Reply Brief — Fabian Hernandez, Petitioner v. Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division

***THIS IS A CAPITAL CASE***

No. 18-8419

IN THE

SUPREME COURT OF THE UNITED STATES

__________________________________________________

FABIAN HERNANDEZ, Petitioner,

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION, Respondent.

__________________________________________________

ON WRIT OF CERTIORARI TO THE

COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________________________________________

REPLY OF PETITIONER

WILLIAM STANLEY HARRIS*

Attorney at Law

307 West 7th Street, Suite 1905

Fort Worth, TX

Telephone: (817) 332-5575

Facsimile: (817) 335-6060

Texas Bar No. 09096700

Email: wmsharris.law@gmail.com

* Counsel of Record

CARL DAVID MEDDERS

Burleson, Pate and Gibson, LLP

900 Jackson Street, Suite 330

Dallas, Texas 75202

Telephone: (214) 871-4900

Facsimile: (214) 871-7543

D.C. Bar No. 494911

Email: dmedders@bp-g.com

i

TABLE OF CONTENTS

Table of Authorities ................................................................................................ iii

Reasons for Granting the Petition............................................................................... 1

I.

The reasons relied upon in federal court in its 2254(d) analysis were not

contained in the specific or particular reasons offered by the state court ........ 1

II. Respondent concedes an important question to be resolved, arguing that this

Court’s rejection of the Richter “could have supported” framework where the

state court provides a reasoned decision is non-binding dicta .......................... 1

III. The Fifth Circuit continues to be controlled by pre-Wilson case law requiring

federal courts to defer to reasons that “could have supported” the state court

decision ................................................................................................................ 2

IV. The TCCA explicitly adopted the state trial court reasons in the present case

and did not express additional reasons for its decision. .................................... 5

V.

Respondent seeks to muddy the waters by arguing the merits of an appeal

Mr. Hernandez was denied due to the erroneous failure to grant a COA ........ 9

Conclusion.................................................................................................................... 9

ii

TABLE OF AUTHORITIES

Cases

Catalan v. Cockrell, 315 F.3d 491 (5th Cir. 2002) ........................................................ 3

Evans v. Davis, 875 F.3d 210 (5th Cir. 2017) ............................................................... 3

Ex parte Hernandez, 2015 Tex. Crim. App. Unpub. LEXIS 87 (Crim. App. Jan. 28,

2015) ....................................................................................................................... 5, 8

Ex parte Owens, 515 S.W.3d 891 (2017) ....................................................................... 6

Ex parte Reed, 271 S.W.3d 698 (2008) .......................................................................... 6

Ex parte Roberts, 2009 Tex. Crim. App. Unpub. LEXIS 836 (Crim. App. May 13,

2009) ........................................................................................................................... 7

Ex parte Woods, 176 S.W.3d 224, 225 (Tex. Crim. App. 2005) .................................... 8

Freeney v. Davis, 724 F. App'x 303, 312 (5th Cir. 2018) .............................................. 3

Guzman v. State, 955 S.W.2d 85 (1997) ........................................................................ 6

Harrington v. Richter, 562 U. S. 86 (2011) ................................................................... 1

Langley v. Prince, 16-30486, 2019 U.S. App. LEXIS 17082

(5th Cir. June 6, 2019) ........................................................................................... 3, 4

Langley v. Prince, 890 F.3d 504 (5th Cir. 2018) ........................................................... 3

Langley v. Prince, 905 F.3d 924 (5th Cir. La., Oct. 12, 2018) ...................................... 3

Neal v. Puckett, 286 F.3d 230 (5th Cir 2002) ........................................................ 2, 3, 4

Thomas v. Vannoy, 898 F.3d 561 (5th Cir. 2018) ......................................................... 3

Wilson v. Sellers, 138 S. Ct. 1188 (2018)............................................................. passim

Wilson v. Taylor, 658 F.2d 1021 (5th Cir. 1981) ........................................................... 5

Woods v. Thaler, 399 F. App'x 884 (5th Cir. 2010) ....................................................... 8

Statutes

28 U.S.C. §2254(d) ......................................................................................................... 5

iii

REASONS FOR GRANTING THE PETITION

I. The reasons relied upon in federal court in its 2254(d) analysis were

not contained in the specific or particular reasons offered by the

state court

Instead of focusing on the “specific” or “particular” reasons relied upon by the

state court, consistent with Fifth Circuit precedent, the lower federal courts relied

upon reasons in the record that “could have supported” the denial of relief.

