Opinion
NO. WR-49,656-05
10-08-2014
EX PARTE DAVID LYNN CARPENTER
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W-97-77949-U(E) IN THE 291ST JUDICIAL DISTRICT COURT FROM DALLAS COUNTY
, filed a concurring statement.
CONCURRING STATEMENT
I concur in the Court's dismissal of this subsequent application for a post-conviction writ of habeas corpus filed by David Lynn Carpenter, applicant. Although I continue to believe that this Court would be authorized to consider the merits of a substantial claim for relief raised in a subsequent 11.071 application when an applicant can show that such a claim was forfeited as a result of ineffectiveness by habeas counsel in the initial proceeding, I conclude that, even if this Court were to adopt such a rule, applicant has failed to show that he is entitled to such consideration in the present case. The pleadings and the record in this case indicate that applicant's present ineffective- assistance-of-trial-counsel claims are not substantial, and, under my proposed approach, those claims are thus not entitled to consideration when raised in a subsequent writ proceeding. See Ex parte Buck, 418 S.W.3d 98, 110 (Tex. Crim. App. 2013) (Alcala, J., dissenting) (stating that, "to overcome bar on subsequent writs," I would require applicant to make initial showing "that the underlying claim that was forfeited as a result of habeas counsel's error has some merit"). As I explain further below, because applicant has failed to make an initial showing that any of his current claims are potentially meritorious, I agree with the Court's determination that he has failed to establish any basis for consideration of the claims raised in this subsequent writ application. I thus concur in the Court's dismissal of the application as procedurally barred. See TEX. CODE CRIM. PROC. art. 11.071, § 5.
See Ex parte Buck, 418 S.W.3d 98, 99 (Tex. Crim. App. 2013) (Alcala, J., dissenting) (suggesting that, "when an applicant can demonstrate that initial habeas counsel's performance fell below the minimum standards for representation set forth in Texas Code of Criminal Procedure Article 11.071, and when an applicant can demonstrate that, as a result of counsel's incompetence, a substantial claim for relief was forfeited, this Court may properly exercise its habeas jurisdiction to consider the merits of the underlying claim").
I. Applicant Asserts that He Is Entitled to Consideration of Present Claims Based on
Incompetence by Initial Habeas Counsel
The record indicates that this is applicant's fifth 11.071 application challenging his conviction for the 1991 murder-for-hire of Nelda Henin. The evidence presented at applicant's 1999 trial consisted primarily of (1) testimony from applicant's ex-girlfriend, Mandee McBay, indicating that applicant confessed to her on the morning of the murder that he had slit Henin's throat; (2) testimony from Ervin Smith, who stated that she had offered to pay applicant $1,000 to kill Henin; and (3) testimony from an eyewitness, Tessica Rainey, who said she saw applicant flee Henin's apartment on the morning of the murder. No physical evidence linked applicant to Henin's murder. Applicant was found guilty of capital murder and sentenced to death, and his conviction was affirmed by this Court on direct appeal.
Applicant's initial application for a post-conviction writ of habeas corpus was denied by this Court in 2001 on the basis of the trial court's findings of fact and conclusions of law. See Ex parte Carpenter, No. WR-49,656-01 (Tex. Crim. App. Dec. 19, 2001). The next three applications were disposed of by this Court in 2003, 2004, and 2011 respectively.
See Carpenter v. State, No. AP-73,442 (Tex. Crim. App. Oct. 24, 2001).
In the present application, applicant raises four new claims of ineffective assistance of trial counsel, and he further asserts that this Court should consider those claims on the merits notwithstanding the fact that they are raised in a subsequent writ proceeding. In support of this argument, applicant submits that, given the "watershed change in the law" brought about by the Supreme Court's recent decisions in Trevino v. Thaler and Martinez v. Ryan, this Court should "permit an equitable exception" to the statutory bar on subsequent writs that would enable it to "consider a claim of ineffective assistance of habeas counsel as a gateway to considering an otherwise-forfeited claim of ineffective assistance of trial counsel." Alternatively, applicant contends that this Court should reconsider its approach in Ex parte Graves and hold that capital habeas applicants are statutorily entitled to competent counsel and that, as such, the incompetence of initial habeas counsel should serve as a basis to overcome the bar on subsequent writs in a later proceeding. In any event, applicant concedes that, to take advantage of any such exception either in this Court or in federal court, his claims for relief must be "substantial" in the sense that they are shown, at this preliminary stage, to have some merit.
