Reply Brief — Juan Balderas, Petitioner v. Texas

No. 19-8392

In the

Supreme Court of the United States

____________________________

JUAN BALDERAS,

Petitioner,

v.

TEXAS,

Respondent.

____________________________

ON PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF CRIMINAL APPEALS OF TEXAS

____________________________

REPLY TO BRIEF IN OPPOSITION

____________________________

OFFICE OF CAPITAL AND FORENSIC WRITS

Benjamin B. Wolff,* Director

benjamin.wolff@ocfw.texas.gov

Torrance Castellano**

Torry.Castellano@ocfw.texas.gov

Leslie Wine***

Leslie.Wine@ocfw.texas.gov

1700 N. Congress Ave., Ste. 460

Austin, Texas 78701

(512) 463-8600

* Counsel of Record

Member, Supreme Court Bar

**Barred in the District of Columbia

*** Barred in the State of Texas

Counsel for Petitioner

TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................... 2

TABLE OF AUTHORITIES ...................................................................... 3

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

I. The Procedural Due Process Rights of State Habeas Applicants Are

Compelling and In Need Of Elucidation By This Court ................... 1

A.

This Court’s Decisions Only Tangentially Touch Upon the

Process Due a Prisoner Who Has Invoked a State Statute

Providing Habeas Corpus Review in a State Judicial Forum .... 2

II. The State Exaggerates The Amount of Process Afforded Mr.

Balderas ............................................................................................. 6

III. The TCCA Opinion Was Unreasoned and Unreliable................... 7

IV. The State’s Brief Reveals a Hostility to Review Inconsistent With

This Court’s Practice and Precedent............................................... 10

CONCLUSION ........................................................................................ 14

TABLE OF AUTHORITIES

Federal Cases

Andrus v. Texas, 140 S. Ct. 1875 (2020) ....................................... 9, 10, 11

Buck v. Davis, 137 S. Ct. 757 (2017) ......................................................... 9

District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52

(2009).................................................................................................. 1, 4

Dunn v. Madison, 138 S. Ct. 726 (2017) ................................................. 13

Ford v. Wainwright, 477 U.S. 399 (1986) ........................................... 2, 13

Foster v. Chatman, 136 S. Ct. 1737 (2016) ............................................. 12

Harris v. Nelson, 394 U.S. 286 (1969)....................................................... 2

Hinton v. Alabama, 571 U.S. 263 (2014) ................................................ 12

Madison v. Alabama, 139 S. Ct. 718 (2019) ........................................... 13

Moore v. Texas, 137 S. Ct. 1039 (2017) ............................................. 10, 11

Moore v. Texas, 139 S. Ct. 666 (2019) ............................................... 10, 12

Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998) ................ 4

Padilla v. Kentucky, 599 U.S. 365 (2010) ............................................... 12

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

Smith v. Cain, 565 U.S. 73 (2012)........................................................... 12

Wearry v. Cain, 136 S. Ct. 1002 (2016) ................................................... 12

State Cases

Ex parte Balderas, No. WR-84-066-01, 2019 WL 6885361 (Tex. Crim.

App. 2019) .............................................................................................. 8

Statutes

Tex. Code Crim. Proc. art. 11.071 ............................................................. 6

Other Authorities

Jordan M. Steiker, et al., The Problem of “Rubber Stamping in State

Capital Habeas Proceedings, 55 HOUS. L. REV. 889 (2018) ............... 9

REPLY TO BRIEF IN OPPOSITION

Petitioner files this Reply Brief to address certain legal arguments made in

Respondent’s Brief in Opposition to Petitioner’s Petition for a Writ of Certiorari

(hereinafter “BIO) to this Court.

I.

The Procedural Due Process Rights of State Habeas Applicants

Are Compelling and In Need Of Elucidation By This Court

The State suggests that Mr. Balderas was not entitled to due process in the

state court adjudication of his habeas corpus application. BIO at 24. This suggestion

is as breathtakingly broad as it is wrong.

