The majority presents a severely limited view of cognizability. Article 11.071 represents a legislative declaration that the State has no legitimate interest in the finality of a judgment of conviction and death sentence obtained in the absence of the appointment of competent counsel for the preparation of the initial application. "Competent counsel" ought to require more than a human being with a law license and a pulse. Today the majority requires nothing more than that to ensure society's interest in fundamental fairness. Article 11.071 and the United States Constitution require that we not dismiss the application in this case. Therefore, I respectfully dissent.

The claims that are cognizable in an application for writ of habeas corpus are those that we designate. Neither the Texas Constitution nor article 11.071 dictate what claims are or are not cognizable. ⁽¹⁾ The applicant's claims are not cognizable in this case only because the majority says they are not.

I agree with the majority that there are competing interests at stake, and that reasonable minds have disagreed on how to balance society's interest in finality and fundamental fairness. Ante majority op at 8-9. The majority goes on to say that: "Even under the most expansive understanding of the writ's post-conviction availability, however, claimants have had to allege and prove, by a preponderance of the evidence, the violation of a specific constitutional provision." For this proposition, the majority cites Sunal v. Large, 373 U.S. 174, 179 (1947). In that case the United States Supreme Court reviewed the availability of federal habeas corpus relief to federal criminal defendants. As such, the case and its conclusions are not particularly relevant to the question we address today: Whether the applicant may raise ineffective assistance of his first habeas counsel in a subsequent writ under article 11.071. The majority assumes without any analysis that in this context the interest in the judgment's finality outweighs the interest in fundamental fairness. We should not give short shrift to the implementation of any habeas applicant’s rights, much less an applicant who files under article 11.071.

The history of the Great Writ going back over the last several centuries, although edifying, does not help us get to the bottom of the legislature’s intent when it enacted article 11.071. It is true that at times we have confined the scope of post-conviction writs of habeas corpus to jurisdictional or fundamental defects or constitutional claims. But that is not the end of the discussion.

We are the guardians of the process. That we have been unclear in the past about what claims are reviewable, without more, is an insufficient reason for this Court to conclude that finality is a superior interest to the fundamental fairness in criminal proceedings in this instance.

Even under the majority’s limited view of cognizability, how can the appointment of counsel for applicant’s one and only writ of right not be a fundamental right? The majority discusses why it believes the right to competent counsel under article 11.071 and the denial of the right thereto are not of constitutional dimension, ⁽²⁾ but it fails to explain how the right to counsel in article 11.071 is not a fundamental right. Does the majority assume that fundamental and constitutional rights are the same? Why then in our opinions do we repeatedly refer to constitutional and fundamental rights? Should we assume that the term fundamental in our opinions was mere surplusage? Apparently that is the case under the majority’s view of the state of the law.

The fact that article 11.071 applicants have a right to direct appeal is of no moment. The claims that may be raised in an application for writ of habeas corpus are, by procedural rules, different from what may be raised on direct appeal. Ex parte Banks, 769 S.W.2d 539, 540 (Tex. Crim. App. 1989). We continually deny relief on the basis that a certain claim could have been or should have been raised on direct appeal. ⁽³⁾

I have grave concerns about dismissing claims like the applicant's. By its own hand, this Court appointed the applicant’s first habeas counsel, an attorney who by any reasonable assessment was not prepared to handle a case of this type. ⁽⁴⁾ Now the same Court washes its hands of applicants who wish to have heard the merits of claims ignored or undiscovered by the inexperienced habeas counsel that we appointed.

Under the decisions announced by the Court today, a habeas applicant has no recourse for the appointment of a less-than-competent attorney, unless counsel fails to file an application or files a document that does not constitute an application. Ex parte Kerr, No. 35,065-04, slip op. at 8 (Tex. Crim. App. Jan. 2, 2002).

Calling ineffective assistance of counsel claims derivative contributes little to our discussion. Of what significance is the fact that it is a derivative claim? Isn’t everything that is brought on habeas derivative in this fashion? Ultimately, the question that we address is whether the applicant had a fair trial. To do this we look at the claims raised, which are derivative of the ultimate claim: My trial was unfair. The majority creates a system whereby the applicant must plead and prove everything before getting past the elusive section five bar. To what end is a remand to the convicting court conducted? See art. 11.071 § 6.

Before we decide to review the scope of cognizability under 11.071 (and seemingly article 11.07), we should order briefing and argument on the issue. In the absence of briefing and argument, the majority ought to at least weigh and discuss the options and give the bench and bar a policy that makes sense in this day and age.

