Opposition Brief — Stephen Dale Barbee, Petitioner v. Texas

Supreme Court briefAug 4, 2021

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No. 21-5093

__________________________________________________________________

In the

Supreme Court of the United States

________________________

STEPHEN DALE BARBEE,

P E T IT I O NE R

S T A T E OF T E X A S ,

RESPONDENT

_______________________

O N P E T IT I O N F O R A W R IT OF C E R T I OR A R I

T O T H E T E X A S C O U R T OF C R IM I NA L A P P E A L S

_______________________

BRIEF IN OPPOSITION

_______________________

S H A R E N W IL S ON

C R IM I N A L D IS T R I C T A T T O R N E Y

T A R R A NT C O U NT Y , T E X A S

J OS E P H W. S P E N C E

A S S IS T A NT C R IM I N A L D IS T R I C T

A T T OR N E Y

C H I E F , P O S T -C O NV IC T I O N

S T E V E N W. C ON D E R

A S S IS T A NT C R IM I N A L D IS T R I C T

A T T OR N E Y

Counsel of Record

T A R R A NT C O U NT Y C R IM I N A L

D IS T R I C T A T T OR N E Y ’ S O F F I C E

401 W. Belknap

Fort Worth, TX 76196-0201

(817) 884-1687

_________________________________________________________________

Petitioner is scheduled for execution after 6:00 p.m. (CST)

Tuesday, October 12, 2021

COUNTERSTATEMENT OF THE QUESTIONS PRESENTED

The petitioner was convicted of capital murder for intentionally causing

the deaths of Lisa Underwood and Jayden Underwood during the same

criminal transaction and sentenced to death in February 2006. After thirteen

years of post-conviction litigation, the trial court scheduled Barbee’s execution

for October 2, 2019.

On August 6, 2019, the petitioner filed a subsequent application for writ

of habeas corpus alleging that his trial counsel improperly overrode his Sixth

Amendment autonomy right to insist that counsel maintain his innocence in

violation of McCoy v. Louisiana. 1 The Texas Court of Criminal Appeals stayed

the petitioner’s execution to address whether he was entitled to any relief

under McCoy. Ex parte Barbee, 2019 WL 4621237, at *2 (Tex. Crim. App.

September 23, 2019) (not designated for publication). The Court of Criminal

Appeals dismissed the petitioner’s claim holding that his claim was legally

available when he filed his earlier writ applications and that, even if not

previously legally available, he had not alleged sufficient facts entitling him

to relief. Ex parte Barbee, 616 S.W.3d 836, 846 (Tex. Crim. App. 2021).

This Court is presented with the following questions:

Whether the state court’s decision to foreclose habeas review of a

capital defendant’s claim under McCoy v. Louisiana contravenes

federal law because it held that the Sixth Amendment autonomy

right recognized in McCoy was a “logical extension” of the Sixth

Amendment right to counsel at issue in Florida v. Nixon? 2

Whether the state court’s holding that the petitioner failed to

make a prima facie case under McCoy violates core Sixth

Amendment principles where there is no dispute that the

individual insisted to his counsel that he is innocent, but counsel

nevertheless conceded his guilt?

See McCoy v. Louisiana, ___ U.S. ___, 138 S.Ct. 1500, 200 L.Ed.2d 821 (2018).

See Florida v. Nixon, 543 U.S. 175, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004).

TABLE OF CONTENTS

Page

Counter-Statement of the Questions Presented........................................................... 2

Table of Authorities ....................................................................................................... 4

Statement of the Case ................................................................................................... 8

Reasons for Denying the Petition................................................................................ 13

Argument in Support of Denying the Petition ........................................................... 13

Texas Court of Criminal Appeals relied upon in dismissing the

petitioner’s McCoy v. Louisiana claim. ...................................................... 13

Claim did not meet the standard for consideration in a

subsequent writ application. ............................................................ 14

Claim was not supported by sufficient facts entitling the

petitioner to relief under McCoy v. Louisiana. ................................ 16

II.

The Court of Criminal Appeals correctly determined that the legal basis

for the petitioner’s McCoy v. Louisiana claim was previously

available when he filed his original state court writ application. ............. 17

III.

