Summary
denying relief over suggestion by two dissenting justices and one concurring justice that forbidding subsequent petitions was inappropriate where state habeas counsel was ineffective in failing to raise claim of trial counsel's ineffectiveness
Summary of this case from Ibarra v. ThalerOpinion
No. WR-27,328-03
Delivered: July 6, 2007. DO NOT PUBLISH.
On Application for Writ of Habeas Corpus in Cause No. 92-CR-6718B from the 227th District Court of Bexar County.
Per Curiam. Womack, J., filed a statement respecting the dismissal of the application. Holcomb, J., filed a statement dissenting to the dismissal of the application in which Johnson, J., joins. Price and Hervey, JJ., not participating.
ORDER
This is a subsequent application for writ of habeas corpus filed pursuant to Texas Code of Criminal Procedure, Article 11.071, Section 5. Applicant asserts in two claims that he failed to receive the effective assistance of counsel during his trial and post-conviction review. Applicant was convicted of capital murder on January 18, 1995. We affirmed the conviction and sentence on direct appeal. Ruiz v. State, No 72,072 (Tex.Crim.App. February 25, 1998). On September 15, 1997, applicant filed his initial application for writ of habeas corpus pursuant to Article 11.071. We denied relief. Ex parte Ruiz, No. WR-27,328-02 (Tex.Crim.App. April 2, 2003). We have reviewed these claims and find that they do not meet the requirements for consideration of subsequent claims under Article 11.071, Section 5. This application is dismissed as an abuse of the writ and the motion for stay of execution is denied. I join the Court's order dismissing the subsequent application. Ruiz asks us not to apply the statutory restriction on subsequent applications. He alleges that he was denied effective assistance of counsel when his trial attorneys failed to present certain evidence at the punishment hearing, and his habeas counsel did just as badly by failing to raise that claim in his first application. In such circumstances, he argues, the restriction on subsequent applications cannot be used to leave an applicant without a remedy. I think this is a serious and unresolved question, but it is not presented in this case. The evidence in question was of two kinds: certain facts about the applicant's experiences during childhood and the opinion of a psychologist. Trial counsel hired the psychologist, considered his report, and chose not to call him at trial because his findings about the applicant would do more harm than good. This was not an unreasonable decision. The application does not allege that counsel knew of the facts about the applicant's childhood, nor does it demonstrate that counsel would have been unreasonable to decide that such facts would have been more harmful than helpful when the jury considered the issue of the applicant's being likely to commit criminal acts of violence in the future. Therefore, it seems to me, we do not reach the question: whether the unreasonable failure of a first habeas application to present meritorious claims could ever be surmounted in the courts of this state.