I respectfully dissent. I believe that art. 11.071 of the Texas Code of Criminal Procedure requires that applicant be provided with effective assistance of habeas counsel, and that an application for a writ of habeas corpus is the appropriate avenue for which a claim of ineffective assistance of habeas counsel be brought.

Section 2(a) of art. 11.071 provides that unless an applicant who has been sentenced to death and is seeking relief through an application for a writ of habeas corpus elects to proceed pro se, he "shall be represented by competent counsel." ⁽¹⁾ Based on similar statutory requirements, several other jurisdictions have determined that a right to habeas counsel necessarily entails that such counsel be effective. In Evitts v. Lucey, 469 U.S. 387, 105 S. Ct. 830, 83 L. Ed.2d 821 (1985), the Supreme Court reasoned that "the promise . . . that a criminal defendant has a [federal constitutional] right to counsel on appeal . . . would be a futile gesture unless it comprehended the right to the effective assistance of counsel." Relying on the logic of Evitts, the Supreme Court of Iowa concluded in 1985:

We believe the statutory grant of a postconviction applicant's right to court-appointed counsel [in postconviction proceedings arising out of prison disciplinary hearings] necessarily implies that that counsel be effective . . . . Nothing in our postconviction act indicates an intent on the part of the legislature that a different rule would apply. It would seem to be an empty gesture to provide counsel without any implied requirement of effectiveness.

Patchette v. State, 374 N.W.2d 397, 398-9 (Iowa 1985).

More recently, the Supreme Court of Iowa has applied the rationale of Patchette to the statutory grant of counsel for post-conviction proceedings attacking a conviction. Dunbar v. State, 515 N.W.2d 12, 14-15 (Iowa 1994). Similarly, the Supreme Court of Connecticut has reasoned that a statutory right to habeas counsel "would become an empty shell if it did not embrace the right to have the assistance of a competent counsel." Lozada v. Warden, 613 A.2d 818, 821-2 (Conn. 1992) (citing Cullins v. Crouse, 348 F.2d 887, 889 (10th Cir. 1965) & United States v. Wren, 682 F. Supp. 1237, 1241-42 (S.D. Ga. 1988)). In 1997, the Supreme Court of Connecticut reaffirmed its holding and rationale in Lozada. Iovieno v. Commissioner of Correction, 699 A.2d 1003, 1010 (Conn. 1997). Earlier this year, the Supreme Court of South Dakota reached the same conclusion when it held that "[w]e will not presume that our legislature has mandated some useless formality requiring the mere physical presence of counsel as opposed to effective and competent counsel." Jackson v. Weber, 623 N.W.2d 71, 74 (S.D. 2001) (internal quotation marks omitted) (citing Lozada and Iovieno, supra). Similarly, the Supreme Court of Pennsylvania has held that an indigent defendant has a statutory right to the appointment of counsel in a post-conviction proceeding:

It is axiomatic that the right to counsel includes the concomitant right to effective assistance of counsel . . . . Indeed the right to counsel is meaningless if effective assistance is not guaranteed. Since appellant was entitled to representation by an attorney in his pursuit of this collateral attack, he was entitled to adequate representation of his claims at both the hearing and appellate levels.

Com. v. Albert, 561 A.2d 736, 738 (Pa. 1989) (citing Com. Ex rel. Washington v. Maroney, 235 A.2d 349 (1967)). ⁽²⁾

Section 2(a) of art. 11.071 mandates not only the appointment of counsel, it specifically mandates the appointment of competent counsel. Thus, the rationale of the above-cited cases applies even more forcefully here; the use of such language by the legislature indicates a requirement of the effective assistance of habeas counsel. ⁽³⁾ Moreover, unlike the federal habeas statute, our legislature has not specifically precluded a claim of ineffective assistance of habeas counsel. ⁽⁴⁾ Thus, under the terms of the statute, applicant has a statutory right to effective assistance of habeas counsel.

