Opposition Brief — Ashley Mere Howard, Petitioner v. Texas

No. 21-225

IN THE

Supreme Court of the United States

__________________________

ASHLEY MERE HOWARD,

Petitioner,

v.

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

EDWARD L. MARSHALL

Chief, Criminal Appeals

Division

BRENT WEBSTER

First Assistant

Attorney General

CRAIG W. COSPER*

Assistant Attorney General

* Counsel of Record

JOSH RENO

Deputy Attorney General

for Criminal Justice

P.O. BOX 12548

Austin, Texas 78711-2548

(512) 936-1400

Craig.cosper@oag.texas.gov

Attorneys for Respondent

QUESTIONS PRESENTED

Petitioner, Ashley Mere Howard (Howard),

contends that the Texas Court of Criminal Appeals

(TCCA) erred during state habeas review when it (1)

denied her ineffective assistance of trial counsel claim

and (2) relied on affidavits rather than a live hearing

in doing so. Specifically, Howard first argues that the

TCCA’s decision to deny relief was contrary to this

Court’s decisions in Strickland v. Washington, 466 U.S.

668 (1984), and Lafler v. Cooper, 566 U.S. 166 (2012),

because trial counsel failed to advise her about the

parole implications of her plea. Second, she claims the

state court violated her right to due process by failing

to hold a live state habeas hearing, particularly

because the judge who presided over the state habeas

proceedings and made credibility and factual findings

was not the same judge from trial.

Respondent (the “State”) objects to Howard’s

Questions Presented because they ignore a key

antecedent legal issue: Whether counsel’s failure to

advise a defendant about the parole consequences of a

guilty plea even falls within the ambit of Strickland

and its progeny—which alone cautions against

granting certiorari. The State suggests the following

instead:

I. Should the Court grant certiorari to

determine whether the TCCA’s denial of

relief was contrary to Strickland and Lafler

when no precedent from this Court sets

forth a Sixth Amendment requirement that

effective counsel advise a defendant about

a plea’s parole consequences, and any rule

i

to the contrary would be barred by

antiretroactivity principles?

II. Did the state courts deny petitioner

procedural due process by failing to hold a

live evidentiary hearing when the

underlying claim does not even fall within

the Sixth Amendment’s protection?

ii

RELATED CASES

• State v. Howard, No. 1465955, 183rd District Court

of Harris County. Judgment entered February 4, 2016.

• Howard v. State, No. 01-16-00120-CR, First Court of

Appeals of Texas. Judgment entered April 25, 2017.

• Howard v. State, No. PD-0939-17, Texas Court of

Criminal Appeals. Judgment entered November 15,

2017.

• Howard v. State, No. 17-9302, United States

Supreme Court. Judgment entered October 1, 2018.

• Ex parte Howard, No. 1465955-A, 183rd District

Court of Harris County. Recommendations entered

December 10, 2020.

• Ex parte Howard, No. WR-92,267-01, Texas Court of

Criminal Appeals. Judgment denying state habeas

relief entered April 14, 2021.

iii

TABLE OF CONTENTS

Question Presented........................................................i

Related Cases .............................................................. iii

Table of Contents ......................................................... iv

Index of Authorities ..................................................... vi

Introduction .................................................................. 1

Opinions Below ............................................................. 2

Jurisdiction ................................................................... 2

Constitutional Provisions Involved .............................. 2

Statement of the Case .................................................. 3

Summary of the Argument ........................................... 4

Argument ...................................................................... 5

I.

The Court Should Deny Certiorari Because

The TCCA’s Decision Was Not Contrary To

Lafler Where The Sixth Aendment Does Not

Require Counsel to Advise About A Plea’s

Parole Consequences ....................................... 5

II.

The Court Should Deny Certiorari Because

Resolution of the Questions Presented in

Howard’s Favor Would Be Barred by The

Antiretroactivity Principles in Teague. .......... 8

A. Teague’s legal standard. ........................... 8

iv

B. Teague’s

antiretroactivity

limitation

applies to Howard’s petition because she

seeks a new procedural rule after her

conviction became final. ........................... 9

III.

Due Process Does Not Require a Live

Evidentiary Hearing for State Collateral

Review. ........................................................... 10

IV.

