Opposition Brief — Neil Aaron Carver, Petitioner v. Texas

Supreme Court briefDec 17, 2025

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No. 24-7194

IN THE

Supreme Court of the United States

NEIL AARON CARVER,

Petitioner,

STATE OF TEXAS,

Respondent.

On Petition for a Writ of Certiorari to the

Texas Court of Criminal Appeals

RESPONDENT’S BRIEF IN OPPOSITION

KEN PAXTON

Attorney General of Texas

TOMEE M. HEINING

Chief, Criminal Appeals Division

BRENT WEBSTER

First Assistant Attorney General

STEPHANIE WAWRZYNSKI*

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

Stephanie.Wawrzynski@oag.texas.gov

Attorneys for Respondent

QUESTIONS PRESENTED

Respondent (the “State”) objects to Carver’s Questions Presented and

suggests the following instead:

1) Should the Court grant certiorari to review the Texas Court of

Criminal Appeal’s (CCA) denial of a garden variety ineffective

assistance of counsel at sentencing claim which is ripe for

federal habeas review?

2) Should the Court grant certiorari to review whether the Texas

legislature’s decision to characterize the ongoing sexual abuse

of a child as a single, continuous-course-of-conduct offense, as

to which the jury was not required to agree unanimously

regarding the specific and discreet acts of sexual abuse

committed, violates the Due Process Clause?

3) Should the Court grant certiorari to review the CCA’s

procedures for state postconviction writ proceedings?

TABLE OF CONTENTS

QUESTIONS PRESENTED ................................................................................. i

TABLE OF CONTENTS ...................................................................................... ii

TABLE OF CITED AUTHORITIES .................................................................. iv

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

OPINIONS BELOW ............................................................................................ 2

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

CONSTITUTIONAL PROVISIONS INVOLVED .............................................. 2

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

I. State Habeas Proceedings ......................................................................... 2

II. Facts of the Crime ...................................................................................... 3

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

I. The Questions Presented Are Premature, Provide No Important or

Compelling Reason for Review, and Are More Appropriate for

Federal Habeas Review. ........................................................................ 6

II. The CCA’s Decision Rejecting Carver’s Garden Variety Strickland

Claim Is Fully Consistent with Sixth Amendment Protections.......... 7

The Strickland Standard ..................................................................8

Carver’s Reliance on Wiggins v. Smith Is Inapposite. ....................8

Certiorari Should be Denied because Carver fails to

establish a Sixth Amendment Violation. ...................................... 11

III. The Texas Statute Criminalizing Continuous Sexual Abuse of

Young Children Does Not Violate Due Process. ................................ 15

Certiorari Should Be Denied Because the Decision Below Is

Fully Consistent with This Court’s Precedent. ............................ 17

1. In Richardson this Court favorable cited the use of

continuing course offenses for child sexual abuse ............. 17

2. Texas’s use of continuing course offenses for child sexual

abuse is consistent with the factors that the Court

recognized in Schad and Richardson ................................. 18

3. Texas Penal Code § 21.02 and Legislative Intent .................... 21

4. History of Continuous Sexual Abuse Statutes ......................... 23

5. Moral Equivalence of Constituent Elements ........................... 24

Certiorari Should Be Denied Because There Is No Conflict

Between the Decision Below and The Decision of Any

Appellate Court. ............................................................................. 28

The Court Should Not Grant Certiorari to Exercise Broad

Supervisory Power Over the State Courts. .................................. 29

IV. Due Process Does Not Require a Live Evidentiary Hearing for

State Collateral Review. ...................................................................... 30

CONCLUSION ................................................................................................... 34

iii

TABLE OF CITED AUTHORITIES

Cases

Page(s)

Andrus v. Texas, 590 U.S. 806 (2020) ............................................................... 10

Burt v. Titlow, 571 U.S. 12 (2013) ...................................................................... 8

Carver v. State, No. 12-22-00164-CR, 2023 WL 327815 (Tex. App. Jan. 19,

2023)............................................................................................................... 3, 5

Caspari v. Bohlen, 510 U.S. 383 (1994) ............................................................ 11

Cullen v. Pinholster, 563 U.S. 170 (2011) ......................................................... 10

Dale v. Quarterman, 553 F.3d 876, 880 n.2 (5th Cir. 2008) ...................... 12, 13

Dickerson v. United States, 530 U.S. 428 (2000) .............................................. 30

Dist. Attorney's Off. for Third Jud. Dist. v. Osborne, 557 U.S. 52 (2009) ....... 32

Dixon v. State, 201 S.W.3d 731 (Tex. Crim. App. 2006) ............................ 23, 24

Dowling v. United States, 493 U.S. 342 (1990) ................................................ 32

Duncan v. Walker, 533 U.S. 167 (2001) .............................................................. 2

Ex parte Scott, 541 S.W.3d 104 (Tex. Crim. App. 2017) .................................... 9

Ford v. Wainwright, 477 U.S. 399 (1986) ......................................................... 33

Garza v. Idaho, 586 U.S. 232 (2019) ................................................................... 8

Glover v. United States, 531 U.S.198, 204 (2001) ...................................... 12, 13

Griffin v. Illinois, 351 U.S. 12 (1956) .......................................................... 30, 31

Hinton v. Alabama, 571 U.S. 263 (2014) ............................................................ 8

Jacobsen v. State, 325 S.W.3d 733 (Tex. App. 2010)............................ 22, 25, 29

Kennedy v. State, 385 S.W.3d 729 (Tex. App. 2012) ........................................ 22

Kyles v. Whitley, 498 U.S. 931 (1990) ................................................................. 6

Luna v. Lumpkin, 832 F. App’x 849 (5th Cir. 2020) ........................................ 10

Martinez v. Ct. of Appeal of California, Fourth App. Dist., 528 U.S. 152 (2000)

.......................................................................................................................... 31

Medina v. California, 505 U.S. 437 (1992) ....................................................... 32

Pennsylvania v. Finley, 481 U.S. 551 (1987) .............................................. 31, 32

People v. Calloway, 176 Misc. 2d 161 (N.Y. Co. Ct. 1998) ............................... 23

People v. Longoria, 862 P.2d 266 (Colo. 1993).................................................. 23

People v. Whitham, 38 Cal. App. 4th 1282 (1995) ............................................ 23

Richardson v. United States, 526 U.S. 813 (1999) ................................... Passim

Ross v. Moffitt, 417 U.S. 600 (1974) .................................................................. 31

Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006) ............................................. 30

Schad v. Arizona, 501 U.S. 624 (1991) ..................................................... Passim

Smith v. Phillips, 455 U.S. 209 (1982).................................................. 29, 30, 34

Spencer v. State of Tex., 385 U.S. 554 (1967) ................................................... 32

Spriggs v. Collins, 993 F.2d 85 (5th Cir. 1993) ................................................ 12

State v. Johnson, 243 Wis. 2d 365 (2001) ......................................................... 24