Applicant's ineffective-assistance claims include the following: 1. Trial counsel was ineffective for failing to present expert testimony that the eyewitness identification used to inculpate [applicant] was inherently unreliable. 2. Trial counsel was ineffective for failing to investigate and present evidence that Mandee McBay was [applicant's] common-law wife and was thus privileged from testifying. 3. Trial counsel was ineffective for failing to present mitigating evidence and evidence that [applicant] posed no future danger. 4. Trial counsel was ineffective for failing to investigate and present evidence that Matthew Tolbert actually murdered the victim.
See Martinez v. Ryan, 132 S. Ct. 1309, 1320 (2012) (holding that a "procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the [state's] initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective"); Trevino v. Thaler, 133 S. Ct. 1911, 1920-21 (2013) (applying rule of Martinez to federal review of Texas state-court convictions).
See Ex parte Graves, 70 S.W.3d 103, 113 (Tex. Crim. App. 2002) (holding that claim of incompetent assistance by prior habeas counsel not cognizable in post-conviction writ proceeding because, among other reasons, there is no constitutional right to counsel in a habeas proceeding, and, therefore, "there can be no constitutional right to effective assistance of counsel in a habeas proceeding").
See Martinez, 132 S. Ct. at 1318 (holding that, to be entitled to consideration of otherwise-defaulted claim on merits, claim for relief must be "substantial" in that it has "some merit").
Although I agree in principle with applicant's contentions, I conclude, for the reasons explained below, that even if this Court were to adopt an approach such as the one applicant suggests, he has failed to make an initial showing that any of his underlying ineffective-assistance claims are substantial in the sense that they would likely warrant favorable treatment by this Court on the merits. I thus conclude that the Court properly dismisses his application as procedurally barred.
See TEX. CODE CRIM. PROC. art. 11.071, § 5; Buck, 418 S.W.3d at 107-09.
1. Applicant's Claim That Counsel Was Ineffective For Failing to Procure Eyewitness-Identification Expert Lacks Merit
In his first claim, applicant alleges that trial counsel was ineffective for failing to procure expert testimony regarding the unreliability of the eyewitness identification of Tessica Rainey, who testified that she saw applicant leaving the complainant's home on the morning of the murder. In support of this claim, applicant submits an affidavit from Dr. Malpass, a social psychologist, in which Malpass states that, had he been retained by the defense and called to testify at trial, he would have testified that eyewitness Rainey (1) may not have had a "good viewing opportunity" given her physical location relative to applicant and the surrounding circumstances, and (2) that her memory could have deteriorated during the six years between the murder and the time when she first identified applicant in a photo lineup.
With respect to this claim, I conclude that applicant has failed to make an initial showing that it has some merit under the prevailing standard of Strickland v. Washington. This Court has held that failure to call a witness does not constitute ineffective assistance without a showing that the witness was available to testify and that his testimony would have benefitted the defendant. Applying these principles here, I observe that even if Dr. Malpass had been available to testify to the substance of his affidavit at applicant's trial, it is not at all clear that his testimony would have benefitted applicant because the jury was already well aware of the weaknesses in Rainey's identification of applicant in light of facts that were elicited through questioning by defense counsel at trial, including the speed with which applicant was said to have fled the murder scene in his car and the passage of many years between the date of the offense and Rainey's identification.
466 U.S. 668, 684, 691 (1984) (to prevail on ineffective-assistance claim, a defendant must prove that (1) counsel's representation fell below an objective standard of reasonableness, and (2) but for counsel's error, there is a reasonable probability that the result of the proceeding would have been different).
