IN THE COURT OF CRIMINAL APPEALS

OF TEXAS



NO. 35,570-04

 

EX PARTE RICKY NOLEN MCGINN, Applicant




ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM BROWN COUNTY

Womack, J., filed a concurring opinion joined by Keller, J.

On June 7, 1995, the applicant was sentenced to death for a murder that was committed in the course of an aggravated sexual assault of the victim on May 22, 1993. On appeal this Court affirmed the judgment and sentence. (1)

On September 8, 1997, the applicant filed his first application for the writ of habeas corpus, seeking relief from the judgment of conviction. He presented eight points that raised constitutional issues about the trial procedures, including ineffective assistance of counsel for failing to call certain witnesses at the punishment stage. On May 8, 1998, the district court entered findings of fact and conclusions of law, and the application was sent to this Court. We adopted the trial court's findings and conclusions, and we denied habeas corpus relief on July 8, 1998. (2)

The applicant sought, and was denied, habeas corpus relief in federal courts. (3)

On February 25, 2000, the applicant filed his second application for writ of habeas corpus in the convicting court. This application contained two points challenging the trial court's judgment and two points about this Court's procedure on appeal. We dismissed this application on March 29, 2000. (4)

The convicting court entered an order setting the date of execution at April 27. Later the court accomodated the applicant's counsel by resetting the date of execution at June 1.

On or about May 15, 2000, the applicant filed in the convicting court a "Defendant's Motion to Authorize Retesting of Physical Evidence by Defense DNA Expert." This motion alleged that "a motion for habeas corpus relief [was] pending in the United States Court of Appeals for the Fifth Circuit. That petition asserts that if retested the physical evidence which was tested by DNA experts in this case previously yielding an inconclusive result because of new technology and other circumstances would yield more positive results and remove any doubt as to the correctness of the guilt and death penalty verdicts of the jury herein which the Defendant has called into question in his federal habeas corpus petition." The motion prayed for "the relief requested in this motion"; there was no request for relief other than that in the title of the motion. The convicting court heard the motion on May 23, 2000.

At the hearing, the State "question[ed] what legal authority there is for the court to do re-testing at this stage of the proceedings, and whether the court should defer any questions such as this to the Fifth Circuit and the Board of Pardons and Paroles, both of which are considering this very issue at this very time." The applicant confirmed that he was seeking re-testing before those entities. On May 25, the district court ruled that it would treat the motion as a subsequent application for writ of habeas corpus. It made findings of fact and conclusions of law, and the district clerk has transmitted the record to this Court. Thereafter, the applicant has treated the motion in the same fashion. (5) So has this Court, and I know of no other available procedure.

The Texas Constitution makes this Court's power to issue the writ of habeas corpus subject to regulation by statutes. (6) In 1995, Article 11.071 of the Code of Criminal Procedure was enacted to regulate the power of this Court to issue "a writ of habeas corpus in which the applicant seeks relief from a judgment imposing a penalty of death." (7) That statute forbids any court of this state to consider a second or subsequent application unless the application establishes one of three findings.

If a subsequent application for a writ of habeas corpus is filed after filing an initial application, a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that:



(1) the current claims and issues have not been and could not have been presented previously in a timely initial application or in a previously considered application filed under this article or Article 11.07 because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application;



(2) by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt; or



(3) by clear and convincing evidence, but for a violation of the United States Constitution no rational juror would have answered in the state's favor one or more of the special issues that were submitted to the jury in the applicant's trial under Article 37.071 or 37.0711. (8)



The statute specifies, "If the court of criminal appeals determines that the requirements have not been satisfied, the court shall issue an order dismissing the application as an abuse of the writ under this section." (9) The question, then, is whether the application contains sufficient specific facts establishing one of the three requirements. (10)

The application that is now before us does not satisfy the first requirement for an exception to the bar against subsequent applications because it does not contain sufficient specific facts establishing that the claim could not have been presented timely in the initial application, which was filed on September 8, 1997.

