Petition for Writ of Certiorari — James Calvert, Petitioner v. Texas

No.

IN THE

Supreme Court of the United States

_______________________________

JAMES CALVERT,

v.

Petitioner,

STATE OF TEXAS,

Respondent.

_______________________________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE TEXAS COURT OF CRIMINAL APPEALS

_______________________________

PETITION FOR A WRIT OF CERTIORARI

_______________________________

CAPITAL CASE

Marc R. Shapiro

Counsel of Record

James L. Stengel

C. Anne Malik

Darren E. Pouliot

ORRICK, HERRINGTON &

SUTCLIFFE LLP

51 West 52nd Street

New York, NY 10019

(212) 506-5000

mrshapiro@orrick.com

Counsel for Petitioner

i

CAPITAL CASE

QUESTION PRESENTED

Mr. Calvert, proceeding pro se, was made to wear

a shock cuff and leg brace throughout his capital trial.

Mid-trial, deputies activated the shock cuff, causing

Mr. Calvert to scream. Though jurors were not in the

courtroom at the time, they were in the hallway adjacent to it. Counsel interjected that he “highly suspected” jurors heard Mr. Calvert’s screams.

On direct appeal, the Texas Court of Criminal Appeals held that “activating the shock cuff as a means

to get Appellant to stand up when addressing the trial

court violates due process.” However, the court affirmed the conviction because there was “no evidence

that the shock cuff’s activation had a negative effect

on the jurors’ impartiality or the presumption of innocence.” In state postconviction proceedings, Mr. Calvert alleged counsel was ineffective for failing to

investigate and present evidence that jurors heard

and were impacted by Mr. Calvert’s screams. Despite

Mr. Calvert’s proffer from an alternate juror that she,

while with other jurors, heard the screams, the postconviction court precluded Mr. Calvert from presenting evidence in support of his ineffectiveness claim.

The question presented is: Where a state’s highest

criminal court finds constitutional error but holds the

record on direct appeal is insufficient to require reversal, does due process require that the state postconviction court afford the postconviction petitioner an

opportunity to present the evidence in support of his

attorney ineffectiveness claim?

ii

RELATED PROCEEDINGS

Texas Criminal Proceedings

Texas 241st District Court (Smith County):

State v. Calvert, No. 241-1467-12 (Oct. 14,

2015) (state trial court proceeding).

Texas Court of Criminal Appeals:

James Calvert v. State of Texas, No. AP77,063 (Oct. 9, 2019) (state appellate court decision

on direct appeal).

James Calvert v. State of Texas, No. AP77,063 (June 17, 2020) (state appellate court order

denying motion for rehearing)

United States Supreme Court:

James Calvert v. State of Texas, No. 20-701

(May 17, 2021) (order and opinion respecting denial

of certiorari).

Texas Post-Conviction Proceedings

Texas 241st District Court (Smith County):

Ex parte Calvert, No. 241-1467-12-A (July 22,

2021) (state habeas court postconviction proceeding).

Texas Court of Criminal Appeals:

Ex parte Calvert, No. WR-85,283-01 (Oct. 6,

2021) (state appellate court denying habeas petition)

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........................................ i

RELATED PROCEEDINGS ..................................... ii

TABLE OF AUTHORITIES ......................................v

INTRODUCTION ..................................................... 1

OPINIONS AND ORDERS BELOW ........................ 1

JURISDICTION ........................................................ 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ................................ 2

STATEMENT OF THE CASE .................................. 2

Trial Proceedings ................................................ 4

State Direct Appeal Proceedings ....................... 8

State Postconviction Proceedings ...................... 9

REASONS FOR GRANTING THE WRIT.............. 15

I.

Certiorari Should Be Granted Because

The Petition Presents An Important,

Unresolved Question About The Minimum

Due Process Required In Capital

Postconviction Proceedings .............................. 18

A. This Court has held in other criminal

postconviction contexts that states

must afford defendants certain

minimum due process protections. ............. 19

B. Texas denies certain minimum due

process protections in resolving postconviction constitutional claims. ................ 22

iv

C. This case presents an excellent vehicle

for resolving the question presented. ......... 28

CONCLUSION ........................................................ 30

APPENDIX

APPENDIX A

Postconviction Opinion of

Texas Court of Criminal Appeals (October 6, 2021) ................. 1a

APPENDIX B

Findings of Fact and Suggested

Conclusions of Law (241st Dist.

Ct. of Smith Cnty. Tex. July

22, 2021) ....................................... 5a

APPENDIX C

Direct Appeal Opinion of Texas

Court of Criminal Appeals (October 9, 2019) .............................131a

APPENDIX D Calvert v. Texas Opinion Respecting Denial of Certiorari

Following Direct Appeal (May

17, 2021) ....................................315a

v

TABLE OF AUTHORITIES

Page(s)

