LESLIE H. SOUTHWICK, Circuit Judge:
The court having been polled at the request of one of the members of the court and a majority of the judges who are in regular active service and not disqualified not having voted in favor (FED. R.APP. P. AND 5TH CIR. R. 35), the Petition for Rehearing En Banc is DENIED.
Voting against en banc rehearing were: Chief Judge Edith H. Jones, Judge Carolyn Dineen King, Judge E. Grady Jolly, Judge W. Eugene Davis, Judge Jerry E. Smith, Judge Emilio M. Garza, Judge Carl E. Stewart, Judge Edith B. Clement, Judge Edward C. Prado, Judge Priscilla R. Owen, and Judge Leslie H. Southwick.
Voting for en banc rehearing were: Judge Fortunato P. Benavides, Judge James L. Dennis, Judge Jennifer W. Elrod, and Judge Catharina Haynes.
Upon the filing of this order, the clerk shall issue the mandate forthwith. See FED. R.APP. P. 41(b).
DENNIS, Circuit Judge, joined by BENAVIDES, Circuit Judge, dissenting from denial of rehearing en banc:
I respectfully dissent from the majority's refusal to grant rehearing en banc in Balentine v. Thaler, 626 F.3d 842 (5th Cir.2010), and Rocha v. Thaler, 626 F.3d 815 (5th Cir.2010).
The Supreme Court in Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), announced the standard for determining "whether various forms of references to state law [by state courts] constitute adequate and independent state grounds." 463 U.S. at 1038, 103 S.Ct. 3469. That standard is: "[W]hen... a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it do so." Id. at 1041, 103 S.Ct. 3469.
The Balentine and Rocha panel opinions do not adhere to and faithfully apply the Long standard. Instead, they engage in the "process of examining [and unauthorized-Erie guessing at] state law," which the Court in Long found to be "unsatisfactory because it requires [federal judges] to interpret state laws with which we are generally unfamiliar, and which often, as in this case, have not been discussed at length by the parties." Id. at 1039, 103 S.Ct. 3469. Further, the panel opinions, in effect, adopt the practice of denying federal court review "if the ground of the [state court] decision was at all unclear," which the Long Court expressly disapproved.
In Balentine and Rocha, the panels' authors, after initially adhering to the Long standard, make volte-face and examine ambiguous and obscure state court data to guess that the unexplained dismissals of state habeas claims by the Texas Court of Criminal Appeals (CCA) are based on an independent and adequate state ground. I respectfully but strenuously disagree because these opinions seriously undermine the Long standard in our jurisdiction and retrogress into the ad hoc method of dealing with cases involving possible independent and adequate state grounds that the Supreme Court expressly disapproved as "antithetical to the doctrinal consistency that is required when sensitive issues of federal-state relations are involved." Id. at 1039, 103 S.Ct. 3469. For these reasons, I dissent from the very serious step the panel authors undertake, viz., departing from a full and faithful adherence to the Long standard, which the Court adopted in 1983 and has continuously adhered to in numerous decisions until the present day.
The Court's adherence to the full Long standard was demonstrated as recently as February 23, 2010, in Florida v. Powell, ___ U.S. ___, 130 S.Ct. 1195, ___ L.Ed.2d ___ (2010). There, the question presented was whether advice that a suspect has "the right to talk to a lawyer before answering any of [the law enforcement officers'] questions," and that he can invoke this right "at any time ... during th[e] interview," satisfies Miranda. Id. at 1199-1200. The Court held that it does. Id. Before fully addressing the issue, however, the Court addressed Powell's contention that the Florida Supreme Court, by relying not only on Miranda but also on the Florida Constitution, rested its decision on an independent and adequate state ground. See id. at 1201 (citing Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) ("This Court will not review a question of federal law decided by a state court if the decision... rests on a state law ground that is independent of the federal question and adequate to support the judgment.")). "`It is fundamental,'" the Court stated, "`that state courts be left free and unfettered by us in interpreting their state constitutions. But it is equally important that ambiguous or obscure adjudications by state courts do not stand as barriers to a determination by this Court of the validity under the federal constitution of state action.'" Id. (quoting Minnesota v. Nat'l Tea Co., 309 U.S. 551, 557, 60 S.Ct. 676, 84 L.Ed. 920 (1940)).
