Summary
holding that evidence defendant told his attorneys he was innocent and would not plead guilty did not satisfy McCoy because it did not "demonstrate that he told [his attorneys] that his defensive objective was to maintain his innocence at trial"
Summary of this case from Stephenson v. StateOpinion
NO. WR-71,070-03
02-10-2021
EX PARTE Stephen Dale BARBEE, Applicant
OPINION
Keel, J., delivered the opinion of the Court in which Keller, P.J., and Hervey, Richardson, Slaughter, and McClure, JJ., joined.
This is a subsequent application for writ of habeas corpus filed pursuant to Texas Code of Criminal Procedure Article 11.071, Section 5. Applicant seeks relief under McCoy v. Louisiana , ––– U.S. ––––, 138 S. Ct. 1500, 200 L.Ed.2d 821 (2018), which he claims was a previously unavailable legal basis for his claim. We filed and set his application to address whether he is entitled to relief under McCoy . We conclude that the legal basis for the current claim was previously available, and even if it were not, Applicant fails to allege facts that would entitle him to relief under McCoy . Consequently, we dismiss this subsequent application as an abuse of the writ. TEX. CODE CRIM. PROC. art. 11.071 § 5(c).
I. Article 11.071, Section 5
Unless an applicant for a writ of habeas corpus meets a very fine-tuned exception, he is limited to one full and fair opportunity to present any claims that may entitle him to relief from his judgment or sentence. Ex parte Kerr , 64 S.W.3d 414, 418-19 (Tex. Crim. App. 2002). "[E]verything you can possibly raise the first time, we expect you to raise it initially, one bite of the apple, one shot." Id. (quoting S.B. 440, Acts 1005, 74th Leg., codified at TEX. CODE CRIM. PROC. art. 11.071 (Presentation by Representative Pete Gallego at second reading of S.B. 440 on the floor of the House of Representatives, May 18, 1995)).
Applicant relies on the "previously unavailable legal basis" exception to the bar against subsequent applications. Under that exception, we may consider the merits of a subsequent application if it contains sufficient specific facts establishing that the claim has not been and could not have been previously presented because the legal basis for the claim was unavailable when the previous application was filed. The exception says:
(a) If a subsequent application for a writ of habeas corpus is filed after filing 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:
(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[.]
TEX. CODE CRIM. PROC. art. 11.071 § 5(a)(1).
A legal basis was previously unavailable if it "was not recognized by or could not have been reasonably formulated from a final decision of" a relevant court "on or before" the date the previous application was filed. TEX. CODE CRIM. PROC. art. 11.071 § 5(d). A legal basis was previously available if it "could have been rationally fashioned" from relevant precedent, Ex parte Navarro , 538 S.W.3d 608, 615 (Tex. Crim. App. 2018) (construing same language as found in Texas Code of Criminal Procedure Article 11.07, Section 4(a)(1) and rejecting challenge to adequacy of juvenile transfer order), or if it is founded on "familiar principles articulated in earlier cases" from relevant courts. See Ex parte St. Aubin , 537 S.W.3d 39, 45 (Tex. Crim. App. 2017) (rejecting multiple-punishments, double-jeopardy claim in subsequent writ because legal basis was previously available). The likelihood of a claim's success is irrelevant to determining whether its legal basis was previously unavailable. Navarro , 538 S.W.3d at 615. But a legal basis was previously unavailable if subsequent case law makes it easier to establish the claim and renders inapplicable factors that had previously been weighed in evaluating its merits. See Ex parte Chavez , 371 S.W.3d 200, 207 (Tex. Crim. App. 2012) (holding that the legal basis for a due process violation based on the State's unknowing use of false testimony was previously unavailable).
In addition to establishing the previous unavailability of the legal basis for his claim, the applicant must allege facts that, if true, would entitle him to relief on that basis. See Ex parte Staley , 160 S.W.3d 56, 63 (Tex. Crim. App. 2005) (per curiam).
Applicant claims that his attorney violated his Sixth Amendment right to assistance of counsel by making a strategic concession of his guilt over his express objection. He argues that the legal basis for his claim was unavailable until 2018 when the Supreme Court issued its opinion in McCoy , 138 S. Ct. 1500. But the legal basis for Applicant's claim could have been reasonably formulated from existing precedent because McCoy was the logical extension of Florida v. Nixon , 543 U.S. 175, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004), based on the factual distinctions—not legal ones—between the two cases. Furthermore, Applicant does not allege facts that would entitle him to relief under McCoy ’s terms even if it were a previously unavailable legal basis for his claim. Consequently, we must dismiss his application. TEX. CODE CRIM. PROC. art. 11.071 § 5(c).
II. Applicant's Confessions and Trial
Applicant was charged with capital murder for killing his pregnant ex-girlfriend, Lisa Underwood, and her seven-year-old son, Jayden, in the same criminal transaction.
Lisa was reported missing when she failed to show up for her baby shower. At her home, police found no signs of forced entry, but blood—later identified as hers—was on the walls, the furniture, and the floor in the living room. More blood was on the floor of the garage, and her car was gone.
Early that same morning, a deputy saw Applicant on foot, wet and covered in mud, near a creek. Applicant gave him a false name and fled into the nearby woods. Two days later, Lisa's car was found in the creek near which the deputy had encountered Applicant.
Applicant became a suspect in Lisa and Jayden's disappearance when police learned that Applicant could be the father of Lisa's unborn child. Lisa had been asking Applicant to tell his wife about the pregnancy and to provide insurance for the child, but Applicant refused to do so without a DNA test confirming that he was the father.
Applicant confessed to the police that he had killed Lisa and Jayden and showed them where he had buried the bodies. He also met with his wife, Trish Barbee, in the interrogation room, and that meeting was recorded. Trish asked Applicant how he killed Lisa, and he tearfully explained that he "held her down too long" and "it was an accident." He also admitted to his ex-wife that he had killed Lisa and Jayden but that he had not meant to do so.
Before trial, Applicant wrote a letter to his appointed attorneys recanting his confessions. He stated that he initially told the police that he did not know what happened to Lisa and Jayden, he was not there, and he did not do it. He told defense counsel that the detective threatened him with the death penalty if he did not talk, so he said the killings were an accident: he and Lisa got into an argument, she kicked him, he hit her in the nose, he held her down too long, and he put his hand over Jayden's face until he stopped screaming. Applicant recanted his confessions and changed his story, ultimately claiming that he was innocent of the murders. Applicant said he helped bury the bodies after his ex-wife's boyfriend and Applicant's employee, Ron Dodd, killed Lisa and Jayden.
Faced with Applicant's confessions, defense counsel concluded that the "Dodd did it" theory would not work at trial, and they instead pursued the theory that Lisa's death was accidental. This theory was supported by Applicant's confessions and by the medical examiner's testimony.
Dr. Marc Krouse, the medical examiner who performed the autopsy on Lisa, testified that Lisa's death resulted from traumatic asphyxiation, possibly caused by smothering. He testified on cross-examination that, because Lisa was in a late stage of pregnancy, she was susceptible to smothering and might have stopped breathing after as little as thirty seconds of being held down.