Judicial adjudications of rights must always comport with due process. This

includes criminal post-conviction proceedings, even though “[a] criminal defendant

proved guilty after a fair trial does not have the same liberty interests as a free man.”

District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 68 (2009).

While a “state . . . has more flexibility in deciding what procedures are needed in the

context of postconviction relief,” id. at 69, due process nonetheless requires that

prisoners be afforded certain procedural rights in post-conviction procedures that

implicate protected liberty interests. Whenever the judiciary adjudicates rights, the

relevant question is never whether process is due, but what process is due.

As this Court observed over fifty years ago, “there is no higher duty of a court,

under our constitutional system, than the careful processing and adjudication of

petitions for writs of habeas corpus, for it is in such proceedings that a person in

custody charges that error, neglect, or evil purpose has resulted in his unlawful

confinement and that he is deprived of his freedom contrary to law,” Harris v. Nelson,

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394 U.S. 286, 292 (1969). Despite this, only a handful of this Court’s cases have

touched on the process a state owes an individual who has invoked a post-conviction

statute sounding in habeas corpus. This Court should give further guidance on

exactly how much process is due a state habeas applicant, especially in light of

modern developments in federal habeas corpus which make state courts the

principal—and usually only—forum for asserting constitutional challenges to state

convictions.

A.

This Court’s Decisions Only Tangentially Touch Upon the Process

Due a Prisoner Who Has Invoked a State Statute Providing Habeas

Corpus Review in a State Judicial Forum

Since 1986, this Court has considered the process owed by a state in post-

conviction proceedings in a handful of cases, but none that meaningfully illuminated

the process owed an incarcerated person who invokes a habeas corpus statute to

challenge the validity of a judgment.

In Ford v. Wainwright, 477 U.S. 399 (1986), the Court addressed what process

a state court owes to a person who alleges in a post-conviction context that the Eighth

Amendment precludes his execution because he is not mentally competent to be

executed. After recognizing that the Eighth Amendment precludes the execution of

the condemned who were unaware of their execution or did not understand the reason

for it, Justice Powell, in an opinion deemed to be controlling, laid out the process due

by a state to a prisoner making such a claim. Justice Powell concluded that in this

context a state “should have substantial leeway to determine what process best

balances the various interests at stake” once it has met the “basic requirements”

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required by due process. Id. at 427. The “basic requirements” included an opportunity

to submit “evidence and argument from the prisoner’s counsel, including expert

psychiatric evidence.” Id.

Justice Powell offered three reasons why due process in this context would not

require the state to afford a “full-scale ‘sanity trial’” of the sort Justice Marshall’s

opinion in the case proposed. Id. at 425. First, execution competency could arise as

an issue “only after the prisoner has been validly convicted of a capital crime and

sentenced to death,” and therefore the State’s interest in taking the prisoner’s life as

punishment for his crime “is not called into question by” the prisoner’s claim. Id. The

only question presented in such a context is “not whether, but when, his execution

may take place.” Id. Second, the claim did not arise “against a neutral background,”

because, having been validly convicted, the prisoner “must have been judged

competent to stand trial, or his competency must have been sufficiently clear as not

to raise a serious question for the trial court.” Id. at 425-26. Thus, the State could

presume the prisoner’s continued competence. Id. at 426. Third, the competency issue

did not resemble the basic issues at trial or sentencing that present “issues of

historical fact,” but instead called “for a basically subjective judgment.” Id.

Likewise, in Panetti v. Quarterman, 551 U.S. 930 (2007), the Court again

considered the due process protections that apply when an individual challenges not

the validity of the judgement, but the timing of its execution. In Panetti, the Court

identified several deficiencies in Texas’s adjudication of Mr. Panetti’s incompetenceto-be-executed claim. Among the due process violations were the failure to apprise

3

the petitioner as to the opportunity to present his case; the determination of

competency was made solely on the expert opinion of court-appointed expert and the

petitioner did not have an opportunity to present affirmative or controverting

evidence; the state court arguably violated state law in failing to hold an evidentiary

hearing. Id. at 950-51. Additionally, the state court’s “violation of the procedural

framework Texas has mandated for the adjudication of incompetency claims”

undermined reliance on the State’s “substantial leeway” to determine suitable

process. Id. at 950.