The Court of Criminal Appeals correctly determined that the petitioner

did not factually establish a McCoy v. Louisiana violation. ...................... 21

Counsel did not override the petitioner’s defense objective in

offering a different theory for acquittal ........................................... 23

The petitioner expressed no affirmative opposition to counsel’s

different theory for acquittal ............................................................ 25

The petitioner has not consistently maintained his innocence ....... 26

Conclusion .................................................................................................................... 30

TABLE OF AUTHORITIES

CASES

UNITED STATES SUPREME COURT

Beard v. Kindler,

558 U.S. 53, 130 S.Ct. 612, 175 L.Ed.2d 417 (2009) ................................. 13, 14, 16

Edwards v. Vannoy,

___ U.S. ___, 141 S.Ct. 1547, ___ L.Ed.2d ___ (2021) ...................................... 21, 22

Faretta v. California,

422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ....................................... 18, 26

Florida v. Nixon,

543 U.S. 175, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004) ....................................... 2, 19

Jones v. Barnes,

463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983) ........................................... 18

Lambrix v. Singletary,

520 U.S. 518, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997) ................................... 13, 14

Lee v. Kemna,

534 U.S. 362, 122 S.Ct. 877, 151 L.Ed.2d 820 (2002) ........................................... 14

McCoy v. Louisiana,

___ U.S. ___, 138 S.Ct. 1500, 200 L.Ed.2d 821 (2018)................................... passim

Moore v. Texas,

535 U.S. 1110, 122 S. Ct. 2350, 153 L.Ed.2d 154 (2002) ................................ 15, 16

Teague v. Lane,

489 U.S. 288 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) .............................. 19, 21, 22

United States v. Cronic,

466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) ........................................... 18

United States v. Gonzalez-Lopez,

548 U.S. 140, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006) ......................................... 18

UNITED STATES CIRCUIT COURT OF APPEALS

Balentine v. Thaler,

626 F.3d 842 (5th Cir. 2010), cert. denied, 564 U.S. 1006,

131 S.Ct. 2992, 180 L.Ed.2d 824 (2011) ................................................................ 15

Barbee v. Davis,

660 Fed. App’x. 293 (5th Cir. 2016) ................................................................. 12, 29

Barbee v. Davis,

728 Fed. App’x. 259 (5th Cir. 2018), cert. denied, ___ U.S. ___,

139 S.Ct. 566, 202 L.Ed.2d 406 (2018) ............................................................ 12, 29

Christian v. Thomas,

982 F.3d 1215 (9th Cir. 2020) .................................................................... 20, 21, 24

Hughes v. Quarterman,

530 F.3d 336 (5th Cir. 2008), cert. denied, 556 U.S. 1239,

129 S.Ct. 2378, 173 L.Ed.2d 1299 (2009) .............................................................. 15

Kunkle v. Dretke,

352 F.3d 980 (5th Cir. 2003), cert. denied, 543 U.S. 835,

125 S.Ct. 250, 160 L.Ed.2d 56 (2004) .................................................................... 15

Smith v. Stein,

982 F.3d 229 (4th Cir. 2020), cert. denied,

2021 WL 1520899 (April 19, 2021) .................................................................. 20, 21

Thompson v. United States,

791 F.App’x 20 (11th Cir. 2019) ............................................................................. 25

United States v. Audette,

923 F.3d 1227 (9th Cir. 2019) ................................................................................ 24

United States v. Holloway,

939 F.3d 1088 (10th Cir. 2019) .............................................................................. 24

United States v. Rosemond,

958 F.3d 111 (2nd Cir. 2020), cert. denied,

___ U.S. ___, 141 S.Ct. 1057, 208 L.Ed.2d 524 (2021)........................................... 24

UNITED STATES DISTRICT COURT

Barbee v. Stephens,

2015 WL 4094055 (N.D. Tex. 2015) ....................................................................... 12

Barber v. Dunn,

2019 WL 1979433 (N.D. Ala. May 3, 2019) affirmed, ___ Fed. App’x. ___,

2021 WL 2623159 (11th Cir. 2021) ........................................................................ 20

Elmore v. Shoop,

2019 WL 3423200 (S.D. Ohio July 30, 2019) ......................................................... 21

Honie v. Benzon,

2019 WL 5066738 (D. Utah October 9, 2019, appeal filed) .................................. 21

Johnson v. Ryan,

2019 WL 1227179 (D. Ariz. March 15, 2019) ........................................................ 21

Morris v. Pennsylvania,

2018 WL 5453585 (E.D. Pa. October 29, 2018, appeal filed) ................................ 20

United States v. Rosemond,

322 F.Supp.3d 482 (S.D.N.Y. 2018), affirmed 958 F.3d 111 (2nd Cir. 2020),

cert. denied, ___ U.S. ___, 141 S.Ct. 1057, 208 L.Ed.2d 524 (2021) ...................... 22