Cases

Armstrong v. Manzo,

380 U.S. 545 (1965)............................................. 20

Ballinger v. Prelesnik,

709 F.3d 558 (6th Cir. 2013)............................... 27

Blue v. Thaler,

665 F.3d 647 (5th Cir. 2011)......................... 21, 27

Boddie v. Connecticut,

401 U.S. 371 (1971)............................................. 19

Cullen v. Pinholster,

563 U.S. 170 (2011)............................................. 27

Ellis v. Lynaugh,

873 F.2d 830 (5th Cir. 1989).............................. 26

Evans v. McCotter,

805 F.2d 1210 (5th Cir. 1986)............................. 26

Evitts v. Lucey,

469 U.S. 387 (1985)....................................... 15, 19

Ex parte Empey,

757 S.W.2d 771 (Tex. Crim. App. 1988) ............. 24

Ex parte Evans,

964 S.W.2d 643 (Tex. Crim. App. 1998) ............. 24

Ex parte Johnson,

811 S.W.2d 93 (Tex. Crim. App. 1991) ............... 26

Ford v. Wainwright,

477 U.S. 399 (1986)................ 15, 18, 19, 20, 21, 26

vi

Glossip v. Gross,

576 U.S. 863 (2015)............................................. 25

Goldberg v. Kelly,

397 U.S. 254 (1970)............................................. 20

Hall v. Quarterman,

534 F.3d 365 (5th Cir. 2008)................... 20, 26, 27

Harrington v. Richter,

562 U.S. 86 (2011)........................................... 2, 22

Keeney v. Tamayo-Reyes,

504 U.S. 1 (1992)........................................... 18, 21

Morrissey v. Brewer,

408 U.S. 471 (1972)............................................. 18

Ohio Adult Parole Auth. v. Woodard,

523 U.S. 272 (1998)............................................. 22

Panetti v. Quarterman,

551 U.S. 930 (2007)............................................. 21

Schriro v. Landrigran,

550 U.S. 465 (2007)............................................. 20

Tercero v. Stephens,

738 F.3d 141 (5th Cir. 2013)............................... 21

Townsend v. Sain,

372 U.S. 293 (1963)............................................. 18

Trevino v. Thaler,

569 U.S. 413 (2013)......................................... 3, 16

Constitutional Provisions

U.S. CONST. amend. XIV, § 1 ..................................... 2

Statutes

28 U.S.C. § 1257 ......................................................... 1

vii

TEX. CODE CRIM. PROC. art. 11.071.....2, 10, 18, 23, 24

Other Authorities

Steiker et al., The Problem of RubberStamping in State Capital Habeas

Proceedings: A Harris County Case

Study, 55 Hous. L. Rev. 889 (2018) .................... 26

INTRODUCTION

Petitioner James Calvert respectfully petitions

for a writ of certiorari to review the denial of his application for habeas corpus by the Texas Court of

Criminal Appeals in connection with his conviction

and sentence of death.

OPINIONS AND ORDERS BELOW

The order of the Texas Court of Criminal Appeals

denying the application for a writ of habeas corpus is

unreported and reproduced at Pet. App. 1a-4a. The

state district court’s findings of fact and conclusions

of law in connection with the application for writ of

habeas corpus are unreported and reproduced at Pet.

App. 5a-130a. The Texas Court of Criminal Appeals’

opinion denying Petitioner’s direct appeal is unreported and available at 2019 WL 5057268 and Pet.

App. 131a-314a. This Court denied certiorari on May

17, 2021, with Justice Sotomayor issuing a statement

respecting the denial of certiorari on direct appeal is

available at 141 S.Ct. 1605 and Pet. App. 315a-319a.

JURISDICTION

The Texas Court of Criminal Appeals entered its

judgment on October 6, 2021. Pet. App. 4a. On December 30, 2021, this Court granted Petitioner’s application to extend the time to file a petition for a writ of

certiorari until February 3, 2022. This Court has jurisdiction pursuant to 28 U.S.C. § 1257.

2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Due Process Clause of the Fourteenth

Amendment to the United States Constitution, which

provides that “[n]o State shall . . . deprive any person

of life, liberty, or property, without due process of

law[.]” U.S. CONST. amend. XIV, § 1.

The Texas Code of Criminal Procedure, art.

11.071, which provides in part:

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. To resolve the

issues, the court may require affidavits, depositions, interrogatories, and evidentiary

hearings and may use personal recollection.

TEX. CODE CRIM. PROC. art. 11.071, § 9(a).

STATEMENT OF THE CASE

The Antiterrorism and Effective Death Penalty

Act (“AEDPA”) recognizes “state courts are the principal forum for asserting constitutional challenges to

state convictions.” Harrington v. Richter, 562 U.S. 86,

88, 103 (2011). Indeed, on account of AEDPA’s barriers to evidentiary development and merits review in

federal court, see 28 U.S.C. § 2254(d), (e), state postconviction proceedings are designed to be the last and

3

only forum in which a prisoner may marshal evidence

and secure merits review of his claims. But where

state courts skirt the opportunities for factual development and merits review, particularly where they

claim to have made factual determinations that could

inoculate against later evidentiary development, due

process demands the existence of some forum where a

death-sentenced prisoner may present evidence and

secure meaningful review of his constitutional claims.

In Texas, the first meaningful opportunity for a

prisoner to raise and obtain review of an effective

counsel of claim is in state postconviction. Trevino v.

Thaler, 569 U.S. 413, 423 (2013). Mr. Calvert was

given no such opportunity. Despite the Texas Court of

Criminal Appeals (“CCA”) recognition on direct appeal that Mr. Calvert’s due process rights were violated when court officials electrocuted him and caused

him to scream out in pain, it recognized the lack of

“evidence in the record [on direct appeal] that jurors

heard Appellant scream.” Pet. App. 154a-155a.

Trial counsel’s inexplicable failure to investigate

and present evidence jurors heard and were impacted

by the screams was one of Mr. Calvert’s central claims

in postconviction. But the state postconviction court

precluded Mr. Calvert from presenting the prejudicial

evidence he contends was available to his trial attorneys. It did so notwithstanding Mr. Calvert’s proffer

of such evidence alongside his application. Instead, it

denied him an evidentiary hearing or an opportunity

to present actual evidence via affidavit. Perversely,

the state postconviction court then relied on the absence of evidence that Mr. Calvert’s electrocution had

4

any effect on the jury to deny his claim of ineffective

assistance of counsel. Pet. App. 25a.

This case thus illustrates the adverse consequences of state courts refusing to uphold their end of

the federalism bargain struck by the Antiterrorism

and Effective Death Penalty Act.

The Petition should be granted, and the decision

below should be reversed.

Trial Proceedings

Petitioner James Calvert was married to Jelena

Sriraman. HR1 111. 1 The two divorced in 2010. Id.

Ms. Sriraman had primary custody of their children

and Mr. Calvert weekend and certain weekday visitation rights. Id. In 2012, Ms. Sriraman successfully

petitioned to allow her and the children to move up to

500 miles away. Id. at 113. Mr. Calvert, already in a

fragile state from several prior severe depressive episodes, would learn of this shortly before he was scheduled to take their children trick-or-treating. Id. at

124. On the evening of Halloween 2012, Mr. Calvert

arrived to pick up the children but after Ms. Sriraman

answered his knock at the door, an altercation ensued, and she was shot and killed. RR 128:59. Mr. Calvert was convicted of shooting his ex-wife and

1 The Reporter’s Record from the trial is abbreviated as

“RR”; the Clerk’s Record from the trial is abbreviated as “CR”;

the state habeas record transmitted July 28, 2021, to the CCA is

abbreviated as “HR1”; the state habeas record transmitted July

23, 2021, to the CCA is abbreviated as “HR2”, the state habeas

record transmitted July 22, 2021, to the CCA is abbreviated as

“HR3”.