"To that end," the Court recalled, "we announced, in [Long] the following presumption":
Ultimately, the Court in Florida v. Powell concluded that "[u]nder the Long presumption, we have jurisdiction to entertain this case. Although invoking Florida's Constitution and precedent in addition to this Court's decisions, the Florida Supreme Court treated state and federal law as interchangeable and interwoven; the court at no point expressly asserted that state-law sources gave Powell rights distinct from, or broader than, those delineated in Miranda." Id. at 1202 (citing Long, 463 U.S. at 1044, 103 S.Ct. 3469). This decision shows that Long is alive and well in the Supreme Court and must be adhered to by this Court of Appeals.
Contrary to the Balentine and Rocha writers' apparent impressions, the Supreme Court has not changed or weakened the Long standard's requirement that when a state court decision fairly appears "to be interwoven with ... federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion" we must assume that the state court decided as it did on the belief that federal law required it to do so. The Court's recent decision in Florida v. Powell emphasizes and turns on this very same provision. Nor, contrary to the panel authors' inference, has the Court treated its decision in Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), as changing the Long standard in any way. This is evidenced by Florida v. Powell's citation of Coleman only for the proposition that federal courts will not disturb state court decisions resting on state law grounds independent of federal questions and adequate to support the judgment. Id. at 1201.
Also, Chief Justice Rehnquist's opinion for the Court in Arizona v. Evans, 514 U.S. 1, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995), emphatically refused to alter or overrule the Long standard, agreeing with Justice Ginsburg that "`[s]ince Long, we repeatedly have followed [its] "plain statement" requirement.'" Id. at 8 n. 2, 115 S.Ct. 1185 (quoting id. at 33, 115 S.Ct. 1185 (Ginsburg, J., dissenting), in turn quoting Harris v. Reed, 489 U.S. 255, 261 n. 7, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (opinion of Blackmun, J.)) (citing Illinois v. Rodriguez, 497 U.S. 177, 182, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) (opinion of Scalia, J.); Pennsylvania v. Muniz, 496 U.S. 582, 588 n. 4, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990) (opinion of Brennan, J.); Maryland v. Garrison, 480 U.S. 79, 83-84 n. 4, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987) (opinion of Stevens, J.); Caldwell v. Mississippi, 472 U.S. 320, 327-28, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) (opinion of Marshall, J.); California v. Carney, 471 U.S. 386, 389 n. 1, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985) (opinion of Burger, C.J.); Ohio v. Johnson, 467 U.S. 493, 497 n. 7, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984) (opinion of Rehnquist, J.); Oliver v. United States, 466 U.S. 170, 175 n. 5, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) (opinion of Powell, J.)). The Court in Arizona v. Evans also cited its decision in Coleman, written by Justice O'Connor, not as changing Long but merely as "declining to expand the Long and Harris presumption to instances `where the relevant state court decision does not fairly appear to rest primarily on federal law or to be interwoven with such law.'" Id. (quoting Coleman, 501 U.S. at 740, 111 S.Ct. 2546).
The panel opinions in Balentine and Rocha represent major erroneous departures from the Supreme Court's consistent decisions applying the Long standard, and, under the Long presumption, have erroneously barred federal court review of petitioners' federal constitutional claims.
In Balentine, the CCA acknowledged that Balentine presented two allegations based on federal law: "In the first allegation, applicant asserts that he was deprived of his Sixth Amendment right to effective assistance of trial counsel because counsel failed to adequately investigate, develop, and present mitigation evidence in the punishment phase of the trial. In his second allegation, applicant asserts that the prosecution unconstitutionally exercised peremptory challenges on two venire persons in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)." Ex parte Balentine, Nos. WR-54071-01, WR-54071-02, 2009 WL 3042425, at *1 (Tex.Crim.App. Sept. 22, 2009) (unpublished). However, the CCA failed to make clear what part, if any, federal law played in its disposition of the case. Instead, it created ambiguity by dismissing Balentine's application after stating only that his allegations fail "to satisfy the requirements of [Texas Code of Criminal Procedure] Article 11.071 § 5."