Most recently, in District Attorney’s Office for Third Judicial Dist. v. Osborne,

the Court addressed the process a state owed to an incarcerated person who asserted

that he had a due process right to access evidence in post-conviction in order to

conduct DNA testing, through which he hoped to develop evidence of innocence. 557

U.S. at 52. The Court recognized that such a statute created a protected liberty

interest.1 Id. at 68. It held, however, that in the context of a state statute providing a

post-conviction right to relief that did not implicate the fairness of the trial, due

process would not be violated unless the state court procedure “offends some principle

of justice so rooted in the traditions and conscience of our people as to be ranked as

fundamental” or “transgresses any recognized principle of fundamental fairness in

1 Relevant to capital cases, a majority of the Court has also recognized that prisoners

under sentence of death maintain protected life interests until their execution. See

Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 288 (1998) (O’Connor, J.,

concurring in part and concurring in the judgment, joined by Souter, J., Ginsburg, J.,

and Breyer, J.) (death-sentenced prisoners retain life interest); id. at 291 (Stevens,

J., dissenting) (same).

4

operation.” Id. at 69. The Court reasoned that, given “a valid conviction” which

constitutionally deprived the prisoner of his liberty interest, the State had more

flexibility in deciding what procedures were adequate than it would in a criminal trial

itself. Id.

None of these decisions have spoken meaningfully to what process a state court

owes a prisoner in a post-conviction proceeding sounding in the nature of habeas

corpus, i.e., where the prisoner alleges that the underlying criminal judgment

pursuant to which he is confined was obtained unfairly and in violation of the United

States Constitution. In none of the post-conviction proceedings at issue in Ford,

Panetti, and Osborne was the validity of the prisoner’s conviction or lawfulness of his

custody being challenged. Hence, each presumed a fair trial and a prisoner who had

been validly deprived of his liberty or life. Thus, the balance of the “interests at stake”

is not the same as these cases as it would presumably be in a state post-conviction

case that sounds in habeas corpus.

If anything, the due process protections should be stronger in a case such as

this, which is a habeas corpus challenge to the constitutional validity of a conviction

and death sentence. Whereas, in Ford and Panetti, the challenge centered around the

timing of a constitutionally valid death sentence, here, Mr. Balderas raised 14 claims

that challenged the constitutionality of his conviction and sentence. Mr. Balderas,

however, was denied a meaningful opportunity to be heard on these claims.

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II.

The State Exaggerates The Amount of Process Afforded Mr.

Balderas

Mr. Balderas pleaded 14 constitutional claims in a habeas application that

stretched nearly 400 pages. These claims were substantiated by evidentiary proffers

and exhibits totaling another nearly 500 pages. The trial court initially designated

these 14 claims for resolution at a hearing. Later, however, without any meaningful

change in circumstances, the habeas court instead allowed for only two extremely

narrow and mischaracterized areas of factual development during one short day of

testimony. Compounding this error, instead of simply designating the issues for the

hearing, the habeas court predetermined what evidence it would consider and from

what witnesses it would hear it, denying Mr. Balderas agency over what evidence

might be offered in support of even these two narrow claims. The habeas court and

the Texas Court of Criminal Appeals then denied Mr. Balderas the opportunity to be

heard on exculpatory evidence withheld by the State until after the evidentiary

hearing had concluded. The TCCA then denied relief to Mr. Balderas on the merits of

his claims, upholding the findings of fact and conclusions of law issued by the trial

court, but nearly entirely drafted by the State, despite the fact that he had been

denied the opportunity to present evidence in support of these claims. These facts are

indisputable.

The State, however, misrepresents the amount of process afforded Mr.