State v. Rabago, 103 Haw. 236 (2003) .............................................................. 28

State v. Ramsey, 211 Ariz. 529 (Ct. App. 2005) ................................................ 24

State v. Young, 150 Haw. 365 (Ct. App. 2021) ................................................. 24

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

Tercero v. Stephens, 738 F.3d 141 (5th Cir. 2013) ........................................... 33

United States v. MacCollom, 426 U.S. 317 (1976) ........................................... 31

United States v. Segler, 37 F.3d 1131 (5th Cir. 1994) ...................................... 13

Wiggins v. Smith, 539 U.S. 510 (2003) ................................................... 9, 10, 11

Williams v. Pennsylvania, 579 U.S. 1 (2016) ................................................... 32

Statutes

28 U.S.C. § 1257(a) .................................................................................... 1, 2, 29

28 U.S.C. § 2244 ................................................................................................... 2

28 U.S.C. § 2254(e)(2) ........................................................................................ 33

Ariz. Rev. Stat. Ann. § 13-1417 ......................................................................... 24

Cal. Penal Code § 288.5 ..................................................................................... 24

Del. Code Ann. tit. 11, §776 ............................................................................... 24

Haw. Const. Art. I, § 25 ..................................................................................... 28

Haw. Rev. Stat. § 707-733 ........................................................................... 24, 28

Haw. Rev. Stat. § 707-733.6 .............................................................................. 28

N.D. Cent. Code § 12.1-20-03.1 ......................................................................... 24

N.Y. Penal Law §130.75 .................................................................................... 24

Tex. Code Crim. Proc. art. 11.07 ......................................................................... 3

Tex. Penal Code § 21.02 ............................................................................. Passim

Tex. Penal Code § 21.02(c) ..................................................................... 15, 16, 25

Tex. Penal Code § 21.02(d) .................................................................... 17, 22, 25

Wis. Stat. Ann. §948.025 ................................................................................... 24

Rules

Sup. Ct. Rule 10 ......................................................................................... Passim

Other Authorities

Haw. H.B. 2207 (2006)....................................................................................... 28

Haw. S.B. 2246 (2006) ...................................................................................... 28

vii

INTRODUCTION

Carver was convicted of continuous sexual abuse of a young child in

Rains County, Texas and given a life sentence. In the instant petition for

certiorari review of the CCA’s denial of state habeas relief, Carver argues three

claims: 1) trial counsel was ineffective for failing to make a case for mitigation

during the punishment phase of trial; 2) Texas Penal Code § 21.02, Continuous

Sexual Abuse of a Young Child, is unconstitutional because it allows a nonunanimous verdict; and 3) the CCA’s state habeas proceedings violated his

right to “have a meaningful opportunity to be heard before a tribunal” because

a hearing was not held.

However, all of Carver’s claims fail to raise either a compelling

invocation of this Court’s jurisdiction under 28 U.S.C. § 1257(a), or a

motivating assertion under Supreme Court Rule 10. First, Carver fails to

establish that defense counsel’s representation fell below the standard

established in Strickland v. Washington, 466 U.S. 668 (1984). Next, Texas’s

continuous sexual abuse of a young child criminal statute is fully consistent

with the Court’s precedent. Finally, Carver’s complaints regarding Texas’s

state habeas procedures fail to present a constitutional violation.

Moreover, Carver’s claims are now ripe for him to raise in a federal

habeas petition. 1 Therefore, the Court should deny certiorari review.

OPINION BELOW

The CCA’s order denying Carver’s application for state writ of habeas

corpus is not reported. See Ex parte Carver, No. 95,970-01 (Tex. Crim. App.

2024); Resp’t App’x. 1a.

JURISDICTION

The Court has jurisdiction under 28 U.S.C. § 1257(a) to review the CCA’s

denial of Carver’s state habeas corpus application.

CONSTITUTIONAL PROVISIONS INVOLVED

The Questions Presented involve application of the Sixth Amendment

right to counsel and the Due Process Clause in Section I of the Fourteenth

Amendment.

STATEMENT OF THE CASE

State Habeas Proceedings

Carver was convicted of continuous sexual abuse of a young child for

abuse of his daughter, S.C., and given a life sentence on May 24, 2022. See

Resp’t App’x. 1b–2b. Carver appealed to the Twelfth Court of Appeals, which

The Director believes, however, that Carver’s federal petition would be barred by

AEDPA’s statute of limitations. 28 U.S.C. § 2244(d). A federal district court would be best

situated to determine if Carver meets any exception to the statute of limitations. See Duncan

v. Walker, 533 U.S. 167, 179 (2001) (§ 2244’s limitations period was designed to ensure

finality to state convictions).

affirmed his conviction. Carver v. State, No. 12-22-00164-CR, 2023 WL 327815

(Tex. App. Jan. 19, 2023). The CCA refused Carver’s petition for discretionary

review on May 17, 2023.

On June 11, 2024, Carver filed a state habeas application pursuant to

Tex. Code Crim. Proc. art. 11.07, challenging his conviction and life sentence.

The application was forwarded to the CCA without findings or conclusions or

a response from the Rains County District Attorney. The CCA denied Carver’s

application “without written order.” Carver now seeks a writ of certiorari.

II.

Facts of the Crime

The Twelfth District Court of Appeals of Texas summarized the evidence

presented at trial as follows:

Jessica Cassett, an investigator with the Texas Department of

Family and Protective Services (the Department), testified that

she performed an investigation into [Carver’s] home after

[Carver’s] daughter, S.C., was in an automobile accident with her

mother, C.C., who was accused of neglectful supervision by driving

while intoxicated. Cassett explained that S.C.’s mother was

subsequently incarcerated, and S.C. was sent out of town to stay

with [Carver’s] sister while [Carver] was working in another state.

Cassett learned that C.C. was previously charged with driving

while intoxicated and suffered from a drinking problem, and she

conducted a forensic interview with S.C. According to Cassett,

during the interview, S.C. made an outcry of sexual abuse. Cassett

testified that [Carver] was “[r]eluctant for the child to have a

forensic interview without him present.”

Courtney Ma, a forensic interviewer with The Bridge Children’s

Advocacy Center, testified that it is common for children not to

disclose as much to her as they might disclose to their counselors

later on, since children often only make partial disclosures when

beginning to speak about their experiences. Ma explained that

during her interview with S.C., S.C. was consistent, used ageappropriate language, provided sensory details, and corrected Ma

if Ma said something wrong. According to Ma, there was an

incident when S.C. saw [Carver’s] “bad spot” and called it a “little

peach worm.” Ma testified that S.C. told her that when [Carver]

would grab her hand, she would “take her hand away and tuck it

in the couch because she would know what he was going to be

doing[.]” Additionally, Ma explained that S.C. “described that

[Carver] would always wake her up at night, and she would wake

up to him grabbing her wrist, and he would be guiding it over to

touch his bad spot[,]” and S.C. stated that this occurred “a lot of

times.” Ma testified that S.C. described these incidents as

occurring both in Emory, Texas and out of town. According to Ma,

S.C. described “cannonballs” as her diving her hand off the table,

and [Carver] taking her hand and moving it up and down.