Perez v. State, 310 S.W.3d 890, 894 (Tex. Crim. App. 2010).
I further note that the majority of courts to consider similar claims of ineffectiveness based on failure to call an expert on eyewitness identification, including this Court, have rejected it. Applicant does not presently allege that counsel failed to conduct a thorough investigation of relevant facts or law, or that he failed to adequately cross-examine witnesses regarding the reliability of Rainey's identification, but instead raises a claim that counsel should have hired an eyewitness-identification expert but failed to do so. Because applicant has failed to make an initial showing either of deficient performance or prejudice on this basis, I conclude that he has failed to show that this claim has some merit for purposes of entitling him to a merits review of this claim. See Strickland v. Washington, 466 U.S. 668, 688, 692 (1984); Buck, 418 S.W.3d at 110.
See Cate v. State, 124 S.W.3d 922, 927 (Tex. App.—Amarillo 2004, no pet.); see also Howard v. Clark, 608 F.3d 563, 573-74 (9th Cir. 2010); Ford v. Cockrell, 315 F. Supp. 2d 831, 848, 853 (W.D. Tex. 2004) (trial counsel's strategic decision not to press for appointment of eyewitness-identification expert was not deficient performance, especially when there was no guarantee that trial court would have admitted such evidence); Switzer v. Hannigan, 45 F. Supp. 2d 873, 878 (D. Kan. 1999) (federal habeas petitioner failed to establish that counsel was ineffective for failing to call expert on eyewitness identification; when petitioner "does no more than argue that other forms of presentation might have been more influential at trial," such claims are "insufficient to undermine confidence in the process afforded him during trial"); Cantu v. Collins, 967 F.2d 1006, 1016 (5th Cir. 1992) (trial counsel in capital murder prosecution was not ineffective for failing to seek appointment of expert on eyewitness identification "based on his belief that his cross-examination of [the eyewitness] would be sufficient to refute the accuracy of the identification"); Jones v. Smith, 772 F. 2d 668, 674 (11th Cir. 1985).
I further note that applicant raised a similar claim in his initial writ, in which he alleged ineffective assistance of trial counsel based on counsel's failure to challenge Rainey's eyewitness identification "in any meaningful way." With respect to that claim, the habeas court found that defense counsel: (1) filed a pretrial motion to suppress Rainey's identification testimony, (2) "extensively cross-examined Rainey about the lineup and her observations of applicant at the scene," and (3) presented the testimony of a private investigator who opined that the photographic lineup in which Rainey identified applicant was impermissibly suggestive. The habeas court ultimately concluded that trial counsel "did not render ineffective assistance" by failing to adequately challenge the pretrial identification procedure or Rainey's testimony.
2. Applicant's Claim That Counsel Was Ineffective For Failing to Investigate and Present Evidence of Common-Law Marriage Lacks Merit
In his second claim, applicant contends that trial counsel was ineffective for failing to investigate and present adequate evidence of applicant's common-law marriage to Mandee McBay for the purpose of excluding McBay's testimony based on the existence of spousal privilege. See TEX. R. EVID. 504(a). The admissibility of McBay's testimony has been hotly contested by the parties ever since applicant's capital murder trial. As the State's witness, McBay testified that on the morning of Henin's murder, applicant came home and told her to "clean his knife and shoes off" because they were bloody. McBay related that applicant claimed he had kicked in Henin's door and slit her throat in exchange for the promise of $1,000. According to McBay, applicant told her that an acquaintance, Ervin Smith, "wanted to be with a guy that [Henin] was with and that [Smith] was going to pay [applicant] to kill the complainant." McBay testified that applicant and Smith went to Henin's home prior to the murder so that Smith could show applicant where Henin's bedroom was. At trial, defense counsel objected to McBay's testimony, asserting that McBay and applicant were common-law married at the time of the communication and that applicant's confession was thus protected as a confidential communication between spouses. The trial court conducted a hearing outside the jury's presence to receive evidence on that matter, but it ultimately rejected trial counsel's argument and permitted McBay to testify.