The majority claims that the reference to competent counsel in article 11.071, section 5(a) & (c) concerns counsel's qualifications, experience and abilities at the time of appointment and during the continuity of the representation. But, the majority concludes, counsel's competence does not apply to the final product. Counsel is required to be competent up until just before the final product, the application, is prepared. At that point, counsel may go to pieces, and there is no recourse for the applicant. Even assuming that the reference to competent counsel in article 11.071 concerns counsel's qualifications and abilities, this reference is not inconsistent with requiring that the final product of counsel's representation be competent work.

The majority also claims that the applicant's interpretation of competent counsel would eviscerate section five's general bar to successive applications. Does the majority suggest that Texas is somehow incapable of appointing counsel who turn in competently prepared applications? The majority in Ex parte Kerr cites language from Representative Pete Gallego to the effect that the legislature desired to provide capital defendants with a full and fair opportunity to litigate habeas claims. ⁽⁵⁾ Indeed, the bill analysis prepared for the bill that the legislature enacted explains the legislation's purpose.

Currently the average time between a capital conviction and the imposition of a death sentence is 8.3 years, and it is not unusual for a death-sentenced inmate to be on death row for 16 years before the imposition of sentence. This delay is attributable to a number of factors, not the least of which is that inmates are not currently limited in the number of state habeas applications that they can file.[ ⁽⁶⁾] Delay also occurs when death-sentenced inmates are without legal representation.

If enacted, C.S.S.B [Committee Substitute Senate Bill] 440 would streamline the review of capital convictions and significantly reduce the time between conviction and the imposition of a death sentence, while assuring that capital convictions are fully and fairly reviewed.

House Comm. on Jurisprudence, Comm. Rep., Apr. 27, 1995, Tex. C.S.S.B. 440, 74th Leg., R.S. (1995) (emphasis added). The legislature had no intent to expedite the imposition of death sentences at the expense of a full and fair review of the merits of inmates' claims. The majority's view of competent counsel deletes this requirement from the statute. The appointment of counsel is meaningless without the requirement that counsel be competent.

The majority also claims that if the legislature had intended ineffective assistance of writ counsel to be an exception to the section five bar on subsequent applications, it could have said so. It did. Section five includes an exception to the bar if the factual basis of the claim was not available when the initial application was due. A factual claim was not available if it was not ascertainable through the reasonable exercise of diligence on or before the date the initial application was due. Article 11.071 § 5 (a)(1) & (e). I agree that we recognized in Ex parte Davis, 947 S.W.2d 220, 226 (Tex. Crim. App. 1996) (McCormick, P.J., concurring with four judges joining), that the legislature intended to limit this Court's jurisdiction over subsequent applications. But we did not conclude, nor could we, that the limits placed on our jurisdiction were to be had at the expense of a full and fair review.

Down the slippery slope we go, claims the majority. If we provide for competent counsel as the applicant envisions it, the floodgates will open with subsequent applications; there will be no end to the subsequent applications filed that allege ineffective assistance of prior habeas counsel. But once competent counsel is appointed to competently investigate and present the factual and legal claims available to the applicant, no subsequent application could or would be reviewed for ineffective assistance of habeas counsel.

The majority notes that the legislature has demonstrated an interest in the appropriate appointment of counsel in serious cases. I do not discount the legislature's efforts in this area. In recent years it has sought to improve the quality of representation that all criminal defendants receive in Texas, including the right to appointment of competent counsel under article 11.071, provided in 1995. The majority cites the recently-enacted Texas Fair Defense Act, Act of May 24, 2001, 77th R.S., R.S. ch. 906, 2001 Tex. Gen. Laws 1697, and the 1999 amendment of article 11.071 to require that appointment of counsel be made by the convicting court instead of this Court, Act of May 20, 1999, 76th Leg., R.S., ch 803, 1999 Tex. Gen. Laws 3431.

The Texas Fair Defense Act fills a dire need in this state for ensuring quality representation of indigent criminal defendants. Assuming that what improves the quality of the defense bar generally also improves the quality of counsel appointed to represent applicants under article 11.071, the Act is of benefit to such applicants. But the Act does not apply to article 11.071 applicants. It applies to the pretrial appointment of counsel to indigent defendants.

The 1999 amendment of article 11.071 did not significantly alter the appointment of counsel for habeas applicants. Convicting courts make their appointments according to rules adopted by this Court. Texas Court of Criminal Appeals' Rules for the Appointment of Attorneys Under Article 11.071 Sec. 2(d), V.A.C.C.P. (effective Sept. 1, 1999). Under those rules, this Court maintains a list of attorneys eligible for appointment. After the effective date of the amendment, the convicting court chooses from the list of attorneys that we created and maintain.