TEXAS COURT OF CRIMINAL APPEALS

Barbee v. State,

2008 WL 5160202 (Tex. Crim. App. December 10, 2008), cert. denied,

558 U.S. 856, 130 S.Ct. 144, 175 L.Ed.2d 94 (2009) ....................................... 11, 12

Chavez v. State,

371 S.W.3d 200 (Tex. Crim. App. 2012)........................................................... 15, 16

Ex parte Barbee,

616 S.W.3d 836 (Tex. Crim. App. 2021)......................................................... passim

Ex parte Barbee,

2009 WL 82360 (Tex. Crim. App. January 14, 2009) ............................................ 12

Ex parte Barbee,

2013 WL 1920686 (Tex. Crim. App. May 8, 2013) ................................................ 12

Ex parte Barbee,

2019 WL 4621237 (Tex. Crim. App. September 23, 2019) ................................ 2, 12

Ex parte Riles,

2021 WL 1397906 (Tex. Crim. App. April 14, 2021) ............................................. 15

OTHER STATES

Anthony v. State,

___ S.E.2d ___, 2021 WL 1521547 (Ga. April 19, 2021) ........................................ 25

Broadnax v. State,

2019 WL 1450399 (Tenn. Crim. App. March 29, 2019), perm. app. denied ......... 28

Isom v. State,

___ N.E.2d ___, 2021 WL 2678553 (Ind. June 30, 2021) ....................................... 25

Merck v. State,

298 So.3d 1120 (Fla. 2020), cert. denied,

2021 WL 1072356 (March 22, 2021) ...................................................................... 25

People v. Bezon,

2018 Guam 28, 2018 WL 6841783 (Guam December 31, 2018) ........................... 22

People v. Chen,

2019 WL 5387465 (Cal. App. 2nd Dist. October 22, 2019) ................................... 28

Truelove v. State,

945 N.W.2d 272 (N.D. 2020) .................................................................................. 25

STATUTES

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

Tex. Code Crim. Proc. art. 11.071, §5(a) ............................................................... 15, 16

BRIEF IN OPPOSITION

_______________________

The State of Texas respectfully submits this brief in opposition to the petition

for writ of certiorari filed by Stephen Dale Barbee.

STATEMENT OF THE CASE

The petitioner was convicted of capital murder and sentenced to death for

killing his pregnant former girlfriend Lisa Underwood and her seven-year-old son

Jayden in the same criminal transaction. The Court of Criminal Appeals summarized

the facts as follows:

Lisa [Underwood] owned a bagel shop in Fort Worth with her friend Holly Pils.

Pils testified that appellant, who was married, had been a customer at the

bagel shop and that he and Lisa began a personal relationship in Fall 2003.

They stopped seeing each other at the end of 2003, and Lisa began dating

another man at the beginning of 2004. She was still dating the other man when

she resumed her relationship with appellant in July 2004, and she became

pregnant around that time. She informed both men that she was pregnant but

told appellant that she believed he was the father of the unborn child. She told

Pils that she wanted her baby to have health insurance and that she had

discussed the matter with appellant.

Pils testified that Lisa, who was more than seven months pregnant, stayed

home from work on Friday, February 18, 2005, because she had a cold. Pils

planned to host a baby shower for Lisa at the bagel shop the next day. Lisa told

Pils that she was feeling better, that she was excited about the baby shower,

and that she planned to arrive at the bagel shop shortly before 4:00 p.m. on

Saturday, February 19th.

At approximately 3:00 on Saturday morning, Denton County Deputy Sheriff

David Brawner saw a man walking along the service road of Interstate

Highway 35. Brawner stopped his patrol car behind the man and activated his

overhead emergency lights and his “in-car video camera system.” It was cold

outside, and it had been raining. Brawner testified that the man’s clothes were

“very wet” and that he was “covered in mud.” When Brawner asked the man

for identification, he said that he had left his wallet at his friend’s residence

nearby. He gave the officer a false name and date of birth and “took off running

on foot” when Brawner spoke with dispatch in an effort to verify the

information. Brawner ran after the man, but he disappeared into a thickly

wooded area. Brawner and other officers searched the area for hours but were

unable to locate the man. Brawner later identified the man as appellant in a

photo spread.

