Opposition Brief — James Calvert, Petitioner v. Texas

No. 21-1090

IN THE

Supreme Court of the United States

_________________________

JAMES CALVERT,

Petitioner,

vs.

STATE OF TEXAS

Respondent.

_________________________

On Petition for Writ of Certiorari to the

Texas Court of Criminal Appeals

_________________________

RESPONDENT’S BRIEF IN OPPOSITION

_________________________

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney General

JOSH RENO

Deputy Attorney General

for Criminal Justice

EDWARD L. MARSHALL

Chief, Criminal Appeals Division

TOMEE M. HEINING

Assistant Attorney General

Counsel of Record

Counsel for Respondent

i

CAPITAL CASE

QUESTION PRESENTED

Represented by counsel on state habeas review,

Calvert filed an application for writ of habeas corpus

raising seven allegations for relief and supported by

twenty-one exhibits. The application included the claim

that trial counsel were ineffective for failing to

demonstrate at trial that “the jury was aware of, and

detrimentally affected by, the court’s use of a stun belt.”

Petitioner’s Appendix A, at 23a, #1. One of the proffered

exhibits—a declaration of an alternate juror—supported

his claim. See 1 SHCR 173. Pursuant to Texas Code of

Criminal Procedure article 11.071, §9, the trial court

designated the four ineffective assistance of trial counsel

claims for future resolution, and ordered trial counsel to

submit affidavits addressing those claims. 2 SHCR 32021. Both parties submitted proposed findings and fact

and conclusions of law for consideration by the court; the

trial court adopted the State’s proposed findings. The

Texas Court of Criminal Appeals (CCA), based on its

own review as well as the findings and conclusions of the

trial court, denied relief. See Petition Appendix A.

Upon these facts, was Calvert provided sufficient

and notice and opportunity to be heard on his ineffective

assistance of trial counsel claim, as required by the Due

Process Clause?

ii

TABLE OF CONTENTS

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

INDEX OF AUTHORITIES ....................................... iii

BRIEF IN OPPOSITION ............................................ 1

I. Facts of the Crime .............................................. 1

II. Punishment Evidence ...................................... 3

A. The State’s Punishment Case ..................... 3

B. Calvert’s Case in Mitigation........................ 6

C. The Jury Instructions and Verdict ........... 6

III. Evidence Relevant to the Shock-Cuff

Incident .............................................................. 6

IV. Procedural History .......................................... 9

REASONS TO DENY THE PETITION .................. 10

I. Calvert Fails to Justify a Grant of

Writ of Certiorari ........................................... 10

II. Calvert Has No Due Process Right to

State Collateral Proceedings ....................... 12

iii

III. The State Court Complied with Texas

Code of Criminal Procedure Article

11.071 and the Fourteenth

Amendment ..................................................... 14

A. Procedural History of this Issue .............. 15

B. Calvert Received Due Process ................. 20

C. The State Habeas Proceeding

Complied with Article 11.071 .................. 23

D. This Question Presented Does Not

Warrant the Exercise of Certiorari

Jurisdiction by this Court ....................... 29

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

iv

INDEX OF AUTHORITIES

CASES

Armstead v. Scott, 37 F.3d 202

(5th Cir. 1994) ........................................................ 26

Atkins v. Virginia, 536 U.S. 304 (2002) ....................... 26

Bell v. Cone, 535 U.S. 685 (2002) ................................. 11

Brumfield v. Cain, 576 U.S. 305 (2015) ...................... 13

Clark v. Johnson, 202 F.3d 760

(5th Cir. 2000) ........................................................ 26

Dist. Attorney’s Office for Third Judicial

Dist. v. Osborne, 557 U.S. 52, 69 (2009) ................ 13

Estelle v. McGuire, 502 U.S. 62 (1991) ........................ 13

Evitts v. Lucy, 469 U.S. 387 (1985) .............................. 13

Ex parte Campbell, 226 S.W.3d 418

(Tex. Crim. App. 2007)........................................... 27

Ex parte Empey, 757 S.W.2d 771

(Tex. Crim. App. 1988)........................................... 27

Ex parte Evans, 964 S.W.2d 643

(Tex. Crim. App. 1998)........................................... 28

v

Ex parte Fassi, 388 S.W.3d 881 (Tex. App.—

Houston [14th Dist.] 2012, no pet.) ....................... 27

Ex parte Hines, No. WR–40,347–02

(Tex. Crim. App. Nov. 23, 2005) ............................ 25

Ex parte Reagan, 549 S.W.2d 204

(Tex. Crim. App. 1977)........................................... 27

Ex parte Simpson, 136 S.W.3d 660

(Tex. Crim. App. 2004)......................................24, 25

Ford v. Wainwright, 477 U.S. 399

(1986) ...........................................................13, 20, 29

Greene v. Fisher, 565 U.S. 34 (2011)............................ 11

Harrington v. Richter, 562 U.S. 86 (2011)................... 11

Henderson v. Cockrell, 333 F.3d 592

(5th Cir. 2003) ........................................................ 13

Hines v. Thaler, 456 F. App’x 357

(5th Cir. 2011) ........................................................ 26

In re Harris, 491 S.W.3d 332

(Tex. Crim. App. 2016)........................................... 24

Killion v. State, 503 S.W.2d 765

(Tex. Crim. App. 1973)........................................... 27

Kyles v. Whitley, 498 U.S. 931 (1990) .......................... 11

vi

Martinez v. Ryan, 566 U.S. 1 (2012) ............................ 14

Morrow v. Dretke, 367 F.3d 309

(5th Cir. 2004) ........................................................ 26

Murray v. Giarratano, 492 U.S. 1 (1989) .................... 12

Ohio Adult Parole Auth. V. Woodard,

523 U.S. 272 2389 (1998) ....................................... 20

Panetti v. Quarterman, 551 U.S. 930

(2007) .................................................................13, 20

Pennsylvania v. Finley, 481 U.S. 551

(1987) ...........................................................12, 13, 14

Strickland v. Washington, 466 U.S. 668

(1984) .................................................................18, 19

Strong v. Johnson, 495 F.3d 134

(4th Cir. 2007) ........................................................ 26

Tanberg v. Sholtis, 401 F.3d 1151

(10th Cir. 2005) ...................................................... 26

Tercero v. Stephens, 738 F.3d 141

(5th Cir. 2013) ........................................................ 20

Trevino v. Thaler, 569 U.S. 413 (2013) ........................ 14

vii

STATUES

Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA) ..................................11, 12, 26