The Court Should Deny Certiorari Because

There Are Serious Justiciability Concerns,

Which

Suggest

Judicial

Restraint.

........................................................................ 12

Conclusion ................................................................... 16

v

INDEX OF AUTHORITIES

CASES

Armstead v. Scott, 37 F.3d 202 (5th Cir. 1994)..........12

Brown v. Dretke, 419 F.3d 365 (5th Cir. 2005) ..........12

Bustos v. White, 521 F.3d 321 (4th Cir. 2008) .............6

Chaidez v. United States, 568 U.S. 342 (2013) ..Passim

Clark v. Johnson, 202 F.3d 760 (5th Cir. 2000).........12

Crews v. Estes, No. 5:18-cv-01224, 2021

WL 3361693, at *6 (N.D. Ala. July 7, 2021) ......7

Dist. Attorney’s Off. for Third Jud. Dist. v. Osborne,

557 U.S. 52 (2009) ......................................11, 12

Edwards v. Vannoy, 141 S. Ct. 1547 (2021) ............8, 9

Ex parte Ward, No. WR-92,193-01, 2021 WL 710485

(Tex. Crim. App. Feb. 24, 2021) .........................7

Ford v. Wainwright, 477 U.S 399 (1986) ...................12

Harris v. Kelley, No. 5:18-CV-00157,

2019 WL 440638, at *6

(E.D. Ark. Jan. 15, 2019) ...................................7

Harris v. State, 2018 Ark. App. 94,

542 S.W.3d 895 (2018) .......................................7

Howard v. State, 527 S.W.3d 348, 350–351 (Tex.

App.—Houston [1st Dist.] 2017) ...........................3, 4

Kyles v. Whitley, 514 U.S. 419 (1995) .........................15

Lafler v. Cooper, 566 U.S. 166 (2012).................Passim

Lambrix v. Singletary, 520 U.S. 518 (1997) .................9

Merzbacher v. Shearin, 706 F.3d 356

(4th Cir. 2013) ..................................................14

Montgomery v. Louisiana, 136 S. Ct. 718 (2016) .....8, 9

Murray v. Girratano, 492 U.S. 1 (1989) .................4, 11

Padilla v. Kentucky, 559 U.S. 356 (2010) ..........Passim

Pennsylvania v. Finley, 481 U.S. 551 (1989) .............11

Schriro v. Summerlin, 542 U.S. 348 (2004) .............8, 9

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

vi

Teague v. Lane, 489 U.S. 288 (1989) ....................2, 4, 9

Tercero v. Stephens, 738 F.3d 141 (5th Cir. 2013) .....12

United States v. Johnson, 268 U.S. 220 (1925)..........14

United States v. Reeves, 695 F.3d 637

(7th Cir. 2012) ....................................................6

Velarde v. Archuleta, No. 14-CV-02356,

2015 WL 3827106, at *24

(D. Colo. June 19, 2015) .....................................7

Whorton v. Bockting, 549 U.S. 406 (2007) .................10

STATUTES

28 U.S.C. § 1257(a) .......................................................2

28 U.S.C. § 2244(d) .....................................................16

RULES

Sup. Ct. R. 10 .................................................... 2, 15, 16

vii

INTRODUCTION

Howard was convicted of felony murder in Harris

County, Texas, and sentenced to thirty-five years’

imprisonment. In the instant petition for certiorari

review of the TCCA’s denial of state habeas relief, she

argues that the state court’s rejection of her ineffective

assistance of trial counsel claim was contrary to Lafler

v. Cooper. She contends that counsel rendered

ineffective assistance by failing to advise her about the

differences in parole eligibility for the offenses of theft

and murder when she was faced with the choice of

pleading guilty to theft or going to trial on a murder

charge. Pet. Cert. at 13–22. But no precedent from this

Court dictates that counsel has a duty under the Sixth

Amendment to advise a defendant about the parole

consequences of a guilty plea.

Indeed, lower state and federal courts regularly

find that the Sixth Amendment does not require

counsel to advise a client about the collateral

consequences—such as parole eligibility—of a plea.

