IN THE COURT OF CRIMINAL APPEALS

OF TEXAS




NO. 73,927


EX PARTE ANTHONY CHARLES GRAVES , Applicant




ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM BRAZORIA COUNTY


Cochran, J., delivered the opinion of the Court, in which Keller, P.J., Meyers, Womack, Keasler, and Hervey, J.J., joined. Price, J., filed a dissenting opinion, in which Holcomb, J., joined. Johnson, J., filed a dissenting opinion. Holcomb, J., filed a dissenting opinion in which price and johnson, j.j., joined.

O P I N I O N



In his third post-conviction death penalty writ, applicant asks us to consider the following issue: does an allegation in a subsequent writ application that prior habeas corpus counsel was not "competent" under article 11.071, section 2(a) of the Texas Code of Criminal Procedure:(1) 1) give rise to a cognizable habeas corpus claim; and 2) fulfill the requirements under article 11.071, section 5 for having this Court consider the merits of a subsequent writ? Because we find that competency of prior habeas counsel is not a cognizable issue on habeas corpus review, applicant's allegation cannot fulfill the requirements of article 11.071 section 5 for a subsequent writ. Therefore, we dismiss applicant's writ under article 11.071 section 5(c) as an abuse of the writ.

I.

A Burleson County, Texas grand jury indicted applicant in May 1994 for intentionally and knowingly causing the stabbing and shooting deaths of one adult and five children. The evidence at trial showed that in the early morning hours of August 18, 1992, applicant and an accomplice, Robert Carter, killed all six victims in a home belonging to the adult victim. Applicant's motive was anger at the female homeowner for receiving a job promotion he thought his mother should have received. The five slain children just happened to be in the house at the time. After stabbing and shooting the victims, applicant and Carter used gasoline to burn the house. When police officers first questioned the accomplice, he implicated himself and applicant in the murders and arson. Both applicant and Carter later testified before the grand jury and denied any involvement. While applicant and Carter were both in county jail awaiting trial, however, several witnesses overheard them make incriminating statements to each other.(2)

The State tried Robert Carter first. A jury convicted Carter of capital murder and sentenced him to death. He then testified against applicant at applicant's trial in exchange for the State's promise not to prosecute Carter's wife, who had also been indicted for this capital murder.(3) Applicant presented an alibi defense, offering evidence that he had spent the evening of the murders with his girlfriend, Yolanda Mathis. He claimed that the accomplice "framed" him.

After a twelve day trial, the jury convicted applicant of capital murder. The jury answered 'yes' to article 37.071(4) special issues 1 and 2 and 'no' to special issue 3. Accordingly, on November 3, 1994, the trial court assessed the death penalty against applicant.

Applicant filed a motion for new trial and an amended motion for new trial, raising twenty-six separate grounds. The trial court heard applicant's original and amended motions for new trial on January 13, 1995, and denied both in an order dated January 24, 1995. Applicant appealed directly to this Court and raised thirty-six points of error, complaining of legal sufficiency, the accomplice witness testimony, prosecutorial misconduct, the admission of evidence, and irregularities during voir dire. This Court overruled each point of error and affirmed the trial court's judgment. Graves v. State, No. 72,042 (Tex. Crim. App. April 23, 1997) (not designated for publication). We denied applicant's May 12, 1997 motion for rehearing. Applicant did not seek certiorari review.

Applicant filed his first application for writ of habeas corpus on June 29, 1998, pursuant to article 11.071 of the Code of Criminal Procedure. The convicting court held evidentiary hearings regarding applicant's seven claims(5) and entered its findings of fact and conclusions of law on February 24, 1999, recommending that this Court deny relief. On June 9, 1999, this Court ordered applicant's writ filed and set for submission on two claims regarding an alibi witness (applicant's girlfriend, Yolanda Mathis) who was subpoenaed for trial by the defense but never testified. This Court heard oral argument on applicant's claims, but denied relief on applicant's original writ. Ex parte Graves, No. 73,424 (Tex. Crim. App. February 9, 2000) (not designated for publication).

On June 9, 1999 (the same day that this Court ordered claims from applicant's application for a writ of habeas corpus filed and set), applicant attempted to supplement(6) his application. We concluded that applicant's filing was an "untimely supplement" to the initial application, which did not comply with article 11.071, section 5(a) requirements regarding subsequent applications for a writ of habeas corpus. Accordingly, this Court dismissed applicant's filing as an "abuse of writ" under article 11.071, section 5(c). Ex Parte Graves, No. 40,812-02 (Tex. Crim. App. February 16, 2000) (not designated for publication).

Applicant filed a third writ on March 27, 2000, raising two new issues.(7) Then, on July 19, 2000, applicant filed an amendment and supplement to that third petition. In his latest petition, applicant claims, inter alia,(8) that his original habeas counsel was constitutionally ineffective because the latter failed to include four claims (the four additional claims contained in applicant's first "supplement") in applicant's original writ. The issue before us is whether applicant is entitled to have the merits of this ineffective assistance of prior habeas corpus counsel claim heard on a subsequent writ.(9)

II.