In the present application, applicant essentially complains that trial counsel failed to persuasively argue that McBay was applicant's common-law wife at the time of the offense, and he contends that counsel's performance should be found constitutionally lacking on that basis. See Strickland, 466 U.S. at 688. Because the record clearly indicates that the trial court did not err in overruling applicant's objection to McBay's testimony on the basis of spousal privilege, I conclude that applicant has failed to make even a minimal showing that his ineffective-assistance claim has some merit. See Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996) (to demonstrate that counsel was ineffective for failing to raise proper objection in trial court, appellant must show that trial court would have erred in overruling the objection).
The evidentiary rule upon which applicant attempts to rely is Rule of Evidence 504(a), which protects confidential communications between spouses during a marriage. See TEX. R. EVID. 504(a); Jasper v. State, 61 S.W.3d 413, 419 (Tex. Crim. App. 2001) (discussing requirements for establishing informal marriage for the purpose of invoking the privileges of Rule of Evidence 504). But the record indicates that, on the day of Henin's murder when applicant confessed to McBay what he had done, McBay was just fifteen years old. In light of her inability to legally consent to be married to applicant given her age, I conclude that the trial court properly determined that McBay was not common-law married to applicant on the day of the murder and that her testimony was thus not subject to exclusion as a privileged confidential communication between spouses.
See, e.g., In re B.W., 313 S.W.3d 818, 823 (Tex. 2010) (observing that a minor "cannot consent to be married without a court order finding the marriage to be in the child's best interest, no matter how mature the child appears or how earnestly the child might mouth the words 'I do'"); Kingery v. Hintz, 124 S.W.3d 875, 877 (Tex. App.—Houston [14th Dist.] 2003) (observing that a person under age eighteen does not have legal capacity to agree to an informal marriage).
Here, applicant makes a blanket assertion that counsel should have presented the court with better legal arguments and called members of applicant's family to testify that McBay continually held herself out as applicant's wife. But, given the circumstance of McBay's status as a minor, applicant has failed to demonstrate that additional investigation or presentation of witness testimony would have made any difference to the trial court's ruling. This is particularly true in light of McBay's denial on the witness stand that she had ever considered herself to be married to applicant, and additional testimony presented by the State indicating that applicant had stated on multiple occasions that he was single; that McBay and applicant had discussed getting married in the future; and that McBay may have had a motivation to falsely hold herself out as applicant's wife for the purpose of assisting him with getting some pending sexual-assault charges dropped.
See application at 26 (alleging that it is "readily apparent from the record that trial counsel had no firm grasp upon the legal requirements of an informal marriage and thus, was not prepared to make a cogent legal and factual presentation to the court concerning the defense objection").
Moreover, I note that the matter of McBay's status as applicant's common-law wife has more or less already been reviewed and rejected by this Court. Applicant raised a similar challenge to McBay's testimony on the basis of spousal privilege in the initial habeas application. In disposing of that claim, the habeas court made a fact finding that "McBay was no more than fifteen years old when applicant made his oral communications to her regarding the murder. Since she was only fifteen years old, the Court finds that . . . [she] was not old enough to have been informally married to applicant when he told her about the murder." The habeas court concluded that "no agreement to be married can be inferred from applicant's and [McBay's] conduct." As to these matters, I agree with the habeas court's findings and conclusions, which were later adopted by this Court in the initial 11.071 proceeding.
In sum, applicant has failed to make even a preliminary showing that trial counsel was ineffective for failing to more persuasively argue that McBay's testimony should have been excluded as privileged because applicant has failed to show that any additional arguments or presentation of evidence would have affected the trial court's ruling on this matter. I conclude that applicant has thus failed to present any basis for this Court's consideration of this claim raised in a subsequent application. See Buck, 418 S.W.3d at 110.