The defense attorney summarized the theory in closing argument:
As hard as it is to say, the evidence from the courtroom shows that Stephen Barbee killed Jayden Underwood. There is no evidence to the contrary. The problem in the capital murder case is the evidence in this courtroom that you heard doesn't show that Stephen Barbee had the conscious objective or desire or that he knew his conduct was reasonably certain to cause the result, those two definitions there. And it is supported by the testimony of the 25-year veteran of the medical examiner's office, Dr. Marc Krouse. Dr. Krouse told you that he could not be sure when Lisa Underwood lost consciousness ... And Stephen Barbee's own words to his wife, it matches. That's the problem from their standpoint. What he told Trish Barbee is I held her down too long. That's exactly what matches the testimony of Dr. Marc Krouse. And as hard as it is to do, I submit to you that the evidence in this
case, the conclusive beyond a reasonable doubt evidence, does not support an intentional or knowing murder for Lisa Underwood. Was he there? Yes. Did he hold her down? Yes. Did he know or intend that she was going to die or was that his conscious objective? The answer is no.
The trial court charged the jury on the lesser-included offenses of murder and manslaughter, but the jury found Applicant guilty of capital murder. Pursuant to the jury's answers to the special issues, the trial court sentenced Applicant to death.
Applicant did not testify at trial or object to the defense strategy.
III. Relevant Procedural History
We affirmed Applicant's conviction and sentence on direct appeal. Barbee v. State , No. AP–75,359, 2008 Tex. Crim. App. Unpub. LEXIS 900 (Tex. Crim. App., Dec. 10, 2008).
In his 2008 initial writ application, Applicant claimed that his Sixth Amendment right to the assistance of counsel was violated by trial counsel confessing his guilt to the jury during closing argument without his knowledge or consent. Applicant alleged that he was abandoned by counsel at the trial stage and that it was structural error, meaning that prejudice should be presumed, citing United States v. Cronic , 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).
The trial court recommended that relief be denied and entered findings of fact and conclusions of law, including that the right to effective assistance of counsel extends to closing arguments, counsel's decision to focus closing argument on the defensive theory of accident was reasonable in light of the evidence admitted at trial, and Applicant was provided adequate counsel in closing arguments. We agreed with the trial court's recommendation and denied relief with written order. Ex parte Barbee , No. WR-71,070-01, 2009 Tex. Crim. App. Unpub. LEXIS 5 (Tex. Crim. App., Jan. 14, 2009). The Supreme Court denied certiorari. Barbee v. Texas , 2009 U.S. LEXIS 5631 (Oct. 5, 2009).
Applicant filed a subsequent writ in 2011, complaining that his ineffective assistance claim was analyzed under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), rather than the Cronic standard under which the claim was brought. We dismissed the 2011 subsequent application as an abuse of the writ. Ex parte Barbee , No. WR-71,070-02, 2013 Tex. Crim. App. Unpub. LEXIS 526 at *2 (Tex. Crim. App., May 8, 2013).
Applicant also raised this issue in his 2015 federal habeas petition. He claimed that counsel provided ineffective assistance by conceding his guilt to the jury without his permission, and he characterized it as abandonment by counsel subject to the Sixth Amendment standard in Cronic . Barbee v. Stephens , No. 4:09-CV-074-Y, 2015 U.S. Dist. LEXIS 88060 at *86 (N.D. Tex., July 7, 2015). The District Court determined that the claim was properly analyzed under Strickland rather than Cronic and denied the claim. Barbee v. Stephens , 2015 U.S. Dist. LEXIS 88060 at *87 ("For Cronic to apply, the attorney's failure to subject the state's case to meaningful adversarial testing must be complete.") (citing Wright v. Van Patten , 552 U.S. 120, 124 n.1, 128 S.Ct. 743, 169 L.Ed.2d 583 (2008) ).
After the Supreme Court issued its 2018 McCoy opinion, Applicant filed this second subsequent application for writ of habeas corpus, claiming that his trial attorney overrode his Sixth Amendment autonomy right to insist on his innocence. Because this is a subsequent writ, the merits of Applicant's claim cannot be considered unless it meets the requirements of Article 11.071, Section 5.
IV. McCoy v. Louisiana
McCoy applied longstanding jurisprudence related to defendant autonomy and structural error to a "stark scenario," holding that a capital murder defendant has the right to insist that his counsel refrain from admitting guilt of the charged offense. McCoy , 138 S. Ct. at 1510-11. The violation of that right "was complete when the [trial] court allowed counsel to usurp control of an issue within McCoy's sole prerogative[,]" thus foreclosing any need to demonstrate prejudice. Id.
McCoy was accused of having killed his estranged wife's son, mother, and stepfather, and the evidence against him was strong. Id. at 1505-06. But he maintained that he was innocent and that the victims had been killed by police in a drug deal gone bad. Id. at 1506. McCoy instructed his attorney to pursue an outright acquittal and not to concede guilt, but the attorney saw that as a futile effort that would make the death penalty inevitable. Id. McCoy protested to the trial court before and during trial that he was innocent and that his attorney was "selling him out" by making the concession. Id. McCoy's protestations were futile. The trial court instructed the defense attorney to try the case as he had planned, refused McCoy's request for time to hire a new lawyer, and cautioned McCoy against making outbursts in front of the jury. Id. at 1506-07.
In opening statement the attorney told the jury, "my client committed three murders." Id. at 1507. In closing argument he said that McCoy was the killer and that he took the burden off the prosecutor on that issue. Id. Defense counsel conceded at punishment that McCoy committed the crimes but urged the jury to consider McCoy's mental and emotional issues. Id. On appeal McCoy argued that his constitutional rights were violated by his attorney conceding guilt over his objections. Id. The Supreme Court agreed.
IV.A. Sixth Amendment Assistance of Counsel
The Supreme Court noted that to gain the assistance of counsel, "a defendant need not surrender control entirely to counsel." Id. at 1508. The Sixth Amendment "speaks of the ‘assistance’ of counsel, and an assistant, however expert, is still an assistant." Id. (quoting Faretta v. California , 422 U.S. 806, 819-20, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ). Trial management is the attorney's province, but some decisions belong to the defendant, for example: "whether to plead guilty, waive the right to jury trial, testify in one's behalf, and forgo an appeal." McCoy , 138 S. Ct. at 1508 (citing Jones v. Barnes , 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983) ).
The Court concluded, "Autonomy to decide that the objective of the defense is to assert innocence" is reserved for the defendant. McCoy , 138 S. Ct. at 1508. "Just as a defendant may steadfastly refuse to plead guilty in the face of overwhelming evidence against her, or reject the assistance of legal counsel despite the defendant's own inexperience and lack of professional qualifications, so may she insist on maintaining her innocence at the guilt phase of a capital trial." Id. McCoy derived the defendant's right to assert innocence against counsel's advice from the defendant's right to decide whether to plead guilty and from his right to reject the assistance of counsel. Id. (quoting Faretta , 422 U.S. at 819, 95 S.Ct. 2525 and citing Barnes , 463 U.S. at 751, 103 S.Ct. 3308 ). Such decisions are not "about how best to achieve a client's objectives; they are choices about what the client's objectives in fact are. " McCoy , 138 S. Ct. at 1508 (citing Weaver v. Massachusetts , ––– U.S. ––––, 137 S. Ct. 1899, 1908, 198 L.Ed.2d 420 (2017), and Martinez v. Court of Appeal of Cal., Fourth Appellate Dist. , 528 U.S. 152, 165, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000) (Scalia, J., concurring in judgment)). When a defendant "expressly asserts that the goal of ‘his defense’ is to maintain innocence of the charged criminal acts, his lawyer must abide by that objective and may not override it by conceding guilt." McCoy , 138 S. Ct. at 1509 (quoting and emphasizing U.S. CONST. AMEND VI ). Once McCoy communicated "to court and counsel" that he "strenuously" objected to counsel's proposed strategy, "a concession of guilt should have been off the table." McCoy , 138 S. Ct. at 1512.