Thus the CCA decision in Balentine fairly appears to be interwoven with federal law principles and the adequacy and independence of any possible state law ground is not clear from the face of the CCA's decision. Moreover, the CCA's decision does not in any way indicate clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent grounds. Therefore, under the Long presumption, the Balentine panel's
The Rocha panel decision also should have been reconsidered en banc because it similarly fails to correctly apply the Long standard. Another operative provision of Texas Code of Criminal Procedure article 11.071, § 5(a)(3), on its face incorporates federal constitutional standards, and the CCA's judicial gloss on § 5(a)(3) that left open the possibility that § 5(a)(3) encompasses federal claims based on ineffective assistance of counsel during the sentencing phase of death penalty trials, which Rocha raised. In Rocha itself, however, the CCA did not make clear whether its decision was based on state procedural default or on the merits of the petitioner's underlying claim based on federal law, or both. The operative part of the CCA's order provided only: "We have reviewed the application and find that the allegations do not satisfy the requirements of Article 11.071, Section 5(a)(3). Therefore, we dismiss this application as an abuse of the writ." Ex parte Rocha, No. WR-52515-04, 2008 WL 5245553, at *1 (Tex.Crim.App. Dec. 17, 2008) (unpublished). Thus, for reasons similar to those in Balentine, because § 5(a)(3) incorporates federal-law standards and the CCA's previous interpretation is ambiguous about whether § 5(a)(3) encompasses Rocha's federal-law claim, the CCA's Rocha decision fairly appears to be interwoven with federal law; the adequacy and independence of any possible state law ground is not clear from the face of the CCA's decision; and the CCA's decision does not in any way indicate clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent state grounds.
These cases involve decisions by the CCA applying § 5 of article 11.071 of the Texas Code of Criminal Procedure,
In 2005, the CCA added a judicial gloss, holding that to satisfy the requirements of § 5(a)(1), an applicant must also make a prima facie showing of a federal constitutional claim that requires relief from the conviction or sentence (the "prima facie showing requirement"). See Ex Parte Campbell, 226 S.W.3d 418, 421 (Tex.Crim. App.2007); Ex parte Staley, 160 S.W.3d 56, 66 (Tex.Crim.App.2005) (per curiam).
Balentine presented two claims in his subsequent habeas application: He claimed that "he was deprived of his Sixth
In Rocha, the petitioner "present[ed] a claim of ineffective assistance of counsel for failing to investigate, discover, and present significant mitigation evidence at his trial[] ... [and] assert[ed] that the application meets the requirements of Article 11.071, Section 5(a)(3)." Ex parte Rocha, No. WR-52515-04, 2008 WL 5245553 (Tex.Crim.App. Dec. 17, 2008) (unpublished). The CCA dismissed the petitioner's subsequent state habeas application because it found "that the allegations do not satisfy the requirements of Article 11.071, Section 5(a)(3)." Id. at *1. Therefore, the question we must answer is whether the unexplained CCA dismissal in Balentine, which necessarily includes a determination that the § 5(a)(1) requirements were not met, and the CCA dismissal in Rocha, based on a determination that the requirements of § 5(a)(3) were not satisfied, rest on independent and adequate state grounds.
Federal courts "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Before its decision in Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), the Supreme Court had struggled to adopt a consistent and workable standard for determining whether a state court decision rests on independent and adequate state grounds. See Coleman, 501 U.S. at 732-33, 111 S.Ct. 2546. Among the Court's prior methods of analysis that it found "unsatisfactory" in Long was "[t]he process of examining state law ... because it requires us to interpret state laws with which we are generally unfamiliar." 463 U.S. at 1039, 103 S.Ct. 3469.
In Long, the Court resolved to provide a solution that would "minimize the costs associated with resolving ambiguities in state court decisions while still fulfilling [the] obligation to determine if there was an independent and adequate state ground for the decision." Coleman, 501 U.S. at 733, 111 S.Ct. 2546.