3. Applicant Has Failed to Make Initial Showing that Counsel Was Ineffective For
Failing to Present Expert Testimony as to Applicant's Future Dangerousness
In his third claim, applicant contends that trial counsel was ineffective for failing to adequately present mitigating evidence and evidence that applicant would not pose a risk of future dangerousness. Applicant's primary contention in this regard is that counsel failed to procure the assistance of a mitigation expert to testify that applicant, particularly when incarcerated, "did not pose any future danger to any one in society." Applicant contends that he "had absolutely no history of serious injury to anyone, no history of using a weapon in an altercation, and no convictions for serious assaultive conduct." In support of his claim, applicant submits an affidavit from Dr. Kessner, a clinical psychologist and mitigation expert, who opines that applicant's risk of future dangerousness if incarcerated "can be categorized as falling at the lower end of the probability range." Applicant contends that, had the jury received the testimony of Kessner, a trained psychologist on the issues of future dangerousness in the prison environment, "its answer to the second special issue would almost certainly have been 'no.'"
I conclude that applicant's pleadings fail to establish, as an initial matter, that trial counsel was ineffective for failing to call a mitigation expert. See Strickland, 466 U.S. at 688, 691. Trial counsel's decision not to call an expert witness does not constitute ineffective assistance in the absence of a showing that the expert would have testified in a manner that benefitted the defendant. See Ex parte McFarland, 163 S.W.3d 743, 755 (Tex. Crim. App. 2005). Here, Dr. Kessler's expert opinion is limited to an assessment of applicant's future dangerousness if he were incarcerated for life, and even then, she described her opinion as "necessarily tentative" because it was based on her review of "limited initial data" that included applicant's criminal history and behavior during prior prison terms. But this Court has previously interpreted the future-dangerousness special issue to ask whether a defendant would be a continuing threat "whether in or out of prison" without regard to how long the defendant would actually spend in prison if sentenced to life. Martinez v. State, 327 S.W.3d 727, 735 (Tex. Crim. App. 2010). Kessler's testimony would have told the jury only that applicant was unlikely to pose a future danger if he were incarcerated for life, but would not have addressed the broader subject of applicant's potential to pose a future risk to society. Applicant has thus failed to show how Kessler's testimony, had it been presented, would have benefitted him when the question before the jury was not whether he would be a continuing threat if sentenced to life imprisonment, but rather was whether, given the facts of the crime and other aggravating evidence, he would pose a risk of future dangerousness to society generally. I thus cannot conclude that trial counsel was ineffective for failing to present such testimony. See Strickland, 466 U.S. at 688, 69192.
Specifically, Kessler concludes in her affidavit that the "probability that [applicant] will commit acts of serious violence if given a capital life term in the Texas Department of Criminal Justice is low based on the group data. . . . [Applicant's] level of risk can be categorized as falling at the lower end of the probability range."
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Alternatively, applicant has failed to show that he was prejudiced by counsel's failure to call a mitigation expert in light of aggravating evidence in the record that demonstrated applicant's future dangerousness. That evidence included: • Evidence that applicant agreed to kill the complainant in exchange for $1,000 and murdered her by slashing her throat; • Evidence that applicant had multiple prior criminal convictions and had been on juvenile probation for assaulting a classmate in school; • Evidence that applicant had sexually and physically abused his ex-girlfriend, McBay; • Evidence that applicant had engaged in fighting with other inmates in prison; • Testimony from applicant's relatives indicating that, prior to going to jail, applicant had frequently gotten into physical fights and had threatened to physically harm relatives; and, • Testimony from applicant's mother indicating that applicant was a difficult child with violent tendencies.
