Amicus Curiae Brief — Paul David Storey, Petitioner v. Texas

Supreme Court briefNov 20, 2024

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No. 24-5791

IN THE

Supreme Court of the United States

PAUL DAVID STOREY,

Petitioner,

TEXAS,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

TEXAS COURT OF CRIMINAL APPEALS

BRIEF OF JUDITH AND GLENN CHERRY AS

AMICI CURIAE IN SUPPORT OF PETITIONER

RICHARD SNYDER

Counsel of Record

TANNER PEARSON

SPENCER PTACEK

AUSTIN ARTZ

FREDRIKSON & BYRON, P.A.

60 S. 6th St, Suite 1500

Minneapolis, MN 55402

(612) 492-7000

rsnyder@fredlaw.com

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..................................... ii

INTEREST OF AMICI CURIAE ............................... 1

SUMMARY OF ARGUMENT.................................... 3

ARGUMENT .............................................................. 6

THE STATE CONFESSED THAT THE

PROSECUTION VIOLATED

STOREY’S CONSTITUTIONAL

RIGHTS. .......................................................... 6

The prosecution violated Booth

by telling the jury that all of the

victim’s family members wanted

Storey to be sentenced to death. .......... 6

The prosecution violated Brady

by withholding evidence that the

victim’s parents opposed Storey

being sentenced to death. ..................... 9

II.

THE TCCA REFUSED TO GIVE THE

STATE’S CONFESSION ANY

WEIGHT. ....................................................... 12

III.

THERE IS NO INDEPENDENT AND

ADEQUATE STATE LAW GROUND

PREVENTING THIS COURT FROM

GRANTING RELIEF. ................................... 16

CONCLUSION ......................................................... 21

TABLE OF AUTHORITIES

Page(s)