Id. at 733, 111 S.Ct. 2546 (quoting Long, 463 U.S. at 1040-41, 103 S.Ct. 3469). "After Long, a state court that wishes to look to federal law for guidance or as an alternative holding while still relying on an independent and adequate state ground can avoid the presumption by stating
The Court later applied the Long presumption to habeas review cases in Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). In Harris, the state court had said that the petitioner's ineffective-assistance-of-counsel claim "could have been raised on direct appeal," which, under state law, would mean the claim was waived, but nonetheless, the state court considered and rejected the merits of the claim. 489 U.S. at 258, 266, 109 S.Ct. 1038 (internal quotation marks and brackets omitted). The Seventh Circuit Court of Appeals had found that the state court decision was "ambiguous" about whether it rested on procedural default under state law or on the merits of the petitioner's federal constitutional claims. Id. "[N]onetheless[,] [the Seventh Circuit] asserted that a reviewing court should try to assess the state court's intention to the extent that this is possible." Id. (citations and internal quotation marks omitted). The Supreme Court reversed, holding that "[t]he adequate and independent state ground doctrine, and the problem of ambiguity resolved by Long, is of concern not only in cases on direct review ..., but also in federal habeas corpus." Id. at 262, 109 S.Ct. 1038.
In reaching this conclusion, the Court explained that "the mere fact that a federal claimant failed to abide by a state procedural rule does not, in and of itself, prevent [federal courts] from reaching the federal claim: The state court must actually have relied on the procedural bar as an independent basis for its disposition of the case. Furthermore, ambiguities in that regard must be resolved by application of the Long standard." Id. (internal quotation marks and brackets omitted). The Court explained that the contrary presumption—that "if a state-court decision is ambiguous as to whether the judgment rests on a procedural bar, the federal court should presume that it does," id. at 263-64, 109 S.Ct. 1038—"would impose substantial burdens on the federal courts.... [T]he federal habeas court would be forced to examine the state-court record to determine whether procedural default was argued to the state court, or would be required to undertake an extensive analysis of state law to determine whether a procedural bar was potentially applicable to the particular case. Much time would be lost in reviewing legal and factual issues that the state court, familiar with state law and the record before it, is better suited to address expeditiously. The `plain statement' requirement achieves the important objective of permitting the federal court rapidly to identify whether federal issues are properly presented before it." Id. at 264-65, 109 S.Ct. 1038.
Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), similarly affirmed the Long standard. The case involved a summary order of the Virginia Supreme Court, which, the United States Supreme Court noted, "stated plainly that it was granting the Commonwealth's motion to dismiss the petition for appeal. That motion was based solely on Coleman's failure to meet the [Virginia] Supreme Court's time requirements. There is no mention of federal law in the Virginia Supreme Court's three-sentence dismissal order. It `fairly appears' to rest primarily on state law." Id. at 740, 111 S.Ct. 2546. Therefore, the Court held that the Long presumption did not apply because the state court decision was unequivocally based only on state law.
In fact, since Long and Harris, the Supreme Court has "repeatedly followed its `plain statement' requirement." Arizona v. Evans, 514 U.S. 1, 8 n. 2, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995) (brackets and internal quotation marks omitted) (citing Harris v. Reed, 489 U.S. 255, 261 n. 7, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (opinion of Blackmun, J.)).
The foregoing established principles make clear that the CCA's unexplained dismissal in Balentine and the CCA's dismissal in Rocha must be presumed to not rest on independent and adequate state grounds. In Balentine, the CCA's unexplained dismissal is ambiguous as to whether it was based on a determination that Balentine's application did not satisfy the unavailability prong or the prima facie showing requirement of § 5(a)(1), or both. Because the prima facie showing requirement of § 5(a)(1) is a determination based on federal law, the CCA's unexplained determination that Balentine's application did not satisfy § 5, and therefore did not satisfy the requirements of § 5(a)(1), is a decision interwoven with federal law. It does not clearly and explicitly state that the CCA only decided that Balentine's application did not satisfy the state-law unavailability prong of § 5(a)(1).
Likewise, Rocha's claims were brought in a subsequent application pursuant to § 5(a)(3), which, on its face, allows claims that show a federal constitutional error. The CCA's perfunctory dismissal of Rocha's application is interwoven with federal law because it decided that his claims did not meet the requirements of § 5(a)(3), which are based on federal constitutional standards, and it did not clearly base its dismissal on a purely state-law procedural default rule. Therefore, under the Long standard, the CCA's decisions are presumed not to rest on independent and adequate state grounds and a federal court can review the merits of Balentine's and Rocha's constitutional claims on a habeas petition.