The McCoy majority dismissed the dissenting opinion's claim about the rarity of attorney-client disagreements over conceding guilt and noted that three state supreme courts other than Louisiana's had addressed the issue. Id. at 1510. It pointed out the similarities of those cases to McCoy's case, namely, "the defendant repeatedly and adamantly insisted on maintaining his factual innocence despite counsel's preferred course: concession of the defendant's commission of criminal acts and pursuit of diminished capacity, mental illness, or lack of premeditation defenses." Id. (citing People v. Bergerud , 223 P.3d 686, 690-91 (Colo. 2010) ; Cooke v. State , 977 A.2d 803, 814 (Del. 2009) ; and State v. Carter , 270 Kan. 426, 14 P.3d 1138, 1141 (2000) ). McCoy said that "these were not strategic disputes" but "intractable disagreements about the fundamental objective of the defendant's representation." McCoy , 138 S. Ct. at 1510. "In this stark scenario, we agree with the majority of state courts of last resort that counsel may not admit her client's guilt of a charged crime over the client's intransigent objection to that admission." Id. McCoy then turned its attention to prejudice.
IV.B. Structural Error/Presumed Prejudice
McCoy said counsel's admission of a defendant's guilt over his express objection was structural error meriting a presumption of prejudice for "at least" two reasons: the effects of the error are too hard to measure, and the right at issue is designed to protect "the fundamental legal principle that a defendant must be allowed to make his own choices about the proper way to protect his own liberty." Id. at 1511 (quoting Weaver , 137 S. Ct. at 1908 ).
McCoy opposed his counsel's assertion of his guilt "at every opportunity, before and during trial, both in conference with his lawyer and in open court." McCoy , 138 S. Ct. at 1509. McCoy had an outburst in court, objecting to his own counsel's opening statement. Id. at 1506-07. McCoy testified to facts in complete opposition to those raised by his counsel. Id. at 1507. Defense counsel relieved the State of its burden to prove guilt beyond a reasonable doubt. Id. And the trial court erred in knowingly allowing defense counsel to violate McCoy's Sixth Amendment rights. Id. at 1506. The error was structural because it impacted the framework within which McCoy's trial proceeded. See United States v. Gonzalez-Lopez , 548 U.S. 140, 150, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006) (violation of certain rights is structural error when it impacts the framework within which the trial proceeds). McCoy's trial contrasted with Nixon's, and that contrast justified the different approaches to their cases.
IV.C. Nixon vs. McCoy
Like McCoy, Nixon claimed that his attorney violated his Sixth Amendment right to counsel by conceding his guilt without his consent. Nixon , 543 U.S. at 185, 125 S.Ct. 551. But Nixon did not expressly object to the strategy; when it was explained to him, he was unresponsive. Id. at 181, 125 S.Ct. 551. This unresponsiveness was the key to the Supreme Court's rejection of the Florida court's opinion that the attorney's concession was presumptively deficient performance and prejudicial.
Nixon held that the concession was not unreasonable given Nixon's unresponsiveness. Id. at 189, 125 S.Ct. 551. "Nixon's characteristic silence each time information was conveyed to him, in sum, did not suffice to render unreasonable [his attorney's] decision to concede guilt and to home in, instead, on the life or death penalty issue." Id. And Nixon held that a presumption of prejudice would not be "in order based solely on a defendant's failure to provide express consent to a tenable strategy counsel has adequately disclosed to and discussed with" him. Id. at 181, 125 S.Ct. 551. If Nixon had objected, then, the concession might have been unreasonable and a presumption of prejudice might have been warranted. Presented with such facts, McCoy took Nixon to its next logical step.
McCoy noted that Nixon was not contrary to its holding but was distinguishable because McCoy, unlike Nixon, adamantly objected to the admission of guilt at every opportunity, before and during trial and in and out of court. McCoy , 138 S. Ct. at 1509. If a defendant "declines to participate in his defense, then an attorney may permissibly guide the defense pursuant to the strategy she believes to be in the defendant's best interest. Presented with express statements of the client's will to maintain innocence, however, counsel may not steer the ship the other way." Id. (citing Gonzalez v. United States , 553 U.S. 242, 254, 128 S.Ct. 1765, 170 L.Ed.2d 616 (2008) (Scalia, J., concurring in judgment) (distinguishing "action taken by counsel over his client's objection" from defendant's failure to personally express to the court his consent to waive certain rights)). Counsel "must still develop a trial strategy and discuss it with her client, explaining why, in her view, conceding guilt would be the best option." McCoy , 138 S. Ct. at 1509 (citing Nixon , 543 U.S. at 178, 125 S.Ct. 551 ).
Although both Nixon and McCoy claimed that their Sixth Amendment rights were violated by counsel conceding guilt without their permission, the differences between their trials yielded different analyses. McCoy did not have to show prejudice because, unlike Nixon, (1) McCoy told his attorney that his defensive objective was to assert innocence at trial, (2) he told the trial court before and during trial that his attorney was conceding his guilt against his wishes, and (3) the trial court nevertheless allowed defense counsel to make the concession, causing structural error.
V. The Legal Basis for Applicant's McCoy Claim Was Previously Available
McCoy was founded on "familiar legal principles" that dealt with the division of labor between attorney and client, Barnes , 463 U.S. at 751, 103 S.Ct. 3308, the duty of the attorney to consult with his client about important matters, Nixon , 543 U.S. at 189, 125 S.Ct. 551, the client's exclusive right to make fundamental decisions about his own defense with the assistance of counsel, Faretta , 422 U.S. at 819, 95 S.Ct. 2525, and structural error, Gonzalez-Lopez , 548 U.S. at 150, 126 S.Ct. 2557. See St. Aubin , 537 S.W.3d at 34.
McCoy was a logical extension of Nixon and "could have been rationally fashioned" from it. See Navarro , 538 S.W.3d at 615. Carter and Cooke demonstrated as much. See Carter , 270 Kan. 426, 14 P.3d 1138 (relying on, e.g., Faretta and Cronic to hold that guilt-based defense imposed against defendant's wishes violated Sixth Amendment right to counsel); Cooke , 977 A.2d 803 (relying on, e.g., Faretta , Nixon , and Cronic to hold that the defendant was denied counsel and presumptively prejudiced when his attorney pursued a guilty-but-mentally-ill strategy over his objection).
McCoy did not make it easier to establish a claim. See Chavez , 371 S.W.3d at 207. McCoy merely required factually what Nixon explicitly lacked: a defendant's express objections to a concession of guilt disregarded by counsel and court and aired before a jury during trial. Since the structural error analysis flowed from those requirements, McCoy ’s presumption of prejudice was not an abandonment of factors previously weighed, either; it was an addition of factors.
Applicant argues that the legal basis for his claim was previously unavailable because McCoy was the first case to uphold a defendant's Sixth Amendment right to decide the objective of his defense, and its focus on the defendant's wishes represented a departure from Strickland . Even so, that is not the test for a previously unavailable legal basis. Applicant points to McCoy ’s purported disclaimer of Supreme Court ineffective-assistance-of-counsel (IAC) jurisprudence where it said, "Because a client's autonomy, not counsel's competence, is in issue, we do not apply our [IAC] jurisprudence, [ Strickland , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 ] or [ Cronic , 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 ]." McCoy , 138 S. Ct. at 1510-11. But that disclaimer related to the showing of prejudice "ordinarily" required for IAC claims. Id. at 1511. The violation of McCoy's right was "complete" when the trial court allowed it to occur, and a showing of prejudice was thus unnecessary. Id. Significantly, McCoy did not cite Nixon in connection with its disclaimer and instead contrasted it based on the factual differences between the two cases. McCoy , 138 S. Ct. at 1509.