In reviewing the sufficiency of the evidence to establish applicant's future dangerousness on direct appeal, this Court observed that the record "demonstrates his predilection for violence." It further noted that applicant had "acted according to a carefully calculated plan without hesitancy or remorse," and that evidence in both the guilt-innocence and punishment phases of trial "painted [applicant] as a chronic criminal whose behavior had become increasingly violent." Because I agree with this Court's prior assessment that "the record demonstrates [applicant's] penchant for violence towards both his family and strangers," his "lack of remorse for his conduct," and the "brutal nature of the instant offense," I conclude that applicant has failed to make an initial showing that Kessler's expert testimony, had it been presented, would have persuaded the jury to sentence him to life instead of to death. See Ex parte Gonzales, 204 S.W.3d 391, 394 (Tex. Crim. App. 2006) (in context of claim that counsel was ineffective for failing to adequately investigate and present mitigation evidence, Strickland's prejudice prong requires "a showing that there is a reasonable probability that, absent the errors, the jury would have answered the mitigation issue differently"). Having determined that applicant has failed to make an initial showing that his trial counsel was ineffective for failing to call a mitigation expert, I agree with the Court's decision to dismiss this claim as procedurally barred. See Buck, 418 S.W.3d at 110.
4. Applicant's Claim That Trial Counsel Was Ineffective For Failing to Investigate and Present Evidence as to Alternative Perpetrator Lacks Merit
In his fourth claim, applicant contends that trial counsel was ineffective for failing to investigate and present evidence that another individual, Matthew Tolbert, actually committed the murder of Henin. I disagree with applicant's contention because he has failed to show that any of the evidence he now claims trial counsel should have discovered and presented would have been admissible at his trial. See Ex parte Miller, 330 S.W.3d 610, 620-21 (Tex. Crim. App. 2009) (defense counsel's performance not deficient for failing to present or elicit testimony that would have been inadmissible at trial). Applicant has thus failed to make a preliminary showing that his counsel was ineffective on this basis. See Strickland, 466 U.S. at 687-88.
Since his conviction in 1999, applicant has repeatedly asserted that Tolbert is the true perpetrator of this offense. At trial, applicant sought to introduce testimony indicating that Tolbert was a suspect during the investigation of the offense and had at some point around the time of Henin's murder told a friend that he had broken into an old woman's home, robbed her, and slit her throat. That friend contacted the police to report Tolbert's statements. The trial court held a hearing outside the jury's presence to determine whether Tolbert's out-of-court statements were admissible. Tolbert took the stand and plead the Fifth Amendment. Defense counsel argued that the evidence showed that the police had investigated Tolbert for the instant offense; that Tolbert's method of operation matched that of the alleged killer in this case; that the admitted crime occurred at or near the time of the instant offense; and that Tolbert matched the description of the person who perpetrated the crime. The trial court subsequently excluded any testimony regarding Tolbert's statements.
Applicant raised a claim on direct appeal in this Court, in which he argued that the trial court had erred by excluding the evidence relating to Tolbert's admissions. This Court rejected that claim, observing that applicant had failed to demonstrate the relevance of the testimony surrounding Tolbert's statement confessing to the robbery and murder of an elderly woman. It stated,
While appellant construes [Tolbert's statements] as evidence that Tolbert confessedSee Carpenter v. State, No. AP-73,442, at *16 (Tex. Crim. App. Oct. 24, 2001).
to the murder of Nelda Henin, in fact this statement is nothing but an admission to the murder of an unidentified woman killed at an unknown address on an unspecified date. The statement makes no fact of consequence to the State's case against appellant more or less probable. Without more, appellant has failed to show that the trial court's decision to exclude the witnesses' testimony fell outside the zone of reasonable agreement.
Later, in the initial habeas proceeding, applicant raised an actual-innocence claim that was based on Tolbert's out-of-court statements. In rejecting that claim, the habeas court found that Tolbert's statements were not connected to the murder of Henin "by time or place." It further found that the facts surrounding Tolbert's admission "conflict[ed] with the facts of [Henin's] murder" because Henin was not elderly and had not been robbed. The habeas court concluded that applicant had failed to establish his innocence through evidence of Tolbert's confession to the robbery and murder of an elderly woman because that evidence "does not link Tolbert to the murder of Nelda Henin by time, place or victim."
