in Coleman and Martinez.

       The concurrence also suggested that the Court should reconsider its construction of

Article 11.071, § 2(a), in Graves.      Ex parte Alvarez, 2015 WL 1956254, at *5.          To the

concurrence, § 2(a)’s guarantee of “competent” counsel embodied a right to counsel providing

effective representation. “It makes little sense for the Legislature to recognize the need for an

attorney who is competent—that is to say, who has the ‘qualifications, experience, and ability’ to

conduct the daunting factual investigation and to navigate the often-bysantine law involved in

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

provide his client with competent post-conviction habeas corpus representation.” Id. (emphasis

in original). By providing “competent” counsel, the Legislature must have contemplated both

aspects would apply to capital representation. Thus, the concurrence would have this Court

revisit a crucial aspect of the Graves holding.

       Finally, the concurrence suggested that this Court’s holding in Ex parte Medina, 361

S.W.3d 633, 640 (Tex. Crim. App. 2011), in which the Court held that a perfunctory writ

application that failed to state any facts in support of otherwise cursorily pleaded claims was not



                                                  7
a true habeas application and did not trigger the § 5 bar on subsequent applications, could be

extended to defaulted IATC claims. Ex parte Alvarez, 2015 WL 1956254, at *6-*7. Though

Medina was limited to instances of extreme attorney malfeasance, the concurrence believed the

distinction between such a situation and one involving attorney negligence in failing to

investigate and develop an IATC claim did not “withstand[] scrutiny.” Id. at *7. “How is it

objectively less fair to a capital habeas applicant that he has been deprived of his one full and fair

opportunity at comprehensive habeas review by the incompetency—as opposed to the deliberate

gamesmanship—of his initial state habeas counsel? Either way, he suffers ‘through no fault of

his own.’” Id. (quoting Medina, 361 S.W.3d at 642). This is the solution advanced by Judge

Price in Diaz. Ex parte Diaz, 2013 WL 5424971, at *4-*7 (Price, J., dissenting). See also Ex

parte Kerr, 64 S.W.3d 414, 422 (Tex. Crim. App. 2002) (Johnson, J., concurring) (stating that

the Court “can do better” than simply recasting certain writ applications non-applications under

Article 11.071 and could extend the principle to applications that were the result of a broader

range of attorney negligence).

       As noted, supra, in McCarthy and Diaz, Judge Alcala, joined alternately by Judges

Johnson and Cochran, suggested that the Court could simply fashion an equitable remedy under

§ 5 to allow defaulted IATC claims to be considered in a subsequent writ application. Ex parte

Diaz, 2013 WL 5424971, at *1-*2 & n.1 (Alcala, J., joined by Cochran, J., concurring); Ex parte

McCarthy, 2013 WL 3283148, at *5-*8 (Alcala, J., joined by Johnson, J., dissenting).

Nevertheless, the Court historically has felt constrained by the text of § 5 and has expressed an

unwillingness to judicially create a fourth exception to its bar on subsequent writ applications.

See Ex parte Blue, 230 S.W.3d 151, 156 n.21 (Tex. Crim. App. 2007); Ex parte Graves, 70

S.W.3d at 117. Moreover, the Court has demonstrated a reluctance to overrule Graves outright.



                                                  8
       In this case, Mr. Brown posits another option that would allow the Court to consider

subsequent writ applications raising substantial but otherwise defaulted IATC claims without

having to overturn Graves or judicially create a fourth exception under § 5. See Subsequent

Habeas Application, at 9-35. Moreover, the Court would not have to grapple with a difficult

constitutional question. Article 11.071 does not vest this Court with habeas corpus jurisdiction;

rather, it merely regulates a jurisdiction that derives from the Texas Constitution. See TEX.

CONST. art. I, § 12 (establishing the writ of habeas corpus as an absolute “writ of right” but

granting the Legislature the power to “enact laws to render the remedy speedy and effectual”);

TEX. CONST. art. V. § 5 (vesting this Court with original jurisdiction over habeas corpus,

“[s]ubject to such regulations as may be prescribed by law.” Importantly, in Texas, the writ of

habeas corpus may never be suspended. See TEX. CONST. art. I, § 12. In Ex parte Davis, this

Court held that Article 11.071, § 5, did not suspend the writ, as a general matter, with respect to

subsequent writ applications and, thus, did not run afoul of the anti-suspension clause. Ex parte

Davis, 947 S.W.2d 216, 224 (Tex. Crim. App. 1996) (McCormick, PJ., concurring). Instead, § 5

merely regulated “‘means, manner, and mode’” through which Court may exercise of its

constitutionally vested habeas jurisdiction. Id. (quoting Meshall v. State, 739 S.W.2d 246, 255

(Tex. Crim. App. 1987)). Effectively then, § 5 only “regulates when an applicant must seek

relief” and does not preclude entirely an applicant’s ability to present potential cognizable claims

in post-conviction proceedings. Id. at 225 (emphasis in original).

