Opinion
NO. WR-79,322-02
01-14-2019
EX PARTE BLAINE KEITH MILAM, Applicant
ON SUBSEQUENT APPLICATION FOR A WRIT OF HABEAS CORPUS AND MOTION FOR STAY OF EXECUTION CAUSE NO. CR09-066 IN THE FOURTH JUDICIAL DISTRICT COURT RUSK COUNTY
YEARY, J., filed a dissenting opinion. DISSENTING OPINION
In this subsequent post-conviction writ application, Applicant claims he was intellectually disabled at the time of his capital offense, and that his execution would therefore violate the Eighth Amendment under Atkins v. Virginia, 536 U.S. 304 (2002). He argues that his claim satisfies Article 11.071, Section 5(a)(3), in that he can prove by clear and convincing evidence that no rational factfinder would fail to find him intellectually disabled. TEX. CODE CRIM. PROC. art. 11.071, § 5(a)(3); Ex parte Blue, 230 S.W.3d 151, 162 (Tex. Crim. App. 2007). Applicant presented a prima facie case for intellectual disability at the punishment phase of his capital murder trial in 2010, but the jury rejected it. He relies primarily upon the same evidence of intellectual disability that was presented to the jury, but argues that, when that evidence is considered in light of the recent opinion of the United States Supreme Court in Moore v. Texas, 137 S. Ct. 1039 (2017), it satisfies the Blue standard.
Appellant apparently seeks another opportunity to litigate the issue absent what the Supreme Court regarded in Moore as the corrupting influence of the factors this Court identified in Ex parte Briseno, 135 S.W.3d 1, 8-9 (Tex. Crim. App. 2004). In my view, the evidence does not satisfy the Blue standard even if taken in light of Moore's rejection of Briseno. Nor do I agree with the Court today that Applicant's subsequent writ application "contains sufficient specific facts establishing that . . . the current (intellectual disability) claim[ ] . . . could not have been presented previously in a timely initial application . . . because the . . . legal basis for the claim was unavailable on the date [Applicant] filed the previous application[.]" TEX. CODE CRIM. PROC. art. 11.071, § 5(a)(1).
It is unclear to me from Applicant's current pleading whether he seeks an altogether new punishment hearing before a jury, a new punishment hearing before a jury that is limited to the issue of his intellectual disability, or simply a binding post-conviction declaration from this Court that he cannot constitutionally be executed because, in the absence of any consideration of the Briseno factors, he has definitively proven that he was intellectually disabled at the time of his offense.
It might be argued that Applicant's intellectual disability claim was unavailable under the law because the United States Supreme Court had not yet decided Moore as of the time of Applicant's initial writ application filed in April of 2013. But it does not appear that Applicant has challenged Briseno at any earlier stage in these capital murder proceedings. If there was any trial objection, it was not reiterated and pursued on direct appeal. Milam v. State, No. AP-76,379, 2012 WL 1868458 (Tex. Crim. App. May 23, 2012) (not designated for publication). And Applicant failed to complain in his initial writ application about the jury's rejection of his intellectual disability claim—in any respect, including any potential erroneous reliance on Briseno by the State or the trial court. Ex parte Milam, No. WR-79,322-01, 2013 WL 4856200 (Tex. Crim. App. Sept. 11, 2013) (not designated for publication).
Was such an argument "unavailable" as of the date of his initial writ application, such that Article 11.071, Section 5(a)(1), will excuse his failure to pursue it in his initial writ application? Section 5 of Article 11.071, our statutory abuse-of-the-writ provision, elaborates on what it means to say that a claim was legally "unavailable" as of a relevant earlier date. Subsection (d) of Section 5 provides that "a legal basis of a claim is unavailable" under two circumstances. TEX. CODE CRIM. PROC. art. 11.071, § 5(d). First, it would be "unavailable . . . if the legal basis was not recognized by . . . a final decision of the United States Supreme Court[.]" Id. To be sure, the Supreme Court did not "recognize" until last year that Briseno did not rely on the proper diagnostic criteria for assessing intellectual disability for Eighth Amendment purposes. This was well after Applicant filed his initial writ application. But, according to the statute, a claim is also "unavailable . . . if the legal basis . . . could not have been reasonably formulated from a final decision of the United States Supreme Court[.]" Id. Stated positively, this means that if the legal basis for a claim raised for the first time in a subsequent writ application could reasonably have been formulated from Supreme Court precedent when the initial writ application was filed, then "a court may not consider the merits" of that claim in the subsequent application. TEX. CODE CRIM. PROC. art. 11.071, § (5)(a).