Tex. Code of Crim. P. Art 11.071 ......................... Passim

CONSTITUTIONAL PROVISIONS

U.S. Const. amend VI..............................................14, 15

U.S. Const. amend VIII ................................................ 12

1

BRIEF IN OPPOSITION

Petitioner James Calvert was convicted and

sentenced to death for the capital murder of his ex-wife,

committed in the course of committing or attempting to

commit burglary or kidnapping. Calvert now seeks

certiorari review of the denial of his petition for writ of

habeas corpus by the CCA. However, Calvert is unable

to present any special or important reason for certiorari

review because he fails to demonstrate a violation of any

federal constitutional right. Indeed, Calvert has no due

process right to state collateral proceedings, thus any

alleged error in those proceedings cannot serve as a

basis for federal relief. And regardless, the state habeas

court complied with the statutory requirements of Texas

Code of Criminal Procedure article 11.071, §9 and

provided Calvert with an opportunity to be heard on his

postconviction claims. Calvert was entitled to nothing

more. Certiorari review should therefore be denied.

I.

FACTS OF THE CRIME

Calvert married Jelena in 2004, and within four

years, they had two children together. See 129 RR 133;

State Ex. 27. Over the course of their marriage, Calvert

threatened to kill Jelena, and she became increasingly

fearful that he would. 129 RR 38–40. They divorced in

2010. 129 RR 132–33; State Ex. 27.

In 2012, Jelena sought and obtained a change in

custody, allowing her to move with the children to

Houston. 128 RR 185–87; 129 RR 135. Twelve days later,

after a series of phone calls and text messages from

Calvert, Jelena told four people she was afraid Calvert

was going to hurt her. 128 RR 142, 145; 129 RR 38–50,

83–84; 132 RR 143–69, 184; 135 RR 115–16. Shortly

2

thereafter, she was murdered. See 129 RR 65; 132 RR

142, 171–76; 137 RR 23; 158 RR 165.

The evidence showed that someone broke into

Jelena’s home,1 and shot her six times in front of her and

Calvert’s then-four-year old son. See 128 RR 54–65; 132

RR 135; 153 RR 73; 158 RR 16–40. Jelena was shot first

in the back, then after she fell, in the abdomen, arm,

and, finally, the back of the head. 158 RR 110. Within

minutes of the gunshots, a man who looked like Calvert

was seen leaving her home carrying her and Calvert’s

son. 132 RR 73–83; 137 RR 23–35.

Calvert fled with his son, stopping at McDonald’s

restaurants along the way, to connect to WiFi to search

Jelena’s murder and related Amber Alerts. 138 RR 144–

81; 139 RR 163–66; 159 RR 120–39; State Ex. 147. That

evening, Calvert engaged the police in a high-speed

chase in West Monroe, Louisiana. 139 RR 111–14, 145–

47; 140 RR 22, 180–81; 141 RR 82–89, 120; 142 RR 90;

State Exs. 149, 151, 157 164 & 165.

When the police finally caught Calvert, they

removed the loaded murder weapon from his lap and

physically extracted him from his car. 139 RR 164–66;

140 RR 168–69; 141 RR 89–96; 148 RR 97–98, 100–05,

113–14. Another fully loaded pistol was found on the

floorboard in front of his son, and four more guns in the

trunk. 140 RR 21; 141 RR 38–39, 96; 149 RR 40–45, 55–

65, 72–76, 96–97, 129–30; 150 RR 46–47, 132, 133, 135,

138, 148, 153, 170, 179; 153 RR 90–92. Jelena’s phone

was also found in his car. 128 RR 153, 155; 142 RR 110;

153 RR 91.

1

132 RR 109; 153 RR 71.

3

II.

PUNISHMENT EVIDENCE

A. THE STATE’S PUNISHMENT CASE

During the punishment phase of trial, the State

called twenty-four witnesses, twenty-two of whom

testified to Calvert’s character.

Thirteen Smith County jail employees testified

about their experiences with Calvert. They described

him as “irate and combative,”2 “manipulative,”3

“controlling,”4 “difficult,”5 “disrespectful,”6 “aggressive,”7

“verbally abusive,”8 “non-compliant,”9 “high risk,”10 and

“dangerous.”11 They supported their characterizations of

him with specific experiences: For example, Calvert

actively resisted officers’ attempts to move him,

2

162 RR 45; 163 RR 64.

3

162 RR 105, 131, 147; 163 RR 63.

4

162 RR 129, 131, 150; 163 RR 64; 164 RR 164, 174,

196.

5

162 RR 142; 163 RR 63, 65.

6

162 RR 148; 163 RR 27, 61, 64; 164 RR 215.

7

164 RR 208.

8

162 RR 70.

9

162 RR 70, 102, 143; 164 RR 164, 196, 208.

10

162 RR 102.

11

162 RR 105, 143; 163 RR 66; 164 RR 237.

4

requiring them to carry him. 162 RR 46, 70, 74, 78–80,

87–88, 103–04. He kicked his leg brace at a deputy, so

that it hit the deputy. 164 RR 198–201. Calvert called

the officers racial slurs and other names, got in their

faces, threatened them, and ordered them around. 162

RR 69, 74, 88–98; 163 RR 10, 12–13, 36, 52–55, 64, 98;

164 RR 176–77, 190, 198–201, 224. He stole court

exhibits. 163 RR 12. He had his family members send

packages that appeared to be from Amazon, allowing

him to bypass the jail’s search policies. 164 RR 134–35.

He was caught with a handcuff key and a razor blade,

along with other dangerous contraband. 162 RR 29–34,

36–37, 101–02. On cross-examination, though, defense

counsel elicited from jail personnel that Calvert did not

assault anyone while awaiting trial. E.g., 162 RR 114,

122; 163 RR 18, 82–83.

The State also called two of Calvert’s exgirlfriends and his first ex-wife. Calvert’s ex-girlfriends

testified generally to his controlling nature and

misogyny. 165 RR 38–43; 167 RR 97–114. Calvert’s exwife, Deidre (“Dee Dee”) Adams, described him as

“extremely

intelligent”

but

“controlling”

and

“manipulative,” with “an explosive temper.” 165 RR 91.

Dee Dee testified that Calvert threatened to kill her

while holding a gun to her head and beat her until she

could not move. 165 RR 100–02, 112–13.