5

departing her home with the couple’s four-year-old

son. CR 25:5641. Mr. Calvert had no significant prior

criminal record. HR1 130. He did, however, have a

history of depression and severe mental illness. HR1

108.

After the shooting, the police soon found Mr. Calvert driving away with his son in the back seat. RR

139:87-88. One officer later testified that Mr. Calvert

looked “dazed,” was “[j]ust staring at us,” and that

“[n]ormally when people run from us, they don’t just

stare at you.” RR-140:184. The officer testified that

when Mr. Calvert was stopped and arrested, he “made

a very conscious statement of ‘[j]ust don’t shoot my

child.’” RR 140:186.

Mr. Calvert, due to his indigent status, received

appointed counsel Jeff Haas and Matt Cassell to represent him on charges of capital murder. CR 1:22, 63.

From the start, trial counsel maintained a strained

relationship with Mr. Calvert, who exhibited erratic

and disturbing behavior and believed Mr. Haas “ha[d]

already decided on what [Mr. Calvert’s] fate [was] going to be.” RR 5:22.

Mr. Calvert’s frustrations with appointed counsel

boiled over into a demand that he be allowed replacement counsel. When that request was denied, he reluctantly agreed to proceed pro se. RR 12:3. The trial

court did not appoint independent counsel to advise

Mr. Calvert on the wisdom of proceeding pro se or to

assess Mr. Calvert’s competency to represent himself

in the most stressful of proceedings—a capital trial.

Instead, the court’s appointed expert Dr. Dunn issued

a brief report which downplayed Mr. Calvert’s

6

conditions and concluded he was competent to waive

his right to counsel (though it did not further conclude

he was also competent to represent himself). RR 14.

Appointed counsel made no objection and did not ask

any questions of Dr. Dunn. Id. Thus, despite Mr. Calvert’s glaring mental health issues, he was allowed to

proceed pro se. RR 14:64-65. In a concededly unprecedented move, trial counsel were then appointed as

standby counsel. RR 14:81; 21:80 (“I’ve never seen

this before in a capital murder case where the State’s

seeking the death penalty.”).

Throughout the trial, Mr. Calvert was made to

wear a shock cuff—a kind of electric collar capable of

delivering a 50,000-volt electric shock upon the

court’s activation. RR 124:28. Though nominally for

security, the trial court would later make clear: “I’m

not talking a security threat. I’m talking about you

listening to me. When the jury comes in, stand up.

When you object, stand up. When the Court rules, sit

down.” RR 155:77.

During the trial’s guilt phase, the court held a

hearing shortly before which the jury had exited the

courtroom but remained within earshot. During a

substantive discussion regarding the direction of Mr.

Calvert’s recent questioning of a witness, the trial

court instructed Mr. Calvert to “stand up,” and the

following exchange ensued:

THE COURT: Stand up when you talk to the

Court. All they need you to do is stand up

when you talk to the Court. That’s what lawyers do. They stand up. Mr. Haas, he’s—

7

CAPTAIN CARAWAY: Stand up.

SGT. SHOEMAKER: I told you to stand up.

CAPTAIN CARAWAY: Stand up

(Shock bracelet [sic] activated on defendant.)

RR 155:221. Although the court transcript did not

pick up Mr. Calvert’s screams, news reporters present

at the time contemporaneously indicated that Mr.

Calvert had screamed for about five seconds—a fact

further confirmed by the CCA’s findings. Pet. App.

149a-151a. Likewise, standby counsel noted the

scream, which no one disputed, and indicated they

“highly suspect[ed]” the jury heard it as well. Pet.

App. 147a.

In the aftermath of the shock cuff event, the trial

court terminated Mr. Calvert’s pro se representation

and reappointed standby counsel as trial counsel.

HR1 39. Despite the obvious necessity for doing so,

trial counsel made no effort to ascertain whether jurors heard the screams. The Court acknowledged that

it “of course, [could not] say how far up the hall . . .

the jury went.” RR 157:24. But Mr. Haas, who was

newly reinstated as counsel and present when the

jury left the courtroom and the shock cuff incident occurred, stated on the record: “God knows, if the jury,

which I highly suspect, did hear the screams that Calvert let out after he was zapped.” RR 157:167-17. Despite the court’s and counsel’s suspicions, counsel did

not investigate. With no evidence before it, the court

denied a mistrial motion in part because there was

8

“no evidence in this record to reflect in any way that

any juror heard anything . . . .” RR 157:24.

Following the prosecution’s closing, the jury returned a swift verdict finding Mr. Calvert guilty of

“capital murder” “as charged in the indictment.” CR

25:5641.

At the penalty phase, the prosecution marshalled

24 witnesses in support of a death sentence. HR1 19.

Defense counsel called a single witness and failed to

object to the prosecution’s introduction of evidence

concerning other inmates’ violent activities. See Pet.

App. 317a (Sotomayor, J., respecting the denial of certiorari on direct appeal) (“Calvert raises a serious argument that the State’s reliance on a graphic instance

of violence by an unrelated inmate to prove that he

posed a future danger deprived him of his right to an

individualized sentencing.”). The jury then found that

there was “a probability” that Mr. Calvert would commit criminal acts of violence that would constitute a

continuing threat to society and insufficient mitigating circumstances existed to warrant a sentence of life

imprisonment. CR 25:5707-08.

As a result of these and other serious errors, Mr.

Calvert was sentenced to death. CR 25:5707-09.

State Direct Appeal Proceedings

On direct appeal, in addressing Mr. Calvert’s constitutional claim arising out of his mid-trial electrocution, the CCA agreed with Mr. Calvert that

“activating the shock cuff as a means to get Appellant

9

to stand up when addressing the trial court violate[d]

due process.” Pet. App. 152a.