In essence, we have read Section 5(d) to declare a legal basis to be "unavailable" if it has neither been recognized by Supreme Court precedent nor could it reasonably have been formulated from Supreme Court precedent. See Ex parte Hood, 211 S.W.3d 767, 774 (Tex. Crim. App. 2007) ("This 'not . . . or' phrasal structure is the equivalent of 'nor,' and indicates negation of both elements in the series."); id. at 775 ("Another point that deserves emphasis is that lack of recognition is not enough to render a legal basis unavailable. If the legal basis could have been reasonably formulated from a decision issued by a requisite court, then the exception is not met.").
Last week the United States Supreme Court issued a per curiam opinion in Shoop v. Hill, ___ S. Ct. ___, No. 18-56, 2019 WL 113038 (Jan. 7, 2019), a case involving federal habeas review of a state conviction under the terms of the Antiterrorism and Effective Death Penalty Act (AEDPA). Shoop involved federal review of a state conviction that was upheld on direct appeal in state court and in state post-conviction habeas corpus proceedings—all of which state-court proceedings pre-dated the Supreme Court's 2017 decision in Moore. Under the AEDPA, a federal habeas court may not grant federal habeas corpus relief unless the state court's judgments were contrary to "established Federal law, as determined by the Supreme Court of the United States[.]" 28 U.S.C.A. § 2254(d)(1). The Supreme Court held that the Sixth Circuit Court of Appeals erred to rely upon Moore to grant federal habeas corpus relief, since Moore did not represent "clearly established" Supreme Court precedent at the time the state court decisions were rendered. Nothing about the holding in Shoop informs how this Court should construe our own statutory abuse-of-the-writ provisions, as embodied in Section 5 of Article 11.071. Specifically, a Supreme Court decision need not "clearly establish" a principle of law before a claim based upon that legal principle may be "reasonably formulated" from that decision, under Section 5(d)'s definition of an "unavailable" claim. --------
Applicant filed his initial application in 2012. Almost two years before that, a separate opinion in a direct appeal of a capital murder conviction in this Court, reflecting the view of three judges, took the position that the Briseno factors were not constitutionally sustainable. Lizcano v. State, No. AP-75,879, 2010 WL 1817772 (Tex. Crim. App. June 30, 2010) (Price, J., joined by Holcomb and Johnson, JJ., concurring and dissenting) (not designated for publication). It was the position of these three judges that this Court's adoption of the Briseno factors was fundamentally at odds with the Supreme Court's opinion in Atkins itself, in which it first declared that execution of intellectually disabled offenders violates the Eighth Amendment. See id. at *35 (arguing that to the extent that the Briseno factors authorize a jury to consider non-diagnostic criteria, they are inconsistent with Atkins's apparent ratification of the diagnostic criteria utilized by the relevant mental health community); Atkins v. Virginia, 536 U.S. 304, 308 n.3 (2002) (noting the then-current diagnostic criteria for assessing mental retardation). At least as of 2010, it is clear enough that an argument could reasonably have been fashioned—and was in fact being fashioned by, among others, several judges of this Court—from Supreme Court precedent that Briseno should be overruled.
Applicant should therefore have raised his intellectual disability claim in his initial writ application. A majority of the judges on this Court would no doubt have rejected it then. I would certainly have been open to an argument, post-Moore, however, that we should re-open Applicant's initial writ application, had he raised the claim at that time since, in the Supreme Court's belated estimation, we would have been "wrong" to have rejected it. See Ex parte Moreno, 245 S.W.3d 419, 428 (Tex. Crim. App. 2008) (holding that this Court may reconsider its original disposition of an initial capital writ application "if there is a compelling reason to believe that it may not have been 'correct' on original submission"). But to authorize the convicting court to entertain Applicant's claim now, although raised for the first time in a subsequent writ application when the argument was readily available to be raised in his initial writ application, would violate both the letter and certainly the spirit of our codified abuse-of-the-writ provision in Section 5 of Article 11.071.
Applicant also raises a claim under Article 11.073, arguing that the science of forensic odontology has changed since his trial in 2010, and relying on our recent opinion in Ex parte Chaney, ___ S.W.3d ___, No. WR-84,091-01 , 2018 WL 6710279 (Tex. Crim. App. Dec. 19, 2018). TEX. CODE CRIM. PROC. art. 11.073. Suffice it to say that Chaney raised the issue in an initial writ application, and that the facts of this case are, in any event, quite different. Even assuming that Article 11.073 constitutes new law upon which Applicant may rely to satisfy Section 5(a)(1) of Article 11.071, he has not made a prima facie showing, by a preponderance of the evidence, that presentation of the new science at this trial would have resulted in him not being convicted. TEX. CODE CRIM. PROC. art. 11.073, § (b)(2); TEX. CODE CRIM. PROC. art. 11.071, § 5(a)(1); Ex parte Campbell, 226 S.W.3d 418, 422 (Tex. Crim. App. 2007).
On these bases, I respectfully dissent to the Court's order staying Applicant's execution and permitting him to pursue his untimely claims of intellectual disability and new science. FILED: January 14, 2019
DO NOT PUBLISH