Calvert’s sister, Debbie Campbell, testified that

she believed her brother was dangerous, 166 RR 94. She

described him as “very intelligent, . . . controlling and

manipulative.” 166 RR 89. She was concerned he was

going to “lose it” and “shoot people” before he did. 167

RR 54. Calvert called Debbie once, threatening to shoot

his first ex-wife, Dee Dee and her family if they stepped

5

foot on his lawn. Calvert also made veiled threats to

Debbie based on her decision to testify in his family

proceedings, suggesting that Debbie would not see her

nephew again or that something would happen to her

sick husband. 166 RR 86; 167 RR 34.

Three of Calvert’s acquaintances who befriended

Jelena when she moved to Tyler also testified. They

observed Jelena to be afraid of Calvert early on and tried

to help her escape. See e.g., 166 RR 52–54; 166 RR 56;

167 RR 130–31.

The State also called two mental health experts,

Drs. Edward Gripon and Michael Arambula. Dr. Gripon

observed Calvert’s personality to be controlling,

excessive, overly organized, rigid, and defiant. 167 RR

196. Because personality characteristics are often

cemented by eighteen years of age, the doctor explained

that Calvert’s would likely follow him. 167 RR 201–02.

The doctor also spoke to Calvert’s history of, and

treatment for, depression and anxiety, 167 RR 170–71,

but explained that neither affected his ability to control

his behavior. Dr. Arambula’s conclusions were similar.

168 RR 17–126. He testified that Calvert had a severe

personality pathology that would present special risks

wherever he went. 168 RR 41–42.

Finally, the State called Warden Stephen Bryant

and retired prison guard David Logan to testify to the

prison environment and the opportunity for violence

therein. Warden Stephen Bryant testified generally

about the prison system and where Calvert would be

housed in if he received a life sentence. 164 RR 65–73.

Logan testified that attacks on prison guards were

frequent and spoke of one he endured. 164 RR 12–13.

After an inmate managed to free himself from his

6

handcuffs, 164 RR 25–26, he stabbed Logan in the eye

with a pencil leaving Logan disabled and blind in that

eye, 164 RR 28.

B. CALVERT’S CASE IN MITIGATION

In mitigation, Calvert called his first cousin,

Jason Calvert, 169 RR 10. He and Calvert were very

close as children and continued their relationship as

adults. 169 RR 13–16. Jason testified that Calvert was a

“great” father, 169 RR 18, albeit “ornery” like all of the

Calvert men. 169 RR 30.

C. THE JURY INSTRUCTIONS AND VERDICT

Before submitting the special issues, the trial

court twice instructed the jury to consider Calvert’s

circumstances and character to the extent that it

mitigated against the death penalty. 171 RR 7, 11. Still,

the jury found Calvert would probably commit acts of

violence posing a continuing threat to society and no

mitigating evidence warranted a life sentence. 171 RR

157–58. The trial court sentenced Calvert to death. 171

RR 166–67.

III.

EVIDENCE RELEVANT

INCIDENT.

TO

THE

SHOCK-CUFF

Following a disagreement with his courtappointed trial counsel—Jeff Haas and Jason Cassel—

Haas filed a motion to withdraw, advising the court that

Calvert wished to represent himself. See 2 CR 79–80; 5

RR 9-12. The court denied the motion, leaving Haas and

Cassel as counsel. 5 RR 24-28.

A year later, Haas again advised the court that

7

Calvert wished to proceed pro se, and Calvert again

confirmed. 12 RR 3–4. After two hearings on Calvert’s

request, including expert examination and testimony,

see generally 12 RR; 13 RR; 14 RR, and based on the

expert’s report, the judge’s own communications with

Calvert, and defense counsel’s representations, the trial

judge concluded that Calvert was competent to waive his

right to counsel and represent himself. See 14 RR 80-83.

The trial court appointed Haas and Cassel as standby

counsel. 14 RR 81.

For security reasons, Calvert wore a leg brace

that limited his mobility during some of the pretrial

proceedings. See 38 RR 56-57. At a hearing on October

2, 2014, Calvert requested that the trial court utilize a

shock cuff at trial instead of the leg brace. 38 RR 142–

45. The trial court agreed to his request, 38 RR 143; 124

RR 28, but left security concerns up to the sheriff’s

department, 38 RR 148-49.

On one occasion prior to trial, Calvert refused to

be handcuffed when it was time to return to jail,

grabbing counsel table and stiffening his arms. See 162

RR 103–04, 122–23, 134–35. Unable to move his arms,

officers activated his shock cuff, which finally allowed

them to place handcuffs on Calvert. 164 RR 206-07. On

another occasion, Calvert goaded one of the deputies

about activating the shock cuff during the trial, saying:

“I hope wearing this shock bracelet that I don’t do

anything in court to make you shock me.” 164 RR 172.

During trial Calvert persistently behaved

disruptively. In an effort to drag the trial out, see 146 RR

194–99, Calvert made constant objections to disrupt the

State’s presentation of evidence. E.g., 148 RR; 149 RR;

150 RR. He repeatedly re-urged motions and reasserted

8

objections that the court had clearly denied and

overruled and clearly denied and overruled again. E.g.,

151 RR 9–11; 154 RR 27-30, 39–40; 155 RR 43, 140, 145,

149

Calvert intended to introduce error into the

proceedings. See, e.g., 25 RR 119; 169 RR 92–93, 99.

When the State agreed to withdraw evidence based on

Calvert’s motions to exclude, he turned around and

attempted to introduce that very evidence to suggest

that the State was hiding it. E.g., 152 RR 77–78, 112–

16; 153 RR 10–11; 155 RR 64–85. He raised issues in

front of the jury after explicitly being ordered not to.

E.g., 146 RR 196–201; 154 RR 41–43; 155 RR 149. He

disregarded the court when it sustained the State’s

objections. 152 RR 77; 155 RR 66–67. He misrepresented

what the evidence he had would show to suggest the

State had tampered with it. E.g., 155 RR 11–13, 171–72.

He falsely asserted that the court reporters were “under

investigation.” 154 RR 29–30. He falsely accused a

witness of planting evidence. 155 RR 51, 189. He

repeatedly misrepresented that he had not received

discovery when the record showed he had. E.g., 151 RR

81–82; 152 RR 132–33; 153 RR 110-20; 154 RR 9–19, 34,

36-39; 155 RR 183.

