Opposition Brief — Antoin Deneil Marshal, Petitioner v. Texas

No. 22-63

IN THE

Supreme Court of the United States

_________________________

ANTOIN DENIL MARSHAL,

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

SARAH M. HARP*

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

Sarah.Harp@oag.texas.gov

Attorneys for Respondent

QUESTION PRESENTED

Petitioner, Antoin Denil Marshal, contends that the

Texas Court of Criminal Appeals (TCCA) erred during

state postconviction proceedings when it applied its

decades-old doctrine of laches to bar review of

Marshal’s state habeas application. He argues that

Texas’s equitable laches doctrine violates the Due

Process Clause. Second, he argues that the TCCA’s

application of the laches doctrine does not constitute

an independent and adequate state law ground that

bars review of Marshal’s claims. Alternatively,

Marshal argues that the State is estopped from relying

on the doctrine of laches when its misconduct caused

the delay in filing the state habeas corpus application.

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

Questions Presented and suggests the following

instead:

Should the Court grant certiorari to review

whether the TCCA erred in denying Marshal’s

state habeas corpus application based on its

own equitable doctrine when: (1) the denial

was based on the TCCA’s application of Texas

law; (2) due process protections do not extend

to Texas’s application of laches to bar

postconviction review and (3) the matter is ripe

for federal habeas review in the district court?

ii

TABLE OF CONTENTS

QUESTION PRESENTED ....................................... ii

TABLE OF CONTENTS .......................................... iii

INDEX OF AUTHORITIES.......................................v

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

OPINIONS BELOW ................................................... 1

JURISDICTION ......................................................... 2

CONSTITUTIONAL PROVISIONS INVOLVED .. 2

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

ARGUMENT ................................................................ 4

I.

The Court Should Not Grant Certiorari

Because It Would Require the Court to

Review the TCCA’s Application of Its

Own Procedural Bar. ................................ 4

II.

The Court Should Deny Certiorari

Because Texas’s Application of Laches

to Bar Postconviction Review Does Not

Violate Due Process. ...............................10

A. The equitable laches doctrine in

Texas .........................................................10

iii

B. Marshal’s constitutional arguments are

illusory. .....................................................11

III.