The police were contacted after Lisa failed to show up for her baby shower later

that day. There were no signs of forced entry at Lisa’s house. Jayden’s shoes

were on top of the fireplace hearth, and his glasses had been left next to his

bed. There was blood in the living room on the entertainment center, the walls,

and a fitted couch cover. It appeared that someone had attempted to clean and

conceal a saturation blood stain on the living room floor. Lisa’s car was gone,

and there was blood on the floor in the garage. Lisa’s DNA profile was

consistent with the blood stains in the house and the garage. Her personal

home computer showed that she logged on to the internet at 11:22 p.m. on

February 18 and logged off at 12:02 a.m. on February 19. The last website she

visited was “birthplan.com.”

On February 21, Lisa’s Dodge Durango was found in a creek approximately

300 yards from where Officer Brawner had encountered appellant two days

earlier. The front end of the vehicle was submerged in the creek. The windows

were down and the hatchback was up. There was a bottle of cleaning solution

in the cargo area of the vehicle. Lisa’s car keys and purse were located nearby.

On the same day that Lisa’s car was found, Detectives Michel Carroll, John

McCaskell, and Brian Jamison of the Fort Worth Police Department traveled

to Tyler to speak with appellant, his wife Trish Barbee, and his co-worker Ron

Dodd. The detectives initially talked to them in the parking lot of a Wal–Mart,

but later asked them to come to the Tyler Police Department for further

questioning. At the police department, Carroll and Jamison interviewed

appellant in one room, and McCaskell interviewed Dodd in another room.

Appellant received his Miranda warnings and his interview began at about

7:45 p.m. In this interview, which was recorded on a digital video disc (DVD),

appellant said that he worked cutting down trees in Tyler during the day on

February 19. He said that he drove to his home in Fort Worth that evening and

that he went over to Dodd’s house later that night to work on the truck that

they used as their business vehicle. He left Dodd’s house at around 2:00 or 3:00

a.m. It took over an hour for him to drive home because the truck was

“sputtering” and “leaking oil.” His wife was asleep when he arrived home, and

he slept on the couch so he would not wake her. He acknowledged that he had

dated Lisa and that she had informed him he might be the father of her unborn

child, but he claimed that he had not seen or heard from her in a while. He

eventually acknowledged that he had been stopped by a police officer in Denton

County at around 3:00 a.m., that he had given the officer a false name and date

of birth, and that he had run away from the officer.

Carroll testified that he excused himself to observe McCaskell’s interview with

Dodd, then he returned to appellant’s interview room and asked, “Does FM 407

sound familiar to you?” He placed photographs of Lisa and Jayden on the table

and walked out of the room, leaving appellant alone. Appellant later opened

the door and asked to use the men’s room. Carroll accompanied him to the

bathroom where they had an un-recorded conversation for about forty-five

minutes to one hour. Carroll testified that he told appellant that Dodd was

“going to lay this whole thing in [appellant’s] lap” and that “Lisa’s family

needed closure.” Appellant made comments “about being locked up [for] the

rest of his life” and said that he understood the need for closure because he had

lost a family member. Appellant told Carroll that “he and Dodd actually

created a plan to go kill Lisa” because “Lisa wanted to use his name on a birth

certificate or she was trying to take money from him, she was going to ruin his

family, his relationship with his wife, Trish, and he did not want that to

happen.” Appellant said that he dropped his car off at Dodd’s house and then

Dodd drove him to Lisa’s house. Dodd left, and appellant went inside and tried

to “pick a fight” with her. He was unable to provoke a fight, so he called Dodd

to pick him up. He later had Dodd take him back to Lisa’s house. This time,

“he was able to get her upset enough that he could start a fight with her.” He

wrestled her to the ground and “held her face into the carpet until she stopped

breathing.” Jayden came into the room and was “crying” and “emotional.”