Cases

Banks v. Dretke,

540 U.S. 668 (2004) .................................. 12, 19, 20

Berger v. United States,

295 U.S. 78 (1935) ...................................... 8, 11, 12

Booth v. Maryland,

482 U.S. 496 (1987) ........................................6, 7, 8

Bosse v. Oklahoma,

580 U.S. 1 (2016) ....................................................7

Brady v. Maryland,

373 U.S. 83 (1963) ..................................................6

Caldwell v. Mississippi,

472 U.S. 320 (1985) ................................................7

Compton v. State,

666 S.W.3d 685 (Tex. Crim. App.

2023) .......................................................................9

Cone v. Bell,

556 U.S. 449 (2009) ..........................................9, 10

Coutta v. State,

385 S.W.3d 641 (Tex. App. 2012) ........................10

Cruz v. Arizona,

598 U.S. 17 (2023) ................................................17

iii

Escobar v. Texas,

143 S. Ct. 557 (2023)........................................5, 13

Ex parte Storey,

584 S.W.3d 437 (Tex. Crim. App.

2019) ....................................................... 2, 8, 18-20

Glossip v. State,

529 P.3d 218 (Okla. App. 2023) ...........................14

Napue v. Illinois,

360 U.S. 264 (1959) ..........................................8, 11

Payne v. Tennessee,

501 U.S. 808 (1991) ............................................6, 7

Piland v. State,

453 S.W.3d 473 (Tex. App. 2014) ........................14

Post v. Ohio,

484 U.S. 1079 (1988) ..........................................8, 9

Sibron v. New York,

392 U.S. 40 (1968) ............................................5, 13

South Carolina v. Gathers,

490 U.S. 805 (1989) ................................................7

Storey v. Lumpkin,

142 S. Ct. 2576 (2022) ........................................1, 3

Strickler v. Greene,

527 U.S. 263 (1999) ..............................................20

United States v. Sineneng-Smith,

590 U.S. 371 (2020) ..............................................15

Ward v. Love County,

253 U.S. 17 (1920) ..........................................17, 20

Wearry v. Cain,

577 U.S. 385 (2016) ..............................................12

Wolfe v. North Carolina,

364 U.S. 177 (1960) ........................................17, 20

Young v. United States,

315 U.S. 257 (1942) ........................................12, 13

Zant v. Stephens,

462 U.S. 862 (1983) ..............................................14

Constitutional Provisions and Statutes

Tex. Code Crim. Proc. Art. 11.071 ......... 3-4, 16-18, 20

Other Authorities

Jon Gould & Richard Leo,

The Path to Exoneration,

79 Alb. L. Rev. 325 (2016) ...................................12

Joseph Hoffmann,

Revenge or Mercy - Some Thoughts

about Survivor Opinion Evidence in

Death Penalty Cases,

88 Cornell L. Rev. 530 (2003) ..............................10

Wayne Logan,

Opining on Death: Witness Sentence

Recommendations in Capital Trials,

41 B.C. L. Rev. 517 (2000) .....................................8

INTEREST OF AMICI CURIAE1

Amici Curiae are Judith and Glenn Cherry—the

mother and father of Jonas Cherry. In 2006, Jonas was

tragically taken from the Cherrys by Paul Storey.

Storey v. Lumpkin, 142 S. Ct. 2576 (2022) (Sotomayor,

J., respecting the denial of certiorari). Despite the

tremendous loss Storey caused them, the Cherrys have

always opposed the State of Texas executing him.

Killing Storey will not bring Jonas back. Nor will it

bring the Cherrys any closure. Moreover, the Cherrys

do not want to see Storey’s mother suffer through losing

a child like they have.

The Cherrys have gone to great lengths to

convince the State not to execute Storey. But at every

step of the way the State and its officials have ignored

their efforts.

Prior to Storey’s trial, the Cherrys informed the

State and its prosecutors that they wanted mercy for

Storey and asked that the State not seek the death

penalty. But their request fell on deaf ears as the State

ultimately did seek the death penalty. What is more,

one of the prosecutors then lied the jury at Storey’s trial

1 Pursuant to S. Ct. Rule 37, all parties received notice

of Amici’s intent to file this brief at least 10 days prior to the due

date of this brief. Amici affirm that no counsel for any party

authored this brief in whole or in part, and no person or entity

other than Amici or their counsel made a monetary contribution

intended to fund the preparation or submission of this brief.

by telling the jury that the Cherrys actually supported

the State’s attempt to obtain a death sentence.

Later, when Storey filed an application for

postconviction relief based on the prosecutor’s

falsehood, the Cherrys provided testimony at an

evidentiary hearing. The Cherrys provided this

testimony in support of Storey’s application. However,

the Texas Court of Criminal Appeals (“TCCA”) took one

sentence of their testimony out of context and used it to

deny Storey relief. Ex parte Storey, 584 S.W.3d 437, 439

(Tex. Crim. App. 2019).

All told, the Cherrys haven taken tremendous

steps to ensure that the State does not execute Storey.

But the State and its officials have refused to listen to

them. The Cherrys now come before this Court asking

that their voices finally be heard. This Court has shown

a willingness to listen to victims’ families. See, e.g., Tr.

Oral Arg., Glossip v. Oklahoma, No. 22-7466

(referencing amicus brief submitted by Van Treese

family several times). The Cherrys respectfully ask that

the Court do the same for them.

Based on the foregoing, the Cherrys have an

interest in this case. Specifically, the Cherrys have an

interest in this Court granting certiorari so that the

State does not carry out the death sentence that the

State procured by falsely telling the jury that the

Cherrys wanted it.

SUMMARY OF ARGUMENT

This case involves what one member of this

Court has described as “serious claims of

prosecutorial malfeasance.” Storey, 142 S. Ct. at 2577

(Sotomayor, J., respecting the denial of certiorari).

Paul Storey was convicted of murdering Jonas

Cherry. Before Storey’s trial, Jonas’s parents told the

State and its prosecutors—including two prosecutors

named Christy Jack and Robert Foran—that they

opposed the State seeking the death penalty. The

State withheld this information from Storey and his

counsel. Ms. Jack then lied to the jury during Storey’s

trial by telling them that “all of Jonas’s family and

everyone who loved him believe the death penalty is

appropriate.”