Balderas, conflating the habeas “record” with evidence. See BIO at 29-30. Unlike

other habeas proceedings in Texas, capital post-conviction proceedings are governed

by the Rules of Evidence. Compare Tex. Code Crim. Proc. art. 11.071 sec. 10 (the rules

6

of evidence apply to capital post-conviction proceedings) with art. 11.07 (no

requirement that the rules of evidence apply in non-capital felony post-conviction

cases), art. 11.072 (no provision requiring the rules of evidence in community

supervision cases). This means that unlike other, inapposite areas of post-conviction

practice in Texas, a party in a capital habeas proceeding cannot present information

and “evidence” for the court’s merits consideration simply by attaching documents to

pleadings. The State, however, ignores the statutory distinction between the different

Texas post-conviction proceedings, citing community supervision post-conviciton

cases to argue that a capital post-conviction court can consider everything in the

“record” as “evidence.” See BIO at 29-30.

Of course, attachments to pleadings are part of the habeas record. But in a

post-conviction statutory scheme where the Rules of Evidence apply, materials

attached to pleadings cannot constitute evidence for the purposes of fact adjudication

when no party has moved to admit them as evidence, the opposing party has not had

an opportunity to object to their admission, and no court has admitted them for the

purpose of adjudicating any identifiable fact dispute. Were it otherwise, any

documents filed by any party with the court clerk would be considered evidence

because it was part of the habeas “record.”

III.

The TCCA Opinion Was Unreasoned and Unreliable

The State strains to argue that Mr. Balderas was not denied due process

because the TCCA conducted its own review of the habeas court’s findings of fact and

conclusions of law, and “denied relief in a reasoned opinion that specifically addressed

the claims raised in Balderas’s habeas application.” BIO at 29.

7

Here, the TCCA summarily adopted the habeas court’s findings, holding that

Mr. Balderas failed to meet his burden of proof on his claims even though he was

denied the opportunity to introduce evidence in support of his claims. They also

rejected Mr. Balderas’s Brady claim for want of supporting evidence, while also

failing to reference, or even consider, the motion for remand filed with the court

following the State’s late-breaking Brady disclosures. See Ex parte Balderas, No. WR84-066-01, 2019 WL 6885361 (Tex. Crim. App. 2019). By ignoring the motion to

remand, the TCCA circumvented its obligation to undertake a good-faith and

reasoned review of the Brady claims alleged by Mr. Balderas.

Out of Mr. Balderas’s fourteen claims, the TCCA denied relief citing

inadequate evidence in nine claims. See App.A (denying claims one, two, three, four,

five, six, seven, eight, and nine for failure to demonstrate these claims through

sufficient evidence). Mr. Balderas, however, was denied the opportunity to present

evidence for most of these claims, and then in an astounding display of judical

gaslighting, denied relief for failing to support his claims with evidence. Mr. Balderas

raised a claim that his death sentence was unconstitutional because it was imposed

due to racial and ethnic animus; the TCCA, however, pretended this claim did not

exist and failed to adjudicate it. Mr. Balderas also raised a Batson v. Kentucky claim

based on the collusion between trial counsel and the State to systematically exclude

African-American jurors from the case. Even though this claim was predicated on the

collusion of trial counsel, the TCCA held that the claim was procedurally barred

because it should have been the subject of a trial objection. App.A. And in

8

adjudicating Mr. Balderas’s claim of juror misconduct, the TCCA mischaracterized

Mr. Balderas’s claim, unfairly and erroneously splitting Mr. Balderas’s claim,

denying Mr. Balderas the cumulative effect of prejudice. App.A.

This Court is unfortunately all too aware of the lack of meaningful review in

the TCCA. In Andrus v. Texas, 140 S. Ct. 1875 (2020), this Court considered an

analogous case from the TCCA, where it was entirely unclear what, if any, legal

analysis had been done. See id. at 1886 (“It is unclear whether the Court of Criminal

Appeals considered Strickland prejudice at all.”). In Andrus, the Supreme Court

summarily reversed the TCCA adjudication of a Wiggins claim, which the TCCA

denied in one sentence of an unpublished decision that engaged in no meaningful

analysis. The conclusory, one-sentence denial of Mr. Andrus’s Strickland claim did

not reveal any legal analysis from which it could have been determined that Mr.

