ON PETITION FOR REHEARING

(Opinion Sept. 9, 2010, 5th Cir.2010, 619 F.3d 387)

PATRICK E. HIGGINBOTHAM, Circuit Judge:

We treat Petitioner-Appellant Felix Rocha's petition for rehearing en banc as a petition for panel rehearing pursuant to Fifth Circuit Internal Operating Procedures under Federal Rule of Appellate Procedure 35. We deny Rocha's petition for rehearing for the same reasons we held he is not entitled to have a federal court review the merits of his federal constitutional claim for habeas relief, reasons which this opinion clarifies and elaborates.

The Texas Court of Criminal Appeals ("the CCA") determined that Rocha's state habeas application could not satisfy the requirements of Texas Code of Criminal Procedure art. 11.071 § 5(a)(3) and dismissed it as an abuse of the writ under art. 11.071 § 5(c). Rocha's petition for rehearing contends that we erred by holding that the CCA's dismissal of his state habeas application rested on an independent and adequate state-law ground. As we explain in Part I, Rocha's contention is without merit. It is true that § 5(a)(3) incorporates a federal standard—specifically, the actual-innocence-of-the-death-penalty standard articulated by Sawyer v. Whitley.1 However, a claim of actual innocence of the death penalty under Sawyer is not itself a claim for relief under the Antiterrorism and Effective Death Penalty Act ("AEDPA").2 It is a gateway claim that, if successful, authorizes a federal court to review the merits of a habeas claim that would otherwise be procedurally barred. With only a few possible exceptions,3 a gateway claim of actual innocence of the death penalty and a federal constitutional claim for habeas relief are not equivalent. Section 5(a)(3) allows the CCA to decide the former without reaching the merits of the latter. A determination by the CCA that a successive habeas application does not satisfy the requirements of § 5(a)(3) does not empower us to reach the merits of the underlying claim. All it empowers us to do is make a de novo determination of whether the petitioner is actually innocent of the death penalty—the same determination we make whenever we are asked to excuse a procedural default.

Rocha contends that our decision cannot be reconciled with this Court's prior decisions in Rivera v. Quarterman,4 Ruiz v. Quarterman,5 and Balentine v. Thaler.6 The state responds that Hughes v. Quarterman7 is evidence of the correctness of our approach. Neither argument is fully sound. The cases the parties rely on construe Texas Code of Criminal Procedure article 11.071 § 5(a)(1). The CCA dismissed Rocha's state habeas application because his application did not satisfy § 5(a)(3). As we explain in Part II, our precedent interpreting § 5(a)(1) does not compel us to conclude that the CCA did not employ an independent state-law ground of decision when it determined that Rocha could not satisfy § 5(a)(3). When the CCA determines that a successive state habeas application does not satisfy § 5(a)(1) and dismisses it as an abuse of the writ, it sometimes does so because it has concluded that the federal constitutional claim on which the application seeks relief is meritless. We have previously held that in such cases the CCA's decision is interwoven with the merits of the federal constitutional claim and thus does not rest on an independent state-law ground. By contrast, when the CCA determines that a successive state habeas application does not satisfy § 5(a)(3), it does so because it has concluded that the habeas applicant cannot establish that he is actually innocent of the death penalty. To arrive at that conclusion, the CCA need not, and does not, consider the merits of the underlying federal constitutional claim.8

I.

A full summary of the facts is provided in our opinion; only those most pertinent are included here. A jury convicted Rocha of capital murder, and on the jury's answers to the special issues the trial court sentenced him to death. Rocha filed multiple unsuccessful habeas applications in the Texas state courts. He then filed a federal habeas petition, which the district court denied and dismissed. Rocha then filed a final habeas application with the CCA, the first of his state habeas applications in which he raised for the first time the ineffective-assistance-of-counsel-at-sentencing claim9 that he presses here. The Texas Court of Criminal Appeals found that the allegations of Rocha's final state habeas application "do not satisfy the requirements of Article 11.071, section 5(a)(3)" and therefore dismissed his application "as an abuse of the writ."10 After the CCA dismissed his successive application, Rocha returned to the district court and filed a motion for relief from judgment under Rule 60(b) of the Federal Rules of Civil Procedure. In it, he contended that the CCA's order decided his Wiggins claim on the merits, thereby opening it up for plenary review by a federal court. The district court disagreed and found the claim was procedurally defaulted. We affirmed.

A.

A federal court generally cannot review the merits of a state prisoner's habeas petition if the claims in the petition are procedurally defaulted.11 A habeas claim can be procedurally defaulted in either of two ways.12 First, if the prisoner has never fairly presented that claim to the highest available state court, the claim is unexhausted.13 The parties agree that Rocha exhausted his Wiggins claim by presenting it to the CCA in a state habeas application. Second, if the prisoner has presented the claim to the highest available state court but that court has dismissed the claim on a state-law procedural ground instead of deciding it on the merits, the claim has been decided on an independent and adequate state-law ground.14 The parties vigorously dispute whether the CCA's dismissal of Rocha's Wiggins claim as an abuse of the writ rested on an independent and adequate state law-ground.