Calvert exhibited persistent disrespect for the

trial court. He refused to answer the court’s questions.

147 RR 74–80. He refused to stand when the court

instructed him to do so. 147 RR 45, 73; 151 RR 104, 119,

143; 152 RR 60; 155 RR 145, 148, 163, 178, 221. He told

the trial court that it did not do what it explicitly said

that it just did. 151 RR 47; 154 RR 39–41. And he

9

repeatedly argued with and interrupted the court. 151

RR 89; 154 RR 15–16.

After about three weeks of enduring Calvert’s

trial behavior, the judge conducted a hearing outside of

the jury’s presence. The judge asked Calvert where he

was going in his last cross-examination. 155 RR 221.

Despite repeated admonishments to stand up when

addressing the court, Calvert responded from his chair.

The court instructed Calvert to stand up, and three

times, deputies urged him to follow the court’s order. 155

RR 221. When Calvert refused, a bailiff activated the

shock cuff on his ankle, after which Calvert responded,

“I’m sure the Court very much enjoyed that.” 155 RR

221.

At that point, the judge, exasperated with

Calvert’s behavior, terminated Calvert’s pro se status

and reappointed Haas and Cassell as counsel. 155 RR

222–224; 156 RR 7-8. At a subsequent hearing outside

the presence of the jury, trial counsel moved for a

mistrial, citing a violation of Calvert’s right to due

process, and based in part upon the unnecessary

shocking of Calvert and the possibility that the jury may

have heard him scream. 157 RR 16-17. The trial court

denied the motion, noting that the jury was out of the

courtroom during the incident, the door was shut behind

them, and there was no evidence in the record to reflect

that the jury heard anything. 157 RR 24-26.

IV.

PROCEDURAL HISTORY

Calvert challenged his conviction on direct

appeal. Pertinent to the issue raised here, he asserted

that the trial court violated due process when it allowed

10

him to be shocked during trial for his failure to maintain

proper decorum. The CCA agreed that, under the

circumstances, the activation of the shock cuff when he

did not present an immediate security concern violated

Calvert’s right to due process. Calvert v. State, No. AP77,063, 2019 WL 5057268, at *7-11 (Tex. Crim. App. Oct.

9, 2019), reh’g. denied June 17, 2020; Petition Appendix

C, at 146-57a. However, the CCA nevertheless denied

relief, concluding the error was neither structural nor

harmful. Petition Appendix C, at 153-57a. This Court

denied certiorari review. Calvert v. Texas, 141 S. Ct.

1605 (2021).

The CCA also denied relief on Calvert’s state

habeas application. The state court adopted the findings

of fact and conclusions of law of the state trial court, see

Petition Appendix B, at 5-130a, and, based upon those

findings and conclusions and its own review, the court

denied relief on all claims. Ex parte Calvert, No. WR85,283-01, 2021 WL 4564314, at *2 (Tex. Crim. App. Oct.

6, 2021); Petition Appendix A, at 1-5a.

REASONS TO DENY THE PETITION

I.

CALVERT FAILS TO JUSTIFY A GRANT OF

WRIT OF CERTIORARI.

The question that Calvert presents for review is

unworthy of the Court’s attention. Supreme Court Rule

10 provides that review on writ of certiorari is not a

matter of right, but of judicial discretion, and will be

granted only for “compelling reasons.” As shown below,

no compelling reason exists to review this case.

And even if the Court was inclined to grant

review, it need not do so in the instant proceeding

11

because Calvert has yet to seek federal habeas corpus

relief. As Justice Stevens noted:

Because the scope of the State’s obligation

to provide collateral review is shrouded in

so much uncertainty, . . . this Court rarely

grants review at this stage of the litigation

even when the application for state

collateral relief is supported by arguably

meritorious federal constitutional claims.

Instead, the Court usually deems federal

habeas proceedings to be the more

appropriate avenues for consideration of

federal constitutional claims.

Kyles v. Whitley, 498 U.S. 931, 932 (1990) (Stevens, J.,

concurring) (internal citations omitted).

And while it will be more difficult for him to

prevail during federal habeas review as a result of

Congress’s passage of the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), such difficulty is

not a compelling reason for granting certiorari review.

AEDPA standards are “‘difficult to meet[]’ because the

purpose of AEDPA is to ensure that federal habeas relief

functions as a ‘guard against extreme malfunctions in

the state criminal justice systems,’ and not as a means

of error correction.” Greene v. Fisher, 565 U.S. 34, 38

(2011) (quoting Harrington v. Richter, 562 U.S. 86, 102–

03 (2011)). AEDPA “modified a federal habeas court’s

role in reviewing state prisoner applications in order to

[. . .] to ensure that state-court convictions are given

effect to the extent possible under the law.” Bell v. Cone,

535 U.S. 685, 693 (2002). Granting Calvert’s request

12

would thus frustrate this clear purpose. This Court

should therefore decline to allow Calvert to circumvent

the AEDPA by granting his petition at this premature

juncture—especially since Calvert’s petition presents no

important questions of law to justify the exercise of

certiorari jurisdiction in the first place.

II.

CALVERT HAS NO DUE PROCESS RIGHT TO

STATE COLLATERAL PROCEEDINGS.

While recognizing that “state courts are not

constitutionally required to provide a mechanism for

postconviction review of a capital case,” Calvert

nevertheless insists that when a state court does provide

a mechanism, those proceedings must comport with due

process. Petition at 15.

But, as Calvert admits, this Court has held that a

petitioner like him has no due process right to collateral

proceedings at all. See Murray v. Giarratano, 492 U.S.

1, 7-8 (1989); Pennsylvania v. Finley, 481 U.S. 551, 557

(1987). “State collateral proceedings are not

constitutionally required as an adjunct to the state

criminal proceedings and serve a different and more

limited purpose than either the trial or appeal.”

Giarratano, 492 U.S. at 10. Therefore, this Court held,

“[t]he additional safeguards imposed by the Eighth

Amendment at the trial stage of a capital case are . . .

sufficient to assure the reliability of the process by which

the death penalty is imposed.” Id.

And because Calvert has no due process right to

the proceeding itself, he also has no due process right to

the appointment of counsel during those proceedings.

Finley, 481 U.S. at 555. Therefore, it stands to reason

that, if Calvert has no constitutional right to collateral

13

review or to the effective assistance of counsel in those

collateral proceedings, the state court’s alleged failure to

follow state statutory procedures in his collateral

proceeding should also implicate no due process right.