The availability of habeas review for purely constitutional claims is a relatively recent development in American jurisprudence. For more than seven hundred years, the Great Writ served almost exclusively to contest a court's jurisdiction.(10) Early post-colonial American jurists did not consider the common law writ of habeas corpus a mechanism to ensure accuracy or fairness in trial proceedings; these were matters for direct appeal.(11)

Restricting habeas review to claims of jurisdictional defects permitted unconstitutional imprisonment if the confining court had proper jurisdiction over the person and subject matter. The Supreme Court developed a theory of "lost jurisdiction"(13) to address the resulting unfairness, only to abandon the jurisdictional limitation four years later inWaley v. Johnson.(14) In Waley, the Supreme Court lifted the jurisdictional limitation and acknowledged that the writ was available in federal courts to consider constitutional claims, even when the confining court had proper jurisdiction.(15)

The Supreme Court greatly expanded the scope of federal habeas corpus review inBrown v. Allen,(16) holding that all federal constitutional questions raised by state petitioners were cognizable on federal habeas review, even if the state had fully and fairly adjudicated them. Justice Jackson concurred in the Brown opinion, but warned that the Court had "sanctioned progressive trivialization of the writ until floods of stale, frivolous and repetitious petitions inundate the docket of the lower courts and swell our own."(17)

The inevitable tension that arises when a society attempts to balance important, interrelated, and often competing goals marks the last fifty years of habeas corpus jurisprudence. Courts seek to ensure fundamental fairness to all criminal defendants while simultaneously providing finality of judgments, enhancing deterrence, and maintaining an administratively viable judicial system.

Reasonable minds have disagreed regarding the proper balancing of these interests.(18)Even under the most expansive understanding of the writ's post-conviction availability, however, claimants have had to allege and prove, by preponderance of the evidence, the violation of a specific constitutional provision.(19)

Thus, both federal and Texas courts have confined the scope of post-conviction writs of habeas corpus to jurisdictional or fundamental defects and constitutional claims.(21) Violations of statutes, rules, or other non-constitutional doctrines are not recognized.(22) Thus, for example, a trial court's failure to adhere to statutory procedures serving to protect a constitutional provision violates the statute, not the constitutional provision itself.(23) It is true that this Court has not always adhered to its own clear statements of its habeas corpus jurisdiction.(24) We are mindful of the fact that we have not always addressed the threshold issue of our habeas corpus jurisdiction before addressing the merits of a given claim. We should.

III.

Applicant contends that he was denied effective assistance of counsel during his initial habeas proceedings because his first habeas counsel failed to include claims in applicant's original habeas petition (namely, the claims that first habeas counsel raised in his second or "supplemental" habeas petition, which we dismissed).(25) Applicant further contends that he is entitled to bring a third(26) habeas petition to assert a claim of ineffective assistance by his first habeas counsel, which deprived him of his due process rights under both the United States and Texas constitutions. We reject his contention for a number of reasons.

  1. There is no constitutional right to effective assistance of counsel on a writ of habeas corpus.


It is a well established principle of federal and state law that no constitutional right to effective assistance of counsel exists on a writ of habeas corpus.(27) The Supreme Court explained in Pennsylvania v. Finley(28) that because a defendant "has no federal constitutional right to counsel when pursuing a discretionary appeal on direct review of his conviction," then clearly, "he has no such right when attacking a conviction that has long since become final upon exhaustion of the appellate process."(29) Moreover, the Court explained, a convicted person has no constitutional right to any counsel, much less "constitutionally effective" counsel, in either discretionary appeals or on writs of habeas corpus:

[I]t is ordinarily the defendant, rather than the State, who initiates the appellate process, seeking not to fend off the efforts of the State's prosecutor but rather to overturn a finding of guilt made by a judge or jury below. The defendant needs an attorney on appeal not as a shield to protect him against being "haled into court" by the State and stripped of his presumption of innocence, but rather as a sword to upset the prior determination of guilt. This difference is significant for, while no one would agree that the State may simply dispense with the trial stage of proceedings without a criminal defendant's consent, it is clear that the State need not provide any appeal at all. McKane v. Durston, 153 U.S. 684 [14 S.Ct. 913, 38 L.Ed. 867] (1894). The fact that an appeal has been provided does not automatically mean that a State then acts unfairly by refusing to provide counsel to indigent defendants at every stage of the way.(30)

In sum, simply because a state provides for the possibility of a particular procedure or remedy, it does not inexorably follow that the state must also provide legal counsel to one seeking to pursue that remedy. Here, the writ of habeas corpus is a constitutionally available remedy for instances of illegal restraint, but nothing in the federal or Texas constitution requires the State to appoint and pay for counsel to pursue that remedy.(31)

If a convicted person has no constitutional right to appointment of any counsel in a post-conviction habeas corpus proceeding, it inevitably follows that he cannot claim constitutionally ineffective assistance of counsel in that proceeding.(32) Applicant argues that the Supreme Court's decision in Edwards v. Carpenter(33) "undermined" the principle that no constitutional right to counsel (and thus, no claim for ineffective assistance of counsel) exists in a habeas proceeding. However, applicant overlooks that the underlying claim on habeas in Carpenter was ineffective assistance of counsel on direct appeal, not habeas review.(34)

Applicant also notes that the federal AEDPA(35) gives state capital murder habeas petitioners a statutory right to habeas counsel on their federal writs, just as Texas law now gives state capital murder habeas petitioners the same statutory right. Applicant reasons that under the AEDPA, "the decision of the state courts on the merits of a state habeas petition must be generally accepted as legally correct." Therefore, he argues, due process and equal protection(36) require that state habeas applicants receive constitutionally effective representation in their state writ proceedings because of the "tremendous permanent impact" a state's factual determination makes upon applicants' federal review.