The majority claims that the legislature could not have meant for competent counsel to apply to the final product because it would require convicting court judges to be prescient and clairvoyant. I wonder how much clairvoyance is required to determine that an attorney is not qualified and able if, by the time he received his first appointment in an 11.071 case, he had been out of law school for only two years, had been licensed to practice law for only a year-and-a-half, and had never been counsel in a capital murder case but had assisted in two non-capital murder cases. ⁽⁷⁾ Assuming that this Court has improved its method for choosing counsel for the list since applicant's initial application was filed, not much clairvoyance is necessary to pick a name from the list and find competent counsel. Apparently, I have more faith in Texas trial judges than does the majority.

Finally the majority purports to conduct a review of the merits of the applicant's claim. After determining that an applicant meets the section five bar to article 11.071, the appropriate procedure is to remand to the convicting court for findings because we are not authorized to receive evidence. Tex. Code Crim. Proc. art. 11.071 § 8; Ex parte Rodriguez, 169 Tex. Crim. 367, 334 S.W.2d 294 (1960). It is inappropriate for the majority to address the merits at this time, especially in such a cursory manner and before receiving findings from the convicting court.

The Supreme Court has held that criminal defendants are entitled to effective assistance of counsel at trial and on direct appeal. Gideon v. Wainwright, 372 U.S. 335 (1963); Douglas v. California, 372 U.S. 353, 357-58 (1963). In the context of trial, the right to effective assistance of counsel is guaranteed by the Sixth and Fourteenth Amendments. Gideon, 372 U.S. at 339-41. The right to effective assistance of counsel on direct appeal is more complicated and is based on a combination of Fourteenth Amendment due process and equal protection. See generally Ross v. Moffitt, 417 U.S. 600, 608-12 (1974).

In Douglas v. California, the Supreme Court articulated the rationale for the requirement of effective assistance of counsel. The Court addressed a California procedure for direct appeal that required an indigent defendant to make an initial showing of merit to obtain counsel for the direct appeal. See Douglas, 372 U.S. at 354-55. The Court held that due process requires effective assistance of counsel on direct appeal and that requiring an indigent defendant to make a preliminary showing of merit before he is entitled to have counsel appointed to review his case "does not comport with fair procedure." Id. at 357. The Court also held that equal protection requires the right to counsel on direct appeal because, when "the merits of the one and only appeal an indigent defendant has as of right are decided without the benefit of counsel, we think an unconstitutional line has been drawn between rich and poor." Ibid.

In Burns v. Ohio, 360 U.S. 252 (1959), the Supreme Court explained that: "[O]nce the State chooses to establish appellate review in criminal cases, it may not foreclose indigents from access to any phase of that procedure because of their poverty." Id. at 257.

In Moffitt, and again in Coleman v. Thompson, 501 U.S. 722 (1991), the Court explicated the of limits the right to effective assistance of counsel. The Court said that there is no constitutional right to counsel on discretionary review after direct appeal. Moffitt, 417 U.S. at 615. This is because "the Fourteenth Amendment does not require absolute equality or precisely equal advantages." Id. at 612. The Supreme Court has held that states cannot adopt procedures that prevent a defendant from pursuing any appeal at all because of his indigence, or provide only "a 'meaningless ritual'[for a poor defendant] while others in better economic circumstances have a 'meaningful appeal.'" Ibid. But that is not the case in discretionary review after direct appeal.

In Coleman, the Supreme Court held that there is no constitutional requirement of effective assistance of counsel in state post-conviction proceedings. This is because there is no right to counsel in state habeas proceedings. See Coleman, 501 U.S. at 757. Coleman sought federal habeas corpus relief because his state appeal of his post-conviction hearing was procedurally barred for filing the notice of appeal too late. Id. at 752. The Supreme Court explained that an attorney's ignorance or inadvertence is not a reason to look past the procedural default of state-court review. Id. at 753. In that instance, the attorney is the defendant's agent, and the defendant bears the risk of the attorney's acts or omissions in furtherance of the litigation. Id. at 753-54.

But when there is a constitutional requirement of effective assistance of counsel and counsel's acts or omissions constitute ineffective assistance, the error is imputed to the State because the State is required to provide effective assistance of counsel to indigent criminal defendants. Ibid. It is a different situation when the state has no constitutional responsibility to provide a right to counsel. In the absence of a constitutional requirement for counsel, the defendant bears the risk of mistakes made by counsel.