Appellant said he walked up to Jayden, placed his hand over his mouth and

nose, and “held it there until he stopped breathing.” Afterwards, appellant

“tried to clean up the house” and “tried to cover a blood spot with a piece of

furniture.” He placed the bodies of Lisa and Jayden into Lisa’s car and drove

to “a road off of FM 407 where they buried both their bodies.” He said that he

used a shovel Dodd had given to him and that he buried the bodies in a shallow

grave and placed debris on top of it. He then drove Lisa’s car to another location

and “stopped it just short of the creek.” After relating this story, appellant

agreed to have another digitally recorded video interview with Carroll.

Carroll testified that he and appellant left the bathroom and went to Detective

Richard Cashell’s desk where appellant assisted them in mapping out the

location where he had buried the victims. They used “MapQuest” to “get a map

of that area” and appellant showed them “the roads that he traveled” and

where he “put the victims’ bodies.” Carroll and appellant then went back to the

interview room where appellant gave his second digitally recorded video

statement shortly after 11:00 p.m.

After Carroll interviewed appellant, he left the interview room and spoke with

appellant’s wife, Trish Barbee. Carroll told Trish that appellant had confessed

to killing Lisa and that he wanted to talk to her. Trish wanted to speak with

appellant, so Carroll brought her to the interview room. Carroll remained

outside, and the digital video recorder continued running as appellant and

Trish conversed. Trish asked appellant what happened. Appellant explained

that Lisa called him and threatened him, so he went to her house and tried to

talk to her. He said that Lisa said she would “ruin” him and that she fought

with him and kicked him. He explained that he “held her down too long” and

that he “didn’t mean for her to stop breathing.”

Carroll testified that appellant spent that night in the Smith County Jail. The

next morning, he rode with Carroll and Officer Mark Thornhill and directed

them to the location of the bodies. Carroll testified that appellant stated,

“[W]hen I take you to the bodies, I don’t want to see the bodies, and I don’t

want the media to see me.” When they got closer to the location, appellant told

the officers to take a different exit and “took [them] a back route to the same

location.” When they arrived, appellant sat in the car and directed them to the

grave by yelling out the window. Carroll testified that Dodd had already taken

police to “the same area,” but that the bodies were not located until appellant

arrived. The bodies were located in a shallow grave that had tree limbs placed

on top of it.

The medical examiner who performed Lisa’s autopsy testified that Lisa

suffered facial abrasions and contusions and a broken arm. She had bruises on

both sides of her back that could have been caused by being hit or by having

“external force applied over a longer period of time.” Her injuries were

consistent with a person holding her down and stopping her from breathing.

The cause of her death was “traumatic asphyxiation,” and the manner of her

death was homicide. Lisa was pregnant with a healthy female fetus that

appeared to be around seven months gestational age. The cause of the fetus’

death was “fetal asphyxiation” resulting from “maternal asphyxiation.”

The medical examiner who performed Jayden’s autopsy testified that Jayden

had a large bruise above his right temple that was “due to some sort of impact

to the head.” He had bruises on his back and abrasions on his back, arm, hip,

and leg. He had bruises on his lips and gums that appeared to be “caused by

some sort of compression, some object put over the area of the mouth and

pressing on the mouth and compressing the lips against the underlying teeth.”

The medical examiner testified that Jayden’s injuries were consistent with:

someone placing a hand over Jayden’s mouth and nose; someone pressing

Jayden’s face against a flat surface; or, someone pressing Jayden’s face against

a surface that “gives if you push against it,” like a couch or a carpeted floor. He

determined that the cause of Jayden’s death was “asphyxia by smothering” and

the manner of his death was homicide.

See Barbee v. State, 2008 WL 5160202, at *1-3 (Tex. Crim. App. December 10, 2008)

(not designated for publication) (citations and footnotes omitted), cert. denied, 558

U.S. 856, 130 S.Ct. 144, 175 L.Ed.2d 94 (2009).

The Court of Criminal Appeals affirmed the petitioner’s conviction and death

sentence and denied relief on two prior habeas corpus applications. See Barbee v.

State, 2008 WL 5160202, at *14; Ex parte Barbee, 2009 WL 82360, at *1 (Tex. Crim.

App. January 14, 2009) (not designated for publication); and Ex parte Barbee, 2013

WL 1920686, at *1 (Tex. Crim. App. May 8, 2013) (not designated for publication).