However, the CCA affirmed the conviction on this

point because “[a]bsent evidence in the record that jurors heard Appellant scream, [it would] not speculate

that they did” and, therefore, there was “no evidence

that the shock cuff’s activation had a negative effect

on the jurors’ impartiality or the presumption of innocence.” Pet. App. 154a-155a.

Mr. Calvert then filed a petition for writ of certiorari requesting that this Court review the CCA’s decision on this and other points of error. His petition

was denied. However, Justice Sotomayor wrote separately with respect to the denial on direct appeal, noting that “[a]lthough it may be appropriate for this

Court to defer to the lower court’s factbound prejudice

determination… [i]f there could ever be an excuse for

such violence, enforcing courtroom decorum would

not be it.” Pet. App. 317a. Justice Sotomayor also

noted that, although his unrelated Eighth Amendment claim “[did] not meet the Court’s traditional criteria for granting certiorari,” it may also “implicate

due process” and Mr. Calvert nevertheless “raise[d] a

serious argument that the State’s reliance on a

graphic instance of violence by an unrelated inmate

to prove that [Mr. Calvert] posed a future danger deprived him of his right to an individualized sentencing.” Pet. App. 317a-318a.

State Postconviction Proceedings

Following conclusion of Mr. Calvert’s trial, he obtained new counsel to represent him in postconviction

10

habeas litigation. Mr. Calvert filed his Initial Application for Writ of Habeas Corpus (the “Application”)

on November 1, 2018, advancing seven claims for relief. HR1 3-238. Of particular relevance, Mr. Calvert

alleged that trial counsel unreasonably and prejudicially failed to demonstrate the jury was aware of, and

was detrimentally affected by, the court’s use of the

shock cuff. HR1 65. Counsel had made no effort to ascertain whether the jurors heard the screams, despite

trial counsel stating on the record: “God knows, if the

jury, which I highly suspect, did hear the screams

that Calvert let out after he was zapped…” RR

157:16-17. As it turns out, the jurors had. Alongside

his Application, Mr. Calvert submitted a proffer in the

form of a declaration by an alternate juror who stated

that while situated with the other jurors after leaving

the courtroom, she heard Mr. Calvert’s screams. HR1

173.

The trial court, now sitting in its capacity as state

habeas court to review the conviction it just entered,

designated four claims for future resolution which

concerned the ineffective assistance of counsel received, on grounds that “controverted, previously unresolved factual issues material to the legality of the

applicant’s confinement exist.” TEX. CODE CRIM.

PROC. art. 11.071; see also HR2 320-21.

Mr. Calvert, however, would be given no opportunity to present evidence in support of his claims or

confront the new evidence offered against him. Instead, what followed was a process that was both at

odds with Texas’ own statutory protocol and contrary

to the minimum requirements of Due Process.

11

To begin, the State filed what it styled a “Preliminary Answer” to the Application in which it conceded

that unresolved factual issues existed concerning

claims one through four relating to the ineffective assistance of trial counsel. HR2 203-317.

Despite that, Mr. Calvert was denied an opportunity to put on evidence. Instead, the State proposed,

and the court agreed, to limit the nature of the evidence the court would receive and manner in which

the court would receive it. It moved the court to hold

a “hearing” by ordering trial counsel to produce affidavits responding to the Application, after which the

State would submit a “supplemental answer” incorporating such information. HR2 242-243.

The court then ordered an asymmetric hearing

“by way of affidavit only” in which trial counsel (and

only trial counsel) would submit affidavits responding

to the allegations raised in the Application. HR2 32021. Mr. Calvert objected to this procedure, HR2 381417, and repeatedly moved the court to hold the required evidentiary hearing and permit postconviction

production and discovery from the state. 2 In the alternative, Mr. Calvert requested that the court also afford him an opportunity to submit affidavits and

thereby allow him to present the testimony he would

have presented at an evidentiary hearing. HR3 214.

2 Mr. Calvert would repeatedly move the court, over a twoyear period, to hold the required evidentiary hearing and permit

postconviction production and discovery, including on May 17,

2019, March 12, 2021, June 8, 2021, and June 11, 2021. See HR2

381-417; HR3 19-20, 210-213, and 214-224. The court would ignore all of Petitioner’s motions below.

12

The court ignored those motions and never ruled on

them.

Postconviction counsel uncovered during investigation the very evidence the Court of Criminal Appeals said was necessary to substantiate Mr. Calvert’s

allegations: evidence that jurors indeed heard Mr.

Calvert’s screams. See HR1 173-74. This initial evidence, in the form of a declaration by an alternative

juror, 3 was included alongside Mr. Calvert’s Application as a proffer of the evidence which could be adduced in support of one of Mr. Calvert’s seven claims

for relief. By its nature, the proffer suggested that

other available evidence existed from more jurors

which could be adduced in appropriate proceedings or

at minimum, used as foundation for testing the decision by trial counsel to willfully blind themselves as

to what the jury heard.

Mr. Calvert would be given no opportunity to present this or any other evidence in support of the

grounds which both the State and court agreed raised

controverted, previously unresolved factual issues.

Instead, the court unquestioningly adopted the state’s

devised procedure.

In March 2021, trial counsel finally submitted

their affidavits. The affidavits did not, however, resolve the controverted material issues. Indeed, as Mr.

3 Texas postconviction rules do not require the submission

of affidavits alongside the application. Mr. Calvert did so to reinforce the necessity of evidentiary development—i.e., to demonstrate that though the allegations in his application should be

sufficient to warrant a hearing, there were more.

13

Haas remarked in his statement, “There is an allegation that Trial Counsel was ineffective by refusing to

turn over our mitigation reports to Mr. Calvert. I really have no memory of when or even if this happened.” HR3 17. Other issues, such as counsel’s

ineffectiveness in failing to advance readily available

defenses including that no burglary or kidnapping occurred—in light of Mr. Calvert’s invitation to the

home to take his child trick-or-treating—were omitted from counsels’ affidavits entirely. See HR3 11-18,

23-27. This latter issue was particularly important in

order for the State to establish capital murder, distinguished from murder for which the maximum penalty

was life imprisonment. See HR1 51.