Eight years after his trial, Storey’s counsel

discovered for the first time that Ms. Jack’s statement

was a lie and that the State had withheld evidence

that the Cherrys opposed Storey receiving the death

penalty. Based on this discovery, Storey filed an

application for postconviction relief in state court.

This was Storey’s second application.

Consequently, a court could only consider the merits

of his claims if Storey showed that the factual basis

for his claims “was not ascertainable through the

exercise of reasonable diligence on or before” the date

he filed his first application. Tex. Code Crim. Proc.

Art. 11.071, § 5. The district court found that Storey

had made this showing, held that the prosecution had

violated Storey’s rights under the Eighth and

Fourteenth Amendments, and recommended that

Storey receive a new punishment trial. But a

fractured TCCA reversed based on its finding that the

factual basis for Storey’s claims was ascertainable

through the exercise of reasonable diligence.

The State then took the remarkable and

laudable step of moving the TCCA to reconsider its

decision. In its motion, the State waived the

application of Article 11.071, § 5, confessed that the

prosecution had violated Storey’s constitutional

rights, and asked that Storey be given a new

punishment trial. In the State’s own words:

Ms. Jack and Mr. Foran failed to disclose

favorable, material evidence to defense

counsel. Ms. Jack compounded this

action when she blatantly lied during

her closing argument at trial. … Under

these most extraordinary circumstances,

Storey should, at the very least, be

granted a new punishment trial. Justice

demands it.

Appendix E at 9-10.

The TCCA gave the State’s waiver and

confession of error precisely zero weight. A bare

majority of the TCCA denied the State’s motion for

reconsideration. The court did not even issue a

written opinion. Instead, the court sent Storey a

postcard, which stated: “This is to advise that the

State’s suggestion for reconsideration has been

denied without written order.” Appendix H.

This Court should grant certiorari to correct

the TCCA’s failure to even consider the State’s

confession of error. Such “[c]onfessions of error are …

entitled to and given great weight.” Sibron v. New

York, 392 U.S. 40, 58 (1968). And when a lower court

fails to give the “great weight” to which such a

confession is entitled, this Court has not hesitated to

grant certiorari to correct the failure. See, e.g.,

Escobar v. Texas, 143 S. Ct. 557 (2023).

In addition, this Court should grant certiorari

to provide lower courts with guidance on precisely

how much weight the Constitution requires them to

give a State’s confession of error. The present case is

at least the fourth time in three years that a death

row inmate has petitioned this Court for certiorari

after a State’s highest court refused to give any

weight to a State’s confession of error. Storey v. Texas,

No. 24-5791; Escobar v. Texas, No. 23-934; Glossip v.

Oklahoma, No. 22-7466; Escobar v. Texas, No. 211601.2 The Court will likely continue to see these

petitions until it issues the guidance that lower courts

desperately need.

2 See also Prosecuting Att’y ex rel. Williams v. Missouri,

No. 24-5612 (petitioning this Court for certiorari after Missouri

Supreme Court gave no weight to prosecutor’s confession of

error).

ARGUMENT

THE STATE CONFESSED THAT THE

PROSECUTION VIOLATED STOREY’S

CONSTITUTIONAL RIGHTS.

The State has described the actions by the

prosecution during Storey’s trial as “the very

antithesis of due process.” Appendix E at 1. This

description is quite accurate. Not only did the

prosecution falsely tell the jury that all of Jonas’s

family members and loved ones wanted Storey to be

sentenced to death in violation of Booth v. Maryland,

482 U.S. 496 (1987), but the prosecution also failed to

disclose evidence that Jonas’s parents actually

opposed Storey being sentenced to death in violation

of Brady v. Maryland, 373 U.S. 83 (1963). Each of

these violations independently entitles Storey to a

new trial.

The prosecution violated Booth by

telling the jury that all of the

victim’s family members wanted

Storey to be sentenced to death.

In Booth, this Court held that informing the

jury of the victim’s family members’ opinions about

the appropriate sentence for a capital defendant

violates the Eighth Amendment. 482 U.S. at 509; see

also Payne v. Tennessee, 501 U.S. 808, 830 n.2 (1991).