The federal district and circuit courts also considered and denied his requests for

habeas relief. See Barbee v. Stephens, 2015 WL 4094055, at *67 (N.D. Tex. 2015)

(unpublished); Barbee v. Davis, 660 Fed. App’x. 293, 297, 328 (5th Cir. 2016); and

Barbee v. Davis, 728 Fed. App’x. 259, 263, 270 (5th Cir. 2018), cert. denied, ___ U.S.

___, 139 S.Ct. 566, 202 L.Ed.2d 406 (2018).

The petitioner filed a third application for habeas corpus relief alleging that

his trial counsel improperly overrode his Sixth Amendment autonomy right to insist

that counsel maintain his innocence in violation of McCoy v. Louisiana. See Ex parte

Barbee, 2019 WL 4621237, at *2 (Tex. Crim. App. September 23, 2019) (not

designated for publication). The Court of Criminal Appeals dismissed this application

because his claim was legally available when he filed his earlier writ applications

and, even if not previously legally available, he did not allege sufficient facts entitling

him to relief. See Ex parte Barbee, 616 S.W.3d at 846.

REASONS FOR DENYING THE PETITION

The Texas Court of Criminal Appeals properly dismissed the petitioner’s

McCoy claim because it does not meet the Texas standard for considering a

subsequent writ application and because it was not supported by sufficient facts

entitling him to relief. These are independent and adequate state-law grounds that

are outside this Court’s jurisdiction.

Alternatively, the Court of Criminal Appeals’ determinations that the

petitioner’s McCoy claim was legally available when he filed his earlier state writ

applications and that he did not present sufficient facts justifying relief are

reasonable applications of this Court’s existing standards in interpreting a

defendant’s constitutional right to effective assistance of counsel.

ARGUMENT IN SUPPORT OF DENYING THE PETITION

The Texas Court of Criminal Appeals relied upon independent and

adequate state-law grounds in dismissing the petitioner’s McCoy v.

Louisiana claim.

This Court does not review questions of federal law decided by a state court if

the decision of that court rests on a state-law ground that is independent of the

federal question and adequate to support the judgment. Beard v. Kindler, 558 U.S.

53, 55, 130 S.Ct. 612, 614, 175 L.Ed.2d 417 (2009); Lambrix v. Singletary, 520 U.S.

518, 522–23, 117 S.Ct. 1517, 1522, 137 L.Ed.2d 771 (1997).

Even though the

“independent and adequate state ground” is not technically jurisdictional in habeas

review, this Court has applied that doctrine to bar review of claims defaulted under

state law. Lambrix v. Singletary, 520 U.S. at 523, 117 S.Ct. at 1522

A state-law ground is adequate to preclude federal consideration of a claim if

it is firmly established and regularly followed. Lee v. Kemna, 534 U.S. 362, 376, 122

S.Ct. 877, 885, 151 L.Ed.2d 820 (2002). The discretionary nature of a state-law bar

does not make it any less “adequate” for a discretionary rule can be firmly established

and regularly followed even if the appropriate exercise of discretion may permit

consideration of a federal claim in some cases but not others. Beard v. Kindler, 558

U.S. at 60–61, 130 S.Ct. at 617-18. Situations where a state-law ground is found

inadequate are limited to a small category of cases. Lee v. Kemna, 534 U.S. at 376,

122 S.Ct. at 885.

Claim did not meet the standard for consideration in a subsequent

writ application.

The Court of Criminal Appeals dismissed this third writ application as an

abuse of the writ because the petitioner’s McCoy claim did not meet the statutory

requirements for considering its merits in a subsequent writ application. Ex parte

Barbee, 616 S.W.3d at 846. The Texas Code of Criminal Procedure directs that a

court may not consider the merits of or grant relief based on a subsequent application

for writ of habeas corpus unless the applicant can establish that the factual or legal

basis for his claim was unavailable when he filed his initial or any prior state writ

applications, or where he can show that, but for the alleged constitutional violation,

no rational juror could have convicted him or answered the special issues in the

State’s favor. See Tex. Code Crim. Proc. art. 11.071, §5(a)(1)-(3).

The Court of Criminal Appeals regularly dismisses subsequent state habeas

applications using this well-established procedural bar.

See, e.g., Balentine v.

Thaler, 626 F.3d 842, 856–57 (5th Cir. 2010), cert. denied, 564 U.S. 1006, 131 S.Ct.

