recognizing that "[i]n most instances, the record on direct appeal is inadequate to develop an ineffective assistance claim" and stating that while generally a claim previously raised and rejected on direct appeal is not cognizable, this doctrine should not apply "where direct appeal cannot be expected to provide an adequate record to evaluate the claim in question, and the claim might be substantiated through additional evidence gathering in a habeas corpus proceeding"
How later courts described this case
- recognizing that "[i]n most instances, the record on direct appeal is inadequate to develop an ineffective assistance claim" and stating that while generally a claim previously raised and rejected on direct appeal is not cognizable, this doctrine should not apply "where direct appeal cannot be expected to provide an adequate record to evaluate the claim in question, and the claim might be substantiated through additional evidence gathering in a habeas corpus proceeding"
- holding that rejection of ineffective assistance claim on direct appeal does not bar relitigation of it on habeas corpus to the ex tent that applicant seeks to gather and introduce additional evidence
- noting that motion for new trial hearing not always suited for developing record for ineffective assistance claim be cause trial may not be transcribed and allegedly ineffective counsel may still be representing defendant
- observing that legislative intent in adopting the comparable provisions of Article 11.07, § 4 of the Code of Criminal Procedure, governing subsequent applications for non-capital post-conviction writs of habeas corpus, and which was promulgated in the same legislative enactment as Article 11.071, Section 5, see Acts 1995, 74th Leg., ch. 319, §§ 1 & 5, eff. Sept. 1, 1995, was to adopt abuse-of-the-writ doctrine then current in federal practice
Written by the judges who cited it.
The opinion
BAIRD, Judge,
concurring.
While it is true that McCleskey v. Zant, 499 U.S. 467 , 111 S.Ct. 1454 , 113 L.Ed.2d 517 (1991), dealt with the “cause and prejudice standard,” it is more important to consider the context in which that standard was developed.
State courts consider only habeas applications from inmates convicted of state crimes. However, federal courts consider habeas petitions from defendants convicted of either state or federal crimes. The federal courts in McCleskey considered the habeas application of a state prisoner. The “cause and prejudice” standard established a procedural bar which precludes federal courts from considering habeas applications from state inmates. Because Tex.Code Crim. Proc. Ann. art. 11.07 deals exclusively with a unitary system of state inmates and state courts, the majority’s reliance on McCleskey is misplaced, ante at 473-474, and for that reason, I cannot join the majority opinion.
Accordingly, I join only the judgment of the Court.
OVERSTREET, MEYERS and PRICE, JJ., join this opinion.