These opinions “can serve no other purpose

than to inflame the jury and divert it from deciding

the case on the relevant evidence concerning the

crime and the defendant.” Booth, 482 U.S. at 508.

Such opinions are “inconsistent with the reasoned

decision-making [the Eighth Amendment] require[s],”

id. at 508-09, and their “admission creates a

constitutionally unacceptable risk that the jury may

impose the death penalty in an arbitrary and

capricious manner,” id. at 502-03.3

Under Booth, the victim’s family members may

not directly inform the jury of their opinions through

testimony. Nor may a prosecutor indirectly inform the

jury of these opinions through argument. South

Carolina v. Gathers, 490 U.S. 805, 811 (1989); Payne,

501 U.S. at 826 (“In Gathers, … we extended the

holding of Booth barring victim impact evidence to the

prosecutor’s argument to the jury.”).

Finally, although Booth was decided nearly 40

years ago, this Court recently reminded lower courts

that they remain “bound by Booth’s prohibition on

characterizations and opinions from a victim’s family

members about … the appropriate sentence unless

this Court reconsiders that ban.” Bosse v. Oklahoma,

580 U.S. 1, 3 (2016) (per curiam).

In the present case, a prosecutor violated Booth

by expressly telling the jury that “all of the Jonas’s

family and everyone who loved him believe the death

penalty is appropriate.” The effect of this statement

was to “assure[ ] the jury that all of [Jonas’s] family

3 Such opinions also invite the jury to defer to the views

of the victim’s family, thereby “minimiz[ing] the jury’s sense of

responsibility for determining the appropriateness of death.”

Caldwell v. Mississippi, 472 U.S. 320, 341 (1985); see also Wayne

Logan, Opining on Death: Witness Sentence Recommendations in

Capital Trials, 41 B.C. L. Rev. 517, 544 (2000).

supported the State’s attempt to obtain the death

penalty.” Ex parte Storey, 584 S.W.3d at 445 (Yeary,

J., dissenting). The statement served no other

purpose than to inflame the jury, and it created “a

constitutionally unacceptable risk that the jury …

impose[d] the death penalty in an arbitrary and

capricious manner.” Booth, 482 U.S. at 502-03.

Accordingly, the state habeas district court found that

the statement violated Storey’s rights under the

Eighth Amendment. Appendix A at 15.4

Whether the statement actually influenced the

jury’s decision to sentence Storey to death does not

matter. As explained by Justice Marshall, “the

reasoning of the Booth opinion made clear that the

result in that case did not require a showing that the

victim impact evidence actually influenced the

sentencer.” Post v. Ohio, 484 U.S. 1079, 1081 (1988)

(Marshall, J., dissenting from the denial of certiorari).

Rather, the Booth Court “expressly stated that the

victim impact evidence was inadmissible because it

created ‘a constitutionally unacceptable risk’ that the

sentencer would impose the death penalty in an

arbitrary manner.” Id. Thus, the “constitutionally

unacceptable risk” that the prosecutor’s statement

may have influenced the jury is sufficient to entitle

4 Because the statement was also false and related to

facts not in evidence, the state habeas district court found that

the statement also violated Storey’s rights under the Fourteenth

Amendment’s Due Process Clause. Appendix A at 12-13; see also

Napue v. Illinois, 360 U.S. 264 (1959); Berger v. United States,

295 U.S. 78, 84 (1935).

Storey to a new trial regardless of whether the

statement actually influenced the jury.

That said, the statement undoubtedly

influenced the jury. “Jurors in a death penalty case

cannot so easily shrug off what the victim’s family or

friends want.” Compton v. State, 666 S.W.3d 685, 734

(Tex. Crim. App. 2023) (Walker, J., concurring).

“Information that the victim’s family and friends …

want the death penalty” is “emotionally charged and

inflammatory” and “appeals to an innate, primal

sense of justice.” Id. Thus, it “would be unrealistic and

unwise” to think that the jury was not moved by the

prosecutor telling them that all of Jonas’s family

members and loved ones wanted the jury to sentence

Storey to death. Post, 484 U.S. at 1082 (Marshall, J.,

dissenting from the denial of certiorari).