Furthermore, Ma testified that S.C. described putting toys in front

of her door to create an obstacle course.

Licensed professional counselor Sylvia Hill testified that she

counseled S.C. Hill testified that when she began counseling S.C.,

she “was told that [S.C.] had been molested by her father.”

According to Hill, S.C. was fourteen years of age or younger when

she was in counseling. S.C. made statements to Hill about being

abused, and Hill stated that S.C. “was very reluctant to talk about

it[ ]” and “expressed extreme concern that it be understood that

when it all started she was too little to know better.” Hill testified

that S.C. appeared to be embarrassed and ashamed. When asked

whether S.C. described penetration by [Carver], Hill testified that

S.C. told her that [Carver] “put his fingers and hands into me.” Hill

explained that S.C. also described an incident when [Carver] “put

his fingers into her” while she was mowing the lawn with him

during the summer. According to Hill, S.C. locked her bedroom

door and put her toys on her bedroom floor to serve as an obstacle

course. Hill further testified that S.C. described an incident when

she was bitten by a dog and received stitches around

Thanksgiving, and [Carver] asked if he could kiss her where her

stitches were and “again used his fingers to penetrate her[,]” and

Hill inferred that S.C. was referring to her anus. Hill testified that

S.C. told her these incidents occurred in Emory.

S.C., who was eleven years old at trial, testified via closed circuit

television. S.C. testified that when she was bitten by a dog around

Thanksgiving, she received stitches on her leg, arm, and buttocks.

According to S.C., [Carver] asked if she wanted him to kiss her

stitches, and he “pulled [her] butt cheeks apart[ ]” and “kissed up

[her] butt.” S.C. explained that [Carver] then “started using his

fingers” on her “bad spot.” S.C. testified that she locked her

bedroom door until [Carver] made her stop doing so, and she “put

up an obstacle course” in her bedroom to block [Carver]. S.C.

explained that she believed [Carver] made her stop locking her

door so he could “do the thing.” S.C. testified that the dog bite

incident occurred in Emory. S.C. also testified that when she was

riding the lawn mower with [Carver] in Emory during the summer,

[Carver]slipped his hand underneath her panties and touched her

“butt.” In addition, S.C. testified that on one occasion, she tried to

stop [Carver] from “doing the thingy” by tucking her hands into

the couch. S.C. explained that she would use her hand to “jump off

[Carver’s] bad spot[,]” which she called “doing cannonballs,” and

[Carver] grabbed her hand and tried to make her touch “his bad

spot[,]” or “private,” which she described as “a giant peach worm.”

S.C. testified that the cannonball incident did not occur in Emory.

According to S.C., [Carver] put his hand under her Pull-Up when

they lived in Emory.

[Carver’s] sister, D.C., testified that S.C. sometimes stayed at her

home. D.C. testified that S.C. denied being touched

inappropriately. D.C. explained that she is close to her brother,

and she does not believe he is capable of committing the crime.

D.C. testified that she sometimes tracked [Carver’s] progress when

he was traveling, and he was away on the December 2020 date set

forth in the indictment. D.C. testified that her daughter was

abused by her former husband, and S.C.’s allegations against

[Carver] are worded similarly to those made by D.C.’s daughter.

Carver, 2023 WL 327815, at *1–*2.

ARGUMENT

The Questions Presented Are Premature, Provide No Important

or Compelling Reason for Review, and Are More Appropriate for

Federal Habeas Review.

Rule 10 provides that certiorari review is not a matter of right, but of

judicial discretion, and will be granted only when there are special and

important reasons therefor. See Sup. Ct. R. 10. Certiorari review of state

habeas decisions is generally inappropriate where a claim is ripe for federal

habeas review. Carver advances no special or important reason for the Court

to review the denial of a state habeas application 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). Justice

Stevens’s reasoning applies here. A federal district court is better situated to

review Carver’s claims. Carver’s arguments here belong in a federal habeas

corpus petition, which he has not yet filed. Prudence calls for the Court to deny

certiorari.

II.

The CCA’s Decision Rejecting Carver’s Garden Variety

Strickland Claim Is Fully Consistent with Sixth Amendment

Protections.

In his first claim, Carver argues that he received ineffective assistance

of counsel in violation of the Sixth Amendment and the familiar Strickland

standard. Specifically, he asserts that defense counsel, Theryn Waggener, was

ineffective during the sentencing phase of trial because he did not present

character witnesses as mitigation evidence to support a plea for leniency from

the jury, resulting in a life sentence. See Pet. Cert. 9–17. He also complains

that Waggener did not give an opening statement or cross-examine the State’s

witness. Id. During State habeas proceedings, Carver included affidavits from

four individuals stating they were in the court room and willing to testify on

his behalf as character witnesses. See Resp’t App’x. 2a–10a.

Both the State and Defense waived an opening statement during the

punishment phase of trial. Resp’t App’x. 1d. The State presented only one

witness, Brandon Camp, the victim’s brother and Carver’s stepson. Camp

testified briefly about the effect that Carver’s abuse had on S.C. in her daily

life. Resp’t App’x. 1d–3d. During closing statements, Waggener requested

mercy from the jury and asked for the minimum sentence, noting that Carver

had no previous criminal history. Resp’t App’x. 4d–5d. The State asked for the

maximum sentence and the jury returned a sentence of life imprisonment.

Resp’t App’x. 4d.

A. The Strickland Standard

The proper standard for determining whether counsel’s performance was

constitutionally adequate is that of “reasonably effective assistance.”

Strickland, 466 U.S. at 687; Hinton v. Alabama, 571 U.S. 263, 272 (2014).

“Under Strickland, a defendant who claims ineffective assistance of counsel

must prove (1) that counsel’s representation fell below an objective standard of

reasonableness, and (2) that any such deficiency was prejudicial to the

defense.” Garza v. Idaho, 586 U.S. 232, 237 (2019) (internal citations removed).

Merely alleging that counsel’s performance was deficient is not enough;

instead, a petitioner must show that counsel’s performance fell beyond the

bounds of prevailing, objective, professional standards. Strickland, 466 U.S. at

688. Furthermore, in determining the merits of an alleged Sixth Amendment

violation, courts “must be highly deferential” to counsel’s conduct. Id. at 689.

A reviewing court “must indulge a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assistance,” and every

effort must be made to eliminate the “distorting effects of hindsight.”

Strickland, 466 U.S. at 689; see also Burt v. Titlow, 571 U.S. 12, 12 (2013).

