Reply Brief — Obel Cruz-Garcia, Petitioner v. Texas

No. 17-7641

In the

Supreme Court of the United States

____________________________

OBEL CRUZ-GARCIA,

Petitioner,

v.

TEXAS,

Respondent.

____________________________

ON PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF CRIMINAL APPEALS OF TEXAS

____________________________

REPLY TO BRIEF IN OPPOSITION

THIS IS A CAPITAL CASE.

____________________________

OFFICE OF CAPITAL AND FORENSIC WRITS

Benjamin B. Wolff, Director

benjamin.wolff@ocfw.texas.gov

Gretchen Sims Sween*

gretchen.sween@ocfw.texas.gov

Sarah Cathryn Brandon

sarah.brandon@ocfw.texas.gov

1700 N. Congress Ave., Ste. 460

Austin, Texas 78701

(512) 463-8600

* Counsel of Record

Member, Supreme Court Bar

Counsel for Petitioner

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TABLE OF CONTENTS

TABLE OF CONTENTS ............................................................................ i

TABLE OF AUTHORITIES ......................................................................ii

REPLY TO BRIEF IN OPPOSITION ....................................................... 1

I. THE MERITS OF MR. CRUZ-GARCIA’S DUE PROCESS

QUESTION DO NOT DEPEND ON WHETHER STATE HABEAS

PROCEEDINGS ARE CONSTITUTIONALLY REQUIRED ........... 1

A.

Some minimal amount of process must be afforded when the

State provides state habeas proceedings .................................... 2

B.

The Fifth Circuit and Supreme Court cases the State cites are

irrelevant to the question Mr. Cruz-Garcia presents ................. 3

II. THE STATE MISREPRESENTS THE AMOUNT OF PROCESS

THAT MR. CRUZ-GARCIA RECEIVED IN STATE COURT .......... 5

A.

The State misrepresents key facts and law that reveal the lack

of process afforded to Mr. Cruz-Garcia ....................................... 5

B.

The State misinterprets the question presented in Mr. CruzGarcia’s petition ........................................................................... 8

CONCLUSION ....................................................................................... 9

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TABLE OF AUTHORITIES

Cases

Clark v. Johnson, 202 F.3d 760 (5th Cir. 2000)……………….……………8

Estelle v. McGuire, 502 U.S. 62 (1991)……………………………………….4

Evitts v. Lucey, 469 U.S. 387 (1985)…………………………………..passim

Ford v. Wainwright, 477 U.S. 399 (1986) ................................................. 3

Goldberg v. Kelly, 397 U.S. 254 (1970) ..................................................... 2

State v. Guerrero, 400 S.W.3d 576 583 (Tex. Crim. App. 2013)…………9

Henderson v. Cockrell, 333 F.3d 592 (5th Cir. 2003)………………………4

Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) ...... 7

Panetti v. Quarterman, 551 U.S. 930 (2007)............................................. 3

Rivera v. Quarterman, 505 F.3d 349, 358 (5th Cir. 2011)………………...9

Sherbert v. Verner, 374 U.S. 398 (1963)……………………………………...2

Slochower v. Board of Higher Education, 350 U.S. 551 (1956)…………..2

Speiser v. Randall, 357 U.S. 513 (1958)……………………………………..2

Statutes & Rules

TEX. CODE CRIM. PROC. art. 11.071 ............................................... 5, 6, 7, 9

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REPLY TO BRIEF IN OPPOSITION

Mr. Cruz-Garcia files this Reply to address arguments made in the Brief in

Opposition to his Petition for a Writ of Certiorari. Instead of joining issue with Mr.

Cruz-Garcia, the State devotes nearly twelve, single-spaced pages to recounting the

“Facts of the Crime,” a patent distraction from the issue presented. The State also

insists that the state courts repeatedly denied post-conviction relief after making

objections to how he was being railroaded—as if denying relief establishes that the

process afforded was due process. By pushing aside the veil created by the State’s

fallacious arguments, it is plain that the State cannot defend how Mr. Cruz-Garcia’s

cognizable habeas claims were adjudicated below. Whether a State, in a death

penalty case, may disregard its own mandatory procedures, and deny the protections

of a neutral fact-finder, notice, and the opportunity to present evidence and challenge

adverse evidence consistent with the Due Process Clause, is a question worthy of this

Court’s attention.

I.