"If a state court clearly and expressly bases its dismissal of a prisoner's claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for dismissal, the prisoner has procedurally defaulted his federal habeas claim."15 The state procedural rule must be "both independent of the merits of the federal claim and an adequate basis for the court's decision."16 A state procedural rule is an adequate basis for the court's decision only if it is "strictly or regularly applied evenhandedly to the vast majority of similar claims."17 The parties agree that a state habeas application that is dismissed because it does not satisfy § 5(a)(3) has been dismissed on an adequate state-law ground. A state procedural rule operates independently of the merits of the federal claim when a federal court could reverse the state court's disposition of any federal-law issues presented by the petition and, because of the state court's resolution of the state-law issues, the outcome of the case would not change.18 Rocha's petition for rehearing argues that the CCA's determination that Rocha's state habeas application did not satisfy § 5(a)(3) did not operate independently of the merits of his Wiggins claim.

Before turning to our discussion of § 5(a)(3), we pause for a precise explanation of how Texas's abuse-of-the-writ statute operates. Texas Code of Criminal Procedure art. 11.071 § 5(c) requires a successive state habeas application to be dismissed as an abuse of the writ unless it can satisfy the requirements of one of the three subsections of art. 11.071 § 5(a). The rule codified in § 5(c)—that a Texas habeas applicant must bring all of his claims in his first application—is grounded in state law and is procedural in nature. Standing alone, § 5(c) inarguably would be an independent state-law ground for decision.19 But § 5(c) does not stand alone. Its applicability is conditioned on a finding that none of the three subsections of § 5(a) has been satisfied. Our core inquiry thus reduces to this: Does a finding that § 5(a)(3) has not been satisfied transform a dismissal under § 5(c) from one that rests on state law to one that rests on federal law?

Section 5(a)(3) provides that when a Texas prisoner files a successive habeas application after having previously filed an initial application,

We are obliged to construe and apply § 5(a)(3) as the CCA construes and applies it.21 Therefore we begin our analysis with a discussion of Ex parte Blue,22 the CCA's seminal interpretation of the statute.

In Blue, the CCA held that § 5(a)(3) necessitates "a threshold showing of evidence that would be at least sufficient to support an ultimate conclusion, by clear and convincing evidence, that no rational factfinder would fail to find" that "the applicant is ineligible for the death penalty."23 In other words, the CCA makes a threshold determination of whether the facts and evidence contained in the successive habeas application, if true, would make a clear and convincing showing that the applicant is actually innocent of the death penalty.24 The CCA concluded that performing this kind of threshold review was consistent with the fact that, in enacting § 5(a)(3), the Texas "Legislature apparently intended to codify, more or less, the doctrine found in Sawyer v. Whitley."25

Sawyer embodies a federal standard. Under the federal common law of procedural default, the general rule that a federal court cannot review the merits of a state prisoner's habeas claim if the claim is procedurally defaulted is subject to two exceptions.26 First, a federal court can undertake merits review if the prisoner can show cause for and prejudice from the procedural default.27 Rocha does not contend that he can make a showing of cause and prejudice. Second, a federal court can review the merits of the claim if the prisoner can show that failure to do so would result in a fundamental miscarriage of justice.28 The prisoner can satisfy the fundamental-miscarriage-of-justice exception in either of two ways. First, he can show by a preponderance of the evidence that he is actually innocent of the crime of which he has been convicted.29 Alternatively, Sawyer allows him to show by clear and convincing evidence that he is "actually innocent of the death penalty."30 The Texas legislature incorporated into § 5(a)(3) both Sawyer's definition of "actual innocence of the death penalty"31 and Sawyer's clear-and-convincing standard of proof for such a claim.32

The precise meaning of the phrase "actually innocent of the death penalty," as defined by the Supreme Court in Sawyer, is important to our disposition of Rocha's petition. Acknowledging that the concept of "actual innocence `does not translate easily into the context of an alleged error at the sentencing phase of a trial on a capital offense,'"33 the Supreme Court held in Sawyer that a prisoner is actually innocent of the death penalty only if he can "show by clear and convincing evidence that but for constitutional error at his sentencing hearing, no reasonable juror would have found him eligible for the death penalty under [state] law."34 Sawyer thus "`expressly rejected the argument that a constitutional error that impacts only the jury's discretion whether to impose a death sentence upon a defendant who is unquestionably eligible for it under state law can be considered sufficiently fundamental as to excuse the failure to raise it timely in prior state and federal proceedings.'"35

B.

