Opinion
NO. WR-84,424-01
02-08-2017
EX PARTE DERRICK WAYNE HUNT, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2011-CR-10485-W1 IN THE 290TH DISTRICT COURT FROM BEXAR COUNTY ALCALA, J., filed a concurring opinion.
CONCURRING OPINION
This applicant was sentenced to life without parole for capital murder. On remand, I would order the habeas court to appoint counsel for applicant regardless of whether the trial court elects to hold an evidentiary hearing. See Ex parte Gamez, 502 S.W.3d 809, 810 (Tex. Crim. App. 2016) (mem. op.) (Alcala, J., concurring and dissenting) (dissenting from remand order to the extent that it refused to require the habeas court to appoint counsel for pro se applicant serving life without parole). Because this Court's order requires the habeas court to appoint counsel only in the event that the court decides to hold an evidentiary hearing, I do not join this Court's order. I, therefore, respectfully concur in this Court's decision to remand this case to the habeas court.
Applicant has been sentenced to life without parole and is pursuing his Article 11.07 habeas application pro se. See TEX. CODE CRIM. PROC. Art. 11.07. As I have previously expressed on several occasions, in my view, an indigent pro se habeas applicant is entitled to the assistance of appointed post-conviction counsel in the interests of justice whenever either the pleadings or the face of the record gives rise to a colorable ineffective-assistance claim, regardless of the length of the sentence he is serving. See, e.g., Ex parte Garcia, 486 S.W.3d 565, 575 (Tex. Crim. App. 2016) (mem. op.) (Alcala, J., dissenting); Ex parte Honish, 492 S.W.3d 305, 306 (Tex. Crim. App. 2016) (mem. op.) (Alcala, J., dissenting). Without the appointment of counsel in those situations, I have observed that it is unlikely that most pro se applicants will be able to properly present their ineffective-assistance claims, thereby increasing the likelihood that such claims will be deprived of meaningful consideration on post-conviction review and, as a result, that violations of defendants' fundamental Sixth Amendment rights will go unremedied. See Garcia, 486 S.W.3d at 574-75; Honish, 492 S.W.3d at 305-06. And, as I have also observed in my prior opinions, the statutory basis for appointing counsel to an indigent pro se habeas applicant in the interests of justice already exists in Texas. See TEX. CODE CRIM. PROC. art. 1.051(d)(3) ("An eligible indigent defendant is entitled to have the trial court appoint an attorney to represent him in . . . a habeas corpus proceeding if the court concludes that the interests of justice require representation."). Although this Court has a mechanism to require the appointment of habeas counsel in the interests of justice, this Court's failure to employ that statutory device affects all pro se inmates seeking to challenge their counsel's ineffectiveness. However, this approach leads to especially harsh results in life-without-parole cases. See Gamez, 502 S.W.3d at 811-12.
In addressing the problems associated with depriving pro se applicants of appointed counsel to assist them in pursuing their colorable ineffectiveness claims on habeas, I have specifically highlighted life-without-parole inmates as a group that is particularly deserving of appointed habeas counsel in the interests of justice. Given the wide recognition that pro se inmates are generally ill-equipped to litigate ineffectiveness issues on post-conviction review, depriving life-without-parole inmates, like the instant applicant, of the assistance of post-conviction counsel has the especially harsh effect of ensuring that their failure to properly present their ineffective-assistance claims in the initial habeas proceeding will likely forever bar them from raising those claims in any future proceeding. This is because the habeas corpus statute limits applicants to "one bite at the apple," even if that one bite was by a pro se applicant who had no clue how to present a habeas claim alleging his counsel's ineffectiveness. TEX. CODE CRIM. PROC. art. 11.07, § 4; see Ex parte Saenz, 491 S.W.3d 819, 824 (Tex. Crim. App. 2016) (citing Ex parte Torres, 943 S.W.2d 469, 474 (Tex. Crim. App. 1997)). Thus, the failure to require the appointment of habeas counsel for this applicant and similarly situated applicants creates a real risk that those wrongfully convicted due to ineffective trial counsel could be forever denied relief, even if a subsequent application for habeas relief could reasonably show that trial counsel was ineffective.
After receiving a final ruling on an initial habeas application, applicants are statutorily barred from pursuing relief in a subsequent application, unless they can satisfy one of several extremely limited exceptions. See TEX. CODE CRIM. PROC. art. 11.07, § 4. --------
Accordingly, this Court should, as a matter of course, instruct the habeas court to appoint counsel for any indigent, pro se inmate sentenced to life without parole who alleges that his counsel was ineffective. In my view, as a matter of law, the interests of justice will always require appointed counsel under these circumstances as a means of ensuring the integrity of the underlying criminal conviction, and as a means of ensuring that the defendant's Sixth Amendment rights are adequately protected. See TEX. CODE CRIM. PROC. art. 1.051(d)(3); Martinez v. Ryan, 132 S. Ct. 1309, 1317-18 (2012) (explaining that the right to the effective assistance of counsel at trial is a "bedrock principle in our justice system," without which a person "cannot be assured a fair trial") (citations omitted). Because life without parole is essentially a sentence of death in the penitentiary, this Court should ensure that defendants convicted under that statutory sentencing scheme have received fair trials by affording them a genuine opportunity to litigate their ineffectiveness claims with the assistance of appointed post-conviction counsel. In order to provide this applicant his one full bite at the apple in this initial habeas proceeding, and in order to ensure that he has been fully afforded his Sixth Amendment rights, I would order that, on remand, the habeas court appoint him counsel. With these comments, I concur in this Court's order. Filed: February 8, 2017 Do Not Publish