The State then moved the court to unseal certain

ex parte records which—despite being available in

2019 during the State’s initial answer—were now said

to contain the last information needed to answer the

Application. The court granted the motion, finding:

“The Court ordered trial counsel to prepare affidavits

in response to those grounds [concerning ineffective

assistance]. Those affidavits have been filed with the

Court and, while very helpful, they do not provide sufficient information regarding all of the allegations

made against them by writ counsel.” HR3 32.

On May 28, 2021, the State submitted proposed

findings of fact and conclusions of law. HR3 105-165.

In doing so, the State impliedly asked the postconviction court to deny Mr. Calvert the opportunity to present any evidence in support of his claims and deny

him a hearing from which proposed findings could be

drafted, as contemplated by Art. 11.071. Mr. Calvert

renewed his outstanding motions for evidentiary

14

hearing and postconviction discovery. At a minimum,

he asked that the Court set a date by which Mr. Calvert could submit his own proposed findings of fact

and conclusions of law (despite the lack of any opportunity to present evidence or challenge the State’s evidence) following the State’s sua sponte submission.

HR3 210.

Mr. Calvert shortly thereafter filed a full Motion

for Relief for Violations of Art. 11.071 in which he requested seven alternative grounds for relief, including that the State’s improper and untimely

“supplemental” answer and proposed findings be

struck and a hearing held concerning Mr. Calvert’s

Application. HR3 214-224. The habeas court again ignored Mr. Calvert’s motions and issued no ruling on

either. Facing the risk that the state court would consider Mr. Calvert’s right to submit proposed findings

waived and unquestioningly adopt the State’s submission, Mr. Calvert then submitted his own proposed

findings while maintaining his objection to the lack of

process. HR3 230-282.

Soon thereafter, the Court adopted the State’s

findings of fact and conclusions of law verbatim. HR3

287-353. Perversely, these adopted findings then relied on the lack of evidence that Mr. Calvert’s electrocution had any effect upon the jury’s deliberations or

their guilty verdict in denying Mr. Calvert’s claim for

ineffective assistance of counsel. The court reasoned,

“The record remains the very same now as on appeal.

There is still no evidence that any deliberating juror

was actually aware of the second shock incident when

deliberating guilt….” HR3 301.

15

The court then simultaneously ordered Mr. Calvert’s Application be submitted to the CCA for decision, confirming Mr. Calvert would receive no

opportunity to present evidence in support of his Application. HR3 353.

On October 6, 2021, the Texas Court of Criminal

Appeals issued a short, four-page order in which it

“adopt[ed] the trial court’s findings of fact and conclusions of law” and denied Mr. Calvert’s Application, asserting without any reasoned decision that “Applicant

fails to meet his burden under Strickland…” and that

the remaining claims were procedurally barred. Pet.

App. 2a-4a.

REASONS FOR GRANTING THE WRIT

AEDPA enshrines federal respect for state habeas

decisions; however, such deference is conditioned on

the existence of a fair state habeas process that comports with due process. While state courts are not constitutionally required to provide a mechanism for

postconviction review of a capital case, when a state

provides one, those proceedings must comport with

constitutional strictures, including the Due Process

Clause. See, e.g., Ford v. Wainwright, 477 U.S. 399,

416 (1986) (holding that Florida’s competency-to-beexecuted proceedings did not meet minimum due process requirements); Evitts v. Lucey, 469 U.S. 387, 401

(1985) (holding that due process requires the effective

assistance of appellate counsel when the state provides an appellate procedure).

In Texas, the first meaningful opportunity for a

prisoner to raise and obtain review of an effective

16

counsel of claim is in state post-conviction. Trevino v.

Thaler, 569 U.S. 413, 428 (2013). By its nature, the

claim will not be capable of being raised during trial.

And unlike other states, Texas makes it “virtually impossible for appellate counsel to adequately present

an ineffective assistance [of trial counsel] claim on direct review.” Id. at 423 (internal quotation marks

omitted). Thus, this Court concluded, “as a matter of

its structure, design, and operation,” the Texas procedural system “does not offer most defendants a meaningful opportunity to present a claim of ineffective

assistance of trial counsel on direct appeal.” Id. at

428. Accordingly, “a writ of habeas corpus … is essential to gathering the facts necessary to evaluate ineffective-assistance-of-trial-counsel claims.” Id. at 424

(alterations and quotation marks omitted). Thus,

without adequate state postconviction review, the

Sixth Amendment right to effective assistance of

counsel lacks meaningful enforcement. That is, at

least in part, because “[f]ederal habeas courts reviewing the constitutionality of a state prisoner’s conviction and sentence are guided by rules designed to

ensure that state-court judgments are accorded the finality and respect necessary to preserve the integrity

of legal proceedings within our system of federalism.”

Martinez v. Ryan, 566 U.S. 1, 9 (2012).

Here, the state habeas court—which also sat as

the trial court during the time Mr. Calvert’s electrocution violated his due process rights 4—denied Mr.

Calvert procedural due process in the following ways:

1) despite recognizing that material, disputed issues

4 Pet. App. 152a-154a.

17

of fact concerning Mr. Calvert’s ineffectiveness claims

existed, it engaged in an asymmetric procedure which

failed to provide Mr. Calvert with an opportunity to

present evidence in support of his claims, 2) it further

denied Mr. Calvert the opportunity to challenge adverse evidence, and 3) it did both while following a

“process” unhinged from the Texas Code of Criminal

Procedure which appeared designed to deny Mr. Calvert the opportunity to support his Application.

This case shows that Texas has developed a postconviction that falls short of what the Due Process

Clause demands and, in so doing, breached the federalism bargain struck by Congress in AEDPA. Indeed,

if the State’s representations below are accurate, the

lack of process Mr. Calvert experienced is “a very common practice across [the] State.” HR3 226. The case

thus presents an important question with implications that extend far beyond the particular case.