In the present application, applicant alleges that trial counsel was ineffective for failing to present evidence of 1991 crime records from the Pleasant Grove area of Dallas indicating that the "only unsolved assault in the area was Henin's." On this basis, applicant asserts that "Tolbert's confession must have been to this crime, and should have been vigorously pursued by [applicant's] trial counsel." He further contends that "[i]t is clear that there was only one home invasion murder that fits Tolbert's confession—Henin's. The inescapable conclusion is that Carpenter is set to die for a crime Tolbert committed." He concludes that "there is a strong possibility that a jury presented with Tolbert as a suspect would have rendered an acquittal."
Because any such evidence was likely inadmissible, I disagree with applicant's contention that trial counsel was ineffective for failing to investigate and present evidence of crime records that would have listed Henin's murder as the only unsolved home invasion in Pleasant Grove in 1991. For the same reasons addressed by this Court on direct appeal, I conclude that any such evidence would likely have been inadmissible because it failed to connect Tolbert in any way to Henin's murder. Tolbert's statements indicated only that he had robbed and killed an elderly woman by cutting her throat somewhere at some point in time. Applicant's contention in his application that Tolbert has confessed to this particular crime is thus disingenuous. Furthermore, by suggesting that a limited list of crime records from a single year in a single neighborhood in Dallas constitutes a comprehensive list of all the crimes to which Tolbert could have been referring, applicant misrepresents the record and the nature of the evidence surrounding Tolbert's admission.
Appellate courts have observed that, for alternative-perpetrator evidence to be admissible at trial, the evidence must be both relevant and connect the alleged alternative perpetrator to the offense. See, e.g., Dickson v. State, 246 S.W.3d 733, 740-41 (Tex. App.—Houston [14th Dist.] 2007, pet. ref'd). In Dickson, the court of appeals stated,
In order for a court to conclude there is a nexus between an alleged alternative perpetrator and the offense-at-issue, there must be something more than evidence that a person other than the criminal defendant was committing similar crimes around the time of the offense-at-issue[;] the evidence must connect the alleged alternative perpetrator to the specific offense.Id. at 741. Applying that principle here, I conclude that applicant has failed to demonstrate that the crime-record evidence would have connected Tolbert to the offense, and, therefore, such evidence would likely have been deemed inadmissible at applicant's trial. Applicant's counsel thus cannot be called ineffective for failing to investigate and offer evidence that the trial court would have properly excluded.
Alternatively, even accepting applicant's suggestion that trial counsel's investigation and presentation of evidence with respect to Tolbert's statements fell below an objective standard of reasonableness, I conclude that applicant has failed to make an initial showing of prejudice with respect to that error. That is because substantial evidence was presented at trial that linked applicant to the present offense, including testimony from McBay indicating that applicant confessed to the murder, testimony from Smith stating that she hired applicant to commit the murder, and testimony from Raines indicating that she saw applicant fleeing the scene on the morning of the murder. Applicant has thus failed to make an initial showing that, had counsel been permitted to present evidence regarding Tolbert's out-of-court statements, there is a reasonable probability of a different outcome. Strickland, 466 U.S. at 691-92. I thus conclude that applicant has failed to demonstrate that this ineffective-assistance claim is substantial, and the Court therefore properly dismisses it.
II. Conclusion
I continue to believe that this Court should, in an appropriate case, consider whether incompetence by habeas counsel in the initial 11.071 proceeding has led to the forfeiture of a substantial claim for relief. The record in the present case, however, reflects that applicant has had an adequate opportunity to litigate his constitutional claims in this Court. In fact, the record reflects that applicant has, to a large degree, raised most of the factual and legal matters presented in the current application either on direct appeal or in one of his four prior applications. Moreover, applicant cannot point to any possibly meritorious claim for relief that has been unjustly forfeited as a result of initial habeas counsel's failure to properly raise it in the initial proceeding. I conclude that, even if this Court were to adopt an equitable or statutory exception to the bar on subsequent writs under some limited circumstances based on a showing of incompetence by initial habeas counsel, applicant has failed to show that his claims would fall under any such exception. I thus respectfully concur in the Court's dismissal of the application. Filed: October 8, 2014 Do Not Publish