The Fifth Circuit has rejected the same contention that applicant makes in two recent cases. In Martinez v. Johnson,(37) second habeas counsel in a Texas death row inmate's federal writ proceeding alleged that the first state habeas counsel was ineffective for failing to raise certain claims.(38) The Fifth Circuit examined the numerous federal precedents which have held that there is no constitutional right to counsel on a writ of habeas corpus, and then stated:

Despite this contrary authority, [applicant] asks this court to "reevaluate" its precedent in light of the changes engendered by AEDPA and state habeas reforms, which have enhanced the importance of competent state habeas counsel. This panel may not undertake such a reevaluation, as it is bound by controlling precedent. We hold, therefore, that [applicant's] ineffective assistance of counsel claim is procedurally barred and deny his claim for relief.(39)

Similarly, in In re Goff,(40) the Fifth Circuit rejected a Texas death row habeas applicant's claim that his initial state habeas counsel provided ineffective assistance in failing to complain about the ineffectiveness of his trial counsel, and therefore he should be entitled to bring a subsequent writ to raise that claim. Noting that this Court had denied(41)Goff's second state habeas application claiming ineffective assistance of his first habeas counsel,(42) the Fifth Circuit rejected the claim that, if a state chooses to appoint counsel for habeas proceedings, its act of grace triggers a constitutional right to effective representation in those proceedings.(43) In Goff, the Fifth Circuit reiterated that a statutory right to appointment of counsel on habeas corpus review does not confer a concomitant right to constitutionally effective counsel:

[I]n this area States have substantial discretion to develop and implement programs to aid prisoners seeking to secure postconviction review. [Here], the State has made a valid choice to give prisoners the assistance of counsel without requiring the full panoply of procedural protections that the Constitution requires be given to defendants who are in a fundamentally different position--at trial and on first appeal as of right. In this context, the Constitution does not put the State to the difficult choice between affording no counsel whatsoever or following the strict procedural guidelines enunciated in Anders.(44)

In sum, neither the United States Supreme Court nor this Court has ever held that a habeas petitioner has a federal or state constitutional right to counsel in a habeas proceeding. Absent such a constitutional right to counsel, there can be no constitutional right to effective assistance of counsel in a habeas proceeding. Like the Supreme Court and federal courts before us, we decline to turn a legislative act of grace into a constitutional right.

  1. The 1995 Habeas Corpus Reform Act did not create a constitutional right to effective assistance of counsel in death penalty cases.


Applicant also contends that even though the federal and Texas constitutions may not recognize a claim of ineffective assistance of counsel on a writ of habeas corpus, the 1995 Habeas Corpus Reform Act creates a statutory right to "competent" counsel in habeas proceedings. We agree with that proposition. However, applicant then reasons that competent counsel's performance must be constitutionally effective in the specific habeas proceeding. Thus, according to applicant, if an inmate claims that his original habeas counsel was not constitutionally effective, he is entitled to bring a subsequent writ complaining of counsel's deficient performance. We disagree.

Article 11.071, section 2(a)(45) provides that "[a]n applicant shall be represented by competent counsel unless the applicant has elected to proceed pro se . . ." Applicant argues that the phrase "competent counsel" signifies the final product of representation, rather than the initial qualifications for appointment. Applicant's position, however, does not comport with the statute's plain meaning, nor does it comport with the legislative intent behind the statute.(46)

Here, article 11.071 establishes procedures for writs of habeas corpus in all Texas death penalty cases and creates a statutory right to representation.(47) As applicant correctly observes, it would seem an empty gesture to appoint incompetent counsel. We agree that a "potted plant" appointed as counsel is no better than no counsel at all. Our disagreement concerns the time at which counsel is deemed "competent" to represent the habeas applicant.

The words of the statute themselves state that counsel shall be "competent" at the time he is appointed. The reference to "competent counsel" in both subsections (a) and (c) concerns habeas counsel's qualifications, experience, and abilities at the time of his appointment.(49) All of these provisions concern the initial appointment of counsel and continuity of representation rather than the final product of representation.

Moreover, applicant's interpretation of 11.071 section 2 would eviscerate section 5 of the same statute, which generally bars successive petitions. The Legislature enacted the Habeas Corpus Reform Act of 1995 to prevent repetitious writs, including variations on claims which had been previously rejected or claims which could have been brought in the prior application.(50) To accept the notion that the appointment of "competent counsel" means that the counsel appointed must render constitutionally effective assistance of counsel in the particular case would turn article 11.071 section 5 into a perpetual motion machine.

Under applicant's interpretation, a person sentenced to death would be appointed "competent counsel," paid by the state, to investigate and raise all potential claims in an original writ. But if that original writ is rejected and the applicant later contends that counsel could have and should have raised additional facts or legal claims, he may file a subsequent writ to determine whether the original habeas counsel was ineffective for failing to bring those claims. Then, if that second writ is rejected, he may file a third writ contending that the second habeas counsel was ineffective for failing to investigate other new claims or facts that he now asserts are meritorious. And so forth. A claim of ineffective assistance of the prior habeas counsel would simply be the gateway through which endless and repetitious writs would resurrect.(51) If the Legislature had intended ineffective assistance of habeas counsel claims to be an exception to the bar on subsequent applications, it could have made that exception explicit just as it did with the three statutory exemptions that it specified.(52) It did not do so. We do not have the authority to judicially create a fourth exception to the statute. Moreover, in Davis, this Court recognized that the Legislature, by enacting article 11.071, section 5, intended to limit this Court's jurisdiction over subsequent habeas petitions in death penalty cases.(53)

The Legislature has consistently shown a great interest in the appropriate appointment of competent counsel in these very serious cases.(54) What the Legislature has not done, however, is evince any intention that its choice of the term "competent counsel" as it applies to the appointment of a habeas attorney also applies to the final product or services rendered by that otherwise experienced and competent counsel. To require the trial court to appoint "competent counsel who will render effective assistance to his client in this case" would legislatively mandate a degree of prescience that not even Texas trial judges can be expected to display. We cannot conclude that the Texas Legislature enacted a provision which requires trial judges to engage in such a clairvoyant exercise.