The legal basis for Applicant's current claim was previously available under the terms of Article 11.071, Section 5. Even if it were not previously available, Applicant does not allege sufficient facts to show that his claim meets the requirements of McCoy .
VI. Failure to Allege Sufficient Facts
Applicant seeks to distinguish his McCoy claim from other such claims that have been dismissed by this Court under Article 11.071, Section 5. Unlike those cases, he argues, his application "contains extensive evidence demonstrating that he informed his lawyers that he wished to maintain his innocence." But it does not. His exhibits include evidence that he told various people, including his attorneys, that he was innocent, he would not plead guilty, and Dodd killed Lisa and Jayden; he told the forensic psychiatrist that he would rather be executed than have his mother see him "plead guilty"; he complained to the trial court about a "breakdown in communication" with his attorneys; his attorney did not "explicitly" tell him that his closing argument would concede Applicant's identity as Lisa and Jayden's killer; and Applicant was "shocked" when he heard the argument. These facts demonstrate that Applicant told his attorneys that he was innocent; they do not demonstrate that he told them that his defensive objective was to maintain his innocence at trial. Thus, the application fails to allege facts that, if true, would entitle him to relief under McCoy . VII. Conclusion
The legal basis for Applicant's claim was available when his previous applications were filed, and Applicant has not alleged facts that, if true, would entitle him to relief under McCoy . This subsequent application does not meet the requirements of Article 11.071, Section 5, and we dismiss it as an abuse of the writ under Section 5(c).
Yeary and Newell, JJ., joined Part VI of the Court's opinion and otherwise concurred.
Walker, J., filed a concurring opinion.
CONCURRING OPINION
Walker, J., filed a concurring opinion.
Today, the Court rejects Stephen Dale Barbee, Applicant's, third application for habeas corpus relief on the basis that it is procedurally barred. The Court decides that McCoy v. Louisiana , ––– U.S. ––––, 138 S.Ct. 1500, 200 L.Ed.2d 821 (2018), does not constitute a new legal basis for relief because it was a logical extension of Florida v. Nixon , 543 U.S. 175, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004), based on the factual distinctions—not legal ones—between the two cases.
I disagree. McCoy could not have been reasonably formulated by factually distinguishing Nixon . An argument factually distinguishing Nixon is an argument that counsel's performance was so deficient that prejudice, required by Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), should be presumed under United States v. Cronic , 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). This was illustrated by Applicant's previous applications in which he challenged the effectiveness of counsel's representation and tried to distinguish Nixon such that counsel's performance would be presumptively prejudicial under Cronic .
McCoy was not a logical extension of Nixon , an ineffective assistance of counsel case. McCoy expressly disclaimed reliance on ineffective assistance of counsel case law under Strickland and Cronic , and Nixon is part of that case law. Instead, McCoy was concerned with the defendant's autonomy under the principles of Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Yet McCoy could not have been reasonably formulated from relevant case law such as Faretta or its progeny. McCoy constitutes a new legal basis.
However, I agree with the majority that Applicant's latest claim does not overcome the statutory procedural bar for subsequent writs because Applicant fails to set out a prima facie case that trial counsel usurped his authority to set the goals of his defense. Applicant's evidence in the habeas record shows that he told counsel repeatedly that he was innocent; it does not show that he told counsel to pursue a defense of asserting innocence that counsel then overrode. Accordingly, I concur with the Court's decision to dismiss the application.
I — The Procedural Bar to Subsequent Writ Applications
Because this is Applicant's third application for habeas relief, under article 11.071, § 5, of the Code of Criminal Procedure, the general rule would bar us from considering this subsequent application. See TEX. CODE CRIM. PROC. Ann. art. 11.071 § 5(a) ("If a subsequent application for a writ of habeas corpus is filed after filing an initial application, a court may not consider the merits of or grant relief based on the subsequent application...."). There are exceptions, however, and Applicant claims that the new legal basis exception applies to his case. That exception applies if:
the [subsequent] application contains sufficient specific facts establishing that:
(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....
Id. § 5(a)(1). A legal basis is previously unavailable:
if the legal basis was not recognized by or could not have been reasonably formulated from a final decision of the United States Supreme Court, a court of appeals of the United States, or a court of appellate jurisdiction of this state on or before that date.
Id. § 5(d).
II — McCoy v. Louisiana
Applicant claims, as his new legal basis, the Supreme Court's 2018 decision in McCoy v. Louisiana , which was handed down seven years after Applicant's previous application filed in 2011. See Ex parte Barbee , No. WR-71,070-02, 2013 WL 1920606 (Tex. Crim. App. May 8, 2013). In McCoy , the United States Supreme Court held "that a defendant has the right to insist that counsel refrain from admitting guilt, even when counsel's experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty." McCoy , 138 S.Ct. at 1505.
In McCoy , the defendant was charged with three counts of first-degree murder under Louisiana law for murdering his estranged wife's mother, stepfather, and son, and the prosecution gave notice that it would seek the death penalty. Id. at 1505–06. McCoy pled not guilty, insisting that he was out of the state at the time of the killings and that corrupt police killed the victims when a drug deal went wrong. Id. at 1506. Counsel concluded, however, that the evidence was so overwhelming that McCoy would be sentenced to death unless he conceded that he was the killer. Id. McCoy was furious when told of counsel's strategy. Id. McCoy was completely opposed and instructed counsel to pursue an acquittal instead of conceding guilt. Id.
At the beginning of counsel's opening statement in the guilt phase of trial, counsel told the jury that McCoy committed the three murders. Id. McCoy testified in his own defense, maintaining his innocence and pressing his alibi. Id. at 1507. In closing argument, counsel again told the jury that McCoy was the killer, and on that issue counsel told the jury that the burden was taken off of the prosecution. Id. The jury found McCoy guilty of all three first-degree murder counts. Id. At the penalty phase, counsel repeated that McCoy was guilty but urged mercy in view of McCoy's mental and emotional issues. Id. The jury returned three death verdicts. Id. On appeal, McCoy argued that his constitutional rights were violated when the trial court allowed counsel to concede that McCoy committed the murders over his objection, but the Louisiana Supreme Court held that counsel had the authority to concede McCoy's guilt despite his opposition. Id.
The Supreme Court granted certiorari in view of the split between Louisiana on the one side and decisions by the Delaware and Kansas Supreme Courts on the other side over "whether it is unconstitutional to allow defense counsel to concede guilt over the defendant's intransigent and unambiguous objection." Id. (citing Cooke v. State , 977 A.2d 803, 842–46 (Del. 2009), and State v. Carter , 270 Kan. 426, 14 P.3d 1138, 1148 (2000) ).