And although Howard suggests in a footnote, without

explanation, that Padilla v. Kentucky, 559 U.S. 356

(2010), “leads ineluctably to the conclusion that”

counsel must advise a defendant about the parole

consequences of a guilty plea, the Court, both in

Padilla and Chaidez v. United States, 568 U.S. 342

(2013), has expressly declined to disavow the

distinction between direct and collateral consequences

and limited the Padilla decision to the unique

circumstance of deportation consequences. Pet. Cert.

at 16 n.8. Lower state and federal courts, including

Texas courts, have adhered to this Court’s limitation of

the Padilla holding, concluding that the Sixth

1

Amendment does not require counsel to advise a

defendant about parole eligibility when discussing a

plea.

At bottom, the state court cannot possibly have

misapplied Lafler in rejecting Howard’s claim, given

that this Court’s existing Sixth Amendment

jurisprudence does not require trial counsel to advise a

defendant about the collateral consequences of a guilty

plea. Furthermore, resultantly, Howard’s claim is

barred by Teague v. Lane, 489 U.S. 288 (1989).

And finally, the TCCA did not need to hold a live

evidentiary hearing to resolve factual matters when

Howard’s underlying claim lacks any legal basis in the

Constitution. Accordingly, Howard’s complaints do not

warrant certiorari review. Sup. Ct. R. 10.

OPINIONS BELOW

The TCCA’s denial of Howard’s state habeas

application without written order (located at Pet. Cert.

App. 1) is not reported. Likewise, the state habeas trial

court’s recommended findings and conclusions (located

at Pet. Cert. App. 2–23) are also unreported.

JURISDICTION

The Court has jurisdiction to review the state

habeas court’s denial of Howard’s ineffective

assistance of counsel and due process claims under 28

U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

The Questions Presented involve application of the

Sixth Amendment right to counsel in criminal

2

prosecutions and the Due Process Clause in Section I

of Fourteenth Amendment.

STATEMENT OF THE CASE

Howard was convicted of felony murder after she

and two friends—who were fleeing police after stealing

clothing from a department store—ran a red light and

crashed their getaway vehicle into the car of Rosalba

Quezada, killing her and injuring her three children.

Howard v. State, 527 S.W.3d 348, 350–351 (Tex.

App.—Houston [1st Dist.] 2017). An intermediate

appellate court affirmed Howard’s conviction and

sentence of thirty-five years’ imprisonment and,

thereafter, overruled her motion for en banc rehearing.

Id. at 350, 356. Howard filed a petition for

discretionary review in the TCCA, but that court

refused it on November 15, 2017. See id. This Court

denied Howard’s petition for writ of certiorari on

October 1, 2018. Howard v. Texas, No. 17-9302.

Howard then sought state habeas relief, but the

state habeas trial court entered proposed findings and

legal conclusions recommending that habeas relief be

denied. See Petr’s App. 2–22. Regarding Howard’s

ineffective assistance claim involving the withdrawn

guilty plea, the habeas court obtained an affidavit from

the attorney who represented her at the time she

rejected a plea to theft and found that affidavit

credible. See id. at 3–5. The court first found that

Howard could not raise her ineffective assistance claim

concerning the withdrawn plea in a challenge to the

subsequent murder conviction. See id. at 7–8. But the

state habeas trial court went on to find that, even if she

could, Howard failed to demonstrate ineffective

3

assistance of counsel and, rather, had representation

sufficient to protect her constitutional rights. See id. at

8–10. Particularly, the state court implicitly found that

she failed to show that she would have accepted the

plea had she understood the parole consequences. Id.

The TCCA denied relief based on both the trial

court’s findings and its own independent review. See

id. at 1. Howard now seeks a writ of certiorari.

SUMMARY OF THE ARGUMENT

Howard’s issues are not worthy of grating

certiorari. First, Howard cannot possibly show that the

TCCA’s rejection of her ineffective assistance claim

concerning parole consequences was contrary to Lafler,

because advice about a collateral consequence such as

parole eligibility is not required under the Sixth

Amendment. And moreover, any claim that counsel

had a duty to advise about parole eligibility would

require a new rule that would be barred by Teague v.