Contrary to what the panel opinions in Balentine and Rocha contend, Coleman dictates the same result. There, the state court merely granted the state's motion to dismiss Coleman's petition for appeal based on the state's procedural bar, which did not involve a federal-law issue; nor was there any relevant exception to the state procedural bar that could have involved a federal law determination. Therefore, the Coleman Court concluded that the state court decision fairly appeared to rest primarily on state law where there was no possible federal-law issue interwoven in the state's procedural rule, nor in the state court's application of that rule. 501 U.S. at 739, 111 S.Ct. 2546. By contrast, the CCA's unexplained dismissal in Balentine necessitated a decision regarding the state's procedural bar, which is interwoven with federal law. And the CCA's dismissal in Rocha involved a state procedural rule that on its face depends on federal constitutional standards. Thus, there is "good reason to question whether" the CCA's dismissals in Balentine and Rocha rested primarily on independent state grounds, and therefore, Coleman dictates that the Long presumption applies to these state court decisions. See id.
Balentine and Rocha conclude that, although "an unexplained denial of a subsequent application may have been based on a federal merits ground," that is not enough to trigger the Long presumption.
Balentine and Rocha short circuit the Long presumption by contending that a federal court should attempt to determine whether an ambiguous state court decision applying the state's procedural rule, which includes a federal-law component, rests on independent and adequate state grounds. However, the Long standard, also applied in Harris and Coleman, is that a state court decision, which fairly appears to be interwoven with federal law, and which does not clearly rest on independent and adequate state-law grounds, is presumed to be a decision dependent on federal law. Long specifically rejected "[t]he process of examining state law" in order to determine the basis of an ambiguous state court decision. 463 U.S. at 1039, 103 S.Ct. 3469. And Harris reversed a court of appeals decision that had "asserted that a reviewing court `should try to assess the state court's intention to the extent that this is possible,'" when confronted with an ambiguous state court decision. 489 U.S. at 258, 266, 109 S.Ct. 1038. Long also recognized that federal courts "may review a state case decided on a federal ground even if it is clear that there was an available state ground for decision on which the state court could properly have relied." 463 U.S. at 1039 n. 4, 103 S.Ct. 3469.
Coleman does not sweep away the Long presumption by requiring courts to guess at the grounds of an ambiguous state court decision, and Balentine and Rocha accordingly undertake a misguided examination of Texas law. In Coleman, the Virginia Supreme Court's order only granted the state's motion to dismiss Coleman's petition for appeal because his notice of appeal was untimely, which involved no antecedent or concurrent question of federal law. Coleman does not stand for the proposition that when faced with a state court decision interwoven with federal law, a federal court should examine the state's procedural law and guess as to the decisional basis for the state court's decision. Indeed Coleman never purported to upset the fundamental premise of the Long presumption.
Finally, Balentine concludes that because "Balentine's subsequent application made no effort to show that the facts or law underlying his ... claim were unavailable to him at the time of his first state application," the CCA must have decided only that Balentine failed to satisfy the unavailability requirement of § 5(a)(1) and necessarily did not decide that he failed to satisfy the prima facie showing requirement as well. 626 F.3d at 855-56, 2010 WL 4630829, at *14. However, Balentine's subsequent habeas application to the CCA specifically alleged that the factual basis for his claim that his trial counsel was constitutionally ineffective in failing to investigate for mitigating evidence was previously unavailable, because the attorney on his first state habeas application, who was provided to him under Texas law, see Tex.Code Crim. Proc. art. 11.071 § 2, was similarly ineffective by also failing to investigate mitigating evidence. Subsequent Application at 4, 6-16, 37, Ex parte Balentine, 2009 WL 3042425 (Nos. WR-54071-01, WR-54071-02). Balentine alleged that the first time any of his attorneys investigated and located substantial mitigating evidence was after his first state habeas application, during his federal habeas proceedings. Id. at 6. Therefore, it is not clear that the CCA found Balentine's claim to have been previously available.