Certiorari should be granted to resolve whether a

state postconviction system violates Due Process were

it purports to allow for meaningful postconviction review but, in application, precludes death-sentenced

prisoners from presenting evidence to substantiate

their claims. These concerns are particularly acute in

Mr. Calvert’s case, and manifestly displayed, where

the direct appeals court previously concluded constitutional error occurred and Mr. Calvert made a proffer indicating that other available evidence exists to

substantiate his claim.

18

I.

Certiorari Should Be Granted Because The

Petition Presents An Important, Unresolved

Question About The Minimum Due Process

Required

In

Capital

Postconviction

Proceedings

Due process requires that a habeas applicant be

afforded certain procedural rights, including notice

and the opportunity to be heard. See Townsend v.

Sain, 372 U.S. 293, 312 (1963) (finding the availability of habeas corpus relief “presupposes the opportunity to be heard, to argue and present evidence.”),

overruled on other grounds by Keeney v. TamayoReyes, 504 U.S. 1, 5 (1992); see also Ford, 477 U.S. at

413 (“[A] fundamental requisite of due process of law

is the opportunity to be heard.” (quotation marks

omitted)). Cf. Morrissey v. Brewer, 408 U.S. 471, 489

(1972) (holding that parolees are generally entitled to,

inter alia, the opportunity to be heard and present

witnesses and documentary evidence, the right to confront and cross examine adverse witnesses, and a neutral and detached hearing officer). Thus, when the

judiciary acts, the relevant question is not whether

process is due but what process is due.

Texas law provides a mandatory statutory procedure for resolving constitutional claims alleged in an

application for writ of habeas corpus. See TEX. CODE

CRIM. PROC. art. 11.071. Accordingly, the minimum

guarantees of the Due Process Clause apply, and the

Constitution further demands that Texas’s postconviction procedures be applied fairly.

In Mr. Calvert’s case, however, the habeas court

failed to afford Mr. Calvert the minimum

19

constitutionally required process and failed to follow

Texas’s mandatory procedures. Instead, the state

court adopted the State’s concocted procedure for resolving Mr. Calvert’s claims over which material, disputed issues of fact existed. HR2 320-21. It denied Mr.

Calvert the opportunity to prove his allegations and

denied him the opportunity to confront statements by

witnesses relied on by the State.

A. This Court has held in other criminal

postconviction contexts that states must

afford defendants certain minimum due

process protections.

While a state is not required to provide a mechanism for a habeas applicant to collaterally attack a

criminal conviction, when it does, the procedures employed must comport with due process. See, e.g.,

Evitts, 469 U.S. at 401 (“[W]hen a State opts to act in

a field where its action has significant discretionary

elements, it must nonetheless act in accord with the

dictates of the Constitution—and, in particular, in accord with the Due Process Clause.”). Due process, at

a minimum, requires notice and the opportunity to be

heard in a manner appropriate to the nature of a case.

See, e.g., Boddie v. Connecticut, 401 U.S. 371, 378

(1971). This Court has repeatedly recognized that,

“[i]n capital proceedings generally, [it] has demanded

that factfinding procedures aspire to a heightened

standard of reliability.” Ford, 477 U.S. at 411 (plurality opinion).

A fair hearing requires the opportunity to present

evidence in support of constitutional claims and confront adverse evidence. See, e.g., Ford, 477 U.S. at 413

20

(finding the state process that failed to permit a

death-sentenced person to present evidence relevant

to his competence to be executed violated due process)

(plurality opinion); Goldberg v. Kelly, 397 U.S. 254,

269 (1970) (“In almost every setting where important

decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine

adverse witnesses.”).

While a hearing in the postconviction context may

be less formal than a trial, Ford, 477 U.S. at 427 (Powell, J., concurring), a “hearing” at least requires that

there be a formal process for admitting, objecting to,

and challenging the substance of evidence offered by

a party. See Goldberg, 397 U.S. at 267 (“The hearing

must be ‘at a meaningful time and in a meaningful

manner.’” (quoting Armstrong v. Manzo, 380 U.S. 545,

552 (1965))); see also Hall v. Quarterman, 534 F.3d

365, 389 (5th Cir. 2008) (Higginbotham, J., concurring in part) (“[T]he factfinder’s burden of making the

final determination ‘based upon all of the evidence

and determinations of credibility’ cannot be met by a

judge’s credibility assessment of conflicting affidavits.”). Indeed, in the federal postconviction context,

“[i]n deciding whether to grant an evidentiary hearing, a federal court must consider whether such a

hearing could enable an applicant to prove the petition’s factual allegations, which, if true, would entitle

the applicant to federal habeas relief.” Schriro v.

Landrigan, 550 U.S. 465, 474 (2007).

This Court has set out certain basic due process

requirements in specific state capital postconviction

contexts. In Panetti v. Quarterman, this Court explained

that

in

competency-to-be-executed

21

proceedings, “[due process] requires, at a minimum,

that a court allow a prisoner’s counsel the opportunity

to make an adequate response to evidence solicited by

the state court.” 551 U.S. 930, 952 (2007) (finding that

Texas failed to provide due process protections announced in Ford). Additionally, in Ford, this Court

recognized that the absence of a neutral decisionmaker, along with the prisoner’s ability to present

evidence, rendered Florida’s competency-to-be-executed proceedings constitutionally infirm. Ford, 477

U.S. at 412-13, 416; see also Panetti, 551 U.S. at 97172 (Thomas, J., dissenting) (“[T]he Florida procedures

required neither a neutral decisionmaker nor an opportunity for the prisoner to present evidence.”). In

most cases, “encouraging the full factual development

in state court of a claim that state courts committed

constitutional error advances comity by allowing a…

jurisdiction to correct its own errors in the first instance.” Keeney, 504 U.S. at 9.