Lane. So too, the state habeas court was justified in

denying a live evidentiary hearing on her underlying

claim because Howard did not even state a valid Sixth

Amendment claim of ineffective assistance. Finally,

even if the Court were to determine that the Sixth

Amendment requires counsel to advise a defendant

about parole eligibility with respect to a plea, there are

powerful prudential reasons to nevertheless deny

certiorari in this case. Compellingly, the record as it

exists fails entirely to establish prejudice even in the

face of allegedly inadequate advice from counsel

regarding collateral consequences. Specifically,

Howard failed to show that she would have accepted

the plea had she understood the parole consequences.

4

ARGUMENT

I.

The Court Should Deny Certiorari Because

the TCCA’s Decision Was Not Contrary to

Lafler, given that the Sixth Amendment

Does Not Require Counsel to Advise About

a Plea’s Parole Consequences.

Howard’s claim fails from the outset because the

Court has never held that under the Sixth

Amendment, effective trial counsel must advise a

defendant about collateral consequences like parole

when discussing a guilty plea. To the contrary, it has

specifically avoided answering that question. In the

absence of such a requirement, lower courts have

generally concluded that counsel has no duty to advise

a defendant about collateral consequence like parole

eligibility when advising on a plea.

Indeed, when this Court extended the application of

Strickland to the plea process, it explicitly left open the

question of whether advice concerning collateral

consequences must satisfy the Sixth Amendment.

Chaidez, 568 U.S. at 349. The Court’s rulings since

have not answered whether an attorney’s advice about

parole could possibly violate the right to effective

assistance of counsel. Id. at 350.

In the absence of an opinion imposing an obligation

on trial counsel to inform defendant of collateral

consequence like parole eligibility, the lower courts

“almost unanimously concluded that the Sixth

Amendment does not require attorneys to inform their

clients of a conviction’s collateral consequences,

including deportation.” Id. Regarding parole eligibility

5

specifically, “no Supreme Court precedent establishes

that parole ineligibility constitutes a direct, rather

than a collateral, consequence of a guilty plea.” Bustos

v. White, 521 F.3d 321, 325 (4th Cir. 2008). The

majority of circuits to consider the issue have held

parole eligibility is a collateral consequence.1 Id.

The Court has since held that the Sixth

Amendment requires trial counsel to advise a

defendant about a plea’s deportation risk. Padilla, 559

U.S. at 374. The decision in Padilla breached “the

previously chink-free wall between direct and

collateral consequences.” Chaidez, 568 U.S. at 352–53.

But in reaching that decision, the Court “did not

eschew the direct-collateral divide across the board.”

Chaidez, 568 U.S. at 355; Padilla, 559 U.S. at 365

(“Whether that distinction is appropriate is a question

we need not consider in this case because of the unique

nature of deportation.”). Rather, the Padilla decision

was limited to the unique and special nature of

deportation consequences. Chaidez, 568 U.S. at 352–

53, 355. Contrary to Howard’s assertion that Padilla

“leads ineluctably to the conclusion that” counsel must

advise a defendant about the parole consequences of a

guilty plea, “Padilla is rife with indications that the

Supreme Court meant to limit its scope to the context

of deportation only.” United States v. Reeves, 695 F.3d

637, 640 (7th Cir. 2012); Pet. Cert. at 16 n.8.

During the years since Padilla, lower state and

federal courts, including Texas, have continued to hold

Failing to advise a client about a collateral consequence is

distinct from misstatements or material misrepresentations. See

Chaidez, 568 U.S. at 356–57.

1

6

that trial counsel has no duty to advise a defendant

about collateral consequences such as parole eligibility.

See, e.g., Ex parte Ward, No. WR-92,193-01, 2021 WL

710485 (Tex. Crim. App. Feb. 24, 2021) (declining to

find counsel was deficient for failing to advise a

defendant about parole eligibility); Harris v. State,

2018 Ark. App. 94, 542 S.W.3d 895, 899 (2018) (same);

Harris v. Kelley, No. 5:18-CV-00157, 2019 WL 440638,

at *6 (E.D. Ark. Jan. 15, 2019) (magistrate judge noting

that “[s]uch an error of omission, in failing to advise a

client that he will not be eligible for parole if he enters

a guilty plea, has never been held to constitute

constitutionally ineffective assistance of counsel.”);

Velarde v. Archuleta, No. 14-CV-02356, 2015 WL

3827106, at *24 (D. Colo. June 19, 2015) (“Any failure

to inform Applicant of consequences collateral to a

plea, such as having to serve 75% of a sentence before

being parole eligible, does not render the plea

involuntary, does not implicate the Sixth Amendment,

and, therefore, cannot be the grounds for a viable

ineffective-assistance-of-counsel claim.”); Crews v.