B. Carver’s Reliance on Wiggins v. Smith Is Inapposite.

The procedural framework of this appeal suggests serious concerns with

the justiciability of the first Question Presented. Carver’s argument relies on

a distinction between non-capital and capital sentencing regimes in relation to

Strickland’s measure for ineffective assistance at sentencing. See Pet. Cert. 9–

17. Specifically, he observes that the Court has recognized Sixth Amendment

violations under Strickland’s familiar measure when counsel fails to

investigate and present mitigating evidence in death penalty cases—and asks

the Court to extend the same legal measure to non-capital sentence

proceedings where the punishment range is 25 years to life, without the

possibility of parole. Id.; see Wiggins v. Smith, 539 U.S. 510, 521–522 (2003)

(Counsel in a death penalty case has an obligation to consider possible penaltyphase defenses).

However, this petition is a poor vehicle to resolve this distinction because

the CCA fully applies Strickland’s prejudice standard to Texas’s non-capital

sentencing regime. E.g. Ex parte Scott, 541 S.W.3d 104, 115 (Tex. Crim. App.

2017) (holding that proving Strickland prejudice at non-capital sentencing

requires applicant to show “that a reasonable probability exists that, but for

counsel’s deficient conduct, the punishment jury would have returned a more

favorable verdict (i.e., a lesser punishment). A reasonable probability is one

that is sufficient to undermine confidence in the outcome of the proceeding.”)

(internal citation omitted).

Furthermore, Carver’s assertion that Waggener was per se ineffective for

failing to present mitigating evidence in the form of character witnesses relies

on a misunderstanding of the holding in Wiggins. Even in death penalty cases,

ineffective assistance claims are still governed by the Strickland standard.

Strickland, 466 U.S. 668. The Court has clarified that Wiggins did not establish

“strict rules” for counsel’s conduct “[b]eyond the general requirement of

reasonableness.” Cullen v. Pinholster, 563 U.S. 170, 196 (2011). In Wiggins, the

Court found that it was defense counsel’s decision not to expand their

investigation which fell short of professional standards. See Wiggins, 539 U.S.

at 523. In other words, the question presented by Wiggins is “whether the

investigation supporting counsel’s decision not to introduce mitigating

evidence…was itself reasonable. Id. Carver does not argue that Waggener

conducted a deficient investigation and failed to uncover mitigating evidence,

but rather that he should have presented the character witnesses that were

available. See Pet. Cert. 9–17.

Carver’s argument also ignores the significant difference in a capital

punishment phase—a unanimous verdict is required to impose the death

penalty, so swaying even one juror that the defendant should be sentenced to

life imprisonment rather than death is sufficient to change the outcome of the

sentencing. See Andrus v. Texas, 590 U.S. 806, 822 (2020); Luna v. Lumpkin,

832 F. App’x 849, 852 (5th Cir. 2020). The Court in Strickland, a capital case,

“held that the same standard for evaluating claims of ineffective assistance of

counsel” at guilt-innocence applies “to capital sentencing proceedings because

[a] capital sentencing proceeding . . . is sufficiently like a trial in its adversarial

format and in the existence of standards for decision, that counsel’s role in the

proceeding is comparable to counsel’s role at trial.” Caspari v. Bohlen, 510 U.S.

383, 393 (1994) (citing Strickland, 466 U.S. at 686–87) (internal citations and

quotation marks omitted) (alterations in original).

The Court further acknowledged these differences when it expressly

reserved the question of whether the prejudice standard announced in

Strickland applied to counsel’s deficiencies during a non-capital sentencing

proceeding. Strickland, 466 U.S. at 688 (“We need not consider the role of

counsel in an ordinary sentencing, which may involve informal proceedings

and standardless discretion in the sentencer, and hence may require a different

approach to the definition of constitutionally effective assistance.”) (emphasis

added). The Court specifically declined to extend Strickland’s prejudice prong

to non-capital sentencing regimes that, like Texas, involve the application of

unrestrained sentencing discretion over a large range. Nevertheless, Carver’s

petition does not present an opportunity to revisit Wiggins in the non-capital

context because Texas’s non-capital sentencing regime still fully applies

Strickland’s prejudice standard.

C. Certiorari Should be Denied because Carver fails to establish

a Sixth Amendment Violation.

Carver asserts that Waggener provided ineffective representation

during the sentencing phase of his trial. His reliance on Wiggins suggests that

he argues the CCA’s judgment was erroneous because it relied on a less

“defendant friendly” test for Strickland prejudice applicable to non-capital

sentences, instead of the measure used in capital sentencing—and asks the

Court to eliminate the supposed distinction. See id.

This Court has yet to pronounce the precise measure for Strickland

prejudice for non-capital sentencing regimes like Texas. 2 Citing similar

concerns as the Court in Strickland, the Fifth Circuit has recognized that “a

rigid application” of Strickland’s prejudice prong to Texas’ non-capital

sentencing regime, i.e., “requiring a reasonable probability that but for

counsel’s error the result of the sentencing hearing would have been different,”

could turn “Strickland into an automatic rule of reversal[.]” Spriggs v. Collins,

993 F.2d 85, 88 (5th Cir. 1993), as corrected on reh'g (July 29, 1993), abrogated

on other grounds as recognized in, Dale v. Quarterman, 553 F.3d 876, 880 n.2

(5th Cir. 2008). Spriggs held that when counsel is claimed to be ineffective at

the punishment phase of trial, “the relevant inquiry is whether, absent

counsel’s errors, there is a reasonable probability that the defendant’s sentence

would have been ‘significantly less harsh,’ taking into account ‘such factors as

The holding in Glover was justified by the precision with which federal circuit courts

might determine sentencing-prejudice under the federal Sentencing Guidelines. See Glover

v. United States, 531 U.S.198, 204 (2001) (“Here we consider the sentencing calculation itself,

a calculation resulting from a ruling which, if it had been error, would have been correctable

on appeal.”) (emphasis added). Such precision is impossible with respect to non-determinate,

unconstrained sentencing-discretion.

the defendant’s actual sentence, the potential minimum and maximum

sentences that could have been received, the placement of the actual sentence

within the range of potential sentences, and any relevant mitigating or

aggravating circumstances.’” Dale, 553 F.3d at 880 (quoting Spriggs, 993 F.2d

at 88–89 and United States v. Segler, 37 F.3d 1131, 1136 (5th Cir. 1994))

(internal citations omitted). This Court has also favorably cited the prejudice

standard set by the Fifth Circuit in Spriggs. See Glover, 531 U.S. at 204.

Carver asserts that defense counsel’s representation during the

punishment phase of his trial was deficient because he failed to make a case

for mitigation, specifically by presenting testimony from his friends and family

as character witnesses. See Pet. Cert. 9–17. In considering this claim, the state

habeas court had the affidavits of four individuals: Christa Carver, Benji

Brandow, Tony Vigil, and Deavah Campbell-Vigil. See Resp’t App’x. 2a–10a.