The "motion" that has been treated as an application is completely silent on this point. The applicant introduced in evidence an affidavit, dated April 20, 2000, from the Science Director of a DNA-testing laboratory that had done work for the defense at trial. The affidavit says that "technological advances [have been] made since the original tests were performed," and that there have been "recent advances in DNA testing" and "newer methods." The affidavit also said that it would be more than reasonable to allow the applicant an opportunity to prove his claim of innocence by new DNA tests. No other evidence was introduced on this point. The applicant also has filed with this Court a brief, to which is attached an affidavit from a law professor, who is of counsel to the applicant. The affidavit says, "Since the conviction in this matter" a new technique of testing DNA is being used, and, "Since the time of this trial" another new technique has been developed.

But the question that the statute requires us to ask is not what has happened since the time of the original testing or what has happened since the trial in 1995. The mandatory question is whether this subsequent application contains specific facts establishing that the current claim could not have been presented in the initial application because the factual basis of the claim was unavailable on the date the applicant filed the initial application: September 8, 1997. The present motion completely and conspicuously fails to contain any such fact.

This Court cannot find that the applicant failed to meet this requirement because he was ignorant of it or because it was not an issue at the hearing. The applicant's counsel specifically told the district court that he was trying to meet a similar requirement in the federal courts. (11) And the State argued that the tests the applicant sought were available before 1997. (12)

The district court found that the factual basis for the claim was unavailable on the date the applicant filed his initial application. The finding was "based upon the arguments of Defendant's attorney at the hearing in that there was no expert who had stated what [the Science Director of the DNA testing laboratory] stated in his affidavit of April 20, 2000." This finding is not supported by the record.

The district court's finding evidently refers to counsel's request for permission to supplement the record with other affidavits. He said that he had "been in contact with a number of experts over the course of several weeks and months, attempting to get additional proofs from them." The court asked what counsel hoped to prove with additional affidavits. Counsel said that the office of "Dr. Blake, who is a D.N.A. expert out in California," said it would send "an affidavit that would be very similar to that offered by [the Science Director whose affidavit was in evidence] as regards to the efficacy of re-testing D.N.A. in light of the advances." Counsel also said that he had been offered an affidavit from the law professor, which has in fact come to this Court. Counsel said these affidavits would essentially corroborate the affidavit that was in evidence, as to the amount of time needed for testing and the "desirability of re-testing in light of the type of case this is."

Even if this Court could accept the arguments of counsel as a substitute for the specific facts that the statute requires to be contained in the application, counsel's argument stated nothing relevant. To begin with, counsel's inability to find an expert who had stated what the applicant's expert stated in his affidavit of April 20, 2000 in no way proves the unavailability of the "newer" methods of DNA testing on September 8, 1997. The affidavits from the Science Director and the law professor provided no proof of unavailability on the date of the initial filing, and more similar affidavits would provide no more support for the finding of unavailability.

The district court also found, "Frankly, it is questionable as to whether or not this factual basis could have been ascertainable through the exercise of reasonable diligence on or before May 15, 2000, which is the date that the Defendant filed his Motion to Authorize Retesting of Physical Evidence." The affidavits and the arguments on which the district court relied provide no support for this finding. And in any event such a finding could not authorize this Court to consider this application. What the statute requires is not that the availability of facts be "questionable." It requires that the application contain specific facts establishing that the current claim could not have been presented previously in a timely initial application because the factual basis for the claim was unavailable.

The only other finding that might satisfy the requirements of article 11.071 is that the application contain specific facts establishing that by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt. (13) If it is assumed that such a claim involves a violation of the Constitution that is amenable to the writ of habeas corpus, (14) the application does not contain specific facts establishing innocence. The applicant's position at the hearing was that, because the murder was a capital offense only because he committed it during the course of committing a sexual assault on the victim, if he is innocent of the sexual assault on the victim he would be innocent of capital murder (though guilty of murder). The only fact that this application establishes is the possibility that, if the applicant is truthful about being innocent of the sexual assault, further DNA testing would produce evidence of his innocence. This does not meet the requirement of the statute. The statute could authorize a subsequent habeas corpus application for the purpose of gaining time to get evidence, but it does not.