While this is the form of analysis the Fifth Circuit has employed for well over

a decade, it is wholly inconsistent with this Court’s instruction in Wilson, provoking

the present application.

Respondent is forced to concede that the federal court looked beyond the

specific reasons of the state court in applying 28 U.S.C. 2254(d), arguing that the

reasons relied upon by the federal court can be found in the state court record, even

where they do not appear in the state court reasons. Brief in Opposition at 16.1

II. Respondent concedes an important question to be resolved, arguing

that this Court’s rejection of the Richter “could have supported”

framework where the state court provides a reasoned decision is

non-binding dicta

In Wilson v. Sellers, 138 S. Ct. 1188 (2018), this Court made crystal clear that

Richter’s2 “could have supported” framework does not apply where there is a reasoned

1 Respondent subsequently attempts to reframe the language of the state court decision as to claim

one to encompass the analysis of the federal court but its attempt is contrary to the plain language of

the state court judgment and a matter to be addressed on remand. Brief in Opposition at 17. As to

claim two, Respondent is forced to rely upon material in the record that could have supported the

state court conclusion but does not form part of the state court judgment. Id. at 24.

2 Harrington v. Richter, 562 U. S. 86 (2011).

1

state court decision and that, instead, a reviewing court must train its attention on

the actual reasons offered by the state court to determine whether clearly established

federal law was unreasonably applied. Wilson, 138 S.Ct. at 1191-92, 1195-6.

Because Fifth Circuit precedent is directly to the contrary, see infra,

Respondent is at pains to describe this part of Wilson’s holding as non-binding dicta.

Brief in Opposition, pp. 12, 13, 14, 15 and 19.

Respondent’s brief in opposition represents a stark admission that the question

presented represents an important question of federal law that this Court should

resolve. Further, as described below, that the approach in the Fifth Circuit conflicts

with the statements of this court and with the approach in other circuits.

III.

The Fifth Circuit continues to be controlled by pre-Wilson case

law requiring federal courts to defer to reasons that “could have

supported” the state court decision

Within the Fifth Circuit, district courts and appellate panels are controlled by

the en banc decision in Neal and the panel opinions that are its progeny.3 Following

Neal, the Fifth Circuit has focused its review on the results of, not the reasons for the

state court action and adopted Richter’s “could have supported” framework even in

the face of a reasoned state court opinion:

Importantly, whether the state court's decision involved an

unreasonable application of Supreme Court precedent does not depend

solely on the state habeas court's actual analysis. Section 2254(d)

requires us to “determine what arguments or theories supported or, . . .

could have supported, the state court's decision." [Richter, 562 U.S.] at

3 Neal v. Puckett, 286 F.3d 230, 246 (5th Cir 2002) (“we conclude that our focus on the ‘unreasonable

application’ test under Section 2254(d) should be on the ultimate legal conclusion that the state court

reached . . .the only question for a federal habeas court is whether the state court's determination is

objectively unreasonable.”).

2

102 (emphasis added). We are therefore tasked with considering not only

the arguments and theories the state habeas court actually relied upon

to reach its ultimate decision but also all the arguments and theories it

could have relied upon. Cf. Neal v. Puckett, 286 F.3d 230, 244-46 (5th

Cir. 2002) (en banc) (per curiam) (holding that § 2254(d) directs us to

review “only a state court's 'decision,' and not the written opinion

explaining that decision”)

Evans v. Davis, 875 F.3d 210, 216 (5th Cir. 2017).4

After Wilson was handed down, panels in the Fifth Circuit noted the apparent

conflict between Neal and its progeny and this Court’s opinion in Wilson.5

On October 11, 2018, the Fifth Circuit granted en banc review in Langley v.