All four stated that they were present during the trial and willing to testify on

Carver’s behalf. Id. In her affidavit, Christa Carver states she would have

testified that Carver “was a loving, caring and supportive father to S.C.” Id. at

25. She maintains that Carver is innocent. Id. Benji Brandow attested that he

has been Carver’s friend for over ten years and that Carver is “a dedicated,

hard-working, devoted father and husband.” Id. at 27. He also maintains that

Carver is innocent and has been falsely imprisoned. Id. Tony Vigil stated in

his affidavit that Carver “was always dedicated to making sure his family was

taken care of” and “was a great role model for others.” Id. at 31. Deavah

Campbell-Vigil, Carver’s sister, did testify during the guilt-innocence phase of

the trial. Resp’t App’x. 1c–23c. She testified that she did not believe Carver

was capable of committing the crime because it was not in his character and

that Carver and S.C. had a very good relationship. Id. In her affidavit, she

states she would have testified during the punishment phase of trial that

Carver “is an amazing person” and “has always been an amazing husband,

brother, friend, and father.” See Resp’t App’x. 9a.

Accepting arguendo that all these witnesses were available and would

have testified as in their affidavits, Waggener’s decision not to call them was

not objectively unreasonable, and thus was not deficient performance. The jury

had already heard the testimony of Deavah Campbell-Vigil earlier in the trial

and—as evidenced by their finding of guilt—was unpersuaded by it. The

proposed testimony of the other character witnesses was of the same nature

and would have provided no additional information to the jury. The decision

not to call these character witnesses was a matter of reasonable trial strategy.

Carver also fails to establish prejudice, i.e. that, but for Waggener’s

alleged deficiencies, he would have received a significantly less harsh sentence.

The testimony of four individuals who believed the accusations against Carver

were fabricated and spoke about him as a loving family man and good friend

was unlikely to persuade a jury that had just convicted Carver of continuously

sexually abusing his daughter. Carver fails to establish a Sixth Amendment

violation and certiorari should thus be denied.

III.

The Texas Statute Criminalizing Continuous Sexual Abuse of

Young Children Does Not Violate Due Process.

Carver argues Texas Penal Code § 21.02, continuous sexual abuse of a

young child, is unconstitutional because it allows a non-unanimous verdict. 3

See Pet. Cert. 17–28. Specifically, Carver points to section (d) which states:

If a jury is the trier of fact, members of the jury are not required to

agree unanimously on which specific acts of sexual abuse were

committed by the defendant or the exact date when those acts were

committed. The jury must agree unanimously that the defendant,

during a period that is 30 or more days in duration, committed two

or more acts of sexual abuse.

Carver further argues that the phrase “committed two or more acts of sexual

abuse” is unconstitutionally vague because it encourages arbitrary and

As of the time he committed the offense, the statute defined the constituent “act of

abuse” to be any violation of one or more of the following penal laws:

(1) aggravated kidnapping under Section 20.04(a)(4), if the actor committed the

offense with the intent to violate or abuse the victim sexually;

(2) indecency with a child under Section 21.11(a)(1), if the actor committed the offense

in a manner other than by touching, including touching through clothing, the breast

of a child;

(3) sexual assault under Section 22.011;

(4) aggravated sexual assault under Section 22.021;

(5) burglary under Section 30.02, if the offense is punishable under Subsection (d) of

that section and the actor committed the offense with the intent to commit an offense

listed in Subdivisions (1)-(4);

(6) sexual performance by a child under Section 43.25;

(7) trafficking of persons under Section 20A.02(a)(7) or (8); and

(8) compelling prostitution under Section 43.05(a)(2).

Tex. Penal Code § 21.02(c) (2020).

discriminatory enforcement. Id. In essence, Carver challenges Texas’s

characterization of his continuous, but technically discreet, acts of sexual

abuse against his daughter as a single crime, as to which the verdict need not

have been limited to any one statutory alternative. 4

However, the individual acts of sexual abuse Carver committed against

his daughter, acts occurring over years, are not themselves individual elements

of the offense for which he was charged; they are merely evidentiary facts. They

represent the manner and means by which the actus reus element of the Texas

criminal statute was committed. And that element, as it applied to Carver’s

prosecution, was his continuing course of sexual abuse, resulting in the

cumulative injury to his daughter.

When properly framed, the relevant statutory element is more than just

the sum of its constituent offenses; rather, it targets a class of offenders who

repeatedly abuse and molest children. The actus reus is repeated childmolestation. When construed as the Texas Legislature intended, it is

irrelevant whether a jury “unanimously” selected the same two or more of the

numerous and discreet incidents of sexual abuse because Texas here is

punishing the continuous and repeated sexual exploitation of children.

“The issue in this case, then, is one of the permissible limits in defining criminal

conduct, as reflected in the instructions to jurors applying the definitions, not one of jury

unanimity.” Schad v. Arizona, 501 U.S. 624, 631 (1991) (plurality op.).

No appellate court has ever determined that any of the numerous

continuing-sexual-abuse statutes like the one at issue here violate the federal

constitution. The decision below is consistent with the Court’s opinion in Schad

v. Arizona, 501 U.S. 624, 630–45 (1991), and it is also consistent with the

reasoning of both the majority and the dissent in Richardson v. United States,

526 U.S. 813 (1999). There is thus no compelling reason for this Court to

exercise its discretion to review this case.

A. Certiorari Should Be Denied Because the Decision Below Is

Fully Consistent with This Court’s Precedent.

This Court has touched on the Question Presented twice before, in Schad

and Richardson. Carver relies on the Court’s analysis in Richardson as the

basis of his claim that Texas Penal Code §21.02(d) violates Due Process. But

the Court in Richardson expressly contrasted the law at issue in that case with

continuing-course offenses involving the sexual abuse of children. And even

putting this court’s express statement of approval aside, Texas’s law is fully

consistent with the fairness factors that the Court pointed to in both Schad

and Richardson.

1. In Richardson this Court favorable cited the use of

continuing course offenses for child sexual abuse

Both

the

majority

and

the

dissent

Richardson

favorably

acknowledged, and explicitly distinguished, state laws permitting convictions

for continuing-course offenses involving the sexual abuse of children despite

the lack of jury agreement as to the specific underlying acts. See Richardson,

526 U.S. at 821 (“The state practice may well respond to special difficulties of

proving individual underlying criminal acts…which difficulties are absent

here.”); id. at 833 (Kennedy, J., dissenting) (“States have also chosen to define

as continuous some crimes that involve repeated conduct where the details of

specific instances may be difficult to prove, as in cases of child molestation or

promoting prostitution.”). These statutes are distinct because of the “special

difficulties of providing individual underlying criminal acts” when crimes

involve children. Id. at 821. Because the Court in Richardson effectively gave

its stamp of approval to laws like Texas’s, there is no need to grant certiorari

to consider this issue.