The prosecution violated Brady by

withholding evidence that

the

victim’s parents opposed Storey

being sentenced to death.

The prosecution withholding evidence that

Jonas’s parents opposed the State seeking the death

penalty also entitles Storey to a new trial.

In Brady, this Court held that “when a State

suppresses evidence favorable to an accused that is

material to guilt or to punishment, the State violates

the defendant’s right to due process.” Cone v. Bell, 556

U.S. 449, 451 (2009). Withheld evidence that could

have been introduced during the punishment phase of

a capital trial is material if there is a “reasonable

probability that the withheld evidence would have

altered at least one juror’s assessment of the

appropriate penalty.” Id. at 452.

In the case at hand, there is a reasonable

probability that had the prosecution not withheld

evidence that the Cherrys opposed Storey being

sentenced to death at least one juror would have voted

against the death penalty. Accordingly, the state

habeas district court found that the prosecution

violated Brady. Appendix A at 13. And “[t]he State

concede[d] the evidence that the Cherrys vehemently

opposed the death penalty was not disclosed in

violation of Brady.” Appendix E at 7.

Had the prosecution disclosed this evidence,

the defense could have used it to refute the false

statement made by the prosecutor at trial. Under

Texas law, an attorney arguing facts outside the

record “opens the door” for opposing counsel to

introduce evidence that rebuts those facts. See Coutta

v. State, 385 S.W.3d 641, 663 (Tex. App. 2012). Thus,

Storey’s counsel could have called the Cherry to the

stand and had them testify that they actually opposed

Storey being sentenced to death.

The Cherrys simply testifying that they

wanted the jury to spare Storey’s life certainly would

have convinced at least one juror to vote against the

death penalty. See Joseph Hoffmann, Revenge or

Mercy - Some Thoughts about Survivor Opinion

Evidence in Death Penalty Cases, 88 Cornell L. Rev.

530, 539 (2003) (arguing that a victim’s “survivors’

desire to extend mercy, forgiveness, or both seems

very likely to influence the jury’s sentencing decision

in favor of life instead of the death penalty”). Indeed,

one juror from Storey’s trial even submitted an

affidavit in the proceedings below in which he stated,

“had I known that Jonas Cherry’s parents were

opposed to Paul Storey receiving the death penalty,

there is no doubt in my mind, I would never have

voted for death.” Appendix G at 52.

The Cherrys’ testimony also would have

undermined the jury’s trust in the prosecution. This

Court has recognized that “the average jury … has

confidence” that a prosecutor will “refrain from

improper methods calculated to produce a wrongful

conviction.” Berger, 295 U.S. at 88. Consequently,

anything a prosecutor says is “apt to carry much

weight” with the jury. Id.

The Cherrys’ testimony showing the jury that

the prosecutor had just lied to them would have

shattered any confidence that the jury had in this

particular prosecutor. The jury would have

understood that this particular prosecutor was

willing to lie in order to obtain a death sentence. This

would have given the jury greater reason to question

prosecutor’s truthfulness as to everything else she

said throughout the trial. The “jury’s estimate of the

truthfulness and reliability” of the prosecutor “may

well [have] be[en] determinative” in Storey’s case. See

Napue, 360 U.S. at 269.

At bottom, if the jury that sentenced Storey to

death had been told that the prosecution had lied to

them and the Cherrys wanted them to spare Storey’s

life, there is a reasonable probability that at least one

of the jurors would have voted against the death

penalty. “Even if the jury—armed with all of this new

evidence—could have voted” for a death sentence, this

Court cannot have “confidence that it would have

done so.” Wearry v. Cain, 577 U.S. 385, 394 (2016).

II.

THE TCCA REFUSED TO GIVE THE

STATE’S CONFESSION ANY WEIGHT.

This Court has “several times underscored the

special role played by the American prosecutor in the

search for truth in criminal trials.” Banks v. Dretke,

540 U.S. 668, 696 (2004). A prosecutor “is the

representative not of an ordinary party to a

controversy, but of a sovereignty … whose interest …

in a criminal prosecution is not that it shall win a

case, but that justice shall be done.” Berger, 295 U.S.

at 88. As such, it is as much a prosecutor’s duty “to

refrain from improper methods calculated to produce

a wrongful conviction as it is to use every legitimate

means to bring about a just one.” Id.