2992, 180 L.Ed.2d 824 (2011); Hughes v. Quarterman, 530 F.3d 336, 342 (5th Cir.

2008), cert. denied, 556 U.S. 1239, 129 S.Ct. 2378, 173 L.Ed.2d 1299 (2009); Kunkle

v. Dretke, 352 F.3d 980, 989 (5th Cir. 2003), cert. denied, 543 U.S. 835, 125 S.Ct. 250,

160 L.Ed.2d 56 (2004). Determining whether the facts underlying a claim were

available with reasonable diligence or whether a legal basis existed at the time of an

inmate’s initial or prior state habeas application is a matter of timing, not

interpretation of federal law. See Moore v. Texas, 535 U.S. 1110, 122 S. Ct. 2350,

2353, 153 L.Ed.2d 154 (2002) (Scalia, J., dissenting in grant of stay). 3 Thus, its

discretionary nature does not undermine its independence or adequacy.

Additionally, the Court of Criminal Appeals applied at least one purely state-

That discretion includes both cases like the petitioner’s case where the

Court found his claim previously legally available or those where it

found the legal ground to be previously unavailable. See e.g. Ex parte

Riles, 2021 WL 1397906 *2 (Tex. Crim. App. April 14, 2021) (not

designated for publication) (lack of mitigation instruction in capital

case claim was previously legally unavailable); Chavez v. State, 371

S.W.3d 200, 206-07 (Tex. Crim. App. 2012) (false/misleading testimony

due process claim was previously legally unavailable).

law factor in determining previous legal availability: Does McCoy make it easier to

establish a claim? See Ex parte Barbee, 616 S.W.3d at 845, citing Chavez v. State,

371 S.W.3d at 206-07 (a false/misleading testimony due process claim is a new legal

basis distinct from long-standing perjured testimony due process caselaw because it

is easier to establish a claim). Thus, its prior availability analysis was not totally

based on federal law – demonstrating its independence.

Finally, the United States Code contains a comparable “second or successive”

habeas prohibition limiting the number of attempts an inmate may seek to

collaterally attack their conviction, subject to certain, few exceptions. Compare Tex.

Code Crim. Proc. art. 11.071, §5(a), with 28 U.S.C. §2244(b). Federal courts

should not disregard state procedural rules when substantially similar rules are

given full force in federal courts. Beard v. Kindler, 558 U.S. at 62, 130 S.Ct. at 618.

Put simply, the Texas subsequent writ procedural bar provides an independent and

adequate state-law ground preventing this Court’s review.

Claim was not supported by sufficient facts entitling the petitioner to

relief under McCoy v. Louisiana.

The Court of Criminal Appeals unanimously found that the petitioner had not

alleged sufficient facts entitling him to relief under McCoy. Ex parte Barbee, 616

S.W.3d at 845-46, 855-57. Deciding whether an inmate has provided the requisite

level of evidence to prove a writ claim does not touch upon federal law. Moore v.

Texas, 122 S.Ct. at 2353. The Court’s insufficient facts finding is an independent

and adequate state law ground preventing this Court’s review.

II.

The Court of Criminal Appeals correctly determined that the legal

basis for the petitioner’s McCoy v. Louisiana claim was previously

available when he filed his original state court writ application.

The Court of Criminal Appeals found that the petitioner’s McCoy claim was

previously legally available because:

•

McCoy was founded on “familiar legal principles” that dealt with the

division of labor between attorney and client, the duty of the attorney to

consult with his client about important matters, the client’s exclusive

right to make fundamental decisions about his own defense with the

assistance of counsel, and structural error;

McCoy was a logical extension of Nixon and “could have been rationally

fashioned” from it; and

McCoy did not make it easier to establish a claim.

See Ex parte Barbee, 616 S.W.3d at 844-45 (citations omitted). This decision is a

reasonable application of existing constitutional jurisprudence.

McCoy holds that it is a defendant’s prerogative to choose the objective of his

defense – whether to admit guilt in hopes of gaining mercy at the sentencing stage or

to force the State to prove his guilt beyond a reasonable doubt by maintaining his

innocence – and that it is structural error for defense counsel to override a defendant’s

expressed desire to maintain innocence by conceding his guilt. McCoy v. Louisiana,

138 S.Ct. at 1505, 1511-12.

A defendant’s retention of his autonomous right to assert innocence as his

defense objective, even when represented by counsel and advised adversely, comes

directly from the renowned Faretta holding that:

The right to defend is personal, and a defendant’s choice in exercising that

right must be honored out of that respect for the individual which is the

lifeblood of the law.