Estes, No. 5:18-cv-01224, 2021 WL 3361693, at *6 (N.D.

Ala. July 7, 2021) (magistrate judge recommending

denial of relief because counsel was not ineffective for

failing to advise the defendant about parole eligibility).

Thus, Howard’s assertion that the TCCA’s denial of

relief is contrary to Lafler is illusory because it

overlooks the antecedent issue of whether the Sixth

Amendment requires defense counsel to advise a

defendant about a plea’s parole consequences. Given

the state of law, Howard’s claim does not state a valid

ineffective assistance claim that is covered by the Sixth

Amendment. Further, the state habeas court did not

need to hold a live hearing on a claim that did not come

7

within the protection of the Sixth Amendment.

Accordingly, the TCCA’s decision to deny relief on the

claim complied with the law and this Court should

deny certiorari.

II.

The Court Should Deny Certiorari Because

Resolution of the Questions Presented in

Howard’s Favor Would Be Barred by The

Antiretroactivity Principles in Teague.

A. Teague’s legal standard

Justice O’Connor’s plurality opinion in Teague

affirms that Howard cannot obtain relief on her claim

of ineffective assistance because this would require a

new rule. To begin, “[w]hen a decision of this Court

results in a ‘new rule,’ that rule applies to all criminal

cases still pending on direct review.” Schriro v.

Summerlin, 542 U.S. 348, 351 (2004) (emphasis

added). However, when the Court announces a new

rule, “a person whose conviction is already final may

not benefit from the decision in a habeas or similar

proceeding.” Chaidez, 568 U.S. at 347.

For those convictions that are already final, a new

rule can be given retroactive effect only if is

substantive. Edwards v. Vannoy, 141 S. Ct. 1547, 1562

(2021). That is, in Edwards, the Court eliminated one

of the two Teague exceptions when it held that new

procedural rules do not apply retroactively on federal

collateral review. The remaining antiretroactivity

exception relates to “new substantive rules of

constitutional law.” Montgomery v. Louisiana, 136 S.

Ct. 718, 728 (2016). A new rule is substantive if it

forbids the imposition of a criminal punishment for

8

certain primary conduct, or if it prohibits a category of

punishment for a class of defendants because of their

status or offense. Id.

Finally, an opinion of this Court announces a new

rule “‘when it breaks new ground or imposes a new

obligation’ on the government.” Chaidez, 568 U.S. at

347 (quoting Teague, 489 U.S. at 301). In other words,

“a case announces a new rule if the result was not

dictated by precedent existing at the time the

defendant’s conviction became final.” Id. (quoting

Teague, 489 U.S. at 301). A “holding is not so dictated

. . . unless it would have been ‘apparent to all

reasonable jurists.’” Id. (quoting Lambrix v. Singletary,

520 U.S. 518, 527–528 (1997)).

B. Teague’s antiretroactivity limitation

applies to Howard’s petition because

she seeks a new procedural rule after

her conviction became final.

Howard’s conviction is final. This Court denied her

previous petition for writ of certiorari on direct appeal

on October 1, 2018. See Petr’s App. at 24. Moreover,

regarding Teague’s remaining antiretroactivity exceptions, Howard’s proposed rule is procedural (not

substantive) because it relates to the protections

afforded to a defendant during trial. See Summerlin,

542 U.S. at 353 (“[R]ules that regulate only the manner

of determining the defendant’s culpability are

procedural.”). Thus, the proposed rule does not meet

the remaining Teague exception for substantive rules

and would not be retroactive. See Edwards, 141 S. Ct.

at 1562.

9

Finally, any requirement that counsel has a duty

under the Sixth Amendment to advise a client about

the collateral consequences of a plea, such as parole

eligibility, is plainly “new.” Under the law outlined

above, such advice was not dictated by precedent

existing at the time Howard’s conviction became final.