Rocha argues that when the CCA concluded that his successive state habeas application did not satisfy the requirements of § 5(a)(3), it necessarily also concluded that his Wiggins claim is without merit. Rocha effectively invites us to treat an actual-innocence claim under Sawyer as synonymous with an ineffective-assistance claim under Wiggins. Our panel opinion declined his invitation, and we decline it again here. The CCA did not have to reach the merits of Rocha's Wiggins claim to conclude that he is not actually innocent of the death penalty.36 A state court does not undermine the independent state-law character of its procedural-default doctrine by using a federal standard to determine whether an otherwise defaulted successive habeas application should be permitted to bypass a procedural bar.

A claim of actual innocence is "`not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.'"37 This statement is no mere shibboleth. It teaches that consideration of a petitioner's gateway claim of innocence precedes consideration of his federal constitutional claim not just temporally but analytically. Only if the petitioner can show that he is actually innocent of the death penalty can a federal court proceed to consider the merits of the alleged underlying constitutional violation. If a petitioner cannot establish his actual innocence, a federal court cannot, and does not, consider the merits of his habeas claim.

The eleven federal courts of appeals that regularly entertain habeas petitions under 28 U.S.C. § 2254 have unanimously held that a federal court's determination that a petitioner cannot prove his actual innocence does not constitute a decision on the merits of the petitioner's constitutional claim for habeas relief.38 Quite the contrary: such a determination precludes a federal court from even considering the merits of the habeas claim. Rocha does not argue that this rule is or should be different when it is a state court instead of a federal court that determines that a habeas petitioner cannot prove his actual innocence. Rather, he flatly asserts that a decision on actual innocence constitutes a decision on the merits. That assertion blinks the distinction between a innocence claim that functions as a gateway into AEDPA and a constitutional claim that functions as a ground for habeas relief under AEDPA.

The Supreme Court's decision in House v. Bell39 illustrates the lack of overlap between a gateway claim of actual innocence and an underlying constitutional claim for habeas relief. The Court concluded in House that the petitioner had made a sufficient gateway showing of actual innocence to justify having his federal habeas claim considered on the merits.40 But the Court did not grant habeas relief. Instead, it remanded the petition to the district court,41 which subsequently considered the merits of House's claim.42 If Rocha were correct that a decision on the gateway innocence claim is tantamount to a decision on the underlying constitutional claim, there would have been no need for the Court to remand House's petition for further proceedings below.

The distinction between a gateway innocence claim and an underlying constitutional claim is perhaps nowhere more clear than in the context of a Wiggins claim of ineffective assistance of counsel at sentencing. When we consider a properly presented Wiggins claim, we determine whether the petitioner was prejudiced by counsel's deficient performance by reweighing "`the evidence in aggravation against the totality of the available mitigating evidence'" and asking whether the petitioner "has shown that, had counsel presented all the available mitigating evidence, there is a reasonable probability that a juror would have found that the mitigating evidence outweighed the aggravating evidence."43 The contrast between that analysis and our analysis of an actual-innocence-of-the-death-penalty claim is stark. The quality of the mitigation evidence the petitioner would have introduced at sentencing has no bearing on his claim of actual innocence of the death penalty. Evidence that might have persuaded the jury to decline to impose the death penalty is irrelevant under Sawyer. The only question is whether the petitioner was eligible for the death penalty. The distinction between these two inquiries further underscores the basic point that the CCA did not decide the merits of Rocha's Wiggins claim when it concluded that Rocha is not actually innocent of the death penalty.44

There may well be some exceptions to the rule that a decision on the gateway innocence claim does not constitute a decision on the underlying constitutional claim. As Judge Dennis has previously recognized, an Atkins claim45 is a claim that the petitioner is ineligible for the death penalty.46 So too is a claim that the petitioner was under eighteen at the time of his crime,47 is insane,48 or has some other characteristic that the Supreme Court has held categorically justifies exemption from the death penalty.49 In such cases, the inquiry into the gateway innocence claim will substantially overlap with the inquiry into the merits of the underlying constitutional claim.50 Our panel opinion's holding does not implicate this limited class of cases, as Rocha's Wiggins claim is not a claim of categorical ineligibility for the death penalty.

Finally, it follows that this Court reviews de novo the CCA's determination that Rocha cannot establish that he is actually innocent of the death penalty. A gateway claim of actual innocence is not a basis for relief under AEDPA.51 Such a claim stands outside of AEDPA and offers to open a door into the statute that the petitioner's lack of diligence otherwise would have closed. Gateway claims of innocence are part of the federal common law of procedural default. De novo review is the norm in this area.52 Just as we make de novo determinations of whether a state-law ground of decision is independent of federal law or adequate to support the judgment,53 so too do we decide afresh whether a federal habeas petitioner is actually innocent of the death penalty.

C.