Applicant further contends that because the Legislature explicitly permits a death row inmate to bring a post-conviction writ of habeas corpus and because it explicitly provides for appointment of competent counsel, we must consider it a "critical stage" of the criminal proceeding. Relying on Griffin v. Illinois,(58) applicant then argues that, as a critical stage, the proceeding requires constitutionally effective assistance of counsel. However, Griffinmerely stands for the proposition that if a state does provide for a direct appeal as a matter of right, then that state must, under the Equal Protection Clause, provide counsel to indigent defendants who wish to pursue a direct appeal.(59) We do not agree that Griffinconstitutionally requires the appointment of counsel to indigent death row inmates under article 11.071, but even if it did, the Texas Legislature has fulfilled that mandate. In enacting article 11.071 in 1995, the Legislature explicitly ensured that all indigent death row inmates would be appointed competent and compensated counsel for pursuing one writ of habeas corpus. An indigent inmate is not discriminated against in this process.

Applicant next notes that the AEDPA explicitly prohibits a claim of ineffective assistance of habeas counsel in federal courts.(60) He argues that this explicit bar in federal courts does not contradict his argument that the federal constitution(61) requires Texas to recognize an ineffective assistance of counsel claim in its state habeas procedures. The Fifth Circuit rejected this contention in Beazley v. Johnson,(62) and we reject it also. If the federal constitution and federal statutes bar any claim of ineffective assistance of counsel on a writ of habeas corpus in federal courts, we cannot conclude that this same federal constitutionrequires Texas courts to recognize such a claim under state law.

Furthermore, applicant's most recent habeas claim is based solely upon an alleged violation of the habeas statute itself. It is not a constitutional claim. Statutory violations simply are not cognizable claims on a writ of habeas corpus.(63) If we were to accept applicant's premise-an allegation of a right to statutorily "competent" counsel in one habeas corpus proceeding is cognizable on a subsequent writ application-the entire concept of the finality of a criminal conviction would fall by the wayside. There must come a time when a criminal conviction is final, when the deterrent effects of certainty and immediacy of punishment outweigh the prisoner's right to endlessly litigate new claims. The Texas Legislature has balanced the rights of a convicted death row inmate to seek collateral review of possible violations of his constitutional rights at trial against society's legitimate interest in finality of judgments. The Legislature has explicitly set those limits at one full and fair opportunity to present all such claims in a single, comprehensive post-conviction writ of habeas corpus, except for those rare exceptions outlined in section 5 of 11.071. We are not free to judicially disrupt that carefully crafted legislative scheme.

Furthermore, an allegation of ineffective assistance of counsel in a habeas proceeding is entirely derivative; it does not attack the validity, fairness, or constitutionality of the original trial proceeding. It is merely a "gateway" device used to allow an inmate to resurrect a procedurally defaulted claim which he failed to bring at the proper time. However, it is the trial's validity, fairness, and constitutionality that constitutes the "main event"(64) and proper focus of our analysis.

Finally, applicant's claim of ineffective assistance of original habeas counsel for failing to include a purported "suppression of vital evidence" (that evidence being the possible presence of the accomplice's wife at the murder scene as specifically evidenced by the accomplice's failed polygraph question on this issue) claim in his original writ is not the type that cries out for relief on the basis of "fundamental fairness." As noted above, this claim has already been rejected as an abuse of the writ. The factual basis for it was known: 1) at the time of trial when the prosecutor referred to her possible presence at the murder scene during his closing argument, and 2) at the time of the filing of the original writ because second habeas counsel states that he urged the first habeas counsel to include it in the original writ. First habeas counsel declined to do so. Perhaps he thought it lacked merit.

In sum, we conclude that article 11.071 section 2 grants a statutory right to the appointment of competent counsel, but it does not give a habeas applicant a constitutional or statutory right to effective assistance of that counsel in the particular case that can form the basis of a subsequent writ under article 11.071 section 5. We therefore dismiss the applicant's third habeas corpus petition as an abuse of writ under article 11.071 section 5(c).

COCHRAN, J.

Date Delivered: January 2, 2002

Publish

1. Unless otherwise noted, "article" refers to the Texas Code of Criminal Procedure (Vernon Supp. 2000).

2. Applicant and Carter occupied cells directly opposite one another and conversed across this distance. While delivering food to the jail, a Burleson County Jail employee overheard applicant say to Carter, "[w]e fucked up big time." Another employee heard applicant tell Carter, "[k]eep your damn mouth shut. I done the job for you. Make them make their own damn case." That same evening, a jailer overheard applicant tell his accomplice, "[y]eah, motherfucker, I did it, keep your mouth shut!"