See Chaidez, 568 U.S. 347. Indeed, “[q]uite the opposite

is true: [Howard’s] . . . rule is flatly inconsistent with

the prior governing precedent.” See Whorton v.

Bockting, 549 U.S. 406, 416 (2007). If the Court were

to conclude that trial counsel has a duty under the

Sixth Amendment to advise a defendant about parole

eligibility in relation to plea, it would break new

ground and impose a new obligation by announcing a

rule that was not dictated by precedent and not

apparent to all reasonable jurists. Because the Court

held Padilla itself was not retroactive, any similar rule

requiring counsel to advise about parole consequences

would also be barred by Teague and not retroactive. See

Chaidez, 568 U.S. at 344.

Consequently, any new rule requiring trial counsel

to advise a defendant about a plea’s parole

consequences would not benefit Howard and would be

barred by Teague. So too, a live hearing on the issue

would be useless and not benefit Howard. As such, the

Court should deny certiorari.

III.

Due Process Does Not Require a Live

Evidentiary Hearing for State Collateral

Review.

Even if Howard’s underlying claim were valid

under the Sixth Amendment, due process does not

10

require a live evidentiary hearing. As Justice O’Conner

stated:

A post-conviction proceeding is not part of

the criminal process itself, but is instead

a civil action designed to overturn a

presumptively valid criminal judgment.

Nothing in the Constitution requires the

States to provide such proceedings . . . nor

does it seem [] that that Constitution

requires the States to follow any

particular federal role model in these

proceedings.

Murray v. Girratano, 492 U.S. 1, 13 (1989) (O’Connor,

J., concurring). “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.” Id. at

10.

When a state provides post-conviction proceedings,

“the Federal Constitution [does not] dictate[] the exact

form such assistance must assume.” Pennsylvania v.

Finley, 481 U.S. 551, 555 (1989). A state habeas

applicant’s “right to due process is not parallel to a trial

right, but rather must be analyzed in light of the fact

that he has already been found guilty at a fair trial,

and has only a limited interest in postconviction relief.”

Dist. Attorney’s Off. For Third Jud. Dist. V. Osborne,

557 U.S. 52, 69 (2009). “Federal courts may upset a

State’s postconviction procedures only if they are

11

fundamentally inadequate to vindicate the substantive

rights provided.” Id.

Here, during her state habeas proceedings, Howard

obtained the core protection of due process—the

opportunity to be heard. See Ford v. Wainwright, 477

U.S 399, 413 (1986) (“‘The 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) (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 that “‘[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).2 Thus, Howard’s

claim concerning Texas habeas procedure lacks merit,

and her petition for certiorari review should be denied.

IV.

The Court Should Deny Certiorari Because

There Are Serious Justiciability Concerns,

Which Suggest Judicial Restraint.

Ultimately, Howard has not established that the

TCCA’s decision conflicted with Lafler or any of this

2 Indeed, in the context of federal habeas review, “a paper hearing

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); Armstead v. Scott, 37

F.3d 202, 208 (5th Cir. 1994) (finding that a hearing by affidavit

was adequate to allow presumption of correctness to attach to the

state court’s factual findings); see also Brown v. Dretke, 419 F.3d

365, 378 (5th Cir. 2005) (no due process violation where state

habeas judge who issued findings of fact was not the same judge

who presided over the petitioner’s state habeas hearing).

12

Court’s precedent. Nor has she identified any

meaningful or mature circuit split or disagreement

among the lower courts regarding the duty of counsel

to advise about parole eligibility.

Even if Howard could overcome the lack of a legal

basis for her claim that trial counsel was deficient for

failing to advise as to the parole implications of her

guilty plea—and survive the resulting Teague bar—to

ultimately prevail, she would still have to overcome the

existence of at least one other entirely reasonable basis

for the TCCA’s denial of relief on this claim. That is,

Howard would have to show that TCCA could not

possibly have instead reasonably concluded that,

counsel’s alleged failure to adequately advise as to

collateral consequences aside, Howard failed to prove

prejudice given the record evidence of her efforts to

avoid prison time. In other words, Howard failed to

show that she would have accepted the plea had

understood parole consequences. Indeed, Howard

previously turned down a plea offer of 18 months on a

theft conviction to instead plead open to the court in

hopes of receiving probation. Pet. Cert. at 5. Further

still, Howard withdrew her guilty plea to theft when

faced with ten years’ prison time decided to go to trial

on a murder charge in an effort to avoid prison time

through a not guilty verdict. See Petr’s App. 4–5, 7–10;