THE MERITS OF MR. CRUZ-GARCIA’S DUE PROCESS

QUESTION DO NOT DEPEND ON WHETHER STATE HABEAS

PROCEEDINGS ARE CONSTITUTIONALLY REQUIRED

Mr. Cruz-Garcia does not suggest that a constitutional right to state habeas

proceedings exists. The issue presented is whether, when state habeas proceedings

are provided, the State violates due process by depriving a habeas applicant of notice,

an opportunity to be heard, and a neutral fact-finder—fundamental elements of due

process. This Court has guaranteed that the Due Process Clause applies when the

“State opts to act in a field where its action has significant discretionary elements”

that implicate a citizen’s life, liberty, or property. Evitts v. Lucey, 469 U.S. 387, 401

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(1985) (holding that although there is no constitutional right to an appeal from a state

conviction, when the state provides a mechanism, it must accord with due process).

A. Some minimal amount of process must be afforded when the

State provides state habeas proceedings

In its Brief in Opposition, the State suggests that, because state habeas

proceedings are not constitutionally required, a habeas applicant’s due process rights

cannot be offended. BIO at 1. The State cites no support for this proposition other

than the truism that collateral review of state convictions is not required. BIO at 1314. As decades of this Court’s jurisprudence demonstrate, the right to procedural due

process and fairness does not depend on whether the underlying right is

constitutionally required. This Court has made clear that, when a state chooses to

afford some right or privilege to its citizens, that right or privilege cannot be taken

away without some sort of procedural fairness consistent with the Due Process

Clause. See, e.g., Goldberg v. Kelly, 397 U.S. 254 (1970) (holding that a hearing

consistent with due process principles must be afforded to a person whose welfare

benefits were being terminated, even though the benefits were a statutory

entitlement by state law); Slochower v. Board of Higher Education, 350 U.S. 551

(1956) (finding summary dismissal from public employment for invoking privilege

against self-incrimination violated due process); Sherbert v. Verner, 374 U.S. 398

(1963) (noting First Amendment restraints apply to the disqualification for

unemployment compensation); Speiser v. Randall, 357 U.S. 513 (1958) (applying

same to the denial of a tax exemption).

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Accordingly, the State’s argument that Evitts v. Lucey, 1 Ford v. Wainwright, 2

and Panetti v. Quarterman 3 “are quite different from the instant case because the

rights addressed in them are firmly grounded in the Constitution” misses the mark.

In Evitts, for example, this Court held that, notwithstanding no constitutional right

to appeal, where the a state has created appellate courts as an integral part of the

system for finalizing adjudications, “the procedures used in deciding appeals must

comport with the demands of the Due Process and the Equal Protection Clauses of

the Constitution. Evitts, 469 U.S. at 393. Notably, in Evitts, the right at issue was

not “firmly grounded in the Constitution” because “the Constitution does not require

States to grant appeals as of right to criminal defendants seeking to review alleged

trial court errors.” Id. at 393.

B. The Fifth Circuit and Supreme Court cases the State cites are

irrelevant to the question Mr. Cruz-Garcia presents

The State also cites several Supreme Court and Fifth Circuit cases to support

its position that federal courts are restricted in their ability to review state habeas

proceedings. BIO at 14. Congress has, of course, constricted the jurisdiction of federal

courts to grant habeas relief and to review state court judgments under 28 U.S.C. §

2254, but this is not a section 2254 proceeding. Nor does Mr. Cruz-Garcia ask this

Court to review questions of state law.

The narrow jurisdiction that federal courts have to review state judgments is

irrelevant to the constitutional question Mr. Cruz-Garcia presents. Likewise, Mr.

1 469 U.S. 387 (1985).

2 477 U.S. 399 (1986).

3 551 U.S. 930 (2007).

3

Cruz-Garcia is not asking for this Court to examine state court determinations of

state-law questions. Instead, Mr. Cruz-Garcia asks this Court to decide whether the

Due Process Clause is violated where a state provides a post-conviction procedure for

challenging the constitutional violations that occurred at a capital trial, and where

the state court violated the state’s own mandatory state procedures. That is, the

Court is asked whether minimal protections—of having a neutral fact-finder,

receiving sufficient notice, and having the opportunity to present evidence and

challenge adverse evidence—are required for a process to be due process. The cases

the State cites regarding the narrow jurisdiction afforded by 28 U.S.C. § 2254 are

inapposite. See, by contrast, Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)

(emphasizing that it is not the province of a federal habeas court to reexamine state

court determinations on state law questions); Henderson v. Cockrell, 333 F.3d 592,

606 (5th Cir. 2003) (considering the application of procedural bars to relief in actions

brought under 28 U.S.C. § 2254). 4 Further, while “the Federal Constitution [does not]

dictate[] the exact form” that post-conviction proceedings must take, 5 the different

“forms” must each be consistent with due process. Evitts, 469 U.S. at 393.