More importantly, where a State allows for

postconviction proceedings, “the Federal Constitution

[does not] dictate[] the exact form such assistance must

assume.” Finley, 481 U.S. at 559; cf. Estelle v. McGuire,

502 U.S. 62, 67–68 (1991) (“federal habeas corpus relief

does not lie for errors of state law”) (internal quotation

marks and citation omitted); Henderson v. Cockrell, 333

F.3d 592, 606 (5th Cir. 2003) (infirmities in state habeas

proceedings do not state a claim for federal habeas

relief). Indeed, as the Court has explained, “Federal

courts may upset a State’s postconviction procedures

only if they are fundamentally inadequate to vindicate

the substantive rights provided.” Dist. Attorney’s Office

for Third Judicial Dist. v. Osborne, 557 U.S. 52, 69

(2009).

This is quite a different position from those

situations involving the right to counsel on first appeal

and the right to be free from cruel and unusual

punishment, e.g., competency to be executed and

intellectual disability. Because these rights are firmly

grounded in the Constitution, any measures taken by

the States to allow vindication of them will necessarily

implicate due process. See Brumfield v. Cain, 576 U.S.

305 (2015); Panetti v. Quarterman, 551 U.S. 930 (2007);

Evitts v. Lucy, 469 U.S. 387 (1985). But state court

collateral proceedings do not implicate the constitution.

For these reasons, Calvert’s reliance on Ford v.

Wainwright, 477 U.S. 399 (1986), and Panetti in this

context is misplaced. See Petition at 15, 19-22.

14

Nor did Martinez v. Ryan, 566 U.S. 1 (2012), and

Trevino v. Thaler, 569 U.S. 413 (2013), create any new

due process right during collateral proceedings. See

Petition 3, 15-16. Rather, Martinez carved out an

equitable exception to the procedural bar of an

unexhausted but substantial ineffective-assistance-oftrial-counsel claim in federal court where state habeas

counsel failed to preserve the claim in the only available

forum. See Martinez, 566 U.S. at 13-16. This problem

does not exist here, as the claim was raised and

adjudicated. For these reasons, Calvert is not entitled to

certiorari review.

Nevertheless, as will be discussed below, the

claim was preserved, and the state court complied with

all statutory requirements. And the statutory process

available provided Calvert with a fair opportunity to

present evidence in support of his habeas appeal and

thus, an opportunity to be heard. Therefore, Calvert

received exactly what he was entitled to receive under

state law and cannot claim any deprivation of due

process. Finley, 481 U.S. at 559.

III.

THE STATE COURT COMPLIED WITH TEXAS

CODE OF CRIMINAL PROCEDURE ARTICLE

11.071 AND THE FOURTEENTH AMENDMENT.

Calvert argues that, because the CCA found

constitutional error on direct appeal from the activation

of a shock cuff but found the record insufficient to show

harm, due process required that the state habeas court

afford him the opportunity to present evidence in

support his Sixth Amendment ineffective assistance of

trial counsel (IATC) claim. Calvert argues that the state

habeas court denied him his right to due process by

15

(1) failing to provide an opportunity to present evidence

in support of his postconviction IATC claims; (2) denying

him the opportunity to challenge adverse evidence

against him; and (3) following a process on state habeas

that was “unhinged” from the Texas Code of Criminal

Procedure article 11.071 and which denied Calvert the

opportunity to support his application for relief. Petition

at 16-17, 22-28.

Certiorari review is not warranted on these

allegations. Calvert does not present this Court with any

precedent that specially holds that the Texas habeas

court’s alleged failure to comply with article 11.071, §9

constitutes a due-process violation requiring reversal of

the lower court. Indeed, as noted, state habeas

proceedings are not required under the Constitution,

thus any failure by the state court to follow the State’s

own evidentiary rules and proceedings cannot rise to a

constitutional violation in the general run of cases.

Regardless, the procedures utilized in Calvert’s state

habeas proceedings more than adequately complied with

both due process and article 11.071. Indeed, article

11.071 does not mandate any method of collecting

evidence and does not even require that an evidentiary

hearing be held to allow evidentiary development. The

habeas court’s procedures thus did not deviate from the

statutory requirements.

A.

PROCEDURAL HISTORY OF THIS ISSUE.

On direct appeal, Calvert alleged that the trial

court violated his rights to substantive and procedural

due process by unnecessarily subjecting him to an

electric shock during trial, but outside the presence of

the jury. See Petition Appendix C, at 146-47a. The CCA

16

agreed that, under the circumstances, the activation of

the shock cuff when Calvert did not present an

immediate security concern violated his right to due

process. Id. at 148a. However, the CCA concluded the

error was neither structural nor harmful, in part

because it was not done in front of the jury. Id. The CCA

reasoned the error was harmless beyond a reasonable

doubt and did not contribute to the conviction or

punishment, see Tex. R. App. Proc. 44.2, because there

was “no evidence that the shock cuff’s activation had a

negative effect on the jurors’ impartiality or the

presumption of innocence. The jurors were not present.

Absent evidence in the record that jurors heard [Calvert]

scream, we will not speculate that they did.” Petition

Appendix C, at 154-55a (internal footnotes omitted).

On state habeas review, Calvert complained that

trial counsel were ineffective for failing to develop the

record at trial to demonstrate that “the jury was aware

of, and detrimentally affected by, the court’s use of a

stun belt.” Petitioner’s Appendix A, at 23a, #1 (citing

Petitioner’s Initial Application for Writ of Habeas

Corpus, at 51). In support, Calvert offered the

“Declaration of Kathryn Kennedy12 Hopkins” who

The declaration was signed by “Kathryn Hopkins,”

with the name “Kennedy” crossed out and “Hopkins” written

in. In fact, throughout the declaration and the state-habeascourt findings of fact and conclusions of law, the name

“Kennedy” has a line through it. But, as noted by the state

habeas court, no “Kathryn Hopkins” sat on Calvert’s jury. The

court assumed her to be Kathryn Kennedy, the alternate

juror, but noted neither a Kennedy nor Hopkins took part in

any deliberations during either phase of trial. Petition

Appendix B, at 25a, #6.