3. Shortly before his own execution, the accomplice, Robert Earl Carter, was deposed in prison and recanted his trial testimony. Carter claimed that applicant had nothing to do with the murders; that he, Carter, committed the murders alone; and that he had never known applicant to carry a knife. Several witnesses at applicant's trial had testified, however, that applicant owned a switchblade knife that matched "like a glove" the wounds that caused the death of five of the six victims.

4. See Tex. Code Crim. Proc. Art. 37.071 (Vernon Supp. 2000).

5. In its findings of fact and conclusions, the trial court summarized applicant's habeas claims:

6. Applicant attempted to introduce four additional claims, each asserting that the State suppressed vital evidence regarding Teresa Carter's (the accomplice's wife) presence at the murder scene and thus violated applicant's rights to equal protection and due process. Specifically, applicant complained that the State informed defense counsel that Carter had failed a polygraph test but did not specifically disclose that Carter failed a question regarding his wife's involvement in the crime. However, at the time of trial, Teresa Carter had been indicted for her participation in this same capital offense. It was in return for not prosecuting Mrs. Carter that the accomplice, Robert Earl Carter, agreed to testify against applicant. Further, applicant complained in his direct appeal that, during closing argument, the prosecutor suggested that Teresa Carter had been present during the murders. At trial applicant had objected to this "fair inference" from the evidence.

7. Those issues concerned claims that 1) the accomplice witness, Robert Earl Carter, recanted his trial testimony before his execution; and 2) applicant's trial counsel was ineffective for failing to prevent "the loss of his primary witness," Yolanda Mathis (a claim which had been raised in applicant's original habeas petition and rejected both on its merits and as procedurally barred).

8. We summarily dismiss all of applicant's other claims contained within this latest petition as an abuse of the writ under Tex. Code Crim. Proc. Art. 11.071 5(c) (Vernon Supp. 2000).

9. Of course, ineffective assistance of prior counsel is only a derivative claim which, if recognized and proved by a preponderance of evidence, simply excuses the procedural bar to the underlying constitutional claim. See Edwards v. Carpenter, 529 U.S. 446, 453 (2000). In this case, that underlying claim is: would the result of this capital murder trial have probably been different if the State had informed defense counsel that one of the questions Carter flunked in his polygraph test was whether his wife had been present at or a co-participant in the murder.

10. The writ's English origins precede the Magna Carta. See W. Duker, A Constitutional History of Habeas Corpus 27-40 (1980); L. Yackle, Postconviction Remedies 8-9 (1981). Although the precise beginnings of habeas corpus are lost in antiquity, it is quite certain that soon after the Norman invasion various writs of habeas corpus developed in England to ensure the presence of the accused or witnesses at trial. See 3 W. Blackstone at *129-38; W. Duker at 129-94. By the fourteenth century, however, Chancery and Common Law courts used writs of habeas corpus to review lower court judgments and examine the cause of imprisonment. See Cohen,Some Considerations on the Origins of Habeas Corpus, 16 Can.B. Rev. 92, 112 (1938). This review, however, examined only the confining court's jurisdiction, and not the correctness or fairness of the trial or judgment. See Oaks, Legal History in the High Court-Habeas Corpus, 64 Mich.L.Rev. 451, 468 (1966).

11. See W. Duker at 229-41. An early Texas case explained: "The writ of habeas corpuswas not designed to operate as a writ of error or certiorari, and does not have their force or effect. It does not deal with errors or irregularities which render proceedings voidable merely, but such only as to render them absolutely void.(12)

12. Perry v. The State, 41 Tex. 488, 490 (1874). Three years later, the Court of Appeals (now the Court of Criminal Appeals) explained the purpose of a writ of habeas corpus:

A proceeding defective for irregularities an one void for illegality may be revised upon error or certiorari; but it is the latter defect only which gives authority to discharge on habeas corpus. A irregularity is defined to be a want of adherence to some prescribed rule or mode of proceeding. ...

Illegality is properly predicable of radical defects only, and signifies that which is contrary to the principles of law as distinguished from mere rules of procedure. It denotes a complete defect in the proceedings.

Ex parte Scwartz, 2 Tex. App. 74, 80-81 (1977) (quotations and citations omitted). " -

13. That is, the violation of an accused's fundamental constitutional rights deprives a trial court of its proper jurisdiction. Johnson v. Zerbst, 304 U.S. 458 (1938).

14. 316 U.S. 101, 104 (1942).

15. Id. Texas courts continued to emphasize the jurisdictional basis for habeas review. See Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967) (habeas corpus relief available under theory that trial court lost its jurisdiction to convict without due process of law). As late as 1945, Texas courts confined state habeas corpus review to allegations of a judgment void due to the convicting court's lack of subject matter or personal jurisdiction. See Ex parte Ricketts, 148 Tex. Crim. R. 569, 189 S.W.2d 872 (1945) (reiterating this Court's late nineteenth century holdings and quoting Ex parte Dickerson, 30 Tex. App. 448, 17 S.W. 1076 (1891) for its proposition that "inferior court judgments can only be attacked by writ of habeas corpus for such illegalities as render them void. Erroneous judgment of inferior courts having jurisdiction of the subject matter and of the person cannot be successfully attacked upon habeas corpus, unless they are so far erroneous as to be absolutely void").

16. 344 U.S. 443 (1953).