       In the wake of Martinez and Trevino, it is clear that IATC claims are subject to a unique

and intractable risk of forfeiture that undermines the reasoning in Davis. These claims, as a

category, must be raised in post-conviction proceedings; involve an fundamental right essential

to the proper functioning of the criminal justice system; require effective representation to



                                                 9
develop and present; and are removed from proceedings in which effective representation is

constitutionally guaranteed. The mere ability to raise a right to counsel claim in state post-

conviction proceedings is inadequate to protect petitioners with a substantial IATC claim.

Cf.Trevino, 133 S. Ct. at 1920 (rejecting the argument that Martinez did not apply to Texas cases

because of the theoretical opportunity to raise IATC claims on direct appeal). Consequently,

without effective representation, there is a substantial risk that the writ will be suspended as to

IATC claims. Because § 5 can place a substantial IATC claim beyond any state review when

state habeas counsel ineffectively defaults the claim, this Court should hold that § 5, as applied,

unconstitutionally suspends the writ under Article I, § 12, and then draw its jurisdiction to review

the claim directly from the Texas Constitution.

       C.      This case presents an ideal vehicle for this Court to reconsider its § 5
               jurisprudence.

       As the Alvarez concurrence recognized, reconsidering this court’s § 5 jurisprudence in

light of the fundamental changes brought about by Martinez and Trevino “may have the added

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

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

Antiterrorism and Effective Death Penalty Act rather than de novo.” Ex parte Alvarez, 2015 WL

1956254, at *7. However, the concurrence found that Alvarez was not a good vehicle for this

reconsideration because the petitioner in that case had previously filed a subsequent writ

application without raising a substantial IATC claim.       Id. at *9. Thus, the petitioner had

bypassed his opportunity to complain that he had lost his one and only bite at the apple because

of ineffective assistance of state habeas counsel. Id. Mr. Brown’s case is not so burdened. The

writ application currently pending before the Court represents his first opportunity, in the wake




                                                  10
of Martinez and Trevino, to complain that he was deprived of effective assistance of state habeas

counsel.

       Mr. Brown’s writ application pleads and proves a substantial Wiggins claim—one that

has at least some merit. See Subsequent Habeas Application, at 104-41. The record before the

Court contains significant evidence that trial counsel failed to investigate substantial and

compelling mitigation evidence, basing her decision to cease her slight investigative efforts not

upon sound strategy resting on an investigation sufficient to support such a decision but rather

upon her belief that no mitigating evidence would make a difference. This is paradigmatic

ineffective assistance of counsel under Wiggins. See Wiggins v. Smith, 539 U.S. at 526-27;

Lewis v. Dretke, 355 F.3d 364, 368 (5th Cir. 2003); Austin v. Bell, 126 F.3d 843, 848-49 (6th Cir.

1997). Moreover, Mr. Brown has pleaded and provided substantial proof that he was actually

deprived of effective assistance of state habeas counsel. Id. at 141-44. The Wiggins claim is not

only substantial under Martinez and Trevino, it also bears no relation to the bare-bones IATC

claim, constituting just four pages and supported with only one piece of admissible evidence (an

affidavit from Mr. Brown’s mother in which she admitted that she drank while pregnant with

him), that state habeas counsel presented, conceding that the claim he presented was not only

meritless, but that he provided ineffective assistance of counsel in developing and presenting it.

                                         III. Conclusion

       WHEREFORE, PREMISES CONSIDERED, Mr. Brown requests that the Court take this

opportunity to reconsider its § 5 jurisprudence, revise that jurisprudence in accordance with one

of the many alternatives presented to the Court over the years, and hold that the Court has

jurisdiction to consider Mr. Brown’s application for writ of habeas corpus. Mr. Brown requests




                                                11
that the Court order any additional briefing it may deem necessary to assist the Court in resolving

this important issue and permit the parties to present oral argument.

                                                     Respectfully submitted,

                                                     PAUL E. MANSUR
                                                     Texas Defender Service
                                                     Senior Staff Attorney
                                                     Texas Bar No. 00796078
                                                     P.O. Box 1300
                                                     Denver City, Texas 79323
                                                     (806) 215-1025 (telephone)
                                                     (806) 592-9136 (facsimile)
                                                     pmansur@midtech.net



                                                     By: /s/ Paul E. Mansur
                                                         Paul E. Mansur

                                                          Attorney for Defendant,
                                                          Arthur Brown, Jr.

                                      Certificate of Service

       I hereby certify that on May 26, 2015, I served, by email, the foregoing motion on
counsel for Respondent at the following:

Ms. Lynn Hardaway
Assistant District Attorney
Post Conviction Writs Division
Harris County District Attorney’s Office
1201 Franklin Street, Suite 600
Houston, Texas 77002-1923
(713) 755-6657
(713) 755-5240 (facsimile)
hardaway_lynn@dao.hctx.net




                                                     /s/ Paul E. Mansur
                                                     Paul E. Mansur




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