In determining the requirements that must be met in order to show that habeas counsel was ineffective, I find the test for showing that trial counsel was ineffective, as set out by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.2d 674 (1984), to be persuasive. Under that test, counsel is presumed to have been effective. Id. at 689, 104 S. Ct. at 265. In order to overcome this presumption, applicant "must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment," in order to show that "counsel's representation fell below an objective standard of reasonableness . . . as measured by prevailing professional norms." Id. at 687-690, 104 S. Ct. 2052, 2064-6; see also Dunbar, 515 N.W.2d at 15; Patchette, 374 N.W.2d at 399. Also, applicant must prove prejudice, i.e., applicant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 2068, 104 S. Ct. at 694; see also Dunbar, 515 N.W.2d at 15; Patchette, 374 N.W.2d at 399. Requiring an applicant to establish both deficient performance and prejudice would insure that an application for a writ of habeas corpus pursuant to art. 11.071 is the proper vehicle to bring such a claim. ⁽⁵⁾ That is, by demonstrating that there is a reasonable probability that, had habeas counsel performed effectively, the applicant would have been entitled to relief in the earlier habeas proceeding, an applicant who prevails would have shown that he is entitled to relief "from a judgment imposing a penalty of death." See art. 11.071, § 1.

A claim on writ of habeas corpus of ineffective assistance of prior habeas counsel is, by definition, a subsequent application for a writ of habeas corpus. Thus, before its merits can be considered, the legislature has required that one of the following be established:

(1) the current claims and issues have not been and could not have been presented previously in a timely initial application or in a previously considered application filed under this article or Article 11.07 because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application;(2) by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt; or

(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 or 37.0711.

Art. 11.071, § 5(a). A claim of ineffective assistance of habeas counsel in the first writ application would not be ripe until the first application has been filed and disposed of. Thus, in such a case, an applicant who presented such a claim would be able to demonstrate, pursuant to § 5(a)(1) of art. 11.071, that the factual and legal bases for his claim were unavailable on the date that he filed the previous application. Under most circumstances, claims of ineffective assistance of habeas counsel raised after the second writ application would be precluded by § 5(a)(1), since such claims could have been brought in the second application. Moreover, the majority's fears that recognizing a right to effective assistance of habeas counsel would lead to "endless and repetitious writs" (ante, at ___ (slip op. at 19)) is unfounded. Under the approach outlined above, such a right is co-extensive only with an applicant's legislatively mandated right to one habeas counsel. Once that right is extinguished, any subsequent writ applications are not subject to such an attack.

The instant application is applicant's third, and as such, it would appear to be precluded by § 5(a)(1). However, applicant was represented by the same attorney in both of his prior applications. Applicant's initial writ application was received by this Court on March 15, 1999. His second writ application was received on June 14, 1999, while the first application was still pending. We denied the initial application on February 9, 2000 and dismissed the second application on February 16, 2000. It cannot reasonably be expected that an attorney will make a claim for habeas relief based upon his own prior ineffective assistance. Had we granted relief on the first application, there would have been no cause for any claims of ineffective assistance regarding that application. Therefore, I believe that at the time that applicant's second application was filed, the factual and legal bases of the claims in the instant application were unavailable. As such, applicant has met the statutory requirement of § 5(a)(1) for subsequent writ applications. Therefore, I would remand this cause to the trial court, and direct it to proceed, consistent with this opinion, under art. 11.071, § 6(b) of the Texas Code of Criminal Procedure. Because the court does not do so, I dissent.

Johnson, J.

Date Delivered: January 2, 2002

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1. Although applicant does not claim in his brief that he has a statutory right to effective assistance of counsel, he did claim at oral argument that effective assistance of counsel was mandated by § 2(a)'s requirement of "competent counsel."

2. The Supreme Court of Nevada has also reached this conclusion, albeit in dicta. In McKague v. Whitley, 912 P.2d 255, 257-8 (Nev. 1996), the court held that because the petitioner had no statutory right to counsel in a post-conviction proceeding, he had no right to effective assistance of counsel in such a proceeding. In a footnote, the court noted that a recently enacted statute, which was not operative at the time that the petitioner in McKague was appointed post-conviction counsel, mandated appointment of counsel for a petitioner's first post-conviction proceeding. Id. at 258 n.5. Thus, the court concluded:

As a matter of statutory interpretation, we note that where state law entitles one to the appointment of counsel to assist with an initial collateral attack after judgment and sentence, 'it is axiomatic that the right to counsel includes the concomitant right to effective assistance of counsel.' Thus, a petitioner may make an ineffectiveness of post-conviction counsel claim if that post-conviction counsel was appointed pursuant to [the recently-enacted statute].

