Opinion
WR-85,343-02
05-22-2024
EX PARTE NAIM RASOOL MUHAMMAD, Applicant
Do Not Publish
ON SUBSEQUENT APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS FROM CAUSE NO. W11- THE 4TH CRIMINAL DISTRICT COURT DALLAS COUNTY
ORDER
PER CURIAM
This is a subsequent application for a writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071.
Unless otherwise specified, all references to articles refer to the Texas Code of Criminal Procedure.
In May 2013, a jury convicted Applicant of capital murder for drowning his two young sons because he was angry at their mother, who had separated from him about eight months before the offense. See Tex. Penal Code § 19.03. The jury answered the special issues
Muhammad-2 submitted under Article 37.071, and the trial court, accordingly, set punishment at death. This
Court affirmed Applicant's conviction and sentence on direct appeal and denied relief on his initial Article 11.071 habeas application. Muhammad v. State, No. AP-77,021 (Tex. Crim. App. Nov. 4, 2015) (not designated for publication); Ex parte Muhammad, No. WR-85,343-01 (Tex. Crim. App. June 13, 2016) (not designated for publication).
Applicant filed this, his first subsequent application in the trial court on December 1, 2023. Therein, Applicant presents fourteen challenges to the validity of his conviction and sentence. We paraphrase Applicant's allegations below:
Applicant does not number his subsequent writ allegations. For ease of discussion, we number his claims in the order he presents them in the application.
• Applicant is ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304 (2002), because he satisfies the current scientific and diagnostic standards for intellectual disability (Claim 1);
• Trial counsel rendered ineffective assistance at the punishment phase of Applicant's trial (Claim 2);
• Applicant and the public were denied a public trial (Claim 3);
• Extra-record fact-finding in Applicant's initial Article 11.071 habeas proceedings violated his due process rights (Claim 4);
• Applicant received ineffective assistance from appellate and initial Article 11.071 counsel (Claim 5);
• Seating a certain juror deprived Applicant of a fair trial because the juror would not consider the minimum punishment of five years for a lesser offense (Claim 6);
• The improper admission of autopsy photos rendered Applicant's trial fundamentally unfair under Payne v. Tennessee, 501 U.S. 808 (1991) (Claim 7);
• The failure to hold a threshold hearing concerning extraneous offense evidence resulted in unreliable evidence being admitted, which rendered the punishment phase of Applicant's trial fundamentally unfair under Beck v. Alabama, 447 U.S. 626 (1980) (Claim 8);
• Certain comments by the trial court violated Applicant's federal due process rights (Claim 9);
• "The failure to define the term 'militates' is an additional reason that the court's punishment phase instructions, pursuant to [Article] 37.071(2)(b)(1), fail to channel the jury's instruction [sic] and render [Applicant's] death sentence arbitrary and capricious" (Claim 10);
• Trial counsel rendered ineffective assistance for reasons not previously alleged (Claim 11);
• Applicant's conviction and sentence violate the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution due to juror bias and misconduct (Claim 12);
• The prosecution withheld material exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963) (Claim 13); and
• We should vacate Applicant's conviction and death sentence due to cumulative prejudicial error (Claim 14).
We have reviewed the subsequent application and remand Applicant's intellectual disability allegation (Claim 1) to the trial court for it to make findings of fact, conclusions of law, and a recommendation as to whether Claim 1 satisfies the threshold requirements of Article 11.071, Section 5. Should the trial court determine that the intellectual disability allegation satisfies Article 11.071, Section 5, it shall additionally make findings of fact, conclusions of law, and a recommendation as to the merits of the claim.
Applicant's remaining claims do not meet the requirements of Article 11.071, Section 5, and should not be reviewed.
IT IS SO ORDERED.
Keel, J., dissented.
Yeary, J., filed a dissenting opinion.
This is a subsequent post-conviction application for writ of habeas corpus, brought under Article 11.071, Section 5, of the Texas Code of Criminal Procedure, challenging Applicant's death sentence as unconstitutional because he was allegedly intellectually disabled at the time of the commission of his offense. Tex. Code Crim. Proc. art. 11.071 § 5; Atkins v. Virginia, 536 U.S. 304 (2002). The clerk of the convicting court duly forwarded the subsequent writ application to this Court, as required by Section 5(b) of the statute. The convicting court is expressly forbidden to take any action on the subsequent writ application unless and until this Court-itself-"issues an order finding that the requirements" of Article 11.071, Section 5(a), "have been satisfied." Tex. Code Crim. Proc. art. 11.071 § 5(c).
By unpublished order today, however, the Court nevertheless purports to remand the application to the convicting court to develop a record and make a recommendation whether this Court should conclude that Applicant has satisfied the gateway criteria for pursuing a subsequent capital writ application, under Section 5(a) of Article 11.071. Court's Order at 3. It is-at the very least-highly questionable that this Court is authorized to remand a subsequent capital writ application for fact development in the trial court, given the unambiguous, unequivocal dictate of Section 5(c). And then, it might also signal a devil-may-care attitude with respect to the requirements of the law that we should never abide.
The statute seems to contemplate that a subsequent capital writ applicant must allege facts sufficient to satisfy the threshold criteria to proceed, under Section 5(a) of the statute. One would think that if fact development were necessary, then that means the pleading is, on its face, deficient. And, in that event, the subsequent writ application should simply be dismissed as abusive, under Section 5(c).
Indeed, that is how I would now dispose of this subsequent writ application. As far as I am concerned-though I will elaborate on my reasoning only if and when the Court should ultimately grant Applicant Atkins relief after remand-Applicant has stated facts that satisfy neither Section 5(a)(1), nor Section 5(a)(3), of Article 11.071. There is no reason he could not have raised Atkins in his initial writ application (if not at trial and on appeal) (Section 5(a)(1)), and he does not now allege facts sufficient to satisfy the threshold showing, by clear and convincing evidence, that no jury would fail to find he was intellectually disabled at the time of his offense (Section 5(a)(3)), under Ex parte Blue, 230 S.W.3d 151, 163 (Tex. Crim. App. 2007).
But that is not all. In its remand order today, the Court also directs the convicting court, should it happen to recommend that we find that Applicant has satisfied the Section 5(a) criteria, to "additionally make findings of fact, conclusions of law, and a recommendation as to the merits of the [Atkins] claim." Court's Order at 3. This directive blatantly ignores the plain, unequivocal legislative mandate of Section 5(c), that convicting courts "may not take further action on the application before the court of criminal appeals issues an order finding that the requirements [of Section 5(a)] have been satisfied." Tex. Code Crim. Proc. art. 11.071 § 5(c) (emphasis added). Rather than issue the required order, the Court today abdicates its legislatively assigned responsibility of determining whether the threshold criteria have been met to the convicting court, contrary to the plain prohibition embodied in the statute.
It is true that the Court has done this before. E.g., Ex parte Lave, Nos. WR-44,564-03, WR-44,564-04, 2013 WL 1449749, at *1 (Tex. Crim. App. 2013) (order, not designated for publication). But having now observed how this procedure is in clear conflict with the plain language of the statute, I dissent to the Court's continued disregard for its mandate.