Prince and specifically asked the parties to address this Court’s intervening opinion

in Wilson.6 The matter was argued on January 23, 2019. The Solicitor General for

Texas appeared as amici and explicitly argued that Wilson did not overrule Neal, that

there was no tension between Wilson and the existing circuit approach, and that

under Wilson, AEDPA deference applied even where an intermediate court’s

4 See also, for example, Maldonado v. Thaler, 625 F.3d 229, 239 (5th Cir. 2010)(“Upon federal habeas

review of a state court's adjudication, we ultimately ‘review only a state court's decision and not the

written opinion explaining that decision.’); Pondexter v. Dretke, 346 F.3d 142, 148 (5th Cir. 2003)

(“As this Court has explained, ‘it seems clear to us that a federal habeas court is authorized by

Section 2254(d) to review only a state court's ‘decision,’ and not the written opinion explaining that

decision.’”); Catalan v. Cockrell, 315 F.3d 491, 493 (5th Cir. 2002) (“[W]e review only the state court’s

decision, not its reasoning or written opinion[.]”).

5 See Thomas v. Vannoy, 898 F.3d 561, 568 (5th Cir. 2018) (acknowledging that the “continued

viability” of the Fifth Circuit's approach was “uncertain” after Wilson); Langley v. Prince, 890 F.3d

504, 515 n 14 (5th Cir. 2018) (noting inconsistency between circuit law and Wilson but holding “[w]e

leave Wilson's impact to be decided another day.”) vacated by, rehearing granted by, en banc Langley

v. Prince, 905 F.3d 924 (5th Cir. La., Oct. 12, 2018); Freeney v. Davis, 724 F. App'x 303, 312 (5th Cir.

2018) (applying Neal and considering “only the ultimate legal determination by the state court”)

withdrawn and substituted by 737 Fed. Appx. 198 (5th Cir. 2018) (omitting the reference to the rule

in Neal but otherwise leaving the opinion unchanged in response to a rehearing application raising

Wilson).

6 See Langley v Prince, 16-30486, Briefing Order of October 15, 2018.

3

reasoned opinion was unreasonable when it was apparent from the record that

habeas relief should be denied.7

On June 6, 2019, the en banc handed down its opinion in Langley. Langley v.

Prince, 16-30486, 2019 U.S. App. LEXIS 17082 (5th Cir. June 6, 2019). The majority

did not address the apparent conflict between Wilson and the circuit’s pre-Wilson

authority at all. The majority cited to Wilson to confirm that it should look through

to the state intermediate appellate court decision and allowed that “[u]nder AEDPA's

relitigation bar, the state court's reasoning can matter.” Langley, *44 (emphasis

added). However, the majority did not eschew the “could have supported” approach,

nor overrule Neal and its progeny.8

Indeed, the dissent in Langley vehemently protested that the majority’s

approach “departs from the Supreme Court's recent direction on review of reasoned

state-court decisions,” “contrived a rationale for the state court's decision that is

incompatible with the reasoning that the state court actually gave” and “runs afoul

of Wilson's direction.” Langley, *58-9, *73, *74.

Subsequent to the Langley opinion being issued, the Texas Solicitor General’s

Office has taken the position that Langley did not alter the standard of review and

that Wilson “did not change how a state court’s decision on the merits is reviewed

under AEDPA; it merely determined where a federal habeas court should look for the

7 See Oral Argument at 47:56-50:30; available at

http://www.ca5.uscourts.gov/OralArgRecordings/16/16-30486_1-23-2019.mp3 (last checked 7/18/19).

8 Under the “could have supported” framework, state court reasons “can matter” as they may, on

their face, provide a reasonable basis for the denial of relief, thus obviating the need for the

reviewing court to examine whether there are other reasons that ‘could have supported” the denial of

relief.

4

relevant state court decision.” Respondent’s Letter Brief, Sheppard v Davis, 18-70011

(5 Cir. Tx 6/28/19).

As a result, and pursuant to Fifth Circuit’s rule of orderliness,9 the rule applied

in Mr. Hernandez’s case remains the prevailing law in the circuit, in conflict with this

court’s holdings and the holdings in other circuits.

IV.

The TCCA explicitly adopted the state trial court reasons in the

present case and did not express additional reasons for its

decision.

Respondent argues that even if Wilson does dictate review of state court

reasons, that in Texas, the Richter “could have supported” framework should always

apply because all Texas Court of Criminal Appeals decisions are both “reasoned and

unreasoned”.10

Respondent’s argument is both legally and factually incorrect.