17. Id. at 536 (Jackson, J., concurring). He further observed that "[i]t must prejudice the occasional meritorious application to be buried in a flood of worthless ones. He who must search a haystack for a needle is likely to end up with the attitude that the needle is not worth the search." Id. at 537.

18. Justice Brennan concluded that "conventional notions of finality of litigation in criminal litigation cannot be permitted to defeat the manifest federal policy that federal constitutional rights of personal liberty shall not be denied without the fullest opportunity for plenary federal judicial review." Fay v. Noia, 372 U.S. 391, 424 (1963). Chief Justice Burger, in contrast, asked rhetorically, "Is a society redeemed if it provides massive safeguards for accused persons, including pretrial freedom for most crimes, defense lawyers at public expense, trials and appeals, retrials and more appeals-almost without end-and yet fails to provide elementary protection for its law-abiding citizens?" Burger, C.J., Annual Report to the American Bar Association, 67 A.B.A. J. 290, 291 (1981).

Supreme Court justices have long noted that habeas corpus review, by delaying finality of criminal convictions, tends to undermine the deterrent and rehabilitative functions of the criminal law:

Both the individual criminal defendant and society have an interest in insuring that there will at some point be the certainty that comes with an end to litigation, and that attention will ultimately be focused not on whether a conviction was free from error, but rather on whether the prisoner can be restored to a useful place in the community.

Sanders v. United States, 373 U.S. 1, 24-25 (1963) (Harlan, J., dissenting).

19. Sunal v. Large, 332 U.S. 174, 179 (1947). "[T]he writ is not designed for collateral review of errors of law committed by the trial court-the existence of any evidence to support the conviction, irregularities in the grand jury procedure, departure from a statutory grant of time in which to prepare for trial, and other errors in trial procedure which do not cross the jurisdictional line.(20)

20. Sunal v. Large, 332 U.S. 174, 179 (1947)."

21. See, e.g, Stone v. Powell, 428 U.S. 465, 477 n.10 (1976) ("the established rule with respect to nonconstitutional claims" is that they "can be raised on collateral review only if the alleged error constituted a 'fundamental defect which inherently results in a complete miscarriage of justice'"); Ex parte Drake, 883 S.W.2d 213, 215 (Tex. Crim. App.1994) (habeas corpus is reserved for instances in which there exists a jurisdictional defect in the trial court which renders the judgment void or for denials of fundamental or constitutional rights); Ex parte Watson, 601 S.W.2d 350 (Tex. Crim. App.1980) (post-conviction writ of habeas corpus is limited, and "lies only to review jurisdictional defects or denials of fundamental or constitutional rights"); Ex parte Banks, 769 S.W.2d 539, 540 (Tex. Crim. App.1989).

22. See, e.g, Ex parte Sadberry, 864 S.W.2d 541, 542 (Tex. Crim. App.1993) (habeas writ cannot be invoked for mere statutory irregularities in criminal proceedings); Ex parte Owenby, 749 S.W.2d 880, 881 (Tex. Crim. App.1988) (violation of Speedy Trial Act is non-jurisdictional defect which cannot be raised on habeas review); Ex parte Tovar, 901 S.W.2d 484, 486 (Tex. Crim. App.1995) (violation of article 26.13 on taking pleas is not cognizable unless it affected defendant's decision to plead guilty).

23. See Sadberry, supra n.20, at 542 (noting that "[w]hile we do not sanction noncompliance with procedural rules designed to safeguard constitutional rights, the writ was not intended to provide for relief for such noncompliance where the record is otherwise clear on the rights to which the procedural formalities pertain").

24. See generally, George Dix & Robert Dawson, Criminal Practice & Procedure 45.71 (Texas Practice ed. 1995) (quoting and discussing Texas precedent for the appropriate rule concerning cognizability of claims on habeas, but noting that "[u]nfortunately, the framework provided by the case law does not constitute an effective vehicle for achieving the necessary balance. The touchstone concept of 'voidness' lacks any intrinsic meaning. ... Certainly the concept of voidness itself provides no guidance as to whether particular procedural defects are best regarded as so cognizable"). Much of this cognizability confusion has been centered upon the historically prodigal use of such terms as "void vs. voidable" and "illegal procedure vs. irregular procedure" without further explanation. See also Ex parte Tuan Van Truong, 770 S.W.2d 810, 812 (Tex. Crim. App. 1989) (discussing procedural framework and bases for habeas corpus review, but failing to address precisely what issues are cognizable on habeas).

25. Second habeas counsel also raises additional fact issues which were not included in either the first or second habeas petition. These include the discovery of additional exculpatory evidence supporting claims that were raised and rejected in his first habeas petition.

26. As noted above, this is actually applicant's fourth habeas petition, as he made his present claims only in an "amended" second subsequent habeas petition. Ironically, second habeas counsel has done precisely what he argues was incompetent on original habeas counsel's part: filed an "amended" habeas petition, alleging new claims that he did not include in his prior petition.

27. See Coleman v. Thompson, 501 U.S. 722, 752 (1991) ("there is no constitutional right to an attorney in state post-conviction proceedings ... consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings"); Murray v. Giarratano, 491 U.S. 1 (1989); Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Ex parte Mines, 26 S.W.3d 910, 913-16 (Tex. Crim. App. 2000); Ex parte Davis, 947 S.W.2d 216, 229 (Tex. Crim. App. 1996).

28. 481 U.S. at 555.

