Saturday, April 9, 2016


I have become a "Fan-Boy" of Judge Elsa Alcala of the Texas Court of Criminal Appeals (CCA). Recently I wrote here in connection with her well thought out dissenting and concurring opinions in Frank Blazek and Billy Carter's unnecessary, wasteful and, potentially, dangerous show cause hearing in In re State of Texas ex rel. Brian Risinger. I praised her here for long term thinking on expansion of defendant pre-trial appeal rights in a concurring opinion in Ex parte James Richard "Rick" Perry. 

This week, a little noticed dissent, in a case styled Ex parte Irving Magana Garcia, Judge Alcala gave voice to a problem I too often see from my vantage point in the trial court trenches: How defendants are screwed over procedurally in Texas when pursuing Ineffective Assistance of Counsel (IAC) claims by procedural rules in both direct appeals and post conviction state habeas corpus appeals.

I became fully aware of the issue while reading Trevino v. Thaler, a Supreme Court of the United States (SCOTUS) opinion decided several years ago. The summary of Trevino from the above linked SCOTUS blog is spot on:
When, as here, [Texas'] procedural framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise on direct appeal a claim that his trial counsel provided ineffective assistance, the good cause exception recognized in Martinez v. Ryan [in federal habeas application] applies.
Judge Alcala begins her dissent in Ex parte Garcia with long existing constitutional doctrine that every felony criminal defendant has a right to effective assistance of counsel at both the trial and the first direct appeal. Defining "effective" is not the issue. Instead it is having the opportunity to have a lawyer review and, if necessary, pursue IAC claims if existing constitutionally defined effective representation was not provided.

Judge Alcala explains the problem:
[H]ow can the right to the effective assistance of counsel at trial be ensured if a
state has no adequate vehicle for a defendant to assert that the right was violated? As the Supreme Court has suggested recently [in Trevino], Texas’s system for addressing claims of ineffective assistance of trial counsel has serious flaws. Under the current scheme, in many cases, neither direct appeal nor a writ of habeas corpus provides a meaningful opportunity for litigants to present ineffectiveness claims. 
On direct appeal, which is a point in time at which an indigent appellant has the right to appointed counsel, an ineffectiveness claim usually fails due to the need for evidence outside the record, which usually cannot be presented during the narrow window of time permitted for filing a motion for new trial. Similarly, on habeas review, which is a point in time at which an indigent applicant has no right to appointed counsel, an ineffectiveness claim will almost always fail because the pro se applicant is unaware of the legal standard and evidentiary requirements necessary to establish his claim.
Most people do not understand the interplay between direct appeals and post conviction habeas claims. Heck, most lawyers, and many criminal lawyers have not a full understanding of the ways these separate vehicles of appeal play out. This is not meant to condemn - it is even more technical when federal post conviction habeas appeals are layered on top of direct and state habeas appeals. Add to this the even more technical and nuanced procedural default gotchas of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) and the whole system becomes a trap for the unwary, pro se defendant and lawyer alike.

Judge Alcala, joined by Judge Johnson, then illustrates the constitutional problem:
This failure is apparent in the present application for a post-conviction writ of habeas corpus, in which Irving Magana Garcia, applicant, alleges that his trial counsel was ineffective, but his application is problematic because his pro se pleadings are inadequate to raise any colorable ineffective-assistance. Here, I conclude that the appropriate remedy for this systemic failure is for this Court to remand this case to the habeas court with instructions to appoint counsel for the purpose of amending the instant habeas application to pursue an ineffective-assistance claim that would not be limited by the current pro se pleadings. 
Garcia filed a pro se state habeas application after exhausting direct appeal on a murder conviction. At trial he did not request and was not provided a translator on advice of trial counsel. This was a point on initial direct appeal on IAC claim, but the intermediate Court of Appeals (COA) held the record was not sufficiently developed to sustain the IAC claim and the CCA denied petition for discretionary review.

This is the standard operating procedure on direct appeal. With a bare 30 days, usually less by the time appellate counsel is appointed, to file a required motion for new trial, there is insufficient time to investigate and assert meaningful IAC claims on direct appeal. Additionally, even if asserted, COAs will not giving meaningful review of these claim, essentially deferring to collateral habeas claims, reasoning the post conviction habeas mechanism is best able to deal with "extra-record" claims.

The problem is a defendant is not entitled to a court appointed lawyer to investigate and, if present, assert these claims in the post conviction state habeas stage. Additionally, it is almost impossible for a pro se defendant to develop these extra-record claims when they are sitting in a prison unit. This is then compounded by the technicalities in properly asserting a post conviction habeas claim of any type. Witness Garcia's inability to assert his - it was dismissed for failing to properly assert what Judge Alcala called, in lawyer-judge jargon, a "colorable" IAC claim. The result? Garcia, and many a defendant like him, are in a Catch-22 Joseph Heller would relish.

Although the state trial court in which they are convicted has the discretion to appoint habeas counsel to investigate these claims, it happens rarely. Judge Alcala gives statistics:
It is true that some indigent defendants are capable of adequately raising ineffective assistance claims on their own, and it is further true that this Court occasionally remands cases to the habeas court for appointment of counsel. But such cases are the exception to the rule. I note that, although this Court remanded a total of 388 habeas cases to the habeas court for hearings or affidavits in fiscal year 2015, and it granted relief in 184 cases, those numbers do not particularly address ineffective-assistance claims, pro se habeas applications, or the number of applicants who received appointed counsel. In any event, these cases constitute a very small percentage of the 4,698 habeas applications that were filed in that year. 
As such, I am unpersuaded that the occasional success of pro se habeas litigants in raising ineffectiveness challenges renders this problem unworthy of our attention. And, regardless of my personal view that this issue is substantially important and deserving of this Court’s attention, I note that the issue was deemed significant enough by the Supreme Court for it to recognize the problem and craft an equitable remedy in order to address it. That should be enough for this Court to decide that the problem is worthy of our attention. (emphasis added) (citation omitted).
Like I said, Fan-Boy.

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