First, the TCCA in Mr. Hernandez’s case explicitly adopted a fully reasoned

explanation for its decision - - - an explanation that does not include the “could have

supported” reasons relied upon to apply 28 U.S.C. §2254(d) deference in federal

court.11

9 The Fifth Circuit applies a firm rule of orderliness that prohibits one panel from disregarding the

precedent set by a prior panel even where the earlier decision is perceived to be in error. Further,

absent intervening contrary authority from this Court or the Fifth Circuit en banc, no panel may

disregard that earlier precedent. See, for example, Wilson v. Taylor, 658 F.2d 1021, 1034-35 (5th Cir.

1981). This brings in to sharp relief Respondent’s argument that the relevant part of Wilson is dicta

(and thus not intervening authority) and the acceptance by the en banc majority in Langley of the

argument by the State of Texas that no change in Fifth Circuit law was necessitated by Wilson.

10 Brief in Opposition at 14.

11 Ex parte Hernandez, 2015 Tex. Crim. App. Unpub. LEXIS 87, at *1-2 (Crim. App. Jan. 28,

2015)(“We agree with the trial judge's recommendation and adopt the trial judge's findings and

conclusions, except for finding of fact number fifty-one and conclusion of law number forty-six, which

5

Second, it would be Respondent’s burden on remand to overcome the Wilson

presumption by deploying the argument it now offers to assert that Richter, not

Wilson, controls.

Third, Respondent’s characterization of TCCA decisions is directly at odds with

Texas law and the established practice of the TCCA. Under Texas law, the TCCA is

the “ultimate factfinder in habeas corpus proceedings,” and the trial judge on habeas

is the “original factfinder.”12

The role of the trial judge on habeas is to collect

evidence, organize materials, decide what live testimony is necessary, resolve

disputed fact issues, enter specific findings of fact and conclusions of law, and make

a specific recommendation to grant or deny relief.13

TCCA will “afford almost total deference to a trial court’s determination of the

historical facts that the record supports . . . [and] should afford the same amount of

deference to [the] trial court’s rulings on application of law to fact questions… if the

resolution of those ultimate questions turns on an evaluation of credibility and

demeanor.”14 When the CCA’s “independent review of the record reveals that the trial

judge’s findings and conclusions are not supported by the record, [it] may exercise

[its] authority to make contrary or alternative findings and conclusions.”15

we reject. Based upon the trial court's findings and conclusions and our own review of the record,

relief is denied.”)

12 Ex parte Reed, 271 S.W.3d 698, 727 (2008).

13 Ex parte Owens, 515 S.W.3d 891, 895 (2017).

14 Guzman v. State, 955 S.W.2d 85, 89 (1997) (internal quotations omitted).

15 Owens, 515 S.W.3d at 895.

6

Thus, the TCCA conducts an independent review of the record to determine if

the trial court’s findings and recommendations are supported. Where it believes the

findings and recommendations are supported, the TCCA adopts them and where they

are not supported, it rejects them.

This is precisely what occurred in Mr. Hernandez’s case.

When the TCCA does not agree with some particular findings, as occurred

here, it will say so.16 When the TCCA believes that additional findings beyond those

made by the trial court are required, it will remand to the trial court for further factfinding.17 Where the TCCA disagrees with the trial court recommendations and

wishes to supply its own reasons, it does so in a reasoned opinion.18 Finally, when

16 See, e.g., Ex Parte Chavez, 371 S.W.3d 200, 208 (Tex. Crim. App. 2012) (“In rendering its findings,

conclusions, and recommendation, the trial court focused on whether the testimony was perjured. It

concluded that, because the evidence did not show that Cameron and Lewis “intended to provide

false testimony or that they thought their trial testimony was inaccurate,” applicant had failed to

establish a due-process violation “based on the State's unknowing presentation of alleged perjured

testimony.” These findings, however, misapply the standard for false testimony because a witness's

intent in providing false or inaccurate testimony and the State's intent in introducing that testimony

are not relevant to false-testimony due-process error analysis.”); Ex parte Roberts, 2009 Tex. Crim.