29. Id.

30. Id. at 554 (quoting Ross v. Moffitt, 417 U.S. 600, 609 (1974)).

31. The United States Supreme Court and this Court have repeatedly held that neither the federal nor Texas constitutions require the appointment of counsel to pursue the available remedy of a writ of habeas corpus. See Finley, supra n.23; Giarrantano, supra n.23 (neither Eighth Amendment nor due process clause requires states to appoint counsel for indigent death row inmates seeking state habeas corpus relief); Coleman v. Thompson, supra n.23 (because there was "no constitutional right to an attorney in state post-conviction proceedings," state habeas petitioner was not entitled to relief on claim that his first habeas counsel provided ineffective assistance); Ex parte Mines, supra n.23 at 914 (Texas constitution does not grant more rights on habeas review than does federal constitution; state constitution provides no right to counsel in habeas corpus proceedings); Ex parte Davis, supra n.23 at 229 (habeas petitioner in death penalty case does not have state or federal constitutional right to counsel) (McCormick, P.J., concurring). These and other cases reject claims of a constitutional right to counsel in habeas corpus proceedings made under the Due Process Clause, the Equal Protection Clause, and the Sixth Amendment Right to Counsel.

32. See Coleman, 501 U.S. at 752 (because no constitutional right to counsel exists in a state death penalty habeas case, there can be no deprivation of effective assistance in that proceeding); In re Goff, 250 F.3d 273, 275-76 (5th Cir. 2001) (Texas prisoner sentenced to death could not claim ineffective assistance of habeas counsel in successive habeas petition because he had no constitutional right to counsel on habeas review); Martinez v. Johnson, 255 F.3d 229, 239-41 (5th Cir. 2001) (Texas capital murder applicant foreclosed from claiming ineffective assistance of counsel on subsequent writ because no constitutional right to counsel exists in habeas corpus proceedings) (as revised July 20, 2001); Ex Parte Mines, 26 S.W.3d at 913-16.

33. 529 U.S. 446 (2000).

34. In Carpenter, id., the United States Supreme Court held that "an ineffective-assistance-of-counsel claim asserted as cause for the procedural default of another claim can itself be procedurally defaulted." 529 U.S. at 453. Thus, a habeas petitioner who did not bring his ineffective-assistance-of appellate counsel claim at the earliest opportunity has defaulted that claim as well as the underlying claim which was defaulted as a result of prior counsel's ineffectiveness. Under Carpenter, a habeas petitioner must show "cause and prejudice" for each one of those defaults. But at least in Carpenter, the habeas petitioner had a cognizable constitutional claim of ineffective assistance of counsel on direct appeal. There is no such cognizable constitutional claim for ineffective assistance of habeas counsel.

35. Anti-Terrorism and Effective Death Penalty Act of 1996, 28 U.S.C.S. 2254 et. seq. (West Supp. 2000).

36. Applicant relies solely upon federal decisions interpreting the federal constitution. Therefore, we assume that he makes a federal constitutional claim.

37. 255 F.3d 229 (5th Cir. 2001).

38. Id. at 234-37.

39. Id. at 241 (footnote omitted).

40. 250 F.3d 273 (5th Cir. 2001).

41. The Fifth Circuit stated that this Court had "denied" Goff's subsequent writ application on April 24, 2001. In fact, this Court "dismissed" his application as an abuse of the writ under 11.071, 5(c). Ex parte Goff, Case No. 37,556-02 (Tex. Crim. App., April 24, 2001) (not designated for publication).

42. "At bottom, the decision below [finding a right to competent counsel in post-conviction proceedings] rests on a premise that we are unwilling to accept - that when a State chooses to offer help to those seeking relief from convictions, the Federal Constitution dictates the exact form such assistance must assume." Id. at 274-75 (quoting Finley, 481 U.S. 551).

43. Id. at 275.

44. Id. (quoting Finley, 481 U.S. 551); see also Beazley v. Johnson, 242 F.3d 248, 271 (5thCir. 2001) (emphasizing that "no constitutional right to habeas counsel in state collateral proceedings exists, so [Texas death row inmate] cannot claim a constitutional violation") (stay denied, 150 L.Ed.2d 793 (2001); Fairman v. Anderson, 188 F.3d 635, 643 (5th Cir.1999) ("[B]ecause appointment of counsel on state habeas is not constitutionally required, any error committed by an attorney in such a proceeding 'cannot be constitutionally ineffective'") (quotingColeman, 501 U.S. at 752); Werts v. Vaughn, 228 F.3d 178, 227 n.4 (3d Cir. 2000) (because there is no constitutional right to counsel in habeas proceedings, there can be no claim of ineffective assistance of counsel), cert. denied, 121 S.Ct. 1621 (2001); Miller v. Kemna, 207 F.3d 1096, 1097 (8th Cir. 2000) (no constitutional right to counsel in state habeas proceeding), cert.denied., 531 U.S. 1060 (2000); Ellis v. Armenakis, 207 F.3d 627, 632 (9th Cir. 2000) (no constitutional right to counsel during state habeas proceedings even when that proceeding is the first forum in which defendant could challenge the constitutional effectiveness of counsel);Thomas v. Gibson, 218 F.3d 1213, 1222 (10th Cir. 2000) (federal habeas claim asserting ineffective assistance of counsel in state habeas proceeding did not state a constitutional claim even though Oklahoma state law provides for appointment of counsel in postconviction capital proceedings).