The State inadvertently acknowledges why the issue Mr. Cruz-Garcia presents

is worthy of review. Through the State’s strained application of federal habeas

precedent, it underscores that this Court has not yet answered the question of how

much process must be afforded in a state capital habeas applicant’s one opportunity

4 Both cited in State’s Brief in Opposition at 14.

5 Pennsylvania v. Finley, 481 U.S. 551, 557 (1989).

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under state law to present constitutional claims for relief—in order to satisfy the Due

Process Clause. The Court should grant the writ of certiorari to answer that

compelling question.

II.

THE STATE MISREPRESENTS THE AMOUNT OF PROCESS

THAT MR. CRUZ-GARCIA RECEIVED IN STATE COURT

Mr. Cruz-Garcia did not receive due process in the adjudication of his habeas

claims in state court. Had the habeas court followed the proceedings pursuant to state

law, Mr. Cruz-Garcia would likely have been provided with adequate notice of the

habeas court’s fact-finding procedures and the disputed fact issues to be resolved; he

would also have received a neutral judge to adjudicate claims of judicial misconduct;

and he would also have received the opportunity to present evidence in support of his

claims. But the state courts did not follow the mandatory procedures outlined in

Texas Code of Criminal Procedure, Article 11.071, and this Court should grant

certiorari to determine how much a state can deviate from its own statutory

requirements in state post-conviction proceedings before those proceedings can be

fairly deemed a sham.

A. The State misrepresents certain key facts and law that reveal

the lack of process afforded to Mr. Cruz-Garcia

The State incorrectly suggests that Mr. Cruz-Garcia’s state habeas counsel

“conceded that [Mr.] Cruz-Garcia was not entitled to present any further evidence

after the writ application was filed.” BIO at 22, 24. This quotation is no concession.

Counsel was informing the court, in which a newly-elected judge was sitting, that she

had been prevented from introducing evidence in support of Mr. Cruz-Garcia’s claims.

SSHRR17-18. As counsel explained, “The Court can receive evidence through

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affidavits, interrogatories, depositions, various means. But there needs to be a formal

mechanism by which the parties are permitted to submit evidence and to make

objections.” Id. at 18. And Mr. Cruz-Garcia never got that opportunity.

By characterizing habeas counsel’s concern as a concession, the State

misrepresents the factual record and misstates the governing law. The State contends

that the mere filing of a state habeas application with accompanying exhibits

constitutes both the “opportunity to be heard and present/develop evidence.” BIO at

25. The opportunity to present and develop evidence comes only after a habeas

application has been filed. Further, the exhibits attached to a habeas application are

not evidence until the court formally admits them as such. The court must first enter

an order designating the factual issues to be resolved, and then designate how those

issues are to be resolved. TEX. CODE CRIM. PROC. art. 11.071 § 9 (“If the convicting

court determines that controverted, previously unresolved factual issues material to

the legality of the applicant's confinement exist, the court shall enter an order . . .

designating the issues of fact to be resolved and the manner in which the issues shall

be resolved.”). The application is merely a pleading, and therefore cannot constitute

the opportunity to be heard, to present and develop evidence, and to confront adverse

evidence.

The State also implies that Mr. Cruz-Garcia was provided sufficient notice of

the designated factual issues that the court would determine and that Mr. CruzGarcia only contests that the trial court refused to designate issues other than the

ineffective assistance of counsel claims. BIO at 27. Neither suggestion is true. The

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habeas court did not enter an order designating issues, as is required by the Texas

habeas statute. See TEX. CODE CRIM. PROC. art. 11.071§ 9(a). Instead, the habeas

court “converted” a previous order requiring trial counsel to submit affidavits into an

order designating issues; and the court did so only after the fact-finding process had

concluded, before it had ever begun, thereby depriving Mr. Cruz-Garcia of even a

modicum of notice.