A defendant who receives ineffective assistance of counsel at trial--whether his counsel is retained or appointed--may raise the complaint on direct appeal, when he is entitled to effective assistance for his one appeal as of right. See Douglas, 372 U.S. at 357. But we have said that direct appeal is an imperfect avenue for raising ineffective assistance of counsel claims.

A substantial risk of failure accompanies an appellant's claim of ineffective assistance of counsel on direct appeal. Rarely will a reviewing court be provided the opportunity to make its determination on direct appeal with a record capable of providing a fair evaluation of the merits of the claim involving such a serious allegation. In the majority of instances, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel.

Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999).

In Coleman, the Supreme Court left open the question whether there is an exception to Finley ⁽⁸⁾ and Giarratano ⁽⁹⁾ where state collateral review is the first place that a state criminal defendant can present a particular challenge to his conviction. Coleman, 501 U.S. at 755; ⁽¹⁰⁾ see also Daniels v. United States, 532 U.S. 374, ___, 121 S. Ct. 1578, 1586 (2001) (Rehnquist, C.J., concurring) (citing Coleman, 501 U.S. at 755) ("We have left open the question whether such ineffective assistance [of state habeas counsel] can establish a constitutional violation"). To the extent that the Fifth Circuit Court of Appeals holds that the question no longer remains open, ⁽¹¹⁾ that Court is mistaken. And to the extent that the majority fails to address this open question, it is also wrong. ⁽¹²⁾

It is conceivable that a criminal defendant would have an attorney at trial who is ineffective and then have an attorney in habeas proceedings who also is ineffective. If a criminal defendant's trial counsel is ineffective, he is almost always forced to challenge counsel's ineffectiveness in a post-conviction writ application. He usually cannot raise the claim on direct appeal because the trial record is almost always inadequate for a proper review. ⁽¹³⁾ If the defendant's habeas counsel performs deficiently, a meritorious claim may not be adequately raised or investigated. 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 affective assistance of counsel at trial.

The crime for which the applicant was convicted is unimaginably horrific. I do not dispute that. But we need to keep in mind that every criminal defendant, be he virtuous, depraved, innocent, or guilty, is entitled to the same constitutional protections. The majority's analysis and cited authority do not support its conclusion that we should dismiss the application. I respectfully dissent.

Delivered: January 2, 2002.

Publish.

1. As Judge Teague once explained:

In this connection, I am lately inclined to think that the focus of cognizability should be a more general theory of forfeiture than voidness. What is cognizable by way of habeas corpus is a matter to be determined by this Court. It can be judicially expanded or contracted to meet the current requirements of the system. Moreover its reach should comport with fairness. Although all defects rendering a proceeding void should continue to be cognizable in habeas corpus for powerful reasons of jurisdiction, I now believe that other defects might also be brought within the scope of the writ under circumstances objectively tending to excuse what would otherwise constitute a forfeiture of the right to complain, so long as the applicant would have been entitled to relief either under the law existing at the time of the alleged defect or under subsequent retroactive changes in the law, and so long as the habeas proceeding will not involve relitigation of an issue previously and finally determined adversely to the applicant’s position unless subsequent retroactive changes in the law would have required a different result.

In Weems v. United States, 217 U.S. 349, 30 S. Ct. 544, 54 L. Ed. 793 (1909), the Supreme Court of the United States stated the following in reference to the subject of "fundamental rights in the federal constitution": "They are not ephemeral enactments, designed to meet passing occasions. They are 'designed to approach immortality as nearly as human institutions can approach it.' The future is their care, and provision for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been, but of what may be. Under any other rule a constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value, and be converted by precedent into impotent and lifeless formulas. Rights declared in words might be lost in reality. And this has been recognized. The meaning and vitality of the Constitution have developed against narrow and restrictive construction." Also see Trop v. Dulles, 356 U.S. 86, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958); Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972).

I find that these words have the same meaning when it comes to what meaning we should give to one of the most fundamental rights guaranteed to our citizenry through the Texas Bill of Rights, which is the fundamental and inviolate right to the writ of habeas corpus, which right, by our Constitution, "shall never be suspended." Art. 1, §§ 12, Texas Constitution. Also see Art. 1.08, V.A.C.C.P., which states without any limitation or qualification whatsoever that "The writ of habeas corpus is a writ of right and shall never be suspended."

Therefore, I do not approve denying applicant relief in the instant cause, simply because the proceeding he attacks is not absolutely void, without first affording him a chance to demonstrate that he has not yet had a full and fair opportunity meaningfully to litigate the issues raised in his habeas corpus application or that his failure to do so before now should be excused.

Ex parte Tuan Van Truong, 770 S.W.2d 810, 815 (Tex. Crim. App. 1989) (Teague, J., dissenting).