The

Questions

Presented

Are

Premature and Are Ripe for Review on

Federal Habeas. .......................................14

CONCLUSION ..........................................................15

iv

INDEX OF AUTHORITIES

Cases

Baxter v. Estelle, 614 F.2d 1030 (5th Cir. 1980) ........ 13

Beard v. Kindler, 558 U.S. 53 (2009) ................... 5, 6, 8

Bush v. Gore, 531 U.S. 98 (2000).................................. 5

City of Chicago v. Morales, 527 U.S. 41 (1999) ............ 4

Dist. Att’y Office for Third Jud. Dist. v. Osborne, 557

US 52 (2009) .......................................................... 11, 12

Dowling v. United States, 493 U.S. 342 (1990) .......... 13

Ex parte Carrio, 992 S.W.2d 486

(Tex. Crim. App. 1999).................................................. 7

Ex Parte Perez, 398 S.W.3d 206

(Tex. Crim. App. 2013).......................................... 10, 13

Ford v. Georgia, 498 U.S. 411 (1991) ................. passim

Griffin v. Illinois, 351 U.S. 12 (1956) ......................... 11

Hernandez v. New York, 500 U.S. 352 (1991) .......... 8, 9

Kyles v. Whitley, 498 U.S. 931 (1990)......................... 15

Medina v. California, 505 U.S. 437 (1992) ................ 13

Michigan v. Long, 463 U.S. 1032 (1983) ...................... 8

v

Miller v. Fenton, 474 U.S. 104 (1985) .......................... 9

Mullaney v. Wilbur, 421 U.S. 684 (1975) ..................... 5

Pennsylvania v. Finley, 481 U.S. 551 (1987) . 11, 12, 14

Radio Station WOW v. Johnson,

326 U.S. 120 (1945) ....................................................... 5

Ross v. Moffitt, 417 U.S. 600 (1974) ........................... 11

Sochor v. Florida, 504 U.S. 527 (1992) ........................ 8

Smith v. Phillips, 455 U.S. 209 (1982) ....................... 14

Spencer v. Texas, 385 U.S. 554 (1967) ....................... 13

United States v. Johnson, 268 U.S. 220 (1925)............ 9

United States v. MacCollom, 426 U.S. 317 (1976) ..... 11

Walker v. Martin, 562 U.S. 307 (2011)......................... 5

Williams v. Pennsylvania, 579 U.S. 1 (2016) ............. 11

Statutes

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

Rules

Tex. Code Crim. Proc. art. 11.07 .................................. 4

vi

INTRODUCTION

Marshal was convicted of capital murder in Harris

County, Texas, and sentenced to life imprisonment on

December 1, 2006. In the instant petition for certiorari

review of the TCCA’s denial of state habeas relief based

on its own equitable doctrine, he argues that the TCCA

violated his right to due process because, he contends,

the court does not regularly and consistently apply

laches. Pet. Cert. 22–25. Marshal also contends that

the TCCA erred in applying its own equitable doctrine

because prosecutorial misconduct caused Marshal’s

delay in filing his state habeas corpus application. Pet.

Cert. 30–31. At base, Marshal is asking the Court to

order the TCCA to disregard its parochial equitable

laches doctrine and rule on the merits of his state

habeas application.

But the Court has never held the equitable doctrine

of laches violates due process; the Court has long

declined to construe the language of a state statute

more narrowly than the construction given by that

State’s highest court; and to rule in Mashal’s favor, the

Court would have to reject the TCCA’s fact findings.

Moreover, Marshal’s claims are now ripe for him to

raise in a federal habeas petition. There, he may argue

against any procedural defaults or deference review of

his constitutional claims. Therefore, the Court should

deny Marshal’s petition for a writ of certiorari.

OPINIONS BELOW

The TCCA’s order denying Marshal’s state habeas

corpus application (located at Pet. Cert. App. 1) is not

reported. Likewise, the state habeas trial court’s

recommended findings and conclusions, and its

1

accompanying Exhibit A (located at Pet. Cert. App. 2–

15, 19–28) are also unreported.

JURISDICTION

The Court has jurisdiction under 28 U.S.C.

§ 1257(a) to review Marshal’s claim that the denial of

his state habeas corpus application based on the

doctrine of laches violated due process.

CONSTITUTIONAL PROVISIONS INVOLVED

The Question Presented involves application of the

Due Process Clause in Section I of the Fourteenth

Amendment.

STATEMENT OF THE CASE

On October 25, 2005, off-duty Houston police

officers Reuben DeLeon was shot twice and died at an

apartment maintained for police officers in Houston,

Texas. Marshal v. State, No. 14-06-01133-CR, 2008 WL

516786, at *1 (Tex. App.—Houston [14th Dist.] Feb. 28,

2008, pet. ref’d).

During the trial, the jury heard testimony from

eyewitness Calvin Finnels, Jr., who identified Marshal

as one of the men he saw entering the victim’s

apartment building before he heard gunshots. Pet.

Cert. App. 4; Marshal, 2008 WL 516786, at *1. None of

the fingerprints recovered from the scene matched

Marshal’s fingerprints, and none of the DNA recovered

from the “do-rag” or watch found at the scene matched

Marshal’s DNA. Pet. Cert. App. 6; Marshal, 2008 WL

516786, at *1.

2

Marshal was convicted of capital murder for killing

Officer DeLeon and sentenced to life imprisonment.

Pet. Cert. App. 6; 49–55; Marshal, 2008 WL 516786, at

*2. An intermediate Texas appellate court affirmed

Marshal’s conviction and sentence. Marshal, 2008 WL

516786. Marshal filed a petition for discretionary

review in the TCCA, but that court refused it on

February 6, 2009. Id. Marshal did not file a petition for

certiorari in this Court, so the direct appeal process

ended, and his conviction became final.

In July 2020, Marshal initiated postconviction

proceedings by filing a state habeas application

alleging that the prosecutors suppressed favorable

evidence and used false testimony, and that he was

denied effective assistance of counsel. See Pet. Cert. 6.

The state habeas application did not contain an actual

innocence claim. Pet. Cert. App. 8. After the state

habeas trial court held a live evidentiary hearing, the

State filed an advisory that the DNA found on the “dorag” had been determined to match a David W. Wesley.

Id. Wesley was never identified as a witness,

accomplice, or victim during Marshal’s trial. Id. at 9.