In deciding the issue, the Supreme Court began with the right to self-representation under Faretta . Id. at 1507–08 (discussing Faretta ). Should a defendant choose to be represented by counsel, certain decisions, such as "what arguments to pursue, what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence," are made by counsel, while other decisions, such as "whether to plead guilty, waive the right to a jury trial, testify in one's own behalf, and forgo an appeal," belong to the defendant. Id. at 1508 (citing Gonzalez v. United States , 553 U.S. 242, 128 S.Ct. 1765, 170 L.Ed.2d 616 (2008) ; and Jones v. Barnes , 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983) ). The Supreme Court held, in McCoy , that the decision to determine that the objective of the defense is to assert innocence is one of the decisions that belong to the defendant:
Autonomy to decide that the objective of the defense is to assert innocence belongs in this latter category. Just as a defendant may steadfastly refuse to plead guilty in the face of overwhelming evidence against her, or reject the assistance of legal counsel despite the defendant's own inexperience and lack of professional qualifications, so may she insist on maintaining her innocence at the guilt phase of a capital trial. These are not strategic choices about how best to achieve a client's objectives; they are choices about what the client's objectives in fact are.
Id. at 1508 (emphasis in original).
The issues in McCoy and in Faretta , Gonzales , and Barnes relate to which decisions belong to the defendant and which decisions belong to counsel, not whether counsel was effective in performing his duties. See Faretta , 422 U.S. at 807, 95 S.Ct. 2525 (self-representation); Gonzalez , 553 U.S. at 253, 128 S.Ct. 1765 (decision of whether to waive Article III judge at voir dire belongs to counsel); Barnes , 463 U.S. at 751, 103 S.Ct. 3308 (decision of which nonfrivolous claims to assert on appeal belongs to counsel). Not surprisingly, then, the Supreme Court declared in McCoy that:
Because a client's autonomy, not counsel's competence, is in issue, we do not apply our ineffective-assistance-of-counsel jurisprudence, Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), or United States v. Cronic , 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), to McCoy's claim.
McCoy , 138 S.Ct. at 1510-11.
III — Florida v. Nixon , Strickland , and Cronic
The legal theory behind McCoy —a defendant's autonomy to decide that the objective of his defense is to assert innocence—is completely different from the legal theory behind Florida v. Nixon . The legal theory behind Nixon is that of Strickland v. Washington and United States v. Cronic , which were concerned with ineffective assistance of counsel. Normally, a defendant alleging that he received ineffective assistance of counsel must show (1) that counsel's performance was deficient, and (2) that counsel's deficient performance prejudiced the defense. Strickland , 466 U.S. at 687, 104 S.Ct. 2052.
Cronic , decided the same day as Strickland , provides an exception to the Strickland ineffective assistance standard. Strickland , 466 U.S. at 668, 104 S.Ct. 2052 (decided May 14, 1984) ; Cronic , 466 U.S. at 648, 104 S.Ct. 2039 (decided May 14, 1984) ; Nixon , 543 U.S. at 190, 125 S.Ct. 551 (" Cronic recognized a narrow exception to Strickland ’s holding[.]"). Whereas under Strickland a defendant claiming ineffective assistance of counsel must make a two-prong showing of deficient performance and prejudice, Cronic recognized that there are circumstances in which prejudice is so likely that a defendant need not prove it. Nixon , 543 U.S. at 190, 125 S.Ct. 551. Stating the general rule that "because we presume that the lawyer is competent to provide the guiding hand that the defendant needs ... the burden rests on the accused to demonstrate a constitutional violation," the Supreme Court in Cronic explained:
There are, however, circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.
Most obvious, of course, is the complete denial of counsel. The presumption that counsel's assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial. Similarly, if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable. No specific showing of prejudice was required in Davis v. Alaska ... because the petitioner had been "denied the right of effective cross-examination" which " ‘would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.’ "
Circumstances of that magnitude may be present on some occasions when although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.
Cronic , 466 U.S. at 658–60, 104 S.Ct. 2039 (citations omitted).
In Nixon , the Supreme Court resolved the question of "whether counsel's failure to obtain the defendant's express consent to a strategy of conceding guilt in a capital trial automatically render's counsel's performance deficient, and whether counsel's effectiveness should be evaluated under Cronic or Strickland ." Nixon , 543 U.S. at 186–87, 125 S.Ct. 551. Under the facts of the case, the Supreme Court determined that counsel's concession of guilt did not reach the level of a complete failure to function as the client's advocate, such that Cronic ’s presumption of prejudice applied. Id. at 190, 125 S.Ct. 551. Unlike most cases:
the gravity of the potential sentence in a capital trial and the proceeding's two-phase structure vitally affect counsel's strategic calculus. Attorneys representing capital defendants face daunting challenges in developing trial strategies, not least because the defendant's guilt is often clear. Prosecutors are more likely to seek the death penalty, and to refuse to accept a plea to a life sentence, when the evidence is overwhelming and the crime heinous. In such cases, "avoiding execution [may be] the best and only realistic result possible."
Counsel therefore may reasonably decide to focus on the trial's penalty phase, at which time counsel's mission is to persuade the trier that his client's life should be spared. Unable to negotiate a guilty plea in exchange for a life sentence, defense counsel must strive at the guilt phase to avoid a counterproductive course. In this light, counsel cannot be deemed ineffective for attempting to impress the jury with his candor and his unwillingness to engage in "a useless charade." Renowned advocate Clarence Darrow, we note, famously employed a similar strategy as counsel for the youthful, cold-blooded killers Richard Loeb and Nathan Leopold. Imploring the judge to spare the boys’ lives, Darrow declared: "I do not know how much salvage there is in these two boys.... I will be honest with this court as I have
tried to be from the beginning. I know that these boys are not fit to be at large."
Id. at 190–92 (citations omitted). Because conceding guilt in a capital case could be a matter of trial strategy, the Supreme Court held that counsel's performance should be evaluated under the normal ineffective assistance of counsel standard of Strickland . Id. at 192, 125 S.Ct. 551.
IV — McCoy Could Not Have Been Formulated from Nixon
This Court today determines that the legal basis of Applicant's current McCoy -based claim was previously available because McCoy could have been reasonably formulated by distinguishing Nixon based on the factual distinctions—not the legal ones. But therein lies the rub. Distinguishing Nixon on the facts is an argument to apply Cronic .
The fact is, Applicant previously formulated an argument that tried to distinguish Nixon . In his first application, Applicant argued that he was effectively abandoned by trial counsel when counsel "confessed" Applicant's guilt to the jury during closing argument, resulting in a failure to subject the prosecution's case to meaningful adversarial testing and consequently a denial of counsel under Cronic . Applicant pointed to United States v. Swanson , in which the Ninth Circuit held that counsel provides presumptively ineffective assistance, under Cronic , when he makes such a concession. See United States v. Swanson , 943 F.2d 1070, 1074 (9th Cir. 1991). In Applicant's proposed conclusions of law, he further argued that Nixon , in which the Supreme Court held that counsel's failure to obtain express consent to such a strategy was not presumptively ineffective under Cronic , should be distinguished. See Nixon , 543 U.S. at 190–91, 125 S.Ct. 551. Specifically, his proposed conclusions of law stated his case differed from Nixon because:
The first application also made two Strickland ineffectiveness of counsel claims centered around the supposed failure of counsel to properly challenge Applicant's video recorded confession and in counsel's supposed failure to call certain witnesses in mitigation. Finally, Applicant claimed a Brady violation from the State's supposed failure to provide a full, unaltered copy of Applicant's video recorded confession.