12

17

served as an alternate juror in Calvert’s trial. See 1

SHCR 173. Of relevance, Hopkins stated: “At one point

during the trial, the other members of the jury and I

were dismissed from the courtroom. We exited and went

into the hallway. We then heard [Calvert] yelling loud

enough for us to hear, although typically we could not

hear what was going on in the courtroom while outside

in the hallway.” Id. Hopkins signed the statement,

declaring it was “true to the best of [her] knowledge,” but

the statement is not sworn or notarized. Id. at 174.

In response, in its Preliminary Answer in

Opposition to Application for Writ of Habeas Corpus and

Designation of Issues, the State asked the trial court to

“order a hearing by way of affidavits from [trial]

attorneys Jeff Haas and Jason Cassel, responding to

[Calvert’s] allegations that he received ineffective

assistance of trial counsel and DESIGNATE [Calvert’s]

Grounds for Relief 1-4 for future resolution.” 2 SHCR at

243. The state habeas court thus ordered: “To determine

the merits of [Calvert’s claims that he received

ineffective assistance of trial counsel], a hearing will be

granted by way of affidavit only from [Calvert’s] trial

attorneys, Hon. Jeff Haas and Hon. Jason Cassel,

addressing the claims of deficient conduct.” 2 SHCR 320.

The court designated the four IATC claims for future

resolution, ordered Haas and Cassel to submit affidavits

by a designated date, and ordered copies of the affidavits

to be forwarded to Calvert, his counsel, and the State. 2

SHCR 320-21.

Ultimately, the state habeas court recommended

denial of relief, finding Calvert failed to demonstrate

that trial counsel acted unreasonably or that he suffered

18

prejudice. Petition Appendix B at 29a, #15; see id. at 2329a, ##1-15. Despite Hopkins’s declaration being

unsworn, the court assumed it to be true but

nevertheless concluded that it failed to establish that

any other juror actually heard Calvert yelling,

understood why he was yelling, or that allegedly hearing

him yell “’detrimentally’ impacted” the jury’s

deliberations. Petition Appendix B, at 24-25a, #5. At

best, Hopkins heard him “yell” for unknown reasons, but

Calvert had yelled on other occasions in court. Petition

Appendix B, at 25a, #5; 168 RR 100-01. The court found

that Hopkins does not claim that hearing Calvert yell

“would have had a detrimental impact on her own

verdict if she had deliberated[, and] there still remains

no evidence that the second shock incident had any

effect, much less a detrimental effect, upon the jury’s

deliberations or their guilty verdict.” Petition Appendix

B, at 25a, #7.

Relying on the CCA’s finding of no structural or

harmful error on direct appeal, the state habeas court

concluded that the record did not support the

Strickland13 prejudice prong, noting that the “record

Strickland v. Washington, 466 U.S. 668, 687 (1984) (To

prove a Sixth Amendment violation, petitioner must show

(1) that counsel’s performance was deficient, i.e., “counsel

made errors so serious that counsel was not functioning as

‘counsel’ guaranteed by the Sixth Amendment,” and

(2) counsel’s deficient performance prejudiced the defense,

i.e., “counsel’s errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable.”); Id.

at 694 (to prove prejudice, applicant must show a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.)

13

19

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 and that it detrimentally impacted upon their

verdict.” Petition Appendix B at 28a, ##13-14.

Additionally, the state habeas court found “no

evidence that trial counsel acted unreasonably after the

second shock incident,” as required by the first prong of

the Strickland14 analysis. Petition Appendix B at 26a,

#8. Rather, both attorneys “faced a difficult strategic

decision about whether to poll the jury and risk

informing them about a negative incident that they may

otherwise be unaware of before deciding guilt.” Id.; see

also 3 SHCR 15 (Affidavit of Jeff Haas); 3 SHCR 25

(Affidavit of Jason Cassel). The court concluded that

counsel expressed a reasonable concern that polling the

jury would negatively portray Calvert on an issue they

were previously unaware of, and “Counsel made a

conscious and strategic decision to not run that risk on

the firmly rooted fact that the jury was not in the

courtroom when the shock incident took place.” Petition

Appendix B at 27a, #10; see also 28a, #12. Instead,

counsel made an unsuccessful motion for a mistrial

based upon the incident. Id. Calvert failed to show trial

counsel acted unreasonably. Id. at 29a, #15.

Strickland, 466 U.S. at 689 (“[A] court must indulge a

strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance; that is, the

defendant must overcome the presumption that, under the

circumstances, the challenged action ‘might be considered

sound trial strategy.’”) (internal citation omitted).

14

20

B.

CALVERT RECEIVED DUE PROCESS.

Calvert acknowledges that a state is not required

to provide a specific mechanism to collaterally attack his

conviction but argues that, when it does, that

mechanism must comport with due process. At a

minimum this requires notice and an opportunity to be

heard. Petition at 19. To support this proposition,

Calvert cites to this Court’s “fair hearing” requirements

for competency-to-be-executed claims under Ford and

Panetti, and the “minimum procedural safeguards”

applicable to clemency proceedings under Ohio Adult

Parole Auth. V. Woodard, 523 U.S. 272 2389 (1998)

(O’Connor, J., concurring). Petition at 20-22.

But no case specifically holds that the procedure

applied by the state habeas court to Calvert’s claims fails

to satisfy due process requirements. In fact, the record

plainly shows that Calvert was afforded due process’s

core protections. Ford, 477 U.S at 413 (“‘[t]he

fundamental requisite of due process of law is the

opportunity to be heard’”) (citation omitted); Tercero v.

Stephens, 738 F.3d 141, 148 (5th Cir. 2013) (federal

habeas case extending core procedural due process

protections to inmates seeking to prove that they are

ineligible for the death penalty due to being underage,

but noting that “states retain discretion to set gateways

to full consideration and to define the manner in which

habeas petitioners may develop their claims” and ‘“[d]ue

process does not require a full trial on the merits’;

instead, petitioners are guaranteed only the

‘opportunity to be heard.’”) (footnotes and citations

omitted). In this case, Calvert had more than sufficient

notice and the opportunity to be heard.