45. Tex. Code Crim. Proc. Art. 11.071 2(a) (Vernon Supp. 2000).

46. We interpret a statute in accordance with the plain meaning of its language unless that language is ambiguous or the plain meaning leads to absurd results that the Legislature could not possibly have intended. Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App.1991); see also Whitelaw v. State, 29 S.W.3d 129, 131 (Tex. Crim. App. 2000).

47. Article 11.071, 2 guides appointment of and representation by counsel in death penalty writs of habeas corpus. Subsection (a) requires applicant to be represented by "competent counsel" unless the prisoner elects to proceed pro se. Subsection (b) requires the trial court to determine whether an indigent applicant sentenced to death desires the appointment of habeas counsel. Subsection (c) outlines the procedure for the trial court to use in appointing "competent counsel." Subsection (d) states that this Court shall adopt rules for the appointment of competent counsel.(48)

48. Applicant complains that this Court "never set any standards or guidelines for the competency of counsel in these matters." Although this Court has not formally promulgated explicit standardized rules for representation of death row inmates in habeas proceedings, that fact does not equate to a "random and arbitrary" appointment process as alleged by applicant. Indeed, applicant does not allege that his original habeas counsel was incompetent or insufficiently experienced to be appointed. Rather, he alleges that original habeas counsel did not follow his second counsel's advice and suggestions concerning the assertion of the claims that were contained in applicant's amended application filed on June 9, 1999, which we dismissed as an abuse of the writ. '

49. See Ex parte Mines, 26 S.W.3d at 912.

50. See Ex parte Kerr, ____ S.W.3d ___ , ____ No. 35, 065-04, slip op. at 7 (Tex. Crim. App., delivered January 2, 2000).

51. For example, in the present case, applicant asserts that he has met the requirements of section 5(a)(1) for bringing a subsequent writ. That statutory requirement is:

(a) 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:

Applicant asserts that he could not have brought his present claim of ineffective assistance of habeas counsel on his first writ because his first habeas counsel "was not going to raise this issue [concerning his own representation], thus it is reasonable to conclude that this claim was clearly 'unavailable' at the time that [applicant] filed the first petition in the courts." Of course, everysecond habeas counsel (or pro se applicant) could make that same claim against a prior habeas counsel. We do not read section 5(a) as referring to a claim of ineffective assistance of counsel for failing to raise a factual or legal claim in an earlier habeas petition. Rather, the unavailability of the "factual" or "legal" basis refers to those claims which were unavailable at the time of the original habeas filing, not those claims which might arise because of that original filing.

52. See Tex. Code Crim. Proc. Art. 11.071 5(a)(1)-(3) (Vernon Supp. 2000) (establishing exceptions to the bar on subsequent habeas applications for claims of: 1) newly discovered evidence or new rules of law; 2) actual innocence; and 3) actual lack of "deathworthiness").

53. Ex parte Davis, 947 S.W.2d at 220 (McCormick, P.J., concurring) (noting art. 11.071, 5 was, in essence, a legislative codification of the judicially created "abuse of the writ" doctrine); see also Ex parte Carrio, 992 S.W.2d 486, 490 (Tex. Crim. App. 1999) ("while the Legislature 'does not tell this Court how to decide the substantive claims an applicant raises,' and thus does not interfere with 'core judicial functions,' the Legislature has 'complete authority to pass any law regulating the means, manner and mode of the assertion' of a habeas claim"); Ex parte Golden, 991 S.W.2d 859, 861 (Tex. Crim. App. 1999); Ex parte Smith, 977 S.W.2d 610, 611 (Tex. Crim. App. 1998).

54. In 1999, the Legislature returned responsibility for appointment of counsel to the convicting trial courts.(55)

55. See [1999 bill] (56)

56. The trial court is also in a better position to determine the availability and willingness of habeas counsel to serve and to monitor counsel's progress. ' (57)

57. Tex. Code Crim. Proc. Art. 11.071 2A(a).

58. 351 U.S. 12 (1956).

59. Id. at 17-18.

60. See 28 U.S.C. 2254(i) ("The ineffectiveness or incompetence of counsel during federal or state collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254").

61. Applicant relies solely upon United States Supreme Court precedent in this particular argument, thus we presume that he is relying upon the federal, not Texas, constitution.

62. 242 F.3d 248, 271 (5th Cir. 2001) ("as reflected in the bar raised by 2254(i), no constitutional right to habeas counsel in state collateral proceedings exists, so [Texas death row inmate] cannot claim a constitutional violation").

63. See, e.g., Ex parte Sadberry, 864 S.W.2d 541, 542 (Tex.Crim.App. 1993) (habeas relief not available for statutory irregularities in trial proceedings); Ex parte Tuan van Truong, 770 S.W.2d 810, 811-13 (Tex.Crim.App. 1989) (setting out historical rationale for distinguishing between cognizable constitutional claims on habeas review and procedural irregularities which are not); Ex parte Banks, 769 S.W.2d 539, 540-41 (Tex.Crim.App. 1989) (habeas relief not available for violations of a procedural statute); Ex parte Russell, 738 S.W.2d 644, 647 (Tex.Crim.App. 1986) ("[h]abeas corpus is available only to review jurisdictional defects, or denial of fundamental or constitutional rights") (citations omitted).

64. See Wainwright v. Sykes, 433 U.S. 73, 90 (1977) (the trial is the time and place when all evidence should be presented to decide the guilt or innocence of the accused; the trial is the "main event," not a "tryout on the road" to appellate reversal).