11. First, when counsel in Nixon informed his client of the proposed strategy of conceding guilt, counsel "failed to elicit a definitive response," from the client, thus by implication consenting to the strategy proposed by counsel. 543 U.S. at 186, 125 S.Ct. 551. In contrast to Nixon , after his recantation of his allegedly coerced confession, Mr. Barbee consistently maintained his innocence, notwithstanding his counsel's disbelief in Mr. Barbee's claim. See State's Answer at 39, Affidavit of William Ray and Tim Moore at 6, Affidavit of Amanda Maxwell at 4.
Applicant's Proposed Findings of Fact, Conclusions of Law and Order, Clerk's R. 243, Ex parte Barbee , WR-71,070-01. Applicant also pointed to differences during the punishment phase of trial:
13. Second, unlike counsel in Nixon who admitted his client's guilt in order to pursue a vigorous mitigation case, Mr. Barbee's counsel totally abdicated their duty to present any meaningful mitigation, based upon the questionable premise that because he refused to "accept responsibility," they were somehow relieved of their legal duty to try and keep their client alive, despite the fact that they were the ones who admitted his responsibility for the murders in the first place.
Id. at 244.
In his second application (his first subsequent application), Applicant asserted, as his fourth claim, that trial counsel provided ineffective assistance during trial. His fourth claim was itself subdivided into four separate sub-claims. The first sub-claim alleged that he was effectively abandoned by counsel, under Cronic , because counsel failed to present medical and neuropsychological evidence that would have supported his innocence. The second sub-claim alleged ineffective assistance under Cronic for the same reason stated in the first application: trial counsel effectively abandoned him and failed to subject the prosecution's case to meaningful adversarial testing by "confessing" his guilt to the jury in closing argument. The third and fourth sub-claims asserted that counsel provided ineffective assistance under Strickland for failing to explain to the jury the significance of phone records admitted as evidence and for failing to object to testimony provided by a pair of coroners as prejudicially speculative. Applicant's fourth claim, related to trial counsel's alleged ineffective assistance under both Cronic and Strickland , was dismissed as subsequent.
The second application for habeas relief raised twenty-one claims, and we dismissed all but the second, which argued that Applicant was deprived of due process and a fair trial because his trial attorneys had a conflict of interest. After remand and a hearing, we denied relief. Ex parte Barbee , No. WR-71-070-02, 2013 WL 1920686 (Tex. Crim. App. May 8, 2013) (not designated for publication).
As described above, then, the pertinent claims made in the previous applications complain of trial counsel's supposed "confession" of guilt to the jury during closing argument. Applicant's current claim for habeas relief under McCoy also complains of the same "confession" by counsel during closing argument. They involve the same factual basis.
But the legal basis is not the same. A Nixon argument, which is an ineffective assistance of counsel argument, is not a McCoy argument. In McCoy , the Supreme Court explicitly said:
Because a client's autonomy, not counsel's competence, is in issue, we do not apply our ineffective-assistance-of-counsel jurisprudence, Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), or United States v. Cronic , 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), to McCoy's claim.
McCoy , 138 S.Ct. at 1510-11. That should be the end of it. Although factually similar, Nixon and McCoy are legally dissimilar, and a McCoy argument could not be reasonably formulated by distinguishing Nixon on the facts. That kind of argument would be Cronic -based. Although a Cronic - based argument would identify the error as a structural one just as Applicant's current McCoy -based argument does today, a Cronic -based argument asserts that the error is structural for a different reason. To some extent, all structural error affects the framework in which the trial proceeds. Id. at 1511. Ineffective assistance of counsel under Cronic is structural because, if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, the adversary process itself becomes presumptively unreliable. Cronic , 466 U.S. at 659, 104 S.Ct. 2039. Conversely, McCoy error is structural for at least two reasons identified by the Supreme Court in McCoy : (1) to protect "the fundamental legal principle that a defendant must be allowed to make his own choices about the proper way to protect his own liberty"; and (2) the effects of the error are too hard to measure. McCoy , 138 S.Ct. at 1511 (quoting Weaver v. Massachusetts , ––– U.S. ––––, 137 S.Ct. 1899, 1908, 198 L.Ed.2d 420 (2017) ). "[C]ounsel's admission of a client's guilt over the client's express objection ... blocks the defendant's right to make fundamental choices about his own defense. And the effects of the admission would be immeasurable, because a jury would almost certainly be swayed by a lawyer's concession of his client's guilt." Id. The reason for protections provided in a Cronic claim are very different from the reasons for protections provided in a McCoy claim. Furthermore, a Cronic claim is very different from a McCoy claim because Cronic is an ineffective assistance of counsel claim and McCoy is an autonomy claim. The Cronic opinion makes no mention of autonomy, and McCoy makes no mention of ineffective assistance of counsel except to say that it does not apply. Id. at 1510–11. I cannot agree with the majority that McCoy could have reasonably formulated by distinguishing Nixon .
Indeed, presumptively ineffective assistance of counsel under Cronic and overriding the defendant's objectives under McCoy do not necessarily overlap. Counsel could be effective under Cronic because counsel has subjected the prosecution's case to meaningful adversarial testing by cross-examining the State's witnesses and arguing to the jury why it should render a verdict more favorable to the defendant than that sought by the State. However, if those decisions are contrary to the defendant's objective of asserting innocence, they are nevertheless structural errors under McCoy . For example, in McCoy and similar cases in which the government seeks the death penalty, where counsel concludes that there is overwhelming evidence of guilt, counsel's best option to avoid the death penalty may be to concede the question of guilt. See id. at 1506. If the defendant's objective is to claim innocence despite the evidence, counsel's strategy overrides the defendant's objective of asserting innocence and violates McCoy , even though it would not be ineffective under Strickland and Cronic .
Because a defendant may well have objectives that are incongruent with presenting an effective defense for himself, it is no surprise that the Supreme Court clearly stated that ineffective assistance case law under Strickland and Cronic was inapplicable in McCoy . Id. at 1510–11 ("Because a client's autonomy, not counsel's competence, is in issue, we do not apply our ineffective-assistance-of counsel jurisprudence, Strickland v. Washington , ... or United States v. Cronic , ... to McCoy's claim."). This statement, while not strictly a holding, was a requisite component of the analysis and should be determinative.
Accordingly, McCoy is not a logical extension of Nixon based on the factual differences between them. An argument that Nixon should be distinguished on its facts, such that structural error has occurred, is an argument that counsel's performance was deficient and, under Cronic , presumptively prejudicial. McCoy presents a completely different legal theory, that counsel overrode the defendant's autonomy to decide that the objective of his defense was to assert innocence. McCoy could not have been reasonably formulated off of Nixon .
V — McCoy Could Not Have Been Reasonably Formulated
As explained above, the McCoy right—the defendant's autonomy to decide that the objective of his defense is to assert innocence—was founded upon Faretta , not Strickland or Cronic or Nixon . But McCoy could not have been reasonably formulated from Faretta . Faretta itself did not hold that a defendant has a right to decide to assert innocence. Instead, Faretta held that a defendant has a constitutional right of self-representation and he may proceed to defend himself without counsel when he voluntarily and intelligently elects to do so. Faretta , 422 U.S. at 807, 95 S.Ct. 2525. Instead of being directly derived from Faretta , the McCoy right was implied by one of the underlying principles of Faretta , "the fundamental legal principle that a defendant must be allowed to make his own choices about the proper way to protect his own liberty." McCoy , 138 S.Ct. at 1508–09 (quoting Weaver , 137 S.Ct. at 1908 ); see also id. at 1508–09 (quoting Martinez v. Court of Appeal of Cal., Fourth Appellate Dist. , 528 U.S. 152, 165, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000) (Scalia, J., concurring) ("Our system of laws generally presumes that the criminal defendant, after being fully informed, knows his own best interests and does not need them dictated by the State.")).
