Summary
This is a concurring opinion in a Texas Court of Criminal Appeals proceeding concerning a subsequent capital post-conviction habeas application. The opinion discusses whether ineffective assistance by initial state habeas counsel, in light of Martinez v. Ryan, Trevino v. Thaler, Ex parte Graves, and Ex parte Medina, should permit review of an otherwise procedurally barred ineffective-assistance-of-trial-counsel claim.
Topics
Practice areas
Questions Presented
- Whether Alvarez's second subsequent capital habeas application satisfied the exceptions to the abuse-of-the-writ bar in Texas Code of Criminal Procedure article 11.071, section 5(a).
- Whether ineffective assistance by initial state habeas counsel should permit a capital inmate to raise an ineffective-assistance-of-trial-counsel claim in a subsequent state habeas application.
- Whether Ex parte Graves should be reconsidered in light of Martinez v. Ryan, Trevino v. Thaler, and Ex parte Medina.
- Whether Alvarez's present claims were procedurally defaulted because they could have been raised in his first subsequent application.
Holdings
- Alvarez's second subsequent application was properly dismissed as abusive because he could have raised both the Wiggins ineffective-assistance claim and his argument concerning the competence of initial habeas counsel in his first subsequent application.
- Even assuming Graves should eventually be reconsidered, reconsideration would not change the outcome because Alvarez failed to raise the relevant arguments in his first subsequent application.
Key quotations
“Inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.” (6-7)
“Not full because he is entitled to one bite at the apple, i.e., one application, and the document filed was not a proper writ application. Not fair because applicant’s opportunity, through no fault of his own, was intentionally subverted by his habeas counsel.” (15)
“As I see it, because Applicant could have raised this claim in 2010 but did not, it has now been procedurally defaulted.” (21)
Factual background
Alvarez alleged that trial counsel failed to investigate substantial mitigating evidence, potentially violating Wiggins v. Smith, and that his initial state habeas counsel failed to investigate and present the resulting ineffective-assistance-of-trial-counsel claim. His initial habeas application was a twenty-five-page filing containing three claims based only on the appellate record, and counsel allegedly conducted no extra-record mitigation investigation. Alvarez had already filed a first subsequent application in 2010 through the same counsel who filed the present application, but did not raise the Wiggins claim or argue that his initial habeas counsel was not competent under Graves.
Procedural history
The application arose from cause number 787007 in the 338th District Court of Harris County. Alvarez had previously filed an initial state habeas application and a first subsequent application in 2010 raising prosecutorial-misconduct claims. In the present second subsequent application, he sought to raise ineffective-assistance claims concerning trial counsel and initial state habeas counsel, but the court concluded that the claims could have been raised in the first subsequent application and were procedurally defaulted.