Marshal filed an advisory with the state habeas

trial court alleging that if the DNA from the “do-rag”

had been uploaded to CODIS sooner, then an

“innocence project” would have taken Marshal’s case

and there would not have been such a lengthy delay in

filing his state habeas corpus application. Id. The trial

court found Marshal’s advisory to be conclusory and

speculative since the entities contacted by Marshal

knew at the time that he contacted them in pursuit of

representation that Marshal’s DNA had not been found

on the “do-rag.” Id. The state habeas trial court

3

ultimately recommended that the TCCA deny relief

based on the doctrine of laches because: (1) Marshal’s

eleven-year delay in filing an application for state

habeas corpus relief was unreasonable; (2) the delay

was not the result of “trials and tribulations” with

attorneys; (3) he did not provide any explanation for

the lack of diligence between 2014 and 2018; (4) he

presented no other compelling reason for equitable

relief; (5) he had not presented a claim of actual

innocence; and (6) the State had been materially

prejudiced by the delay because the State would not be

able to challenge Finnels’s credibility because he was

deceased. Id. at 14–15. The TCCA denied Marshal’s

state habeas corpus application based on the findings

of the state habeas trial court after a hearing and on

the TCCA’s independent review of the record. Id. at 1;

Tex. Code Crim. Proc. art. 11.07.

ARGUMENT

I.

The Court Should Not Grant Certiorari

Because It Would Require the Court to

Review the TCCA’s Application of Its Own

Procedural Bar.

The gravamen of Marshal’s complaint is that the

TCCA misapplied its own equitable doctrine. Pet. Cert.

22–25. Even if it had, that would not warrant this

Court’s review. Texas’s doctrine of laches is a matter of

state law, and the Court has long held that it has “no

authority to construe the language of a state statute

more narrowly than the construction given by that

State’s highest court.” City of Chicago v. Morales, 527

U.S. 41, 61 (1999). “Comity and respect for federalism

compel [the Court] to defer to the decisions of state

4

courts on issues of state law,” a practice that “reflects

[the Court’s] understanding that the decisions of state

courts are definitive pronouncements of the will of the

States as sovereigns.” Bush v. Gore, 531 U.S. 98, 112

(2000) (concurring opinion of Chief Justice Rehnquist,

joined by Justice Scalia and Justice Thomas). Thus, the

Court is “bound” by a state’s construction and

interpretation of its own laws, except in “extreme

circumstances.” Mullaney v. Wilbur, 421 U.S. 684, 691

(1975); Radio Station WOW v. Johnson, 326 U.S. 120,

129 (1945) (the Court presented on rare occasions

where the state’s interpretation of its law was “an

obvious subterfuge to evade consideration of a federal

issue.”). Because Marshal failed to present any

extreme circumstance, this Court should deny

certiorari because there is an adequate and

independent state-law ground for the decision below.

Mullaney, 421 U.S. at 691.

The application of the doctrine of laches rests solely

within the TCCA’s broad discretion. And simply being

discretionary cannot negate the adequacy of the

doctrine as a bar for relief, as “a discretionary state

procedural rule can serve as an adequate ground to bar

federal habeas review.” Beard v. Kindler, 558 U.S. 53,

60–61 (2009). Such a discretionary rule may still be

regularly applied “even if the appropriate exercise of

discretion may permit consideration of a federal claim

in some cases but not others.” Id.

The Court has previously addressed a similar

adequate and independent application of a State

procedural bar to deny state habeas relief. As the Court

unanimously held in Walker v. Martin, the California

Supreme Court’s practice of barring post-conviction

5

review of “substantially delayed” state habeas claims

was an adequate and independent procedural bar to

review in federal habeas despite the considerable

range of its application. 562 U.S. 307, 310–22 (2011).

The same holds true for Texas. Marshal’s arguments

about the allegedly irregular application of the

doctrine of laches ignores this Court’s thorough

understanding of the purposes for such a procedural

bar. Id. Marshal disregards the complexity of various

criminal conviction challenges and how an applicant’s

delay may, or may not, affect the equitable concerns for

finality. The TCCA’s sparing application of the

doctrine in a narrow set of circumstances is

appropriate considering the broad array of cases it

reviews. Such discretion should not be disrupted.

Kindler, 558 U.S. at 60–61.

Marshal asserts that the TCCA is prohibited from

denying state habeas review based on untimeliness

because the TCCA inconsistently applies its own

equitable doctrine. Pet. Cert. 22–25. Marshal argues

that this case is analogous to Ford v. Georgia, 498 U.S.