Furthermore, it simply does not follow that because one of two essential requirements appears not to be met that a state court necessarily did not base its decision on the failure of the other requirement. Cf., e.g., Harris, 489 U.S. at 258, 109 S.Ct. 1038 (reviewing a state court decision that had explicitly found the petitioner's claim waived but still considered and rejected the merits of the claim). And Coleman recognized that "[a]fter Long, a state court that wishes to look to federal law for guidance or as an alternative holding while still relying on an independent and adequate state ground can avoid the presumption by stating clearly and expressly that its decision is based on bona fide separate, adequate, and independent grounds." 501 U.S. at 733, 111 S.Ct. 2546 (internal quotation marks, brackets, and ellipsis omitted) (emphasis added); see also Long, 463 U.S. at 1039 n. 4, 103 S.Ct. 3469 (recognizing that federal courts "may review a state case decided on a federal ground even if it is clear that there was an available state ground for decision on which the state court could properly have relied"). Therefore, we cannot presume that the CCA's silence means that it did not base its decision
Balentine and Rocha also mistakenly conclude that we can discern the uncertain decisional basis in an unexplained CCA dismissals because "[t]he CCA first examines whether the factual or legal basis of the claim was unavailable at the time of the original application[,] [and] [o]nly 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." Rocha, 626 F.3d at 834, 2010 WL 4630794, at *10.
In Ex parte Staley, 160 S.W.3d 56 (Tex. Crim.App.2005) (per curiam), the first CCA decision to judicially engraft the prima facie showing requirement for § 5(a)(1) to a non-Atkins claim, the CCA said:
Ex parte Staley, 160 S.W.3d at 63. Similarly, in Ex parte Reed, No. WR-50961-06, 2009 WL 1900364 (Tex.Crim.App. July 1, 2009) (unpublished), the CCA dismissed the applicant's subsequent habeas application because it "fail[ed] to show a Brady violation" without discussing whether the factual basis for the claim was previously unavailable to the applicant. Id. at *1-2. Likewise, in Ex parte Johnson, No. WR-56947-02, 2009 WL 1165502 (Tex.Crim. App. Apr. 29, 2009) (unpublished), the CCA found "that [the] applicant ... failed to make a prima facie case of mental retardation" without discussing whether the factual or legal basis of the claim was previously unavailable. Id. at *1.
In his subsequent habeas application, Rocha raised for the first time a claim that his trial counsel was ineffective in failing to investigate and present mitigating evidence at the sentencing phase of his trial, a claim explained in Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). Rocha asserted that his subsequent application met the requirements of § 5(a)(3), because it provides an avenue for claims asserting that "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"; and § 2(e)(1) of article 37.071 requires the jury to consider mitigating evidence when deciding whether to impose the death penalty, see Tex.Code Crim. Proc. art. 37.071 § 2(e)(1). Therefore, Rocha argued, his constitutionally ineffective representation caused the jury to not consider mitigating evidence, which, if the jury had received it,
On its face, § 5(a)(3) is interwoven with federal constitutional law: An application must show "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." Therefore, for the CCA to decide that an application does not satisfy the requirements of § 5(a)(3), the CCA must necessarily decide that the claims raised by the applicant do not show a federal constitutional violation that affected the jury's decision to impose the death penalty. Accordingly, a decision by the CCA that the requirements of § 5(a)(3) have not been met, without explanation, fairly appears to rest on federal law, and without a plain statement that the CCA did not reach the merits of the applicant's constitutional claims, we must presume that the CCA dismissed the application based on a decision about the merits of the applicant's federal constitutional claim. See Ake v. Oklahoma, 470 U.S. 68, 75, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) (where "the federal-law holding is integral to the state court's disposition of the matter," the state court's decision "depends on the court's federal-law ruling and consequently does not present an independent state ground for the decision rendered").
The Balentine and Rocha panel opinions, however, conclude that the CCA did not reach the merits of the petitioners' federal Wiggins claims because § 5(a)(3) allows only claims that satisfy the actual-innocence-of-the-death-penalty standard announced in Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992).
The Rocha and Balentine opinions are mistaken in their assessment that § 5(a)(3) is limited only to claims that can satisfy the Sawyer actual-innocence-of-the-death-penalty showing. The panels' conclusion conflicts with the plain language of § 5(a)(3) and the CCA's precedent. Section 5(a)(3) provides an avenue for asserting a claim that "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
Furthermore, the CCA's explanation of the scope of § 5(a)(3) in the seminal case, Ex Parte Blue, 230 S.W.3d 151 (Tex.Crim. App.2007), acknowledges this straightforward interpretation of the claims that are cognizable under § 5(a)(3). In describing the scope of § 5(a)(3) in Ex parte Blue, the CCA expressly left open the possibility that § 5(a)(3) was broader than Sawyer:
Id. at 161 n. 42 (citations omitted). Judge Haynes has also noted the significance of this footnote, see 626 F.3d at 841-42, 2010 WL 4630794, at *16, while the Balentine and Rocha panel opinions give it too little consideration or weight. Furthermore, while the Balentine and Rocha opinions contend that Ex parte Blue limited § 5(a)(3) to claims that satisfy the Sawyer standard, the CCA in fact carefully avoided this result, instead saying: "Section 5(a)(3) ... represents the Legislature's attempt to codify something very much like this federal doctrine of `actual innocence of the death penalty,'" "the Legislature apparently intended to codify, more or less, the doctrine found in Sawyer v. Whitley," and "[t]his reading of the exception seems to limit its applicability." 230 S.W.3d at 160-61 (emphasis added). Thus, the CCA's equivocal language reflects a clear intent to avoid saying that § 5(a)(3) is defined by the same standard as that announced in Sawyer.