McCoy v. Louisiana, 138 S.Ct. at 1507-08, citing, Faretta v. California, 422 U.S.

806, 834, 95 S.Ct. 2525, 2540-41, 45 L.Ed.2d 562 (1975) (internal quotation marks

omitted). The Sixth Amendment guarantee to assistance of counsel does not require

a defendant to cede complete control over his defense. See McCoy v. Louisiana, 138

S.Ct. at 1508, citing Faretta v. California, 422 U.S. at 819-20, 95 S.Ct. at 2533-34.

The finding that certain decisions are reserved to the defendant is not a new

constitutional concept. See McCoy v. Louisiana, 138 S.Ct. at 1508, citing Jones v.

Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987 (1983) (an accused

has the ultimate authority to make certain decisions such as whether to plead guilty,

waive a jury, testify in his or her own behalf, or take an appeal).

Likewise, the finding that violating a defendant’s autonomy is structural error

because it affects his fundamental right to choose how to protect his own liberty and

because its effects are too hard to measure 4 is not a new legal basis since structural

error relating to representation by counsel is long-standing Sixth Amendment

jurisprudence. See United States v. Gonzalez-Lopez, 548 U.S. 140, 148-51, 126

S.Ct. 2557, 2563-65, 165 L.Ed.2d 409 (2006) (denial of competent counsel of choice

qualifies as structural error); United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct.

See McCoy v. Louisiana, 138 S.Ct. at 1511.

2039, 2047, 80 L.Ed.2d 657 (1984) (complete denial of counsel is structural error

making the adversarial process presumptively unreliable).

In other words, McCoy did not unfurl a new constitutional right or previouslyunavailable legal basis; rather it simply applied existing Sixth Amendment principles

to a different factual context. See Teague v. Lane, 489 U.S. 288, 301, 307 109 S.Ct.

1060, 1070, 1073, 103 L.Ed.2d 334 (1989) (a new constitutional rule occurs when a

Supreme Court decision is not dictated by existing precedent; applying existing legal

principles to a different set of facts does not create a new rule).

Given these

underpinnings, the Court of Criminal Appeals reasonably concluded that McCoy was

founded on “familiar legal principles” dealing with a defendant’s autonomy or

exclusive right to make certain decisions and did not present a new constitutional

concept.

Most significantly, this Court broached this issue before the Underwood

murders even occurred. See Florida v. Nixon, 543 U.S. at 178, 125 S.Ct. at 555

(while defense counsel need not obtain a defendant’s consent to every tactical

decision, counsel does have the duty to consult with a client regarding important

decisions, including questions of overarching defense strategy). This Court rejected

a blanket explicit consent rule for counsel’s strategic choice to concede guilt when a

defendant remains silent (i.e., neither approving nor protesting the proposed

concession strategy), but clearly indicated that guilt could not be conceded over his

express objections. See Florida v. Nixon, 543 U.S. at 192, 125 S.Ct. at 563. Even

this Court’s own opening language in McCoy demonstrates that autonomy is not a

new concept:

In Florida v. Nixon, this Court considered whether the Constitution bars

defense counsel from conceding a capital defendant's guilt at trial when [the]

defendant, informed by counsel, neither consents nor objects, ... In the case

now before us, in contrast to Nixon, the defendant vociferously insisted that he

did not engage in the charged acts and adamantly objected to any admission of

guilt.

See McCoy v. Louisiana, 138 S.Ct. at 1505 (internal citations and quotation marks

omitted). Thus, the Court of Criminal Appeals reasonably concluded that McCoy was

a logical extension of Nixon from which the petitioner could have rationally fashioned

his current claim.

Multiple courts have reached this same reasoning that McCoy did not establish

a new constitutional concept justifying retroactive collateral review. See Smith v.

Stein, 982 F.3d 229, 233-34 (4th Cir. 2020), cert. denied, 2021 WL 1520899 (April 19,

2021); Christian v. Thomas, 982 F.3d 1215, 1223-25 (9th Cir. 2020) (McCoy did not

establish a watershed rule justifying retroactive application or collateral review

applicability; rather it simply extended preexisting watershed cases).