2. Texas’s use of continuing course offenses for child

sexual abuse is consistent with the factors that the Court

recognized in Schad and Richardson

In Schad, a plurality of the Court confirmed that a constitutionally valid

conviction could be obtained by means of a general verdict, even where jurors

did not agree on either the probative force of any particular item of evidence,

or the particular means a defendant used to commit an element of a crime.

Schad, 501 U.S. at 631–32. In such cases, as in litigation generally, “different

jurors may be persuaded by different pieces of evidence, even when they agree

upon the bottom line. Plainly there is no general requirement that the jury

reach agreement on the preliminary factual issues which underlie the verdict.”

Schad, 501 U.S. at 631–32 (plurality opinion). Furthermore, six members of

the Court in Richardson refer to this portion of the Schad plurality with

approval. Richardson, 526 U.S. at 817 (“The question before us arises because

a federal jury need not always decide unanimously which of several possible

sets of underlying brute facts make up a particular element, say, which of

several possible means the defendant used to commit an element of the crime.”)

(citing Schad, 501 U.S. at 631–32). 5

As the Schad plurality further reasoned, “[t]he question whether

statutory alternatives constitute independent elements of the offense . . . is a

substantial question of statutory construction.” Schad, 501 U.S. at 636. This is

because “legislatures frequently enumerate alternative means of committing a

crime without intending to define separate elements or separate crimes[.]” Id.

at 636.

The Schad plurality also acknowledged that the Due Process Clause

nevertheless placed limits on that legislative power. To this end the plurality

reasoned that “nothing in our history suggests that the Due Process Clause

would permit a State to convict anyone under a charge of ‘Crime’ so generic

that any combination of jury findings of embezzlement, reckless driving,

Although the Court’s majority opinion in Richardson was ultimately premised upon

principles of statutory construction, the majority’s reasoning was informed, at least in part,

by the doctrine of constitutional avoidance, and the possibility that the Government’s broad

interpretation could test the constitutional limits described in Schad. Richardson, 526 U.S.

at 820.

murder, burglary, tax evasion, or littering, for example, would suffice for

conviction.” Schad, 501 U.S. at 633. As the plurality reasoned, such a statute

might well violate the due process norms of “fundamental fairness” and

“rationality.” Id. at 637.

The

Schad

plurality

identified

and

examined

three

general

considerations to be used when analyzing the constitutionality of continuingoffense statutes like Texas Penal Code § 21.02, Schad, 501 U.S. at 637. First,

the plurality confirmed that the decision of whether a particular “fact”

constitutes an element of the offense—or is merely a “manner and means” upon

which the jury need not agree—is a “value choice[] more appropriately made

in the first instance by a legislature than by a court,” and further, that the

Court’s respect “for this legislative competence counsels restraint against

judicial second-guessing.” Id. at 638. Ultimately, a legislature’s definition of

the elements of the offense “is usually dispositive.” Id. at 639 (internal

quotation marks omitted).

Second, the plurality reasoned that where a legislature’s statutory

definition of a particular crime has either a long history, or is in widespread

use, such a statute would be more difficult to challenge. Schad, 501 U.S. at

640. Conversely, “freakish” definitions, or those that create a single, “umbrella”

crime by fusing multiple, “inherently separate” offenses together, would be

subject to greater scrutiny, and hence easier to challenge. Id. at 640.

Finally, and most importantly, the constituent facts that underlie the

relevant

element

“must

reasonably

reflect

notions

equivalent

blameworthiness or culpability.” Schad, 501 U.S. at 643. The more the

underlying, constituent incidents are morally equivalent, the less reason to

require juror concurrence—even with respect to relatively novel offenses. See

id. at 643–44. To this end, moral equivalence carries considerable weight in

the plurality’s analysis. Id. at 643 (subsuming due-process considerations of

history and current practice into a “critical examination” of moral equivalence);

id. at 651 (Scalia, J., concurring in part and concurring in the judgment)

(noting that the plurality utilizes moral equivalence as “a substitute for

reliance upon historical practice”). If “it is clear that such equivalence could

reasonably be found,” then it “is enough to rule out the argument that moral

disparity bars treating them as alternative means to satisfy the [elements] of

a single offense.” Schad, 501 U.S. at 644.

Here, each of these factors—1) legislative intent; 2) widespread and

historic practice; and 3) the moral equivalence of the constituent incidents—

strongly supports the constitutionality of Texas Penal Code § 21.02.

3. Texas Penal Code § 21.02 and Legislative Intent

Texas Penal Code § 21.02 criminalizes the continuous sexual abuse of a

child under the age of fourteen. Tex. Penal Code § 21.02 (2020). As defined by

that statute, a jury must “unanimously” agree that the defendant, during a

period that is thirty or more days in duration, committed two or more acts of

sexual abuse, against one or more children. Id. Again, pursuant to the Texas

Legislature’s explicit command, whether the defendant committed two or more

acts of sexual abuse against a child under fourteen, over a specified time

period—i.e., the pattern of behavior or the series of acts which the statute

defines as a criminal offense—is the element as to which the jurors must be

unanimous in order to convict. Kennedy v. State, 385 S.W.3d 729, 731 (Tex.

App. 2012). To this end, § 21.02(d) explicitly provides that the jury is not

required to agree unanimously on which two specific and discreet acts of sexual

abuse a defendant committed in support of the actus reus element in the

statute, or the exact date when those acts were committed. Id.

The Legislature’s explicit statutory command in § 21.02(d) establishes

that the underlying facts—in this case the constituent sexual incidents making

up the continuous offense—are merely the manner and means upon which the

jury need not agree. Jacobsen v. State, 325 S.W.3d 733, 737 (Tex. App. 2010);

Tex. Penal Code § 21.02(d). This decision about which facts are necessary to

constitute a crime (and which therefore must be proved individually), and what

facts are mere means thereto, is given considerable deference by this Court

because they represent value choices more appropriately made by a legislature,

rather than by a court. Schad, 501 U.S. at 638 (plurality opinion). Given that

the legislative intent is explicit on this point, the question then shifts to the

other factors described in Schad, and utilized by both the majority and dissent

in Richardson.

4. History of Continuous Sexual Abuse Statutes

As this Court recognized in Richardson, 526 U.S. at 821, Texas’s

continuous sexual abuse of a child statute, like those in other jurisdictions, is

a response to the serious and legitimate concern that many children who have

been victimized by repeated incidents of sexual abuse over a period of time,

and by the same assailant, are unable to identify those discrete acts of

molestation. 6 As such, these children “may have no practical way of

recollecting, reconstructing, distinguishing or identifying by specific incidents

or dates all or even any” of the acts of sexual assault. Calloway, 176 Misc. 2d

161 (quotations omitted). Continuous course of conduct crimes targeting the

sexual abuse of children also address the cumulative—and greater—injury

resulting from repeated incidents occurring over a substantial period of time.