411 (1991), where the Court held that a state court

must strictly and regularly follow its own procedural

rule to constitute an independent and adequate state

ground for barring review of federal constitutional

claims. However, he distinction between Ford and this

matter is at least two-fold. First, Ford stands for the

proposition that a state court cannot announce a new

procedural requirement and then retroactively fault a

defendant for having failed to satisfy it. See 498 U.S. at

424–25. Ford addressed a direct appeal from a trial

proceeding that applied a contemporaneous objection

rule to a Batson claim. Id. at 416. Though state courts

may certainly adopt such requirements, this Court

6

explained, a defendant’s failure to contemporaneously

object at a trial held years before the requirement was

announced is not an adequate and independent state

law ground for denying review. Id. at 423–24. Here,

Marshal concedes that he “anticipated” laches would

apply to his case. Pet. Cert. at 18. And the TCCA’s

laches doctrine has been in place for habeas

applications since at least 1999. See Ex parte Carrio,

992 S.W.2d 486, 488 (Tex. Crim. App. 1999). Marshal

knew laches could apply to his application when he

failed to file a state habeas application after his direct

appeal ended in 2009.

Further, that the laches analysis comes out

differently in different cases does not mean the

doctrine of laches is not strictly and regularly followed

within the meaning of this Court’s precedent. As a

discretionary, equitable doctrine, laches involves factspecific considerations particular to each case. Indeed,

“length of delay alone will not constitute either

unreasonableness of delay or prejudice.” Ex parte

Carrio, 992 S.W.2d at 488. And Marshal points to no

instance in which the TCCA, when faced with facts

materially similar to his, refused to apply laches as a

bar. Texas’s laches doctrine is a far cry from the

retroactively applied contemporaneous objection

requirement in Ford.

Additionally, the contemporaneous objection rule

provides an avenue for a trial court to correct any error

at the time to avoid retrial, should the error be harmful.

However, the doctrine of laches developed to encourage

finality and inequitable results in a collateral attack so

many years after a conviction. A deeper examination

reveals that the two proceedings, and their respective

7

independent and adequate bars, are not comparable.

Thus, Marshal’s reliance on Ford is misguided.

Finally, Marshal’s effort to show the inconsistent

application of the laches bar redounds against granting

certiorari. See Pet. Cert. 23–25 fn. 11–18. He asks this

Court to reperform and reweigh the TCCA’s fact

intensive, equitable calculus across literally dozens of

cases hoping the Court will find an exception to

Kindler. The Court should decline to do so. See Sup. Ct.

R. 10 (“A petition for a writ of certiorari is rarely

granted when the asserted error consists of erroneous

factual findings or the misapplication of a properly

stated rule of law.”). In essence, Marshal wishes to

bypass federal habeas and its requirements for

overcoming state procedural bars by filing this petition

as opposed to filing with the federal district court. But

this Court has held on numerous occasions that it “will

not review a question 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” because “[the

Court] in fact lack[s] jurisdiction to review such

independently supported judgments on direct appeal:

since the state-law determination is sufficient to

sustain the decree, any opinion of this Court on the

federal question would be purely advisory.” Sochor v.

Florida, 504 U.S. 527, 533 (1992); Michigan v. Long,

463 U.S. 1032, 1042 (1983).

Furthermore, the Court’s deference to “a state trial

court’s findings of fact” applies “with equal force” to its

review of matters even “with a federal constitutional

claim.” Hernandez v. New York, 500 U.S. 352, 366

8

(1991); Miller v. Fenton, 474 U.S. 104, 113 (1985) (“[A]n

issue does not lose its factual character merely because

its resolution is dispositive of the ultimate

constitutional question.”). In order to review the

TCCA’s application of its own equitable doctrine this

Court would first be required to review the state

habeas trial court’s factual findings that: (1) Marshal’s

eleven-year delay in filing an application for state

habeas corpus relief was unreasonable; (2) the delay

was not the result of “trials and tribulations” with

attorneys; (3) he did not provide any explanation for

the lack of diligence between 2014 and 2018; (4) he

presented no other compelling reason for equitable

relief; (5) he has not presented a claim of actual

innocence; and (6) the State has been materially

prejudiced by the delay because the State would not be

able to present Finnels’s credibility. Pet. Cert. App. 14–

15. Thus, the Court would have to make numerous,

antecedent factual determinations before ever deciding

if the TCCA misapplied its own law to the facts. For

example, this Court would first need to find that

Marshal’s allegation was true—his delay in filing a

state habeas application was caused when the district

attorney’s office “made a conscious decision not to

upload the full male DNA profile from the do-rag found

at the murder scene to the CODIS database in 2006.”