Therefore, it is not clear that § 5(a)(3) does not encompass Balentine's and Rocha's Wiggins claims even if they did not first meet the Sawyer standard. According to the principles of Long, this ambiguity must be resolved in favor of federal review. Therefore, because it fairly appears
In Ruiz v. Quarterman, 504 F.3d 523 (5th Cir.2007), this court held that an unexplained CCA dismissal substantially similar to that in Balentine did not rest on independent and adequate state grounds. Ruiz involved a decision from the CCA that read in pertinent part: "We have reviewed these claims and find that they do not meet the requirements for consideration of subsequent claims under Article 11.071, Section 5. This application is dismissed as an abuse of the writ...." Ex parte Ruiz, No. WR-27328-03, 2007 WL 2011023 (Tex.Crim.App. July 6, 2007). Ruiz held that this order did not rest on an independent and adequate state ground: "The boilerplate dismissal by the CCA of an application for abuse of the writ is itself uncertain on this point, being unclear whether the CCA decision was based on the first element, a state-law question, or on the second element, a question of federal constitutional law." 504 F.3d at 527 (footnote omitted). In reaching this decision, the court relied simply on the Supreme Court's independent-and-adequate-state-ground doctrine and the rationale animating that doctrine:
504 F.3d at 527 (footnote omitted) (citing Long, 463 U.S. at 1040-41, 103 S.Ct. 3469; Coleman, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640). Therefore, the panel decided that an unexplained CCA dismissal did not rest on an independent and adequate state ground.
Id. at 528 (emphasis added). Thus, the panel was clear that the vote-counting portion of its decision did not impact its decision that the summary order of the CCA did not rest on independent and adequate state grounds. It also reflects the panel's correct understanding of the "clarity insisted upon by Michigan v. Long" as being the certainty that the decision rested on independent and adequate state grounds, and not clarity that the decision rested on federal grounds.
The rationale underlying Ruiz underscores this point: The independent and adequate state ground doctrine is meant to ensure that federal courts provide the requisite respect to state court determinations and to allow state courts to insulate their decisions from federal court review. The CCA has available at its fingertips "rote rule[s]" for dismissing subsequent state habeas applications on grounds that are certainly independent and adequate—by making clear that its dismissal is dependent only on a finding that the factual and legal bases for the applicant's claim were previously available. Therefore, because the CCA chose not to make a plain statement that its decisions rested on independent state grounds, there is no valid rationale by which the Rocha and Balentine panels can interpret the unexplained, obscure, and ambiguous CCA decisions as not having been interwoven with federal law and clearly based only on state law principles.