App. Unpub. LEXIS 836 (Crim. App. May 13, 2009) (“We agree with the trial judge's

recommendation and adopt the trial judge's findings and conclusions, with the following exceptions:

findings paragraphs 7, 10, 111, and 116; and conclusions paragraphs 121, 135, 140, 161, 163, 164,

and 181 through 183. Based upon the trial court's findings and conclusions and our own review of

the record, relief is denied.”).

17 See, e.g., Ex parte Williams, No. WR-71,404-01, 2009 WL 1165504, at *1 (Tex. Crim. App. Apr. 29,

2009) (“Applicant presents sixteen allegations, with numerous subsections, in his initial writ. The

trial court failed to make findings of fact and conclusions of law on the following allegations: [. . .] . .

.Because we have determined that findings and conclusions of the trial court would be helpful to the

resolution of these claims, we order the trial court to make findings of fact and conclusions of law in

regard to these claims. The initial application is remanded to the trial court to address these

issues.”) (unpublished).

18 See, e.g., Ex Parte Harleston, 431 S.W.3d 67, 69 (Tex. Crim. App. 2014) (“After independently

reviewing the record, we reject the habeas court's findings that the victim's recantations were

credible because those findings are not supported by the record, and we hold that Applicant has

failed to present clear and convincing evidence that unquestionably establishes his innocence.

Therefore, we will deny relief.”); Ex parte Cathey, 451 S.W.3d 1, 4 (Tex. Crim. App. 2014) (“We

7

the TCCA wishes to add additional reasons for denial to those included in the trial

court’s recommendations, it articulates those in a reasoned opinion.19

In Mr. Hernandez’s case, the trial court adopted all of the proposed findings of

fact and conclusions of law of the State of Texas.20 The TCCA neither requested nor

received any additional briefing for the parties nor had offered before it any additional

reasons for denying relief. The TCCA adopted the proposed findings of fact and

conclusions of law of the trial court in their entirety, save for finding of fact number

fifty-one and conclusion of law number forty-six, which it explicitly rejected.21

Thus, Respondent’s argument about the nature of TCCA decisions is irrelevant

to the decision to grant certiorari, is more properly raised under Respondent’s burden

on remand and is incorrect, in any event.

conclude that the record does not support the habeas judge's factual findings or legal conclusions. In

short, the judge erred in finding,” etc.).

19 See, for example, Ex parte Woods, 176 S.W.3d 224, 225 (Tex. Crim. App. 2005). See also, Woods v.

Thaler, 399 F. App'x 884, 888 (5th Cir. 2010) (noting that the TCCA adopted the trial court findings

and also “supplemented Judge Gabriel's findings of fact and legal conclusion with an extended

discussion of why the court was denying relief on [the IAC] claim.”).

20 The trial court changed some of the wording and organization of the proposed findings as well as

expanding on the reasoning in some areas but ultimately accepted all of the findings and conclusions

urged by the State of Texas.

21 Ex parte Hernandez, 2015 Tex. Crim. App. Unpub. LEXIS 87, at *1-2 (Crim. App. Jan. 28, 2015).

8

V.

Respondent seeks to muddy the waters by arguing the merits of

an appeal Mr. Hernandez was denied due to the erroneous failut·e

to grant a COA

Respondent seeks to muddy the waters in the present application by arguing

in this forum the me1·its of an appeal that Ml·. Hernandez never 1·eceived because the

circuit court erroneously denied a COA.

None of this is necessary to the resolution of the question presented and is

more properly addressed on remand by a court cha1·ged with conducting a detailed

and th1·ough review of the underlying issues in an appellate posture.

CONCLUSION

Petitioner respectfully pleads that this Court grant his w1·it of certiorari and

permit b1·iefing and ru·gument on the issues.

Respectfully submitted,

WILLIAM S. HARRIS

Attorney and Counselor at Law

307 West 7th Street, Suite 1905

Fott Worth, Texas 761 02

TEL: (817) 332-5575; FAX: (817) 335-6060

wmsharris law sbc lobal.net

..,

By:~~~~~~~~~--------------­

William S. Harris

State Bar of Texas No. 09096700

CARL DAVID MEDDERS

BURLESON, PATE AND GffiSON, LLP.

900 Jackson Street, Suite 330

Dallas, Texas 75202

9

7543

August 27

27th