Such a pattern constitutes a distinct crime from a single incident of sexual

abuse. See Dixon, 201 S.W.3d at 737 (Cochran, J., concurring) (“[T]he simple

See Dixon v. State, 201 S.W.3d 731, 737 (Tex. Crim. App. 2006) (Cochran, J.,

concurring) (urging the Texas Legislature to “consider enacting a new penal statute that

focuses upon a continuing course of conduct crime—a sexually abusive relationship that is

marked by a pattern or course of conduct of various sexual acts”); e.g. People v. Whitham, 38

Cal. App. 4th 1282 (1995); People v. Longoria, 862 P.2d 266, 270–71 (Colo. 1993) (noting that

a similar statute was enacted due to “the difficulties young children have distinguishing

references to time, namely, recalling specific dates and places, particularly where a young

child is subjected to abuse over a prolonged period of time”); People v. Calloway, 176 Misc. 2d

161 (N.Y. Co. Ct. 1998).

fact that the criminal conduct at issue is not really one specific act at one

specific moment.”).

Numerous other states have adopted similar continuous sexual abuse of

a child criminal statutes. See, e.g., Ariz. Rev. Stat. Ann. § 13-1417; Cal. Penal

Code § 288.5; Del. Code Ann. tit. 11, §776; Haw. Rev. Stat. § 707-733.; Md.

Code, Crim. Law § 3-315; N.D. Cent. Code § 12.1-20-03.1; N.Y. Penal Law

§130.75; Wis. Stat. Ann. §948.025. Many of their state courts have also

determined that these criminal statutes do not violate Due Process. See, e.g.,

State v. Young, 150 Haw. 365, 376 (Ct. App. 2021); State v. Ramsey, 211 Ariz.

529, 537 (Ct. App. 2005); State v. Johnson, 243 Wis. 2d 365 (2001). While the

Texas statute cannot trace its ancestry to a firmly rooted common-law practice,

such statutes do go back nearly forty years and were recognized by the Court

as early as 1999. Richardson, 526 U.S. at 821. Such contemporary acceptance

of continuous sexual abuse statutes is “a strong indication that they do not

offend some principle of justice so rooted in the traditions and conscience of our

people as to be ranked as fundamental.” Schad, 501 U.S. at 642 (internal

citations omitted).

5. Moral Equivalence of Constituent Elements

Finally, there is nothing “freakish” about this statute. Schad, 501 U.S.

at 640. Texas Penal Code § 21.02 is compact, and the underlying incidents of

sexual abuse are tightly interwoven, both logically and morally. Indeed, the

overarching legislative purpose of the statute—to punish those who repeatedly

sexually abuse children—serves an overwhelming and distinct function, one

which is far more focused than the federal statute at issue in Richardson.

The majority in Richardson utilized several factors when analyzing the

potential unfairness that could unfold if the Court interpreted the relevant

federal statute as treating each statutory “violation” as a means (and not as an

element). All of these factors point to the constitutionality of Texas Penal Code

§ 21.02.

First, the Court noted with concern that the term “violations” as defined

in the federal statute, covered a wide range of behavior with varying degrees

of seriousness, spread out over approximately ninety statutory sections.

Richardson, 526 U.S. at 819. Here, however, the “acts of sexual abuse” defined

by Texas Penal Code § 21.02(c) are found in only eight penal statutes (although

these statutes sometimes define more than one offense). See note 4, supra. All

of the constituent acts are morally and conceptually similar: they are either

first- or second-degree felonies and all involve the actual or intended sexual

abuse of a child. Schad, 501 U.S. at 637; Jacobsen, 325 S.W.3d at 739. In the

instant case, all the constituent acts of sexual abuse on which Carver was

charged involved the actual sexual abuse and sexual assault of his daughter,

S.C. See Resp’t App’x. 1e–2e.

Second, the Court in Richardson stated its concern that the wide range

of constituent criminal incidents defined by the federal statute might permit a

jury to avoid discussing the specific factual details of each violation, which

could in turn mask wide disagreement among the jurors about what the

defendant did or did not do. Richardson, 526 U.S. at 819. To this end, the

majority reasoned that where the jury is presented with such a wide range of

dissimilar and potentially illegal misconduct, jurors might not focus on specific

factual details, and simply convict based only on allegations of wide-ranging

criminal acts because “where there is smoke there must be fire.” Id. But again,

these concerns are largely absent from Texas Penal Code § 21.02, which

involves a limited number of constituent acts involving sexual abuse of one or

more children.

Furthermore, the Texas statute is also consistent with the reasoning of

the dissent in Richardson, which reached the underlying constitutional issue.

Richardson, 526 U.S. at 825–37 (Justice Kennedy dissenting, joined by

Justices O’Connor and Ginsburg). “The . . . statute does not in any way

implicate the suggestions in Schad that an irrational single crime consisting

of, for instance, either robbery or failure to file a tax return would offend due

process.” Id. at 835. The dissent reasoned that other elements of the federal

statute, including the “series” element (i.e., a requirement that the defendant

act in concert with five or more persons, in a leadership role, with substantial

criminal proceeds), all “work together to channel the jury’s attention toward a

certain kind of ongoing enterprise.” Id. at 836.

If the statute at issue in Richardson met constitutional muster, then the

Texas statute at issue here surely does, especially given the factual and moral

equivalence of the constituent incidents of sexual abuse. In the instant case,

the jury was not presented a wide range of behavior with varying degrees of

seriousness, spread out over dozens of statutory provisions. Richardson, 526

U.S. at 819. On the contrary, the jury’s focus here was undoubtedly channeled

to the “ongoing” pattern of sexual abuse committed by Carver against his

daughter.

Texas Penal Code § 21.02 is not remotely akin to a statute permitting a

conviction on any combination of jury findings of embezzlement, reckless

driving, murder, burglary, tax evasion, or littering to suffice for conviction,

Schad, 501 U.S. at 633, or a crime consisting of either robbery or failure to file

a tax return, id. at 650 (Scalia, J., concurring in part and concurring in the

judgment). Rather, Carver’s present conviction was premised on a narrow

subset of constituent (and numerous) incidents of actual sexual abuse,

committed against his daughter. As such, § 21.02, is far removed from the

Court’s concerns in Schad and Richardson

B. Certiorari Should Be Denied Because There Is No Conflict

Between the Decision Below and The Decision of Any

Appellate Court.

The question actually presented by Carver’s claim advances nothing of

substance for the Court to decide. See Sup. Ct. Rule 10. In his entire brief,

Carver is unable to cite even a single reported opinion in which an appellate

court determined that a continuous sexual-abuse-of-a-child statue was

unconstitutional. See Pet. Cert. 7 Instead, Carver relies on an article from the

Texas Law Review. Id. at 17.

Carver fails to cite (and the State is unaware of) any published or

unpublished opinion in which any state or federal appellate court has ever

declared a continuous-sexual-abuse of a child statute to be a violation of the

federal constitution. 8 This is perhaps unsurprising given the Court’s

recognition of the likely validity of these provisions in Richardson. See Section

1, supra. Carver’s petition should thus be denied because there is no conflict at

issue.