21

The statute applicable to state habeas

applications by capital defendants provides for

appointment of counsel and anticipates investigation

and presentation of extra-record evidence on collateral

review. See Tex. Code. Crim. Proc. art. 11.071, §3

(Investigation of Grounds for Application). In

compliance with statutory requirements, attorney

Katherine Treistman was appointed state habeas

counsel, who, along with co-counsel James Stengel and

Kristin Fournier, filed an initial writ of habeas corpus

raising seven claims for relief, including the issue at

hand. See 1 SHCR at 4-102. The application was

supported by twenty-one exhibits, including the

declaration of alternate juror Kathryn Hopkins. 1 SHCR

103-240. The state habeas court designated four issues

for further review, as permitted by article 11.071, §9,

and ordered affidavits from trial counsel addressing

these claims. 2 SHCR at 320-21. Additionally, Calvert

filed numerous motions for discovery and an evidentiary

hearing, see 2 SHCR 381-418; see also 3 SHCR 19-20

(Motion for Ruling on Applicant’s Motions for

Evidentiary Hearing and Discovery), as well as motions

objecting to the state habeas court’s procedures, see 3

SHCR 210-24; and submitted his own proposed findings

and fact and conclusions of law for consideration by the

court, 3 SHCR 230-82. The CCA, based on its own review

as well as the findings and conclusions of the trial court,

denied relief in a reasoned opinion that specifically

addressed the claim at hand. See Petition Appendix A,

at 1-4a.

The Texas habeas system thus gave Calvert the

means and opportunity to make claims, marshal

evidence in support, and address the adverse evidence

22

adduced against him through his proposed findings of

fact. Calvert now suggests that additional evidence

might exist from “more jurors” to support his claim, had

he been given the opportunity to develop it. Petition at

12. However, as noted, the applicable statute anticipates

investigation and presentation of extra-record evidence

on collateral review. See Tex. Code. Crim. Proc. art.

11.071, §3(a) (“On appointment, counsel shall

investigate expeditiously . . . the factual and legal

grounds for the filing of an application for a writ of

habeas corpus.”); §3(b)-(d) (providing payment for

expenses, including expert fees, to investigate and

present potential habeas claims). Habeas counsel was

free to interview and obtain statements from the sitting

jurors to be proffered in support of his initial application,

just as they did with alternate juror Hopkins. The

failure to do so is not the result of the state habeas

court’s refusal to hold a live hearing. Indeed, §3

anticipates that counsel will perform such investigations

before the habeas application is filed. See Tex. Code.

Crim. Proc. art. 11.071, §3(a), (b).

Regardless, the state habeas court assumed the

truth of Hopkins’s unsworn statement but found it

insufficient proof than anyone else heard Calvert

yelling, understood why he was yelling, or that the

yelling had a detrimental impact on jury deliberations

that began three weeks later. Petition Appendix B, at

24-25a. Evidence that a sitting juror also heard Calvert

yell loudly, without any context, is no more compelling—

the juror would also have no knowledge of why Calvert

was yelling, nor should the isolated incident have

impacted deliberations. Furthermore, additional

evidence from jurors would only bear upon the prejudice

23

prong. As noted, the court also found no deficient

performance based upon the affidavits of trial counsel

explaining strategic reasons for not developing the

record on this matter.

Calvert’s inability to develop and present this

evidence on his own does not demonstrate that he was

denied notice or an opportunity to be heard. His right to

due process was not violated.

C.

THE

STATE HABEAS PROCEEDING

COMPLIED WITH ARTICLE 11.071.

Because the State agreed to the existence of

controverted facts in the IATC claims, see 2 SHCR at

243, the state habeas court designated those issues for

factual development and ordered affidavits of counsel—

a decision consistent with the requirements of Texas

Code of Criminal Procedure article 11.071, §9.15

Calvert argues that the state habeas court denied

him his right to procedural due process by (1) failing to

provide an opportunity to present evidence in support of

his claims; (2) denying him the opportunity to challenge

15 Pursuant to §9(a):

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, not later than the 20th day after

the last date the state answers the application,

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.

24

adverse evidence against him; and (3) following a

process that was “unhinged” from the Texas Code of

Criminal Procedure article 11.071 and which denied

Calvert the opportunity to support his application for

relief. Petition at 16-17, 22-28. But Calvert fails to

demonstrate that the state habeas court did not follow

the statutory requirements of article 11.071, §9.

Calvert primarily complains about the state

habeas court’s decision to hold a “paper hearing” by

affidavit only, where he had no opportunity to present

his own witnesses and evidence, and no opportunity to

cross-examine the defense attorneys. Petition at 24-25.

But article 11.071, §9 does not mandate any particular

procedure. Section 9(a) permits the court to designate

the issues to be resolved, and the manner in which those

issues will be resolved, and explicitly permits trial

judges to resolve controverted, previously unresolved

material

facts

by

“affidavits,

depositions,

interrogatories, and evidentiary hearings, and may use

personal recollection.”

Indeed, the CCA has held that “Article 11.071

makes the habeas judge ‘the collector of the evidence, the

organizer of the materials, the decisionmaker as to what

live testimony may be necessary, the factfinder who

resolves disputed factual issues, the judge who applies

the law to the facts, enters specific findings of fact and

conclusions of law, and may make a specific

recommendation to grant or deny relief.’” In re Harris,

491 S.W.3d 332, 335-36 (Tex. Crim. App. 2016) (citing

Ex parte Simpson, 136 S.W.3d 660, 668 (Tex. Crim. App.

2004)). This precedent “allots the trial judge a measure

of discretion in managing the process of fact-finding in a

capital writ proceeding.” Id. at 336.

25

The state habeas court is not required to hold an

evidentiary hearing, especially where the record is

sufficient to resolve the issues. See, e.g., Ex parte

Simpson, 136 S.W.3d at 663 (although advisable to have

evidentiary hearing on intellectual disability claims, it

is not necessary where applicant relies primarily upon

trial testimony, both sides had opportunity to fully

develop pertinent facts at trial, and habeas judge had

opportunity to assess credibility and demeanor of

witnesses at trial); Ex parte Hines, No. WR–40,347–02,

2005 WL 3119030, *1 (Tex. Crim. App. Nov. 23, 2005)

(“While we have said that the better practice is to

conduct a live hearing in cases such as this, . . . the

evidence before the trial court was extensive and we did

not specify that a live hearing was necessary when we

remanded the case.”). This was certainly true in this

case where the same judge presided over the trial and

state habeas proceeding, the issue was thoroughly

briefed, the record from trial details the shock-cuff

incident in question,16 Calvert submitted a declaration

from an alternate juror describing what she—and

presumably the other jurors—heard, and trial counsel

submitted affidavits detailing their recollection of the

shock-cuff incident and strategic discussions regarding

how to handle the incident. See Petition Appendix B, at

As noted, the trial court stated on the record,

when denying the motion for mistrial, that the jury was

out of the courtroom during the incident, the door was

shut behind them, and there was no evidence in the

record to reflect that the jury heard anything. 157 RR

24-26.