Pet. Cert. at i, 2, 5–6; Lafler, 566 U.S. at 163 (“In the

context of pleas a defendant must show the outcome of

the plea process would have been different with

competent advice.”). Although Howard averred on

state habeas review that advice on the difference in

parole eligibility would have caused her to go move

forward with her ten-year guilty plea, the TCCA was

not required to find Howard’s post-hoc assertion

13

credible, particularly given the compelling record

evidence of Howard’s aversion to any prison time and

the speculative nature of obtaining parole. See

Merzbacher v. Shearin, 706 F.3d 356, 366–67 (4th Cir.

2013) (“Accordingly, only if Merzbacher’s testimony

that he would have accepted the plea was deemed

credible could Frye and Lafler assist him.”). After all,

state and federal courts recognize that an individual’s

self-serving assertions that they would have accepted

a plea should be subject to heavy skepticism because

defendants will always want a chance of acquittal at

trial and the chance to plead guilty if later convicted.

Id. at 367.

Moreover, resolving this issue in Howard’s favor

and against the TCCA’s determination would require

making factual determinations not entirely clear on

this record. The Court normally does “not grant a

certiorari to review evidence and discuss specific facts.”

United States v. Johnson, 268 U.S. 220, 227 (1925);

accord Sup. Ct. R. 10 (certiorari is “rarely granted”

when the petition asserts “erroneous factual findings”).

This general limitation finds application here because

the state habeas court’s credibility and factual

determinations were necessarily premised upon a

detailed analysis of the record, conducted pursuant to

the parochial manner in which the TCCA resolves such

claims in state postconviction review.

As a result, this appeal of the TCCA’s state habeas

denial is a poor vehicle to analyze the Questions

Presented. Indeed, Howard’s suggested misapplication

of Lafler is illusory. Finding that trial counsel was

required to advise Howard as to the collateral parole

consequences of her plea would require first adopting

14

a new rule from which Teague prevents her from

benefitting. Further still, even if the Sixth Amendment

did require trial counsel to provide such advice, the

record in this case belies a finding that this would

necessarily have caused Howard to plead guilty—and,

in turn, precludes finding that the TCCA’s decision

necessarily rested on such a determination. At the very

least, as Howard implicitly acknowledges in

challenging the state court’s failure to conduct an

evidentiary hearing, prejudice is not established on

this record.

Moreover, Rule 10 provides that certiorari review is

not a matter of right, but of judicial discretion, and will

be granted only when there are special and important

reasons therefor. See Sup. Ct. R. 10. Certiorari review

of state habeas decisions is generally inappropriate

where a claim is ripe for federal habeas review. The

Court should decline Howard’s invitation to do so here:

[T]his 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 (1995) (Stevens, J.,

concurring in denial of a stay).

Furthermore, if the Court were to grant certiorari

here, it would effectively allow Howard to bypass the

limitations period for federal collateral review, 28

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U.S.C. § 2244(d), designed to give finality to state

convictions. She could challenge her final conviction

with what would otherwise be an untimely claim.

Indeed, because this Court denied certiorari on direct

appeal on October 1, 2018, any challenge to her

conviction was due one year later, on October 1, 2019.

28 U.S.C. § 2244(d); See Petr’s App. 24. Howard did not

file her state habeas application containing her claim

until June 5, 2020, so any federal habeas petition

challenging her conviction would be untimely. See

Petr’s App. 2; Pet. Cert. at 24 n. 13.

For all these reasons, prudence calls for the Court

to deny certiorari. See Sup. Ct. R. 10.

CONCLUSION

Based on the foregoing, 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

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s/ Craig W. Cosper

CRAIG W. COSPER*

Assistant Attorney General

*Counsel of Record

P.O. Box 12548

Austin, Texas 78711-2548

(512) 936-1400

craig.cosper@oag.texas.gov

*Counsel for Respondent

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