When a prosecutor fails to live up to this

obligation and uses an improper method to produce a

wrongful conviction, the public trust requires him to

confess his error. Put differently, “[t]he public trust

reposed in the law enforcement officers of the

Government requires that they be quick to confess

error when, in their opinion, a miscarriage of justice

may result from their remaining silent.” Young v.

United States, 315 U.S. 257, 258 (1942).

Of course, prosecutors do not confess error

lightly. Prosecutors—like all people—have a natural

incentive to defend the validity of their own work.

Thus, once they obtain a conviction, prosecutors are

unlikely to confess that the conviction is tainted by

error. And they are particularly unlikely to confess to

errors that accuse the prosecution itself of

misconduct, such as the claims at issue in this case.

Jon Gould & Richard Leo, The Path to Exoneration,

79 Alb. L. Rev. 325, 360-61 (2016).

Given these natural incentives to defend their

convictions, when prosecutors actually do confess

error, such confessions are entitled to respect from the

courts. Young, 315 U.S. at 258; Sibron, 392 U.S. at 58.

When a lower court fails to give a prosecutor’s

confession of error the “great weight” to which the

confession is entitled, this Court has not hesitated to

grant certiorari to correct the failure. This is

especially true in recent years. See, e.g., Escobar, 143

S. Ct. at 557.

In this case, the State confessed error. “The

State concede[d] that Ms. Jack’s closing argument

included what she knew to be a false statement

regarding the victim’s family”5 and further

“concede[d] that the evidence that the Cherrys

vehemently opposed the death penalty was not

disclosed in violation of Brady.” Appendix E at 7.

“Under these most extraordinary circumstances,” the

State believed that “Storey should, at the very least,

be granted a new punishment trial.” Id. at 10.

5 It is worth noting that even Ms. Jack conceded her

statement was improper. As explained by the district court,

“Jack conceded during the habeas proceeding that her argument

was outside the record and improper …” Appendix A at 6.

Although all confessions of error from a State

are entitled to great weight, this particular confession

was entitled to even greater weight. The confession

related to prosecutorial misconduct, which is a type of

error that the State is uniquely positioned to identify

given its unique access to the prosecution’s casefiles

and the prosecutors themselves. In addition, the

confession took place in the context of a death penalty

case. “[T]he severity of [a death] sentence mandates

careful scrutiny in the review of any colorable claim

of error.” Zant v. Stephens, 462 U.S. 862, 885 (1983).

Rather than give the State’s confession of error

the great weight to which it was entitled, the TCCA

gave the confession precisely zero weight. A bare

majority of the TCCA denied the State’s motion for

reconsideration without explanation. Instead of

issuing an opinion explaining why it was departing

from its practice of “ordinarily accept[ing] a

confession of error by the State,” Piland v. State, 453

S.W.3d 473, 476 (Tex. App. 2014), the TCCA sent

Storey a postcard, which stated: “This is to advise that

the State’s suggestion for reconsideration has been

denied without written order.” Appendix H.6

6 To demonstrate just how little weight the TCCA gave

to the State’s confession of error, consider a case in which this

Court recently granted certiorari. In Glossip v. State, the State

of Oklahoma confessed error. 529 P.3d 218, 226 (Okla. Crim.

App. 2023). Although the Oklahoma Court of Criminal Appeals

gave the confession no weight, the court at least issued a

published opinion in which it acknowledged the State of

Oklahoma was confessing error and then provided a short

explanation for why it was not accepting the confession. Id. In

The TCCA refusing to even consider the State’s

confession of error is problematic for several reasons.

First, it puts the State in an impossible position. The

State believes that Storey’s death sentence was

unconstitutionally procured. Because of the TCCA’s

decision, the State will now have to carry out what it

believes to be an unconstitutional execution unless

this Court intervenes.