Id. (citing Albert, supra).

3. Given the equivalence of "competent" counsel and the "effective assistance of counsel" that has been maintained by numerous other courts, including the United States Supreme Court, I find the majority's attempt to differentiate between the two (ante, at ___ (slip op. at 16-17)) unpersuasive. See, e.g., Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed.2d 674 (1984) (determining that "the proper standard for attorney performance is that of reasonably effective assistance . . . . The Court indirectly recognized as much when it [previously] stated . . . that a guilty plea cannot be attacked as based on inadequate legal advice unless counsel was not a reasonably competent attorney and the advice was not within the range of competence demanded of attorneys in criminal cases") (citations and internal quotation marks omitted); Jackson, 623 A.2d at 74 (stating that "[t]he effective assistance of counsel standard announced in Strickland is well established" and that "it would be absurd to have the right to appointed counsel who is not required to be competent" (citations and internal quotation marks omitted); Iovieno, 699 A.2d at 1010 (stating that "we have recognized that it would be absurd to have the right to appointed counsel who is not required to be competent. Therefore, we held that the writ of habeas corpus is an appropriate remedy for an ineffective assistance of habeas counsel claim") (citations and internal quotation marks omitted); Lozada, 613 A.2d at 821 (determining that "[t]he right to effective assistance of counsel is predicated on the statutory right to habeas counsel" and that "[i]t would be absurd to have the right to appointed counsel who is not required to be competent").

Moreover, as the majority notes in a separate case, one of the purposes of art. 11.071, according to Representative Pete Gallegos, is that a defendant get "one very well-represented run at a habeas proceeding." Ex parte Kerr, No. 35,065-04, ___ S.W.3d ___, slip op. at 8 (Tex. Crim. App. ____). At the very least, that statement supports the notion that, under art. 11.071, a defendant is entitled to effective assistance of counsel.

4. See 28 U.S.C. § 2254(i) ("The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254").

5. The majority claims that "the scope of post-conviction writs of habeas corpus [is confined] to jurisdictional or fundamental defects and constitutional claims." Ante, at ___ (slip op. at 9). However, this is not accurate. For instance, we regularly use the habeas writ to grant habeas relief to imprisoned applicants in the form of time credits, relief which the legislature has explicitly authorized. See Tex. Gov't Code § 501.0081(b) & (c); Ex parte Busby, ___ S.W.3d ___ (Tex. Crim. App. March 7, 2001); Ex parte Millard, 48 S.W.3d 190 (Tex. Crim. App. 2001); Ex parte Kuester, 21 S.W.3d 264 (Tex. Crim. App. 2000); Ex parte Gomez, 15 S.W.3d 103 (Tex. Crim. App. 2000); Ex parte Hall, 995 S.W.2d 151 (Tex. Crim. App. 1999); Ex parte Golden, 991 S.W.2d 859 (Tex. Crim. App. 1999); Ex parte Roberts, 987 S.W.2d 575 (Tex. Crim. App. 1999). Moreover, our precedents have recognized that some statutory violations are so egregious as to be cognizable on collateral attack. See, e.g., Heath v. State, 817 S.W.2d 335 (Tex. Crim. App. 1991) (non-capital defendant's sentence not authorized by law); Ex parte McIver, 586 S.W.2d 851 (Tex. Crim. App. 1979) (non-capital defendant's sentence not authorized by law).

Furthermore, the legislature has in no way limited relief under art. 11.071 to "jurisdictional or fundamental defects and constitutional claims." Instead, by the plain language of art. 11.071, § 1, an applicant's writ application need only "seek[] relief from a judgment imposing a penalty of death."

In Ex parte Gardner, 959 S.W.2d 189, 199 (Tex. Crim. App. 1996), we focused not on whether a claim brought on habeas could be characterized as "constitutional" or as involving a "fundamental" or "jurisdictional" defect, but on whether the claim could have been brought on direct appeal. Given, as I have argued above, that applicant is statutorily entitled to effective assistance of counsel, a writ application is the only manner in which such a claim may be brought; certainly, it cannot be brought on direct appeal. Thus, to disallow such a claim is to leave applicant with a right that is without a remedy.