Similar minimum due process protections, such

as the opportunity to be heard, to present evidence,

and to develop a claim before a neutral factfinder, apply when a death-sentenced prisoner raises a claim of

ineligibility for the death penalty. See Blue v. Thaler,

665 F.3d 647, 656-57 (5th Cir. 2011) (finding habeas

petitioner raising Eighth Amendment ineligibility

claim was entitled to “a set of core procedural due process protections: the opportunity to develop and be

heard on his claim that he is ineligible for the death

penalty”); Tercero v. Stephens, 738 F.3d 141, 148 (5th

Cir. 2013) (“[T]here is no sound basis for concluding

that such [due process] protections do not extend to

other instances, such as [a] Roper claim” of ineligibility due to age). This Court has also acknowledged,

22

even in the context of clemency, that “some minimal

procedural safeguards apply to clemency proceedings.” Ohio Adult Parole Auth. v. Woodard, 523 U.S.

272, 289 (1998) (O’Connor, J., concurring).

It would be incongruous if those same protections

did not apply to state postconviction proceedings in

which a death-sentenced person is afforded his only

opportunity to raise challenges to the constitutionality of his conviction and death sentence. Further,

AEDPA effectively imposes “a complete bar on federal[] court relitigation of claims already rejected in

state proceedings,” reflecting the view that “state

courts are the principal forum for asserting constitutional challenges to state convictions.” Harrington,

562 U.S. at 88, 102-103. It would be invidious if states,

in the age of AEDPA, could purport to resolve a deathsentenced person’s constitutional claims without adhering to such protections and effectively foreclose the

claims’ consideration by a federal court. See Gonzalez

v. Wong, 667 F.3d 965, 1016 (9th Cir. 2011) (Fletcher,

J., concurring) (“To hold that an improper state court

denial of discovery necessary to develop a federal constitutional claim prevents a federal court from considering in the first instance evidence discovered during

federal habeas unnecessarily binds the federal court

to the inadequate factfinding of the state court.”).

B. Texas denies certain minimum due

process

protections

in

resolving

postconviction constitutional claims.

The state habeas court—which also sat as the

trial court during the time Mr. Calvert’s electrocution

23

violated his due process rights 5—denied Mr. Calvert

procedural due process in the following ways: 1) despite recognizing that material, disputed issues of fact

concerning Mr. Calvert’s claims existed, it engaged in

an asymmetric procedure which failed to provide Mr.

Calvert with an opportunity present evidence in support of his claims, 2) it further denied Mr. Calvert the

opportunity to challenge adverse evidence, and 3) it

did both while following a “process” unhinged from

the Texas Code of Criminal Procedure which appeared designed to deny Mr. Calvert the opportunity

to support his Application.

The Texas Code of Criminal Procedure sets out

the mandatory process by which habeas corpus applications which challenge judgments imposing death

are determined. See TEX. CODE CRIM. PROC. art.

11.071. Following the State’s submission of an answer, the habeas court is required to determine

“whether controverted, previously unresolved factual

issues material to the legality of the applicant’s confinement exist” and then “issue a written order of the

determination.” Id. § 8(a). “If the convicting court determines that controverted, previously unresolved

factual issues material to the legality of the applicant’s confinement exist, … [t]o resolve the issues, the

court may require affidavits, depositions, interrogatories, and evidentiary hearings and may use personal

recollection.” Id. § 9(a). As the statute itself contemplates, constitutionally, some meaningful mechanism

must exist to resolve these evidentiary disputes.

5 Pet. App. 152a-154a.

24

Crucially though, even sworn allegations in a habeas application and related evidentiary proffers are

not evidence. See, e.g., Ex parte Empey, 757 S.W.2d

771, 775 (Tex. Crim. App. 1988) (“Even sworn allegations are not alone sufficient proof.”); Ex parte Evans,

964 S.W.2d 643, 648 (Tex. Crim. App. 1998) (same). A

proffer in connection with an application, while not

required, instead goes to show whether disputed factual issues require resolution at a hearing. Evidence,

then, is the proof admitted at a hearing pursuant to

TEX. CODE CRIM. PROC. art. 11.071, § 9(a).

In March 2019, the statutorily prescribed procedure quickly unraveled. HR2 203. The State called for

a “hearing by … affidavit only” on the four constitutional claims alleging ineffective assistance of counsel, and further suggested that the State would file a

“supplemental” answer once the affidavits were received. HR2 242-43. The habeas court adopted the

State’s asymmetric procedure and ordered Mr. Calvert’s trial counsel to produce affidavits concerning

his ineffectiveness claims so that it may hold a hearing “by way of affidavit only” on the designated claims

raising material, unresolved factual issues. 6 HR2 320.

Despite Mr. Calvert’s multiple requests for an evidentiary hearing at which he could affirmatively present

evidence in support of his claims and challenge any

6 As the postconviction court itself acknowledged, the two

affidavits did not “provide sufficient information regarding all of

the allegations made against [trial counsel] by writ counsel.”

HR3 29. By way of example, Jeff Haas acknowledged, “I really

have no memory of when or even if this happened,” HR3 246

(Pet. App. 129a) and co-counsel Jason Cassel stated, “Admittedly, time may have dimmed my memory of certain details,”

HR3 24 (Pet. App. 112a).

25

statements by trial counsel, he was denied the opportunity. HR2 381-418; HR3 19-20, 210-213, 214-224.

He was likewise denied his alternative request to submit affidavits of his own, as evidence, to substantiate

his claims and challenge trial counsel’s affidavits.

HR3 214. In turn, the habeas court adopted the

State’s proposed findings and conclusions verbatim

and sent the writ to the CCA for decision. HR3 287.

Those findings provided for the denial of Mr. Calvert’s

claims in part because “[t]he record remains the very

same now as on appeal. There is still no evidence that

any deliberating juror was actually aware of the second shock incident when deliberating guilt…,” HR3

301, despite his years-long pleas to be allowed to introduce that very evidence. HR3 214.

Mr. Calvert was thus denied due process in attempting to demonstrate the deprivation of his Sixth

Amendment right to counsel. And it is not just Mr.

Calvert whose rights are implicated here. The “use of

the death penalty has become increasingly concentrated geographically.” See Glossip v. Gross, 576 U.S.