Rocha raises three challenges to our conclusion that the CCA's dismissal of his state habeas application rested on an independent and adequate state-law ground. First, he contends our conclusion is in conflict with the rule announced in Ake v. Oklahoma.54 In Ake, the defendant's sanity was likely to be in issue at his trial. The defendant argued that the Constitution required the state to grant him access to a psychiatrist to assist him in preparing his defense. The Oklahoma state courts held that he had waived this argument.55 However, Oklahoma's waiver rule did not apply to fundamental trial error, and under Oklahoma law any violation of a federal constitutional right was fundamental trial error.56 As a result, the Supreme Court concluded that the Oklahoma courts' waiver ruling was not an independent and adequate state-law ground:

Ake stands for the proposition that when a state court's application of a procedural rule rests on an antecedent decision of an issue of federal law, a federal court can review or decide the same federal issue that the state court decided.

The difference between Ake and this case is that the federal-law issue the CCA decided when it applied § 5(a)(3) is not the same federal-law issue on which Rocha seeks habeas relief. By applying the waiver rule to Ake, the Oklahoma courts concluded that the federal constitutional claim that was the basis of Ake's habeas petition was meritless. By dismissing Rocha's state habeas application as an abuse of the writ, the CCA formed no conclusion about Rocha's Wiggins claim. Rather, it determined that (1) Rocha's Wiggins claim should be dismissed on an independent and adequate state-law ground unless Rocha could satisfy Sawyer's actual-innocence-of-the-death-penalty standard; and (2) Rocha could not satisfy Sawyer. State law—specifically, § 5(c)—was the basis for the CCA's dismissal. Unlike the Oklahoma courts in Ake, the CCA applies §§ 5(c) & 5(a)(3) to all successive state habeas applications that cannot demonstrate actual innocence of the death penalty, regardless of the merits of the federal constitutional claims contained in those applications. Nothing in Ake suggests that a state court's resolution of a single issue of federal law allows a federal habeas court to decide any and all issues of federal law that the state court might have, but did not, reach.58

Second, Rocha contends that we are wrong to conclude that § 5(a)(3) adopts a definition of actual innocence of the death penalty that is coextensive with the definition announced in Sawyer. We disagree for two reasons. First, in Haynes v. Quarterman a panel of this Court held that § 5(a)(3) codifies Sawyer's requirement that the petitioner must present evidence that he is ineligible for the death penalty.59 Haynes is a published opinion, so its holding binds us. But we would have reached the same conclusion even if we were writing on a clean slate. As we explained in our opinion,60 in Ex parte Blue the CCA expressly declined to hold that § 5(a)(3) is anything more than a codification of Sawyer.61 We think it is beyond unlikely that the CCA announced a novel theory of § 5(a)(3) sub silentio in the course of dismissing Rocha's petition as an abuse of the writ.

Third, Rocha argues that our decision conflicts with this Court's previous decisions in Rivera, Ruiz, and Balentine. In effect, Rocha contends that prior decisions of both the CCA and this Court have robbed Texas's abuse-of-the-writ statute of its independent state-law character. We conclude otherwise. A full explanation of the reasons for our contrary conclusion requires us to trace the history of Texas's abuse-of-the-writ doctrine in some detail. We turn to that history now.

II.

A.

We have long acknowledged that a state's abuse-of-the-write doctrine can sometimes qualify as an independent and adequate state-law ground that functions as a procedural bar to federal-court merits review of habeas claims.62 The Texas Court of Criminal Appeals first created an abuse-of-the-writ doctrine in 1974.63 But for the first twenty years of the doctrine's existence, Texas courts failed to apply it in a strict or regular manner.64 This failure rendered the doctrine an inadequate state-law ground, and "therefore, we . . . refused to honor it."65 That changed in 1994, when the Court of Criminal Appeals "announced the adoption of a strict abuse-of-the-writ doctrine, tempered only by an exception for cause."66 Post-Barber, Texas's abuse-of-the-write doctrine became "an adequate procedural bar for purposes of federal habeas review,"67 and we honored it accordingly.

Just one year later the Texas legislature codified the CCA's abuse-of-the-writ doctrine in Article 11.07 § 4(a)—which applies to non-capital felonies—and Article 11.071 § 5(a), which applies to capital cases such as Rocha's. Initially, we were uncertain whether § 5(a) supplanted or merely supplemented the CCA's abuse-of-the-writ doctrine.68 The CCA soon clarified that § 5(a) is a codification of the judicially created abuse-of-the-writ doctrine.69 Over the next several years we developed an unbroken line of precedent holding that a successive state habeas application that had been dismissed as an abuse of the writ because it failed to satisfy § 5(a) had been dismissed on an independent and adequate state-law ground.70