2. A conclusion with which I strongly disagree. See infra Part III.

3. Because we are not required to write an opinion explaining the reason or reasons we deny relief on applications of habeas corpus, the number of times that we deny relief on the basis that the claim should have been raised on direct appeal may not be apparent to most members of the bench and bar.

4. We appointed applicant's first habeas counsel in October 1997. At that time, counsel had been out of law school for just under three years and had been licensed by the Texas Bar for just over two years.

5. Ex parte Kerr, No. 35,065-04, slip op. at 7 (Tex. Crim. App. Jan. 2, 2002).

6. This was not technically true. The number of applications an inmate could file was not limited by statute, but an inmates ability to seek relief was regulated by the abuse of the writ procedure. Ex parte Davis,

7. When the applicant's initial habeas counsel was appointed by this Court to another capital murder defendant's case, such was the state of his resume. See Second Application for Writ of Habeas Corpus, at 8, Ex parte Etheridge, No. 36-443-02 (Tex. Crim. App. filed Oct. 31, 2001). We appointed the same counsel to the applicant's case less than a year later.

8. Pennsylvania v. Finley, 481 U.S. 551, 559 (1987) (holding that there is no right to counsel beyond the initial direct appeal, and thus, no right to counsel on discretionary review).

9. Murray v. Giarratano, 492 U.S. 1, 10 (1989) (holding that there is no right to counsel beyond the initial direct appeal, and thus, no right to counsel in collateral attacks).

10. In Coleman, the defendant complained about ineffective assistance of counsel on appeal from the state post-conviction proceedings. The Supreme Court explained that it need not address the question of an exception to the Finley and Giarratano rules because the claim about which the appellant complained and that was procedurally defaulted by his collateral-review-appeal counsel had been reviewed on the merits by the convicting court. Coleman, 501 U.S. at 756.

11. See Martinez v. Johnson, 255 F.3d 229, 239-40 (5th Cir. 2001); In re Goff, 250 F.3d 273, 275 (5th Cir. 2001); Beazley v. Johnson, 242 F.3d 248, 270-71 (5th Cir. 2001).

12. Moreover, we are not bound by lower federal court opinions interpreting constitutional rights, although they do present persuasive authority. Lockhart v. Fretwell, 506 U.S. 364, 376 (1983) (Thomas, J., concurring); Steffel v. Thompson, 415 U.S. 452, 482 n.3 (1974) (Rehnquist, J., concurring); Vaughn v. State, 931 S.W.2d 564, 568 (Tex. Crim. App. 1996). One legal commentator has explained the precedential value of inferior federal courts in this way:

The duty to obey hierarchical precedent tracks the path of review followed by a particular case as it moves up the three federal judicial tiers: A court must follow the precedents established by the court(s) directly above it. District courts must follow both Supreme Court decisions and those issued by whichever court of appeals has revisory jurisdiction over its decisions, and courts of appeals must heed Supreme Court decisions. However, a court can ignore precedents established by other courts so long as they lack revisory jurisdiction over it. Thus, a circuit court of appeals is not bound by decisions of coordinate circuit courts of appeals, and a district court judge may ignore the decisions of "foreign" courts of appeals as well as other district court judges, even within the same district.

The doctrine also applies to state and territorial courts. These courts are bound by precedent set by the United States Supreme Court, which has the authority to review their federal law decisions. But the state and territorial judges are not bound by precedents established by courts that do not have the authority to review those judges' decisions, since, as in the Article III regime, authority to establish precedent follows the path of appellate review. Thus a state court need not follow the holdings of any inferior federal court, including the court of appeals in whose geographical region the state court sits.

Evan H. Caminker, Why Must Inferior Courts Obey Superior Court Precedents, 46 Stan. L. Rev. 817, 825 (1994).

13. This is true unless trial counsel files a motion for new trial-which was done in this case-and raises his own ineffectiveness-which was not done in this case. Indeed, should not claims to be unaware of the difficulty in producing an adequate record in a motion for new trial.

While expansion of the record may be accomplished in a motion for new trial, that vehicle is often inadequate because . . . time constraints [prevent an adequate investigation] and because the trial record has generally not been transcribed at this point. Jackson, 877 S.W.2d at 772 n.3. Further, mounting an ineffective assistance attack in a motion for new trial is inherently unlikely if trial counsel remains counsel during the time required to file such a motion. Hence, in most ineffective assistance claims, a writ of habeas corpus is essential to gathering the facts necessary to adequately evaluate such claims.

Ex parte Torres, 943 S.W.2d 469, 47 (Tex. Crim. App. 1997) (emphasis added).