863, 941 (2015) (Breyer, J., dissenting). Texas carries

out the most executions of any State and is one of the

three states responsible for approximately 80% of all

executions in the United States. Id. at 941-43 (Breyer,

J., dissenting). In other words, a significant portion of

all state capital postconviction proceedings run

through Texas courts before receiving any federal consideration. If the State here is correct that “it is a very

common practice across [Texas] to order trial counsel

to respond [to ineffectiveness claims] in the form of an

affidavit” without an evidential hearing, HR3 226-27,

there are grave concerns that Texas has and will continue to fall short of this Court’s demand that, “[i]n

26

capital proceedings generally, … factfinding procedures aspire to a heightened standard of reliability.”

Ford, 477 U.S. at 411 (plurality opinion); see also, e.g.,

Ex parte Johnson, 811 S.W.2d 93, 97 (Tex. Crim. App.

1991) (remanding to alternatively hold an evidentiary

hearing or obtain affidavits). The problem is only

worsened by the reality of postconviction proceedings

in Texas generally: one analysis has found that postconviction judges adopt the State’s proposed findings

of fact and conclusions of law verbatim 96% of the

time, while also unearthing several instances of postconviction judges signing findings before they have

been filed or following ex parte communications with

prosecutors. 7

AEDPA has led federal courts to acknowledge, albeit implicitly, when state postconviction proceedings

fall short of the constitutionally required process. For

example, the Fifth Circuit in the pre-AEDPA context

approved of such State tactics. See, e.g., Ellis v.

Lynaugh, 873 F.2d 830, 840 (5th Cir. 1989) (“We have

held that the denial of a state writ application on the

basis of pleadings and affidavits constitutes an adequate ‘hearing.’” (citing Evans v. McCotter, 805 F.2d

1210, 1214 (5th Cir. 1986))). Following AEDPA, it has

recognized that when a state habeas court purports to

hold a “paper hearing,” and the CCA fully adopts

those findings, “errors in the state court’s factual findings [a]re not corrected when they reach[] the CCA.”

Hall, 534 F.3d at 370. Indeed, the Fifth Circuit in Hall

reversed the decision below and ordered the federal

7 See Steiker et al., The Problem of Rubber-Stamping in

State Capital Habeas Proceedings: A Harris County Case Study,

55 Hous. L. Rev. 889, 907 (2018).

27

district court to hold the full evidentiary hearing

which the state court had failed to hold on petitioner’s

Atkins claim. Id. at 372.

The result above represents a shifting of responsibility to federal habeas courts to correct the lack of

process which ought to have been afforded in state

court. In the Atkins context, for example, “if a state

court dismisses a prima facie valid Atkins claim without having afforded the petitioner an adequate opportunity to develop the claim, it has run afoul of the Due

Process Clause, and that due process violation constitutes an unreasonable application of clearly established federal law that is sufficient to deprive the

state court’s decision of AEDPA deference.” Blue, 665

F.3d at 656. However, a new hearing in federal court

to rectify a lack of due process in state postconviction

is not guaranteed and particularly threatened where,

as here, the state postconviction court purports to

have made factual determinations. See Ballinger v.

Prelesnik, 709 F.3d 558, 561 (6th Cir. 2013) (noting in

the pre-Atkins context that “district courts are precluded from conducting evidentiary hearings to supplement existing state court records when a state

court has issued a decision on the merits with respect

to the claim at issue” (citing Cullen v. Pinholster, 563

U.S. 170, 184 (2011))).

Nothing about the factfinding below suggests that

Texas reached a reliable judgment resolving Mr. Calvert’s constitutional claims. In light of AEDPA, this

Petition likely represents the last opportunity to address the failure of Texas habeas courts to adhere to

the minimum standards of due process. It is only

through this Court’s intervention at this stage that

28

the recurring Texas postconviction errors may be corrected.

C. This case presents an excellent vehicle

for resolving the question presented.

Mr. Calvert’s case presents an excellent vehicle

for addressing the minimum process due death-sentenced individuals in state postconviction proceedings. The underlying issue concerning juror exposure

to Mr. Calvert’s electrocution was squarely presented

on direct appeal. The state’s highest court found a federal constitutional violation. However, due to a lack of

record evidence concerning the prejudice of that violation, the court concluded it could not reverse on the

record before it.

Mr. Calvert, in preparing his postconviction habeas application, unearthed that very evidence.

Though not required, Mr. Calvert submitted a juror

declaration as a proffer to substantiate the existence

of evidence—and need for evidentiary development—

that would prove prejudice flowing from counsel’s ineffectiveness. As soon as the State indicated it intended to preclude Mr. Calvert from presenting

evidence to demonstrate the prejudice flowing from

the constitutional violation, Mr. Calvert objected. He

requested an evidentiary hearing or, at a minimum,

an opportunity to submit written evidence. The State

did not respond, nor did the postconviction court issue

a ruling. Mr. Calvert later moved for a ruling on his

request for a hearing. That too was ignored. He then

asked a third time and was again ignored. After the

trial court issued its findings and the case was transferred to the Court of Criminal Appeals, Mr. Calvert

29

moved that court to remand the case, explaining an

evidentiary hearing was required to present evidence

of prejudice. That motion was denied. Each of Mr. Calvert’s filings clearly and unequivocally raised the constitutional due process set out in this petition.

The issue was thus squarely presented below and

there is no procedural impediment to the Court’s review. The petition provides the Court with an ideal

opportunity to consider and resolve the question presented. The question is undeniably important given

the implications for death-sentenced prisoners, particularly those in Texas. Certiorari is appropriate.

30

CONCLUSION

Due process demands a meaningful opportunity

for a death-sentenced prisoner to put on evidence and

confront the evidence against him during postconviction review. Mr. Calvert’s case illustrates that Texas

is prejudicially ignoring these constitutional strictures. This Court should thus grant certiorari and

clarify the scope of due process protections during

state habeas review.

Respectfully submitted,

Marc R. Shapiro

Counsel of Record

James L. Stengel

C. Anne Malik

Darren E. Pouliot

ORRICK, HERRINGTON &

SUTCLIFFE LLP

51 West 52nd Street

New York, NY 10019

(212) 506-5000

mrshapiro@orrick.com

February 3, 2022