Those choices, until McCoy was decided, were limited to "certain fundamental decisions that the criminal justice system reserves for him to make personally." Turner v. State , 422 S.W.3d 676, 690–91 (Tex. Crim. App. 2013) (citing Barnes , 463 U.S. at 751, 103 S.Ct. 3308 ). Those decisions include whether to plead guilty, whether to waive the right to a jury trial, whether to testify on one's own behalf, and whether to forego an appeal. McCoy , 138 S.Ct. at 1508 ; Barnes , 463 U.S. at 751, 103 S.Ct. 3308. The decisions that belonged to a defendant did not include the autonomy to decide that the objective of the defense is to assert innocence. Instead, other choices such as what arguments to pursue, what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence were left to counsel. Gonzalez , 553 U.S. 248–49 (quoting New York v. Hill , 528 U.S. 110, 115, 120 S.Ct. 659, 145 L.Ed.2d 560 (2000) ). When Applicant filed his previous applications for habeas relief, trial counsel's decision to concede guilt, as a strategic decision to avoid the death penalty, could easily be classified as a decision about which arguments to pursue.
In McCoy itself, several members of the Supreme Court felt that defendant's right to autonomy to decide that the objective of the defense is to assert innocence was "new." Justice Alito's dissent, joined by Justices Thomas and Gorsuch, considered what the majority did as "having discovered a new right," McCoy , 138 S.Ct. at 1517 (Alito, J., dissenting). In Alito's view, the Supreme Court decided the "case on the basis of a newly discovered constitutional right." McCoy , 138 S.Ct. at 1518. Though this may be true as a matter of Supreme Court jurisprudence, Justice Alito was perhaps too harsh, because McCoy recognized a split between the states and adopted the prevailing view.
Recognizing the factually similar case of Florida v. Nixon , the Supreme Court explained that Nixon was different because Nixon "was generally unresponsive" during discussions of trial strategy, and "never verbally approved or protested" counsel's proposed approach to admit guilt, and he complained only after trial. McCoy , 138 S.Ct. at 1509 (discussing Nixon , 543 U.S. at 181, 185, 125 S.Ct. 551 ). McCoy, in contrast, opposed counsel's assertion of guilt at every opportunity, before and during trial, both in conference with his lawyer and in open court. McCoy , 138 S.Ct. at 1509. In support of this distinction, the Supreme Court cited Cooke , in which the Delaware Supreme Court similarly distinguished Nixon because:
[i]n stark contrast to the defendant's silence in that case, Cooke repeatedly objected to his counsel's objective of obtaining a verdict of guilty but mentally ill, and asserted his factual innocence consistent with his plea of not guilty.
McCoy , 138 S.Ct. at 1509 (quoting Cooke v. State , 977 A.2d 803, 847 (Del. 2009) ). Relying on the Delaware Cooke opinion, Kansas's Carter opinion, and Colorado's Bergerud opinion, the Supreme Court concluded, at the very end of Section II of its opinion, that:
In each of the three cases, as here, the defendant repeatedly and adamantly insisted on maintaining his factual innocence despite counsel's preferred course: concession of the defendant's commission of criminal acts and pursuit of diminished capacity, mental illness, or lack of premeditation defenses. These were not strategic disputes about whether to concede an element of a charged offense, they were intractable disagreements about the fundamental objective of the defendant's representation. For McCoy, that objective was to maintain "I did not kill the members of my family." In this stark scenario, we agree with the majority of state courts of last resort that counsel may not admit her client's guilt of a charged crime over the client's intransigent objection to that admission.
McCoy , 138 S.Ct. at 1510 (discussing Cooke , 977 A.2d 803 ; People v. Bergerud , 223 P.3d 686 (Colo. 2010) ; and State v. Carter , 270 Kan. 426, 14 P.3d 1138 (Kan. 2000) ) (citations omitted).
It is true that the Supreme Court, in McCoy , pointed out the factual differences between Nixon , the state cases, and the case before it. Yet in doing so, the Supreme Court did not conclude that the differences meant that presumptive prejudice under Cronic applied. To the extent the Supreme Court discussed and distinguished Nixon , it is important to remember that Nixon was concerned with whether counsel, who employs a strategy of conceding guilt without obtaining the express consent of the defendant, provided presumptively ineffective assistance of counsel under Cronic . Nixon , 543 U.S. at 178, 125 S.Ct. 551. The Supreme Court held that counsel in such a case would not be deemed presumptively ineffective, and the defendant would have to show prejudice under the Strickland standard. Id. at 192, 125 S.Ct. 551. The effectiveness or ineffectiveness of counsel is wholly irrelevant to the issue the Supreme Court was concerned with in McCoy —which decisions belong to the defendant and which decisions belong to the lawyer. See McCoy , 138 S.Ct. at 1510–11 ("Because a client's autonomy, not counsel's competence, is in issue, we do not apply our ineffective-assistance-of-counsel jurisprudence, Strickland ... or Cronic , to McCoy's claim.").
Under a fair reading of McCoy , the Supreme Court declared that the defendant has a right of autonomy to decide that the objective of his defense is to assert innocence by referencing the fundamental principles of Faretta and by identifying the split between Louisiana on the one side and Delaware, Kansas, and Colorado on the other side and opting to adopt the latter position stated in Cooke , Carter , and Bergerud . See id. at 1507 ("We granted certiorari in view of a division of opinion among state courts of last resort on the question whether it is unconstitutional to allow defense counsel to concede guilt over the defendant's intransigent and unambiguous objection.").
Although McCoy has its roots in Faretta and resolved a split among various states, McCoy is the case that recognizes the autonomy-right in the first place. Accordingly, not only could Applicant not have reasonably formulated the autonomy-based McCoy argument based on Nixon , as the majority suggests, he could not have reasonably formulated the autonomy-based McCoy argument based on a prior decision of the United States Supreme Court, a court of appeals of the United States, or a court of appellate jurisdiction of this state. McCoy constitutes a new legal basis for habeas relief. The majority's assertion that Applicant could have formulated the autonomy-based McCoy argument based on Nixon appears to be correct. However, I cannot agree that Applicant could have reasonably formulated the autonomy-based McCoy argument based on Nixon as the exception to the article 11.071 § 5 bar requires. The word reasonably is included in the statute for a reason. The question is whether, prior to McCoy , a reasonably competent Texas attorney representing Applicant would have read the Nixon opinion, thought of the possibility of expanding the Nixon ineffective assistance of counsel holding to an autonomy issue, contemplated that this Court or the Supreme Court of the United States may buy the argument under the facts of Applicant's case even though no Texas Court or the Supreme Court of the United States had ever done so, and then come to the conclusion that making the argument would be prudent. Again, whether an argument can be formulated and whether an argument can be reasonably formulated are very different. As pointed out by the majority in this case, Carter and Cooke , both state supreme court cases, predicted the United States Supreme Court's holding in McCoy . But, would a reasonable, competent, and prudent attorney representing Applicant prior to McCoy have, even after contemplating a McCoy -esque argument, then researched case law from every state court in the United States to back up an idea that had, at best, a minuscule chance of success? While Appellant could have formulated a McCoy -esque argument as was done in Cooke out of Delaware, Carter out of Kansas, and Bergerud out of Colorado, decisions by courts of appellate jurisdiction of other states, he could not have reasonably done so. The attempt would have been destined to fail because it would have been based on case law not included in § 5(d). See, e.g. , Ex parte Medellin , 223 S.W.3d 315, 352 (Tex. Crim. App. 2006) (dismissing habeas corpus application as subsequent where the claimed legal bases, a decision of the International Court of Justice and a Presidential memorandum, were not final decisions of a court listed in § 5(d), even though they were not available at the time of the previous application).