Andrus failed to satisfy one, the other, or both Strickland prongs. Id.2

Just as in Andrus, the TCCA’s analysis of Mr. Balderas’s claims, if any, was

entirely cursory. The Texas court failed to engage with the Brady claim,

mischaracterized other claims, and completely failed to decide a racial animus claim.

But see Buck v. Davis, 137 S. Ct. 757, 777 (2017) (“Some toxins can be deadly in small

doses.”). While the State argued that the decision below was based on a “thorough

opinion” that reflected an independent “review of the record”, the reality is far from

2 See also Jordan M. Steiker, et al., The Problem of “Rubber Stamping in State Capital

Habeas Proceedings, 55 HOUS. L. REV. 889, 893 (2018) (noting as an example of the

unreliable judicial decision making of the TCCA, the routine practice of adopting the

habeas court’s findings of fact and conclusions of law absent any reasoned analysis of

the claims presented in capital post-conviction matters).

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that. BIO at 40. At most, the TCCA engaged in an abbreviated analysis—which this

Court has rejected—and failed to conduct the “weighty and record-intensive analysis”

necessary to adequately address ineffective assistance of counsel claims. Andrus, 149

S. Ct. at 1887.

Hostility to review, unfortunately, is commonplace in Texas. See, e.g., id.; see

also Moore v. Texas, 139 S. Ct. 666, 672 (2019) (Roberts, C.J., concurring) (“On

remand, the [TCCA] repeated the same errors that this Court previously

condemned—if

not

quite in

haec

verba,

certainly

in

substance.”

Were this Court to allow the TCCA decision in this case to stand, it would encourage

the TCCA to disregard the correct and well-articulated legal principals of this Court,

while also discouraging other habeas courts from conducting meaningful review in

capital postconviction proceedings.

IV.

The State’s Brief Reveals a Hostility to Review Inconsistent With

This Court’s Practice and Precedent

The State begins its argument for denying the writ by stating that Mr.

Balderas’s question presented is not a “compelling reason” and thus “unworthy of the

Court’s attention.” BIO at 20. However, if the amount of process due in collateral

proceedings that implicate the constitutional validity of a conviciton and death

sentence is not a “compelling reason”, it is hard to see what would be. The State then

argues that "even if the Court was inclined to grant review, it need not do so in the

instant proceeding because Mr. Balderas has yet to seek federal habeas corpus relief.”

Id. The State’s reasoning on this point is flawed because this argument would leave

little room for this Court to review any state proceedings. Far from challenging the

10

merits of Mr. Balderas’s argument, the State’s position regarding review

demonstrates a hostility towards this Court’s examination of Texas state habeas

decisions and a willful ignorance of recent decision making by this Court.

While the State is correct that review on writ of certiorari is discretionary, id.,

the State’s position smacks of conflating this Court’s discretion to grant review with

foreclosure of review. The State brazenly argues that this Court’s review of state

collateral proceedings would “frustrate th[e] clear purpose” of AEDPA. BIO at 21. In

support, the State cites Justice Stevens’s concurrence in Kyles v. Whitley3,

highlighting his observation that “the Court usually deems federal habeas

proceedings to be the more appropriate avenues for consideration of federal

constitutional claims.” BIO at 20. However, the State fails to acknowledge that Kyles

v. Whitley was decided six years prior to Congress’s passage of the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA), which significantly narrowed the scope

of federal habeas review. It is simply disingenuous to apply what Justice Stevens

noted in a pre-AEDPA case to a post-AEDPA world.

Moreover, if the State’s argument were accepted it would imply that recent

cases arising out of state habeas proceedings were improvidently granted and decided

because they frustrated the will of Congress. But see Andrus, 140 S. Ct. at 1875

(vacating the judgment of the Texas Court of Criminal Appeals and finding “[t]he

evidence makes clear that Andrus’ counsel provided constitutionally deficient

performance under Strickland.”); Moore v. Texas, 137 S. Ct. 1039 (2017)(Moore

3 498 U.S. 931 (1990).