Pet. Cert. 31. But this negates the deference owed to

the state habeas trial court’s findings of facts,

requiring this the Court to resolve disputed factual

issues and reject the facts found by the lower court.

Such a resolution conflicts with prior Supreme Court

decisions. Hernandez, 500 U.S. at 366. 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.

9

10 (certiorari is “rarely granted” when the petition

asserts “erroneous factual findings”). Consequently,

Marshal’s request to have this Court operate outside

its normal purview should be denied.

II.

The Court Should Deny Certiorari Because

Texas’s Application of Laches to Bar

Postconviction Review Does Not Violate

Due Process.

A. The equitable laches doctrine in Texas

Marshal’s state habeas application was denied

based on the TCCA’s adoption of the state habeas trial

court’s findings that applied the laches doctrine to bar

review of Marshal’s claims. Pet. Cert. App. 1, 9–15

(citing Ex Parte Perez, 398 S.W.3d 206, 216 (Tex. Crim.

App. 2013)). The decision to apply laches to bar

postconviction review of a claim requires the courts to

consider “among all relevant circumstances, factors

such as the length of the applicant’s delay in filing the

application, the reasons for the delay, and the degree

and type of prejudice resulting from the delay.” Ex

Parte Perez, 398 S.W.3d at 217. Additional compelling

reasons considered are new evidence demonstrating

actual innocence or whether the applicant is

“reasonably likely to prevail on the merits.” Id. at 218.

As the TCCA explained, its “broadened prejudice

standard is consistent with the principle that the writ

of habeas corpus is an extraordinary remedy, any grant

of which must be underscored by elements of fairness

and equity.” Id. at 216.

10

B. Marshal’s constitutional arguments are

illusory.

Marshal argues that “the Court should grant

certiorari to determine whether application of the

doctrine of laches violates the Due Process Clause of

the Fourteenth Amendment in the absence of a statute

of limitations or fair notice as to when the application

must be filed[.]” Pet. Cert. 31–32, 28–29. Likening a

state habeas proceeding to a criminal trial proceeding,

Marshal argues that the TCCA’s “arbitrary and

capricious” application of the doctrine of laches violates

due process, which “requires that a person receive

notice of what conduct is prohibited and what conduct

is required to comply with the law.” Id. at 28.

The Due Process Clause “does not establish any

right to an appeal . . . and certainly does not establish

any right to collaterally attack a final judgment of

conviction.” United States v. MacCollom, 426 U.S. 317,

323 (1976); Pennsylvania v. Finley, 481 U.S. 551, 557

(1987) (“States have no obligation to provide

[postconviction] relief”). Yet, when a state does provide

a non-discretionary right to appeal a conviction, the

state must then provide a fair opportunity for criminal

defendants to present their claims as laid out in that

state’s procedures. See Griffin v. Illinois, 351 U.S. 12,

18 (1956); Ross v. Moffitt, 417 U.S. 600, 610–11 (1974).

Likewise, Texas’s habeas review should generally

comply with due process, meaning the state procedure

should be in accord with fundamental fairness.

Williams v. Pennsylvania, 579 U.S. 1, 8 (2016) (due

process concerns over the recusal of a biased judge);

Dist. Att’y Office for Third Jud. Dist. v. Osborne, 557

US 52, 68–69 (2009) (recognizing a liberty interest in

11

pursuing the postconviction relief granted by the

State).

Marshal has already been tried, convicted, and

availed himself of an appeal under Texas law.

Additionally, he was also provided due process when

the TCCA received and reviewed his state habeas

application. However, Marshal is not alleging that the

State has violated his due process protections by

preventing him from filing or that the state habeas

hearing was somehow biased. Rather, he is challenging

the TCCA’s discretionary application of its own

equitable doctrine during his state habeas proceeding.