Although not cited by Carver, the State is aware of one case where a court struck down

a law on state constitutional grounds, State v. Rabago, 103 Haw. 236 (2003). However, the

Hawaii legislature later amended its constitution to reverse the Rabago result, see Haw.

Const. Art. I, § 25, S.B. 2246 (2006), ratified Nov. 7, 2006; and the state legislature

subsequently reenacted the continuous sexual abuse statute in 2006, see 2006 Hawaii Laws

Act 60 (H.B. 2207) (codified as amended at Haw. Rev. Stat. § 707-733.6).

Many States have passed legislation similar to the Texas statute at issue here and

their state courts have held that there is no Due Process violation. See Section 3, supra.

C. The Court Should Not Grant Certiorari to Exercise Broad

Supervisory Power Over the State Courts.

Carver urges the Court to grant certiorari because the CCA has not yet

decided the question. See Pet. Cert. 32. He further asks the Court to “overrule”

Texas intermediate appellate court opinions, starting with Jacobsen v. State,

325 S.W.3d 733 (Tex. App. 2010), that concluded Penal Code §21.02 does not

violate Due Process. See Pet. Cert. 19–25. But these arguments are neither a

compelling invocation of this Court’s jurisdiction under 28 U.S.C. § 1257(a),

nor a motivating assertion under Rule 10.

In exercising its authority under § 1257(a), the Court has made clear

that it holds “no supervisory power over state judicial proceedings and may

intervene only to correct wrongs of constitutional dimension.” Smith v.

Phillips, 455 U.S. 209, 221 (1982). Hence, absent the existence of a compelling

federal constitutional question, Carver’s arguments present the Court with no

independent jurisdictional basis upon which to grant certiorari—either to “fillin” for the Court of Criminal Appeals, or to “overrule” the Texas intermediate

appellate courts. See id. Nor does Carver’s observation regarding the insular

affairs of the Texas courts provide any marginal support for this petition. See

Sup. Ct. Rule 10 (“A petition for a writ of certiorari is rarely granted when the

asserted error consists of . . . the misapplication of a properly stated rule of

law.”).

IV.

Due Process Does Not Require a Live Evidentiary Hearing for

State Collateral Review.

Carver argues that the CCA violated his constitutional right to “have a

meaningful opportunity to be heard before a tribunal.” See Pet. Cert. 28–35.

He complains that the habeas trial court did not hold a hearing to develop the

habeas record and the CCA denied his petition without written order. Id.

Ultimately, Carver asks the Court to intervene in the State’s post-conviction

writ proceedings.

This Court has long understood that it holds “no supervisory power over

state judicial proceedings and may intervene only to correct wrongs of

constitutional dimension.” Smith, 455 U.S. at 221; Dickerson v. United States,

530 U.S. 428, 438 (2000); see also Sanchez-Llamas v. Oregon, 548 U.S. 331,

345–46 (2006) (Supreme Court lacked authority to order the state court to

suppress Sanchez-Llamas’s statements made to state police officers). Here, the

CCA’s ultimate authority to decide the process for state habeas proceedings is

not reviewable by this Court.

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). But Carver is not alleging that the State has violated his due process

protections during the direct appeal process as established under Texas law.

Rather, he is challenging the State’s procedures during his state habeas

proceeding after he has already been tried, convicted, and availed himself of

an appeal under Texas law. See Pet. Cert. 28–35.

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”). Because the Constitution does not require a

postconviction remedy at all, then “free-standing” due process protections

surely do not extend to review a state court’s equitable application of a

discretionary procedural bar in a postconviction proceeding. C.f. Martinez v.

Ct. of Appeal of California, Fourth App. Dist., 528 U.S. 152, 165–166 (2000)

(Scalia J., concurring in judgment) (“Since a State could . . . subject its trialcourt determinations to no review whatever, it could a fortiori subject them to

review which consists of a nonadversarial reexamination of convictions by a

panel of government experts”).

When a state provides post-conviction proceedings, “the Federal

Constitution [does not] dictate[] the exact form such assistance must assume.”

Pennsylvania, 481 U.S. at 555. If a state offers post-conviction review, that

review has to comply with basic procedural due process. See, e.g., Williams v.

Pennsylvania, 579 U.S. 1 (2016); Dist. Attorney's Off. for Third Jud. Dist. v.

Osborne, 557 U.S. 52, 68–69 (2009). A state habeas applicant’s “right to due

process is not parallel to a trial right, but rather must be analyzed in light of

the fact that he has already been found guilty at a fair trial, and has only a

limited interest in postconviction relief.” Id. at 69. This narrow, procedural

protection does not incorporate all the rights that apply in a full criminal trial,

but it does require the state procedure to be in accord with fundamental

fairness. Id. at 69. In the criminal law context, this Court has “‘defined the

category of infractions that violate ‘fundamental 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. State of Tex.,

385 U.S. 554, 564 (1967). “Federal courts may upset a State’s postconviction

procedures only if they are fundamentally inadequate to vindicate the

substantive rights provided.” Osborne, 557 U.S. at 69.

In his state habeas proceedings, Carver obtained the core protection of

due process—the opportunity to be heard. See Ford v. Wainwright, 477 U.S.

399, 413 (1986) (“‘The fundamental requisite of due process of law is the

opportunity to be heard.’”) (citation omitted); Tercero v. Stephens, 738 F.3d 141,

148 (5th Cir. 2013) (noting that “states retain discretion to set gateways to full

consideration and to define the manner in which habeas petitioners may

develop their claims” and that “‘[d]ue process does not require a full trial on

the merits; instead, petitioners are guaranteed only the ‘opportunity to be

heard.’”) (footnotes and citations omitted). Carver’s claim concerning Texas

postconviction proceedings thus lacks merit and his petition for certiorari

review should be denied.

Important too, the Rules Governing Section 2254 Cases in the Federal

Courts expressly preclude evidentiary hearings unless: 1) a petitioner’s claims

rely on a new rule of constitutional law or a factual predicate previously

undiscoverable through the exercise of due diligence; and 2) the petitioner

establishes by clear and convincing evidence that, but for constitutional error,

no reasonable factfinder would have found him guilty. 28 U.S.C. § 2254(e)(2).

Given that evidentiary hearings in federal habeas district courts are

discretionary and subject to limitations, it is hard to see how States could be

prohibited from applying their own similar limitations on evidentiary hearings

during state habeas review. Carver’s constitutional claim fails for this reason

alone. See Smith, 455 U.S. at 218 (“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.”).

Because Carver fails to present a constitutional violation by the CCA’s

state habeas procedures, this Court should deny certiorari.

CONCLUSION

For all the reasons discussed above, the petition for a writ of certiorari

should be denied.

Respectfully submitted,