Then, in 2002, the Supreme Court held in Atkins v. Virginia that the Eighth Amendment prohibits the execution of mentally retarded persons.71 This new rule of constitutional law was made retroactive on habeas review.72 Section 5(a)(1) permits the filing of "a subsequent application for a writ of habeas corpus" if the claim that the application presents could not have been presented in a previous application "because the . . . legal basis for the claim was unavailable on the date the applicant filed the previous application."73 By its terms, then, § 5(a)(1) would have entitled any Texas death-row inmate who had filed an initial habeas application before June 20, 2002, to file a successive application.74

Confronted with the specter of state district courts being forced to consider large numbers of successive habeas applications raising meritless Atkins claims,75 the Court of Criminal Appeals made a choice. It opted to create a new requirement for habeas applicants who sought to bring a subsequent Atkins petition under § 5(a)(1):

With this preliminary screening, the Court responded to an anticipated flood of meritless Atkins claims.

This choice came with costs. The CCA's screening function entailed a prima facie review of the substantive merits of each applicant's Atkins claim.77 This prima-facie review meant that CCA decisions dismissing Atkins claims for failure to satisfy § 5(a)(1) rested on the merits of those claims. Consequently, the federal courts were not procedurally barred from considering federal habeas petitions advancing Atkins claims that had been dismissed as abuses of the writ for failure to satisfy § 5(a)(1).78 We first recognized that this new, Atkins-specific screening function had robbed § 5(a)(1) dismissals of their independent, state-law character in our 2005 decision in Morris v. Dretke.79

Change was afoot. Over the next several years we reached the merits of at least four Atkins claims notwithstanding the fact that the CCA had determined that they failed to satisfy § 5(a)(1) and dismissed them as abuses of the writ.80 The first case in which we did so was Rivera v. Quarterman:81

But even as we announced this holding we took care to limit its reach: "Of course, this court has held in other circumstances that Texas' abuse of the writ doctrine is an adequate and independent state law ground, but the merits showing now incorporated for Atkins claims changes the character of the doctrine."83

Rivera did not overrule our numerous previous holdings that successive state habeas applications that were dismissed because they could not satisfy § 5(a) were dismissed on an independent and adequate state-law ground.84 The new prima-facie-showing requirement the CCA had engrafted onto § 5(a)(1) was specific to Atkins claims. It bears emphasizing that the state of Texas itself—well aware that it could gain the substantial benefits of AEDPA deference by treating dismissals under § 5(a)(1) as dismissals on the merits—took the tack that an Atkins claim dismissed under § 5(a)(1) was dismissed on the merits and therefore not procedurally barred.85 But even as we were reaching the merits of Atkins claims that had been dismissed under § 5(a)(1), we continued to treat other kinds of petitions that had been dismissed under § 5(a)(1) as having been dismissed on an independent and adequate state-law ground.86 The prima facie showing requirement was, at the time, strictly confined to the Atkins context.

That began to change in April 2005 when the CCA decided Ex parte Staley.87 Staley involved a successive habeas application that raised a Penry II claim.88 The CCA declined to decide whether the Penry II claim was legally unavailable at the time the applicant filed his first application, holding instead that the successive application did not "`contain sufficient specific facts establishing that' his claim is cognizable."89 The CCA explained that "it is not sufficient to allege that a legal claim was unavailable at the time of the applicant's original filing if the facts alleged in the subsequent application do not bring the constitutional claim under the umbrella of that `new' legal claim."90

Two years later, § 5(a)(1)'s transformation was complete. In Ex parte Campbell,91 the CCA extended the prima-facie-showing requirement it had developed under Atkins to all successive habeas claims brought under § 5(a)(1). Campbell argued that he was entitled to habeas relief under Brady v. Maryland and Barefoot v. Estelle.92 The CCA concluded that the factual basis for his claims was unavailable at the time he filed his original application93 but nonetheless dismissed his successive application, holding:

Post-Campbell, a two-step inquiry—unavailability, then merits—is required before any successive habeas application can be permitted to proceed under § 5(a)(1).95

One feature of the CCA's decision in Campbell warrants particular attention. Campbell establishes that the two requirements of § 5(a)(1) should be applied sequentially.96 The CCA first examines whether the factual or legal basis of the claim was unavailable at the time of the original application. Only if the applicant can surmount the unavailability hurdle does the CCA proceed to ask whether the application makes out a claim that is prima facie meritorious. Understanding this second point is critical to our own jurisprudence. If an applicant fails to satisfy the unavailability requirement, the § 5(a)(1) inquiry is over, and no merits determination takes place.97

It did not take us long to register the significance of the change announced in Campbell. A few months later, in Ruiz v. Quarterman,98 we took note, in passing, of the change in the law that Campbell had wrought:

In his petition for rehearing, Rocha misreads this passage from Ruiz in three ways. First, he reads it to be binding precedent that controls our interpretation of all three subsections of § 5(a), including § 5(a)(3). That reading is more than Ruiz will bear. As its citation to Campbell made clear,100 Ruiz spoke only of dismissals under § 5(a)(1). Subsections 5(a)(1) and 5(a)(3) carry different meanings—different enough that in Ex parte Blue, the CCA's seminal decision interpreting § 5(a)(3), the CCA did not even cite to, much less discuss, its prior decision in Campbell.101

Second, Rocha ignores the fact that our decision in Ruiz was a product of the unique procedural posture in which the case arrived at our court. Ruiz emerged from a fractured CCA that produced three separate opinions,102 two of which discussed the merits of Ruiz's state habeas application.103 Only four judges joined in the plurality opinion's dismissal of Ruiz's application as an abuse of the writ. The necessary fifth vote for the CCA's decision104 came from Judge Womack, whose concurring opinion concluded that Ruiz had failed to allege a meritorious claim of ineffective assistance of counsel at sentencing.105 As such, Judge Womack's concurrence was inarguably merits-based. We thus concluded that the CCA's decision as a whole rested not on § 5(a)(1) but on its rejection of Ruiz's Wiggins claim on the merits: "Judge Womack's opinion, necessary to the court's judgment, pushes the court toward a clear merit ruling, and in any event deprives the plurality of a fifth vote on an independent and adequate state ground."106 We reached the merits of Ruiz's claim because Judge Womack—and hence the CCA's decision—reached the merits, not because of any conclusion we drew about the state- or federal-law character of a dismissal under § 5(a)(1).

Third, Rocha argues that Ruiz obliges us to conclude that § 5(a)(1) is dependent on federal law in all cases. Not so. It is true that prior to Campbell, our decisions had assumed that a dismissal under § 5(a)(1) always rested on an independent and adequate state-law ground. That assumption cannot survive Campbell. At the same time, it is not the case that a post-Campbell dismissal under § 5(a)(1) never rests on an independent and adequate state-law ground. Whether a § 5(a)(1) dismissal is independent of federal law turns on case-specific factors. If the CCA's decision rests on availability, the procedural bar is intact. If the CCA determines that the claim was unavailable but that the application does not make a prima facie showing of merit, a federal court can review that determination under the deferential standards of AEDPA.

We correctly interpreted the CCA's application of its "unavailability, then merits" approach to § 5(a)(1) in Hughes v. Quarterman.107 There, the CCA had issued a boilerplate abuse-of-the-writ order dismissing a successive application that raised a Penry II claim.108 We held that the claim was procedurally barred, reasoning that "[n]o application or interpretation of federal law is required to determine whether a claim has, or could have, been presented in a previous habeas application."109 There was "nothing in [the CCA's] perfunctory dismissal of the claims that suggest[ed] that it actually considered or ruled on the merits."110 Especially in light of the CCA's holding that the legal basis for a Penry claim had been available since 1989,111 everything about the CCA's perfunctory dismissal of Hughes's claim under § 5(a)(1) suggested that the dismissal rested an independent state-law ground—specifically, on the fact that the factual and legal bases for the claim were available when Hughes filed his first state habeas application. Under Campbell, if a successive habeas application cannot satisfy the requirement of unavailability, the court need not inquire any further.

Hughes illustrates the proper application of Coleman v. Thompson112 to a CCA determination that a successive habeas application does not satisfy § 5(a)(1). Under Coleman, we are required to presume that a state-court habeas decision does not rest on an independent state-law ground only if we first determine that the state-court decision we are reviewing "`fairly appears to rest primarily on federal law, or to be interwoven with the federal law.'"113 We observed in Ruiz that "[t]he boilerplate dismissal by the CCA of an application for abuse of the writ [under § 5(a)(1)] is . . . unclear whether the CCA decision was based on [unavailability], a state-law question, or on [prima facie lack of merit], a question of federal constitutional law."114 It does not follow from that observation that every dismissal under § 5(a)(1) fairly appears to rest on or be interwoven with federal law. A CCA decision fairly appears to rest on state law if it dismisses a subsequent habeas application under § 5(a)(1) because the application does not raise a claim that was factually or legally unavailable.115

Coleman does not require us to check our common sense at the door when we read an opinion of the CCA with an eye toward ascertaining its decisional basis. The Supreme Court's overarching aim in Coleman was to reduce the number of habeas cases in which the lower federal courts applied the Harris presumption.116 Adopting the rule that all post-Campbell § 5(a)(1) dismissals are based on federal law "would greatly and unacceptably expand the risk that federal courts will review the federal claims of prisoners in custody pursuant to judgments resting on independent and adequate state grounds."117 We should be especially mindful of that concern as we interpret § 5(a), a state statute whose express purpose is to reduce the number of successive habeas applications that receive full merits review.118 When the CCA dismisses a successive habeas application on the ground that it does not satisfy § 5(a)(1), we can— and should—read its order of dismissal to determine which of the two elements of § 5(a)(1) was the basis of the court's dismissal. A boilerplate dismissal might be ambiguous on this point, but finding clarity in ambiguity is the bread-and-butter work of a federal court of appeals.