Our oaths are to uphold the constitutions and laws of this country and state; they are not a commission to do what a majority of us think is fair. This law was passed by the legislature and approved by the governor, in accordance with our constitutional form of government. The law is clear: this court shall dismiss this application because it was filed late. If the law is barbarous, the legislature should repeal it or the governor should commute or pardon those who are subjected to it. In the meantime, we must follow it. (15)



Article 11.071, section 5, leaves this Court no authority to do anything other than dismiss this application as an abuse of the writ.

En banc.

Delivered June 14, 2000.

Publish.

1. See McGinn v. State, 961 S.W.2d 161 (Tex. Cr. App.), cert. denied, 525 U.S. 967 (1998).

2. Ex parte McGinn, No. 37,750-01 (Tex. Cr. App. July 8, 1998) (not designated for publication).

3. McGinn v. Johnson, No. 6:98-CV-073-C (N.D. Tex. Jan.20, 1999), aff'd., 199 F.3d 440 (5th Cir. 1999) (opinion not published), cert. denied, 528 U.S. ---, 120 S.Ct. 1179, 145 L.Ed.2d 1086 (2000).

4. Ex parte McGinn, No. 37,750-03 (Tex. Cr. App. March 29, 2000) (not designated for publication).

5. On May 26, he filed a "Memorandum of Law in Support of Subsequent Application," a term that is used in the habeas corpus statute, as is explained below.

6. "Subject to such regulations as may be prescribed by law, the Court of Criminal Appeals and the Judges thereof shall have the power to issue the writ of habeas corpus, and, in criminal law matters, the writs of mandamus, procedendo, prohibition, and certiorari." Tex. Const. art. V, 5.

7. Tex. Code Crim. Proc. art. 11.071, 1. The statute does not violate the separation of powers provision or the open-courts provision of the state constitution, nor suspend habeas corpus, nor deny equal protection or due process or due course of the law, nor deny the constitutional rights to counsel. Ex parte Davis, 947 S.W.2d 216 (Tex. Cr. App. 1996).

8. Tex. Code Crim. Proc. art. 11.071, 5(a). A "factual basis for a claim is unavailable on or before a date described by Subsection (a)(1) if the factual basis was not ascertainable by the exercise of reasonable diligence on or before that date." Id. 5(e).

9. Id. 5(c).

10. The dissenting opinion says that the writ is not barred by the statute because the application "contains sufficient facts to distinguish it from his previous claims." Post at 3. A subsequent application does not meet the requirements of the statute merely because it presents a different claim. Section 5 of the statute is meant to prevent applicants from presenting different claims in a subsequent application unless they could not have been presented in the initial application.

11. A similar statute governs federal habeas corpus applications for relief from state judgments:

A claim presented in a second or successive application that was not presented in a prior application shall be dismissed unless --



(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or



(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and



(ii) the facts underlying the claim, if proven and viewed in the light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for the constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.



28 U.S.C. 2244(b)(2). An order from a court of appeals must be obtained before a second or successive application is filed in the district court. Id. 2244(b)(3)(A). In the convicting court, counsel for the applicant referred to the application of section 2244 to the proceedings he had brought in the federal court of appeals.

12. The district attorney told the district court, "But, now, these changes in technology that are spoken of in the affidavit, or the various affidavits, are really not that new. The F.B.I. lab was doing mitochondrial D.N.A. work [one of the methods of testing being sought] on a forensic basis in 1996. The S.T.R. extraction method [the other method] was being used in 1996 in various laboratories and cases that already reached the appellate courts in Massachusetts in 1998. So, although it is technology that has developed since the date of the trial, to some extent, it's not technology that developed last week, last month, last year. It's stuff that has been ongoing." The applicant did not reply to this argument.

13. See Tex. Code Crim. Proc. art. 11.071, 5(a)(2). The third statutory exception, see id. 5(a)(3), involves only applications that seek relief from the punishment rather than the conviction.

14. See Herrera v. Collins, 506 U.S. 390 (1993).

15. Ex parte Smith, 977 S.W.2d 610, 611 (Tex. Cr. App. 1998).