16

26

114-15a, #7 (Affidavit of Jason Cassel); Id. at 126-27a

(Affidavit of Jeff Haas).

Despite Calvert’s argument to the contrary,

Petition at 26-27, on federal habeas review, the Fifth

Circuit has “repeatedly found that a paper hearing [in

state court] is sufficient to afford a petitioner a full and

fair hearing on the factual issues underlying the

petitioner’s claims.” Clark v. Johnson, 202 F.3d 760, 766

(5th Cir. 2000); Hines v. Thaler, 456 F. App’x 357, 363

(5th Cir. 2011) (unpublished) (noting that “while a live

evidentiary hearing may be recommended in some

Atkins[17] cases in Texas, a thorough presentation of

evidence at the state habeas proceeding can obviate the

need for such a hearing”); Morrow v. Dretke, 367 F.3d

309, 315 (5th Cir. 2004) (presumption of correctness

applies to state court fact findings made after “paper

hearing”); Armstead v. Scott, 37 F.3d 202, 208 (5th Cir.

1994) (finding that a hearing by affidavit was adequate

to allow pre-AEDPA presumption of correctness to

attach to the state court’s factual findings); see also

Strong v. Johnson, 495 F.3d 134, 139 (4th Cir. 2007)

(“[C]redibility determinations may sometimes be made

on a written record without live testimony. Specifically,

there is no prohibition against a court making credibility

determinations based on competing affidavits in certain

circumstances.”); Tanberg v. Sholtis, 401 F.3d 1151,

1161 (10th Cir. 2005) (a trial court’s “determination of

credibility of affidavits [will not be disturbed on appeal]

unless that determination is without support in the

record, deviated from the appropriate legal standard, or

followed a plainly erroneous reading of the record.”).

17

Atkins v. Virginia, 536 U.S. 304 (2002).

27

Regarding Calvert’s alleged inability to present

evidence, as noted above, article 11.071, §3 anticipates

that the applicant will provide evidence in support of his

application for relief. The fact that he did not seek

affidavits from the jurors who deliberated his sentence

is not the fault of the state habeas court.

Calvert suggests that any evidentiary proffer

offered at the pleading stage—such Kathryn Hopkins

declaration—is not “evidence” for the purposes of article

11.071, §9, but serves only to show the existence of

disputed factual issues requiring resolution at a

hearing. Petition at 24. This argument finds no support

in Texas law. See Ex parte Campbell, 226 S.W.3d 418,

423 (Tex. Crim. App. 2007) (noting that exhibits

attached to the State’s motion to dismiss “are as much a

part of this habeas record as are applicant’s

attachments”); Ex parte Fassi, 388 S.W.3d 881, 887 (Tex.

App.—Houston [14th Dist.] 2012, no pet.) (finding that

documents attached as exhibits to the defendant’s

article 11.072 habeas application and the State’s

response could be considered by the habeas court even

though they were not introduced into evidence by any

party); Ex parte Reagan, 549 S.W.2d 204, 205 (Tex.

Crim. App. 1977) (relying on Killion v. State to affirm

where court and parties treated governor’s warrant in

habeas corpus hearing as if admitted into evidence);

Killion v. State, 503 S.W.2d 765, 765–66 (Tex. Crim.

App. 1973) (court permitted to consider defendant’s

stipulations to charged offenses where considered by

trial court in adjudicating guilt for theft and burglary,

although written stipulations were not admitted into

evidence). Indeed, the cases cited by Calvert in support

of his argument—Ex parte Empey, 757 S.W.2d 771, 775

28

(Tex. Crim. App. 1988), and Ex parte Evans, 964 S.W.2d

643 (Tex. Crim. App. 1998)—stand for the proposition

that sworn allegations from the applicants themselves

are insufficient proof to meet their evidentiary burden.

The cases do not suggest that these proffers are not

evidence or are not part of the record.

Regardless, the record plainly indicates that the

state habeas court did consider the unsworn statement

of Kathryn Hopkins, “assum[ing it] to be true,” but

finding it failed to establish that any other juror heard

Calvert, understood why he was yelling, or that hearing

him yell detrimentally impacted their deliberations

three weeks later. Petition Appendix B, at 23-29a. His

argument that this proffer was not evidence falls short

in this case.

In conclusion, the trial court did nothing

improper, and violated no constitutional right, by

limiting evidentiary development during the state

habeas proceeding to affidavits of trial counsel and

without allowing cross-examination. The state habeas

proceedings comported with the requirements of article

11.071, and certiorari review of this claim should be

denied.

29

D.

THIS QUESTION PRESENTED DOES NOT

WARRANT

THE

EXERCISE

OF

CERTIORARI JURISDICTION BY THIS

COURT.

In his final argument, Calvert asserts that “his

case presents an excellent vehicle for resolving the

question presented”—whether due process requires that

a state postconviction court afford a petitioner an

opportunity to present evidence in support of an IATC

claim where the State’s highest found constitutionalbut-harmless error on an underlying issue. Petition at

28-29. For the reasons discussed, the Court should deny

his application.

Apart from the fact that Calvert has no due

process right to the postconviction proceeding of which

he complains, the state habeas court complied with

statutory procedures for postconviction review of his

claims and exercised permissible constraint over the

development of evidence during postconviction review;

the statute does not entitle Calvert to a live hearing or

the opportunity to cross examine witnesses.

Furthermore, Calvert was not constrained from

presenting probative evidence in his initial

application—indeed, he did present the declaration of an

alternate juror which the state habeas court accepted as

true. In short, Calvert was afforded due process’s core

protections, and he was entitled to nothing more in these

proceedings. Ford, 477 U.S at 413 (“‘[t]he fundamental

requisite of due process of law is the opportunity to be

heard’”) (citation omitted). Therefore, this Court should

deny certiorari review.

30

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be denied.

Respectfully submitted,

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney

General

JOSH RENO

Deputy Attorney General

for Criminal Justice

EDWARD L. MARSHALL

Chief, Criminal Appeals

Division

TOMEE M. HEINING

Assistant Attorney General

Counsel of Record