Second, the TCCA’s refusal to consider the

State’s confession brings into question the court’s

neutrality. In this Country’s adversarial justice

system, courts are supposed to be passive

instruments of government. United States v.

Sineneng-Smith, 590 U.S. 371, 376 (2020). The TCCA

disregarding the State’s confession of error is an

extreme departure from this principle. Both parties to

this case agree that Storey is entitled to a new trial.

Nevertheless, the TCCA concluded that the State

must execute Storey. By doing so, the interest of the

public, as represented by the State, in not executing

Storey was subverted by the TCCA’s desire to see

Storey be executed.

Finally, the TCCA’s refusal to give the State’s

confession any weight is the latest example of a

troubling trend. The present case is at least the fourth

time in the last three years that a prisoner on death

row has petitioned this Court for certiorari after a

State’s highest court refused to give any weight to the

State’s confession of error. See Storey, No. 24-5791;

the case at hand, the TCCA did not even acknowledge that the

State was taking the remarkable step of confessing error.

Escobar, No. 23-934; Glossip, No. 22-7466; Escobar,

No. 21-1601; see also Prosecuting Att’y ex rel.

Williams, No. 24-5612.

In each of these cases, the State confessed that

the prisoner’s trial was constitutionally defective and

therefore the prisoner was entitled to a new one.

However, the State’s highest court refused to give any

weight to the confession. Fortunately, this Court

granted certiorari in two of the cases and petitions for

certiorari remain pending in the other two. Thus, no

State has had to carry out what they believed to be an

unconstitutional execution. That said, this is a

recurring problem that is unlikely to go away on its

own. Lower courts like the TCCA need guidance from

this Court on precisely how much weight the

Constitution requires them to give a State’s

confession of error.

III.

THERE IS NO INDEPENDENT AND

ADEQUATE STATE LAW GROUND

PREVENTING THIS COURT FROM

GRANTING RELIEF.

The TCCA never reached the merits of Storey’s

claims. Instead, the court found that his claims were

barred by Tex. Code Crim. Proc. Art. 11.071, § 5.

Pursuant to that statute, before a court can consider

the merits of claims that are raised in a second habeas

application, the applicant must show that the factual

basis for his claims “was not ascertainable through

the exercise of reasonable diligence on or before” the

date that he filed his first application. Id. The TCCA

found that the factual basis for Storey’s claims was

ascertainable through the exercise of reasonable

diligence and so did not consider the merits of his

claims.

“This Court will not take up a question of

federal law in a case if the decision of the state court

rests on a state law ground that is independent of the

federal question and adequate to support the

judgment.” Cruz v. Arizona, 598 U.S. 17, 25 (2023).

As Storey explains in his petition, the TCCA’s

application of Article 11.071, § 5 is not an independent

and adequate state law ground because the State

affirmatively waived the application of that statute.

Pet. 26-29.7 But even if the State had not, the TCCA’s

application of the statute still would not be an

independent and adequate state law ground.

“It is settled that a state court may not …

defeat the jurisdiction of this Court by putting

forward nonfederal grounds of decision which are

without any fair or substantial support.” Wolfe v.

North Carolina, 364 U.S. 177, 185 (1960) (emphasis

added); Ward v. Love County, 253 U.S. 17, 22 (1920).

7 In the State’s own words, “the State concedes that it

should not benefit from the application of the Section 5 bar.

There is simply no way Storey’s initial habeas counsel … could

have discovered that Ms. Jack had lied during her closing

argument when no one had any reason to believe that was the

case, when not a single note in the State’s trial file suggested

that was the case.” Appendix E at 6. “Whatever diligence

requires of defense counsel …, it cannot possibly require them to

search for, much less find, something hidden from them which

they do not even know to search for.” Id. at 8.

Here, the TCCA held that Article 11.071, § 5

barred Storey’s claims based on its finding that the

factual basis for Storey’s claims was ascertainable

through the exercise of reasonable diligence. Ex parte

Storey, 584 S.W.3d at 439. But this finding has no fair

or substantial support in the record. Thus, the

TCCA’s application of Article 11.071 § 5 is not an

adequate state law ground.