The opinion on rehearing in Balentine v. Thaler (hereinafter, "Balentine II")119 lies comfortably with our analysis. Balentine's successive habeas application raised a Wiggins claim of ineffective assistance of counsel at sentencing.120 The Court of Criminal of Appeals issued a perfunctory three-paragraph order dismissing his successive application on the ground that it "failed to satisfy the requirements of Article 11.071 § 5."121 The CCA did not specify which of § 5(a)'s three subsections it was addressing. Balentine had not argued that he did not commit the crime for which he had been convicted, so § 5(a)(2) did not apply.122 The CCA must have dismissed his successive application because it did not satisfy the requirements of either § 5(a)(1) or § 5(a)(3). Balentine II determined that this dismissal did not constitute a merits determination.

As to § 5(a)(1), Balentine II acknowledged that the two-part unavailability-merits inquiry announced in Campbell introduces some uncertainty into dismissals under § 5(a)(1), but it rejected the position that this "uncertainty should be transformed into a presumption that the state court reached the merits."123 As Judge Southwick observed, such a presumption would run afoul of the Supreme Court's holding in Coleman that we may not presume that there is no independent and adequate state-law grounds for a state court's decision unless we first determine that "`it fairly appears that the state court addressed'" the merits of the prisoner's federal constitutional claims for habeas relief.124 Campbell teaches that, absent an express indication otherwise, the CCA assesses the merits of a successive state habeas application only if it first concludes that the factual or legal basis for the claim was unavailable. There was no question that the legal basis for Balentine's claims was available when he filed his first state habeas application in 2001,125 and nothing suggested that Balentine could not have discovered the factual basis for his Wiggins claim through the exercise of reasonable diligence before he filed his first application.126 As a result, Balentine II concluded that the CCA had not reached the merits of Balentine's Wiggins claim in determining that his successive state habeas application did not satisfy the requirements of § 5(a)(1).127

As to § 5(a)(3), Balentine II noted that Balentine did not argue in his successive state habeas application that he could satisfy § 5(a)(3) and that, in any event, Balentine's Wiggins claim was not a claim of ineligibility for the death penalty.128 In this latter regard, Balentine II's conclusion and analysis are identical to our own.

In sum, Rivera holds that the CCA reaches the merits of an Atkins claim when it determines that the Atkins claim is prima facie without merit and dismisses the claim for failure to satisfy § 5(a)(1). Ruiz holds that we can reach the merits of a successive habeas claim that the CCA does not dismiss as an abuse of the writ under § 5(c) but rather denies on the merits. Hughes holds that a dismissal for failure to satisfy the "factual or legal unavailability" requirement of § 5(a)(1) rests on state-law grounds. And Balentine II holds first that we should not treat every dismissal under § 5(a)(1) as a dismissal on the merits and second that a Wiggins claim is not a claim of actual innocence of the death penalty.

B.

There is no dissonance between any of those cases and our holding that we cannot reach the merits of Rocha's Wiggins claim, which the CCA determined did not satisfy § 5(a)(3) and dismissed as an abuse of the writ. The CCA's conclusion that Rocha's successive habeas application did not satisfy § 5(a)(3) encompassed two separate determinations: (1) because Rocha did not raise his Wiggins claim in his initial state habeas application, the claim was procedurally defaulted; and (2) because Rocha could not establish that he is actually innocent of the death penalty, his procedural default should not be excused. The first of those determinations is based on a § 5(c), state procedural rule that is independent of federal law. Indeed, the rule that a prisoner waives any claim he does not present in his first state habeas application is the quintessential example of a state-law procedural rule that, when strictly and regularly applied, bars the federal courts from reaching the merits of a habeas claim.

The second of those determinations is based on the federal actual-innocence-of-the-death-penalty standard announced in Sawyer. But the fact that § 5(a)(3) incorporates a federal standard for determining when a procedural default should be excused did not empower the district court— and does not empower this Court—to review the merits of the federal constitutional claim that has been procedurally defaulted. A claim that a prisoner is actually innocent of the death penalty is legally distinct from a claim that a prisoner's trial counsel was constitutionally ineffective at sentencing. When the CCA rejects the former, it does not simultaneously decide the merits of the latter. As a result, the CCA's determination that Rocha is not actually innocent of the death penalty did not open up Rocha's Wiggins claim for merits review under AEDPA.