VI — No Prima Facie Case
However, it is not enough for a subsequent application for habeas relief to invoke a new legal basis, the application must also allege sufficient specific facts that, if true, entitle him to relief. Ex parte Maldonado , 688 S.W.2d 114, 116 (Tex. Crim. App. 1985) ; TEX. CODE CRIM. PROC. Ann. art. 11.071 § 5(a). As discussed, McCoy holds that a defendant has a right of "[a]utonomy to decide that the objective of the defense is to assert innocence." McCoy , 138 S.Ct. at 1508 ; see also McCoy , 138 S.Ct. at 1505 ("We hold that a defendant has the right to insist that counsel refrain from admitting guilt, even when counsel's experience-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty."). While McCoy ’s full scope has yet to be determined by the Supreme Court, I believe that, at a minimum, McCoy requires a showing that the defendant told counsel that he wants to pursue a strategy of asserting innocence.
While Applicant's application for habeas relief and his brief do not allege that Applicant told his attorneys that he wanted to pursue an innocence defense, Applicant, in his application for habeas relief and in his brief, asserts that he had an objective to maintain innocence and counsel overrode that objective by conceding guilt. The evidence he points to in order to support that claim, however, does not go so far.
Applicant points to the fact that he unsuccessfully sought to have counsel removed, similar to the unsuccessful pre-trial attempt to remove counsel in McCoy . See McCoy , 138 S.Ct. at 1506. In support of this, Applicant provides copies of two letters he sent to the trial court. The first letter states that "some serious issues" have occurred between Applicant and counsel, and "[t]here is a complete break-down in communication." The letter complains that counsel is failing to keep him advised of the proceedings. The letter also states that Applicant is unable to assist in his defense due to a head injury and migraines. Finally, the letter states that counsel informed him of their heavy case loads, and he is afraid that counsel would not have the time to handle his case properly. Applicant's second letter to the trial court only states that "[t]here has and continues to be a serious breakdown in communication." Neither letter even implies that Applicant wished to pursue an innocence strategy that counsel was overriding.
Clerk's R. 225.
Id. at 228.
Letters aside, Applicant points to evidence that he claims shows counsel was aware of his desired objective. In a joint affidavit in response to Applicant's first application for habeas relief, counsel stated:
• Applicant "constantly stated that Ron Dodd was the real killer" and "was steadfast in his assertion that he was innocent;"
• Applicant "took the position that Ron Dodd killed Lisa and Jayden Underwood and ... was not present when that happened;"
• Applicant "maintained that he was completely innocent" and "refused to accept any responsibility;" and
• "It was counsel's decision to call this case an accident, because the ‘Ron Dodd did it’ theory just wasn't going to work, and had not worked in this case."
Id. at 234.
Id. at 231.
Id. at 235, 236.
Id. at 234.
A memorandum of understanding prepared by counsel before trial stated that:
• "Client has maintained his innocence to attorneys since the date of appointment."
Id. at 239.
And at an evidentiary hearing held on Applicant's second application for habeas relief:
• Counsel testified that Applicant "had told me he was innocent" "all along;" and
• Co-counsel confirmed that Applicant told him "all along that he was innocent."
Id. at 299.
Id. at 302.
While Applicant's evidence supports his claim that he repeatedly told counsel that he was innocent, the evidence shows nothing of whether Applicant actually told them to pursue a strategy of asserting innocence at trial. Instead, at the evidentiary hearing counsel testified:
Q. Did you have Mr. Barbee's permission to tell the jury that?
...
A. Okay. Your question is, did I tell Mr. Barbee or did I ask him if I could do that?
Q. Yes.
A. We had a conversation on February 21st, which was, I believe the morning of trial. I'm talking about 2006. And I had typed up a memo and I showed it to him, and he didn't want to sign it but we went over it. And the gist of the memo was that that was the only way we could get through this and him be found not guilty was that we take that position.
And it was not a -- it was not an agreement to get his permission; it was just my theory of the case. He didn't sign the memo but he had it explained to him.
So did I explicitly ask him if I could do that? The answer is no. Did he explicitly tell me he didn't want me to do it? The answer is no. It's no to that question, too.
Id. at 299.
Finally, Applicant argues that even though a defendant's motivations are irrelevant to the autonomy right, counsel was aware of his motivation, heightening the importance of allowing him to make his own decisions. This is so because a defense psychiatrist told counsel that Applicant's chief concern was not disappointing his mother and that:
[Applicant] appeared fixated on "how his mother will view him" ... He even went so far as to say that he would rather be executed than have his mother see him plead guilty to the charges.
Id. at 262.
If Applicant's true objective of his defense was to avoid disappointing his mother by not pleading guilty, then counsel met and achieved this objective: there was no guilty plea, and there was a jury trial.
In McCoy , the defendant explicitly and repeatedly opposed counsel's strategy of conceding guilt to avoid the death penalty. Applicant's evidence shows, at the most, that Applicant repeatedly told counsel he was innocent. No matter how emphatically he does so, this does not meet the requirements of McCoy . I agree with the majority that Applicant's facts do not show a prima facie McCoy violation.
VII — Conclusion
Under § 5(d), the legal basis of an applicant's claim is unavailable if it could not have been reasonably formulated based on relevant case law in the applicant's previous applications. The majority errs in determining that the legal basis of his current claim, McCoy , could have been formulated by distinguishing Nixon on its facts. The majority's conclusion ignores the fact that Nixon was an ineffective assistance of counsel case, and the issue in Nixon was whether presumptive prejudice under Cronic applied to the facts of that case. An argument distinguishing Nixon on its facts is an argument that presumptive prejudice under Cronic applies. This is clear from Applicant's own previous application making this very argument.
Ineffective assistance of counsel claims under Strickland , Cronic , and Nixon have different legal bases from and are not interchangeable with McCoy . Applicant's current McCoy -based claim asserts, not that counsel provided presumptively prejudicial ineffective assistance of counsel, but that counsel overrode his autonomy to decide that the objective of his defense is to claim innocence. Applicant could not have reasonably formulated his McCoy argument from relevant Supreme Court, federal appellate court, or Texas appellate case law. McCoy added a new entry to the list of decisions that belong to the defendant, and in doing so borrowed from Delaware, Kansas, and Colorado case law. A Texas habeas applicant, seeking to get past the procedural bar, is statutorily unable to rely upon other state court case law. I therefore disagree with the Court's conclusion that McCoy does not constitute a new legal basis for habeas relief.
Nevertheless, I agree with the majority that Applicant's claim fails to meet the exception to the § 5 procedural bar because he did not instruct counsel to assert innocence at trial. For McCoy to actually apply to the situation at hand, it is necessary that, at the time of his trial, Applicant's objective of his defense was to assert innocence, that Applicant communicated this objective to counsel, and then counsel overrode Applicant's objective. Because Applicant's evidence in support of his claim for habeas relief shows, at the most, that Applicant repeatedly told counsel he was innocent, I concur with the Court's judgment in dismissing the application.