Mr. Cruz-Garcia only learned that the habeas court was converting the older

order into an order designating issues after it had ordered the parties to submit

proposed findings of fact and conclusions of law, a sequence that violated the Texas

habeas statute. Id. at § 9(e). Notice received after-the-fact cannot be adequate notice

under the Due Process Clause. See Mullane v. Central Hanover Bank & Trust Co.,

339 U.S. 306, 314 (1950) (“An elementary and fundamental requirement of due

process in any proceeding which is to be accorded finality is notice reasonably

calculated, under all circumstances, to apprise the interested parties of the pendency

of the action and afford them an opportunity to present their objections.”). A “mere

gesture,” such as what the habeas court provided, “is not due process.” Id. Likewise,

the State’s assertion that the trial court considered Mr. Cruz-Garcia’s application and

exhibits, the State’s answer, and the affidavits of trial counsel, even if true, is beside

the point. Mr. Cruz-Garcia was never provided notice that considering the face of the

pleadings would be the sole fact-finding measure because the court never entered an

order designating issues, as state law requires. BIO at 12. Mr. Cruz-Garcia was also

not provided notice of what recollections the habeas court relied upon in adjudicating

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his claims, including the judicial misconduct claim arising from the judge’s own

conduct in conducting an ex parte conference with a hold-out juror to pressure her to

reach consensus on a death sentence.

B. The State misconstrues the question presented in Mr. CruzGarcia’s petition

The State misconstrues Mr. Cruz-Garcia’s petition as suggesting that only a

live evidentiary hearing can satisfy due process. BIO at 25. Mr. Cruz-Garcia does not

make that argument. He acknowledges that a “paper hearing” may satisfy due

process, although not in every case. Cf. Clark v. Johnson, 202 F.3d 760, 766 (5th Cir.

2000) (holding, in the context of federal habeas review, that a full and fair hearing in

state court does not necessarily require live testimony). The type of hearing is not

dispositive; what matters is whether the hearing provided was fair. A meaningful

opportunity to be heard, to confront adverse witnesses, and to appear before a neutral

jurist are basic requirements regardless of the form in which a hearing takes place.

In fact, while the court in Clark noted that a paper hearing can be sufficient when

“the trial court and the state habeas court were one in the same,” that clearly would

not be the case where the trial judge’s own conduct is the subject of a habeas claim,

as was the case here. Id.

Moreover, while Texas’s habeas statute allows the habeas court to utilize

affidavits, depositions, and a live hearing to adjudicate unresolved factual issues, Mr.

Cruz-Garcia was not provided with notice of which method the court would use to

conduct fact-finding in his case or upon which facts the court would ultimately rely.

Further, because no notice was provided, Mr. Cruz-Garcia had no opportunity to ask

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that his exhibits be moved into evidence or to object to the State’s evidentiary proffers,

although the rules of evidence are supposed to apply in these proceedings. 6 See TEX.

CODE CRIM. PROC. art. 11.071 § 10.

Whatever Mr. Cruz-Garcia received, it was not what the Due Process Clause

requires. The habeas court’s handling of Mr. Cruz-Garcia’s habeas claims raises the

question of how much process is due in state post-conviction proceedings, an

important question for this Court to address.

CONCLUSION

This Court should grant certiorari to delineate what basic process is generally

due in the capital post-conviction context.

6 State v. Guerrero, upon which the State relies, actually supports Mr. Cruz-Garcia’s

argument. In that case, the Texas Court of Criminal Appeals did not hold that

affidavits submitted with a habeas application are “evidence.” Instead the Texas

Court of Criminal Appeals noted that the reviewing court will defer to the habeas

court’s findings when they are supported by the record and when all the evidence is

submitted through affidavits, depositions, or interrogatories. Guerrero, 400 S.W.3d

576, 583 (Tex. Crim. App. 2013) (emphasis added). This holding presupposes that

courts provide a mechanism whereby the applicant could submit evidence. No such

mechanism was provided in Mr. Cruz-Garcia’s case. Without that much, there was

no “opportunity to be heard.” Rivera v. Quarterman, 505 F.3d 349, 358 (5th Cir. 2011).

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Respectfully submitted,

OFFICE OF CAPITAL & FORENSIC WRITS

/s/

Gretchen Sween, Counsel of Record

gretchen.sween@ocfw.texas.gov

Benjamin B. Wolff

Sarah Cathryn Brandon

1700 North Congress Avenue, Suite 460

Austin, Texas 78701

(512) 463-8600

Counsel for Petitioner,

Obel Cruz-Garcia

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