Rivera and Ruiz do not compel a contrary conclusion. When the CCA dismisses a successive habeas application because it cannot satisfy the "merits" prong of § 5(a)(1),129 it has conditioned the applicability of § 5(c)'s procedural bar on an antecedent determination that the federal constitutional claim on which the applicant seeks relief is without merit. Under Ake,130 such a dismissal fairly appears to rest on or be interwoven with the merits of the federal constitutional claim and thus triggers a presumption under Harris that the dismissal was not based on an independent and adequate state-law ground.131 By contrast, the CCA's order dismissing Rocha's habeas application does not satisfy the "fairly appears" requirement that is a predicate to the application of the Harris presumption.132 The CCA's dismissal of Rocha's habeas application does not fairly appear to rest on or be interwoven with resolution of the merits of Rocha's Wiggins claim. Rather, the CCA's dismissal fairly appears to—and in fact does—rest on its twin determinations that Rocha had previously filed other state habeas applications and that Rocha cannot establish that he is actually innocent of the death penalty under § 5(a)(3).

By enacting § 5(a)(3), the Texas Legislature ceded nothing to the federal courts that they did not already possess. Sawyer is a federally mandated escape valve from the doctrine of procedural bar. Sawyer obligates the federal courts to decide the merits of any claim presented in the first federal habeas petition133 filed by a state prisoner who can make a clear and convincing showing of actual innocence of the death penalty, irrespective of whether a state court has previously decided the claim on its merits. There is no law the Texas Legislature could have passed that would have insulated successive habeas applications from the rule announced in Sawyer. Section § 5(a)(3) merely gives Texas's courts the first crack at applying the Sawyer escape valve. To conclude that the Texas Legislature somehow expanded the scope of the Sawyer escape valve merely by importing it into state law would be to turn the legislative effort on its head.

The district court denied Rocha's Rule 60(b) motion on the ground that his Wiggins claim remains procedurally defaulted. We granted a certificate of appealability because jurists of reason could have debated the correctness of the district court's decision in light of the uncertainty in this area of our jurisprudence.134 A careful review of our precedent reveals that Judge Harmon did not err by concluding that Rocha procedurally defaulted his Wiggins claim. A fortiori, her decision to deny Rocha's Rule 60(b) motion was not an abuse of discretion.

In the end, Rocha finds himself in the same position he was in when he first filed this federal habeas petition in 2003. At that time, his Wiggins claim was unexhausted and thus procedurally defaulted; he could have overcome that procedural default by showing that he is actually innocent of the death penalty. Rocha did not cure his procedural default by obtaining a ruling from the CCA that his successive state habeas application was subject to dismissal as an abuse of the writ under § 5(c) because it did not satisfy § 5(a)(3). That § 5(a)(3) employs a federal standard to determine when a procedural default should be excused does not change the fact that the CCA dismissed Rocha's Wiggins claim on an independent and adequate state-law ground. Consequently, our role is limited to performing the same threshold review under Sawyer that the CCA performed under § 5(a)(3): for actual innocence of the death penalty. Rocha's petition for rehearing does not argue that we erred by concluding that he cannot establish that he is actually innocent of the death penalty. Therefore, his petition for rehearing is denied.

HAYNES, Circuit Judge, specially concurring:

I concur in the actual denial of panel rehearing, while noting that the petition for rehearing en banc remains pending. I respectfully do not join in the lengthy opinion accompanying the order denying panel rehearing because, I submit, it is largely unnecessary. The concern that animated my original dissent to the portion at issue came to pass: Balentine I has now been transmuted into Balentine II with a different result and rationale that, somewhat ironically, encompasses some of the original reasoning of the original opinion in this case. Rather than adding to this volley of opinions, I conclude that we are required to follow the decision of Balentine II, specifically, the last few pages addressing § 5(a)(3), the only subsection at issue in our case, given the CCA's wording.

Under Balentine II's reading of prior precedent (including our original opinion in Rocha), the CCA's perfunctory dismissal of an application raising only mitigation issues is to be read as a conclusion that Rocha's state writ application did not raise issues "sufficiently fundamental as to excuse the failure to raise it timely in prior state and federal proceedings." Balentine II, 626 F.3d at 856, 2010 WL 4630829 at *14 (internal citations and quotation marks omitted). Unfortunately, this leads to the anomalous result that denial of a writ expressly referencing a statute that actually mentions the federal constitution—"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 37.071,1 37.0711, or 37.072"2—is nonetheless not sufficiently intertwined with the United States Constitution to allow our review. "One of the special issues" in question is the mitigation one. It is this one to which Rocha's Wiggins claim is focused. Because the Texas statute itself intertwines all special issues—mitigating and aggravating—with the federal constitutional violation without distinction, I do not see a basis for treating the mitigating issues differently than any other arising under this statute for the purpose of deciding which ones involve federal constitutional issues and which do not.3 But that is where we are. Perhaps our court will reconsider this subject en banc. Perhaps the Texas Court of Criminal Appeals will elaborate on the tantalizing Blue footnote 42.4 Given where we are now, however, I am bound to join in the determination to deny panel rehearing.