11

I)(holding that the factors adopted by the Texas Court of Criminal Appeals used to

evaluate an Atkins claim create an “unacceptable risk” of executing a person with

intellectual abilities in violation of the Eighth Amendment); Moore v. Texas, 139 S.

Ct. 666 (2019)(Moore II)(holding that “the [TCCA’s] opinion, when taken as a whole

and when read in the light both of our prior opinion and the trial court record, rest

upon analysis too much of which too closely resembles what we previously found

improper.”); Wearry v. Cain, 136 S. Ct. 1002 (2016) (reversing the judgment of the

Louisiana post-conviciton court and finding a due process violation); Hinton v.

Alabama, 571 U.S. 263 (2014)(vacating the Court of Criminal Appeals of Alabama

decision and finding deficient performance by defense counsel under Strickland);

Smith v. Cain, 565 U.S. 73 (2012) (reversing a state court’s denial of a Brady claim);

Foster v. Chatman, 136 S. Ct. 1737 (2016) (reversing a state court denial of a Batson

claim). See also Padilla v. Kentucky, 599 U.S. 365 (2010)(reversing a state court

judgment and holding that Strickland’s ineffective assistance test applies not only to

“affirmative misadvice” but also to the alleged omissions by counsel regarding

immigration consequences of criminal convictions).

This Court considered and rejected similar arguments in Wearry. There, the

Court noted that it exercised its jurisdiction to review final judgments of state postconviction courts in appropriate circumstances. 136 S. Ct. at 1008. As such, the Court

noted that “reviewing the Louisiana courts' denial of postconviction relief is thus

hardly the bold departure the dissent paints it to be. The alternative to granting

12

review, after all, is forcing Wearry to endure yet more time on Louisiana's death row

in service of a conviction that is constitutionally flawed.” Id.

This Court’s decisions in Dunn v. Madison4 and Madison v. Alabama5 are also

illustrative of the centrality of certiorari review over state court judgments to ensure

that constitutional rights are vindicated in the age of AEDPA. At issue was the

petitioner, Vernon Madison’s, claim that his dementia and complete memory loss of

the offense precluded his execution under Ford.6 In Dunn, the Court reversed the

Ford stay granted by the Eleventh Circuit, holding that, pursuant to AEDPA, it was

not clearly established whether Ford protected persons whose suffered from from

dementia. In concurring with the decision, Justices Ginsberg, Breyer, and Sotomayor

invited this question to be raised again—not in the federal habeas/AEDPA context -but in a state habeas application that could be reviewed on certiorari. Dunn, 138 S.

Ct. at 12 (“The issue [presented] is a substantial question not yet addressed by the

Court. Appropriately presented, the issue would warrant full airing. But in this case,

the restraints imposed by the Antiterrorism and Effective Death Penalty Act of 1996,

I agree, preclude consideration of the question.”) (emphasis added). This is exactly

what happened. The following year, after litigation of the Ford question in state postconviction proceedings, this Court granted certiorari in Madison v. Alabama, and

decided the Eighth Amendment question in its review of the state court judgment.

Madison, 139 S. Ct. at 726 (acknowledging “[b]ecause the case now comes to us on

4 138 S. Ct. 9 (2017)

5 139 S. Ct. 718 (2019)

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

13

direct review of the state court’s decision (rather than in a [federal] habeas

proceeding), AEDPA’s deferential standard no longer governs”).

As much as the State might wish otherwise, AEDPA does not block Supreme

Court review of state habeas proceedings and it is far-fetched to suggest otherwise.

CONCLUSION

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

in the capital post-conviction context, where state courts adjudicate claims regarding

the constitutional validity of a conviction and death sentence.

Respectfully submitted,

OFFICE OF CAPITAL & FORENSIC WRITS

/s/ Benjamin Wolff

Benjamin Wolff, Counsel of Record*

Torrance Castellano**

Leslie Wine***

Office of Capital and Forensic Writs

1700 North Congress Avenue, Suite 460

Austin, Texas 78701

(512) 463-8600

Counsel for Petitioner,

Juan Balderas

**Barred in the District of Columbia

*** Barred in the State of Texas

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