The only way that Storey’s initial habeas

counsel (Robert Ford) could have discovered the

factual basis for Storey’s claims in the current case

was by contacting the Cherrys and asking them about

their views on the death penalty. Thus, the relevant

question is whether “reasonable diligence” required

Ford to do that.

When Ford was preparing Storey’s first

application, he was confronted with three pieces of

information. First, a prosecutor had already said the

Cherrys supported the State’s attempt to obtain a

death sentence. Second, the prosecution had an

obligation under both Brady and a discovery order

issued by the trial court8 to disclose any evidence that

the prosecution had that the Cherrys opposed Storey

being sentenced to death. Third, “[f]amilies of murder

victims generally do not wish to speak to lawyers

representing the person found guilty of killing their

8 As found by the state habeas district court, “the trial

court ordered the prosecutors to produce any and all such

evidence of material importance to the Defense …” Appendix A

at 8. “It is uncontroverted that the disclosures required by the

Order … would also include the Cherrys’ opposition to [Storey]

receiving the death penalty.” Id.

loved one.” Ex parte Storey, 584 S.W.3d at 458

(Walker, J., dissenting).

Consequently, for Ford to have contacted the

Cherrys, he would have needed to (1) presume that

the prosecutor lied, (2) presume that the prosecution

violated its obligations under Brady and the trial

court’s discovery order, and (3) ignore the fact that

families of murder victims generally do not wish to

speak to lawyers representing the person who killed

their loved one.

As explained by Judge Walker in his dissent,

reasonable diligence did not require Ford to do any of

this. First, reasonable diligence did not require Ford

to presume that the prosecutor lied. Indeed, “it would

have been reasonable for Ford to presume that Jack

told the truth and that there was no need to pursue

the Cherrys to find out otherwise.” Id. at 458.

“[R]easonable diligence should not require an

applicant, or his counsel, to query a victim’s family as

to whether the prosecutor was telling the truth.” Id.

at 462. “[H]abeas counsel should assume that

prosecutors do not generally lie to juries in closing

argument.” Id. at 459; see also Banks, 540 U.S. at 694

(explaining that it was “appropriate for [defendant] to

assume that his prosecutors would not stoop to

improper litigation conduct”).

Second, reasonable diligence did not require

Ford to presume that the prosecution had violated

their obligations under Brady and the trial court’s

discovery order. Rather, it was reasonable for Ford to

“presum[e] that the prosecutor would fully perform

his duty to disclose all exculpatory materials.”

Strickler v. Greene, 527 U.S. 263, 284 (1999); Banks,

540 U.S. at 696 (“[W]e presume that public officials

have properly discharged their official duties.”).

Finally, reasonable diligence did not require

Ford to ignore the fact that families of murder victims

like the Cherrys generally do not wish to speak to

lawyers representing the person who murdered their

loved one. Ford should not be faulted “for failing to

intrude upon the Cherrys’ peace and for failing to

question them about their feelings regarding

[Storey’s] case.” Ex parte Storey, 584 S.W.3d at 462

(Walker, J., dissenting). “To learn the truth, he would

have had to probe their thoughts, concerns, and

feelings over a broad range of topics until he

eventually struck gold with the specific issue of the

appropriateness of the death penalty.” Id.

“Reasonable diligence would not go prying into the

private feelings of a murder victim’s family without a

very good reason for doing so.” Id. at 456–57.

“Requiring an applicant or his counsel to go on fishing

expeditions and blindly querying capital murder

victims’ families … is not reasonable.” Id. at 459.

In sum, the TCCA’s finding that the factual

basis for Storey’s claims was ascertainable through

the exercise of reasonable diligence on or before the

date Storey filed his original application does not have

fair or substantial support. The TCCA’s application of

Article 11.071, § 5 is therefore not an adequate state

law ground preventing this Court from granting

relief. Wolfe, 364 U.S. at 185; Ward, 253 U.S. at 22.

CONCLUSION

For the foregoing reasons, the petition for a

writ of certiorari should be granted.

November 20, 2024

Respectfully Submitted,