Opinion
NO. WR-49,391-03
04-22-2019
EX PARTE JOHN WILLIAM KING, Applicant
ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS AND MOTION FOR STAY OF EXECUTION IN CAUSE NO. 8869C IN THE 1ST JUDICIAL DISTRICT COURT JASPER COUNTY
YEARY, J., filed a concurring opinion. CONCURRING OPINION
In this eleventh-hour subsequent application for writ of habeas corpus in a capital case, Applicant invokes the opinion of the United States Supreme Court in McCoy v. Louisiana, 138 S. Ct. 1500 (2018), which was decided almost a year ago. He contends that he has satisfied the gateway criteria of Section 5(a)(1) of Article 11.071 of the Code of Criminal Procedure because McCoy constitutes new law that was unavailable to him at the time he filed his initial writ application in 2001. See TEX. CODE CRIM. PROC. art. 11.071 § 5(a)(1) (courts may not consider the merits of a claim raised for the first time in a subsequent capital writ application unless it contains specific facts to show that it relies upon, among other things, a legal basis that was unavailable for use in previous applications).
McCoy either constitutes new law for purposes of Section 5(a)(1) of Article 11.071, or it does not. If it is not new law, it cannot serve to excuse Applicant's failure to raise the issue in prior writ applications. But if it is new law, Applicant must still satisfy the Court that the new law it represents applies retroactively to afford him relief in a post-conviction context. See Ex parte Lave, 257 S.W.3d 235, 237 (Tex. Crim. App. 2008) (following Teague v. Lane, 489 U.S. 288 (1989) as a matter of state habeas practice to hold that the Sixth Amendment holding of Crawford v. Washington, 541 U.S. 36 (2004) will not be applied retroactively to cases that were already final when it was announced). However, Applicant does not even acknowledge that retroactivity is an issue, much less does he make any argument why McCoy ought to be given retroactive application. For that reason, if no other, he has failed to allege that the new law meets the Teague criteria, and that he may therefore rely upon it for relief in a collateral attack.
Nor am I inclined to believe that either the United States Supreme Court or this Court would actually hold that McCoy should apply to cases that were already final when McCoy was decided. See Chaidez v. United States, 568 U.S. 342 (2013) (holding that the opinion in Padilla v. Kentucky, 559 U.S. 356 (2010) rendered a "new" rule of constitutional law for Teague purposes, and declaring that, because Chaidez did not argue that either of the Teague exceptions applied, he could not rely upon it in a collateral attack); Ex parte Maxwell, 424 S.W.3d 66, 71 (Tex. Crim. App. 2014) (holding that, in determining questions of the retroactivity of new constitutional rules to final state convictions, this Court will "follow Teague as a general matter of state habeas practice"). It seems to me that McCoy's rule, assuming it is new, is neither "substantive" nor "a 'watershed' rule of criminal procedure" in contemplation of Teague. See Maxwell, 424 S.W.3d at 70-71 (explaining the Supreme Court's narrow implementation of the exceptions to the Teague prohibition against the retroactive application of "new" rules of constitutional law).
This Court issued its mandate in Applicant's direct appeal on November 13, 2000. There was no petition for certiorari to the United States Supreme Court.
Substantive rules "set forth categorical constitutional guarantees that place certain criminal laws and punishments altogether beyond the State's power to impose." Montgomery v. Louisiana, 136 S. Ct. 718, 729 (2016). As for "watershed" rules of criminal procedure, "[t]his class of rules is extremely narrow and 'it is unlikely that "any . . . has yet to emerge."'" Schriro v. Summerlin, 542 U.S. 348, 352 (2004) (quoting Tyler v. Cain, 533 U.S. 656, 667 n.7 (2001), which in turn quotes Sawyer v. Smith, 497 U.S. 227, 243 (1990)). See also Maxwell, 424 S.W.3d at 70 ("[I]t is unlikely that any more new [watershed] rules will emerge.").
In any event, like Chaidez, Applicant makes no argument that an exception applies. See Chaidez, 568 U.S. at 347 n.3 (noting that Chaidez argued none of the Teague exceptions, and therefore regarding the exceptions as not "relevant" to the case). Had Applicant thought he had a strong enough argument that a Teague exception should apply, he has had plenty of time since McCoy was decided to present that argument to us. We should not grant him a stay of execution in order to address an indispensable issue that, even at this eleventh hour, he has not acknowledged.
I therefore join the Court's per curiam order dismissing Applicant's latest subsequent application for writ of habeas corpus and denying his motion to stay the execution. FILED: April 22, 2019
PUBLISH