In place of Ruiz, the panel opinions in Balentine and Rocha rely on Hughes v. Quarterman, which held that an unexplained CCA dismissal rested on independent and adequate state grounds. 530 F.3d 336, 341-42 (5th Cir.2008) (citing Coleman, 501 U.S. at 729-32, 735, 111 S.Ct. 2546); see Ex parte Hughes, No. 45-876-02 (Tex.Crim.App. Nov. 14, 2001) (unpublished), quoted in Balentine v. Thaler, 609 F.3d 729, 737 (5th Cir.2010). However, Hughes was decided after the circuit precedent in Ruiz, without citing or distinguishing Ruiz. Ruiz is, in fact, indistinguishable from Hughes. Because a decision by one panel of this court cannot overrule an earlier panel decision, see United States v. Castro-Guevarra, 575 F.3d 550, 552 (5th Cir.2009), Hughes must give way to the clear precedential authority
The unexplained CCA dismissal in Balentine required a determination by the CCA that the application failed to satisfy the requirements of § 5(a)(1), which the CCA had interpreted to include a component that incorporates federal law, and the Balentine dismissal does not clearly and expressly state that it rested on an independent and adequate state ground. Therefore, because it is a determination interwoven with federal law, the Long presumption applies to the CCA's dismissal in Balentine. See Coleman, 501 U.S. at 739, 111 S.Ct. 2546 (where an uncertain state court decision gives "good reason to question whether there is an independent and adequate state ground for the decision," the Long presumption applies). Without a clear statement that the CCA decision rests on independent and adequate state grounds, such as that it was decided only on the unavailability prong of § 5(a)(1), the Supreme Court has repeatedly said that such a decision must be presumed not to rest on independent and adequate state grounds. See Long, 463 U.S. at 1039 n. 4, 103 S.Ct. 3469 (federal courts "may review a state case decided on a federal ground even if it is clear that there was an available state ground for decision on which the state court could properly have relied"). Indeed, this court held exactly that in Ruiz.
Furthermore, the CCA dismissals in Balentine and Rocha invoke § 5(a)(3), which, on its face is interwoven with federal constitutional principles, and from a plain reading of § 5(a)(3), appears to encompass Wiggins claims. The CCA in Ex parte Blue specifically left open this obvious interpretation of § 5(a)(3) that is broader than the state-law interpretation reached by the Balentine and Rocha panels. The CCA's unexplained and ambiguous dismissals in Balentine and in Rocha, which only stated that the applications failed to satisfy the requirements of § 5(a)(3), accordingly, fairly appear to be interwoven with federal law. Without a plain statement that the applications were dismissed based on a procedural default dependent only on state law, the decisions must be presumed not to rest on independent and adequate state grounds. Therefore, federal court review of Balentine's and Rocha's Wiggins claims is not barred.
Thus, it is clear that the Balentine and Rocha opinions conflict with the Supreme Court's precedents, the CCA's precedents, and our own controlling circuit precedent. Most important, however, the panel opinions seriously undermine the Long standard and retrogress into unauthorized Erie-type guessing as to the nature of unexplained state court death penalty subsequent habeas decisions in our circuit.
For these reasons I respectfully dissent from the majority's decision to deny an en banc rehearing in these cases.
HAYNES, Circuit Judge, dissenting from the denial of rehearing en banc:
Judge Dennis's dissent from the denial of rehearing en banc gives a scholarly analysis of the substantive reasons that the panel opinions in Rocha and Balentine are incorrect. I write to express the view that these cases merit en banc reconsideration because they involve a question "of exceptional importance." FED. R.APP. P. 35(a)(2), (b)(1)(B). Further, the decisions in question "conflict[] with a decision of the United States Supreme Court" (namely, Long and its progeny). FED. R.APP. P. 35(b)(1)(A). Congress has limited, but not eliminated, the role of federal courts in the
Ex parte Balentine, 2009 WL 3042425, at * 1.
(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:
(c) On receipt of the copies of the documents from the clerk, the court of criminal appeals shall determine whether the requirements of Subsection (a) have been satisfied. The convicting court may not take further action on the application before the court of criminal appeals issues an order finding that the requirements have been satisfied. If the court of criminal appeals determines that the requirements have not been satisfied, the court shall issue an order dismissing the application as an abuse of the writ under this section.
Rocha also relies on Ex parte Hood, 211 S.W.3d 767 (Tex.Crim.App.2007), which, according to the Rocha panel, "conclud[ed] that § 5(a)(1) did not authorize the CCA to consider the merits of a claim presented in a successive habeas application `because the legal bases upon which applicant relies were available at the time he filed his second application' and undert[ook] no discussion of the prima facie merits of the applicant's claim." Rocha, 626 F.3d at 834 n. 97, 2010 WL 4630794, at *10 n. 97 (quoting Ex parte Hood, 211 S.W.3d at 770). However, Ex parte Hood involves nothing more than an example of a decision by the CCA that fairly appears to rest primarily on state law, viz., the unavailability component of § 5(a)(1). Under Coleman, the Long presumption is not needed to resolve ambiguity in such CCA dismissals. Ex parte Hood does not support the conclusion that § 5(a)(1) requires the CCA to consider the two requirements of § 5(a)(1) in any particular order.