But due process protections do not extend as far as

Marshal proposes. In providing due process to habeas

applicants, the State “has more flexibility in deciding

what procedures are needed in the context of

postconviction relief.” Osborne, 557 U.S. at 69. Thus,

contrary to Marshal’s claims, due process does not

“dictat[e] the exact form [postconviction review] must

assume.” Finley, 481 U.S. at 559. Marshal’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.” Osborne, 557

U.S. at 69. Like Osborne, Marshal had his chance to

demonstrate “his innocence with new evidence under

state law.” Id. at 68. But Marshal failed to establish his

actual innocence, and opted to dismantle a

longstanding equitable doctrine, using a generalized

due process argument, and force the TCCA to review a

decades-old conviction.

In the criminal law context, this Court has “‘defined

the category of infractions that violate ‘fundamental

12

fairness’ very narrowly’” premised on “the recognition

that, ‘[b]eyond the specific guarantees enumerated in

the Bill of Rights, the Due Process Clause has limited

operation.’” Medina v. California, 505 U.S. 437, 443

(1992) (quoting Dowling v. United States, 493 U.S. 342,

352 (1990) (alterations in original). Moreover, “it has

never been thought” that this Court functions “as a

rule-making organ for the promulgation of state rules

of criminal procedure.” Spencer v. Texas, 385 U.S. 554,

564 (1967).

Texas’s laches doctrine satisfies the fundamental

fairness requirement. Texas courts consider “factors

such as the length of the applicant’s delay in filing the

application, the reasons for the delay, and the degree

and type of prejudice resulting from the delay.” Ex

Parte Perez, 398 S.W.3d at 217. If that traditional sort

of equitable balancing violates due process, then all

manner of state and federal doctrines must be

jettisoned.

Important too, until recently the Rules Governing

Section 2254 Cases in the Federal Courts expressly

authorized the district courts to dismiss federal habeas

petitions under the equitable doctrine of laches. See

e.g., Baxter v. Estelle, 614 F.2d 1030, 1032–33 (5th Cir.

1980) (“A petition for habeas corpus may be dismissed

if the petitioner’s unreasonable delay in filing the

petition has prejudiced the state in its ability to

respond. This rule has traditionally been applied to

habeas corpus petitions under the equitable doctrine of

laches, and it continues to apply under the provisions

of Rule 9(a) of the Rules Governing s 2254 Cases.”).

Given that federal habeas petitions have traditionally

been subject to laches, it is hard to see how States could

13

be prohibited from applying the same doctrine.

Marshal’s constitutional claim fails for this reason

alone. See Smith v. Phillips, 455 U.S. 209, 218 (1982)

(“It seems to us to follow ‘as the night the day’ that if

in the federal system a post-trial hearing such as that

conducted here is sufficient to decide allegations of

juror partiality, the Due Process Clause of the

Fourteenth Amendment cannot possibly require more

of a state court system.”).

Finally, insofar as Marshal contends that the

TCCA’s denial of his state habeas application

implicates the Sixth Amendment’s right to effective

assistance of counsel because there was a delay in

Marshal finding adequate legal representation to file

his state habeas application, Pet. Cert. 1–2, 31, this

contention must also fail because the Court has held

that there is not a Sixth Amendment right to counsel

during postconviction proceedings. Finley, 481 U.S. at

555–57 (“[A] defendant has no federal constitutional

right to counsel when . . . attacking a conviction that

has long since become final upon exhaustion of the

appellate process”). Accordingly, because Marshal

cannot present a constitutional violation by the

TCCA’s decision, this Court should deny certiorari.

III.

The Questions Presented Are Premature

and Are Ripe for Review on Federal

Habeas.

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

14

where a claim is ripe for federal habeas review.

Marshal advances no special or important reason for

the Court to review the application of a procedural bar

in a state habeas proceeding before he has even

initiated a federal habeas review of his claims. As

Justice Stevens once noted:

[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 (1990) (Stevens, J.

concurring).

Indeed, Marshal’s arguments here belong in the

district court in a federal habeas corpus petition, which

he has not yet filed. Prudence calls for the Court to

deny certiorari.

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

15

General

JOSH RENO

Deputy Attorney General for

Criminal Justice

EDWARD L. MARSHALL

Chief, Criminal Appeals

Division

s/ Sarah M. Harp

SARAH M. HARP*

Assistant Attorney General

*Counsel of Record

P.O. Box 12548

Austin, Texas 78711-2548

(512) 936-1400

Sarah.Harp@oag.texas.gov

Counsel for Respondent

16