ORDER
PER CURIAM.
This is a subsequent application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071, § 5. In April 1999, a jury found applicant guilty of the offense of capital murder. The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure Article 37.071, and the trial court, accordingly, set applicant's punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal. Balentine v. State, 71 S.W.3d 763 (Tex. Crim. App. 2002). Applicant filed his initial post-conviction application for writ of habeas corpus in the trial court on January 22, 2001. This Court denied relief. Ex parte Balentine, No. WR-54,071-01 (Tex. Crim. App. Dec. 4, 2002) (not designated for publication). Applicant filed his first subsequent application for writ of habeas corpus in the trial court on August 21, 2009. This Court dismissed that application and denied applicant's request to reconsider his initial application. Ex parte Balentine, Nos. WR-54,071-01 and WR-54,071-02 (Tex. Crim. App. Sept. 22, 2009) (not designated for publication). Applicant filed this his second subsequent application in the trial court on June 13, 2011. Applicant presents two allegations in his application. In the first allegation, he asserts that his initial state habeas counsel performed deficiently in preparing his writ application. In his second allegation, applicant asserts that he was deprived of his Sixth Amendment right to effective assistance of trial counsel when his trial attorneys failed to conduct a proper life history investigation in preparation for the penalty phase of his trial. We have reviewed the application and find that applicant's allegations fail to satisfy the requirements of Article 11.071 § 5. Accordingly, applicant's application is dismissed, and his motion to stay his execution is denied. IT IS SO ORDERED THIS THE 14th DAY OF JUNE, 2011.
PRICE, J.
DISSENTING STATEMENT This is a second subsequent application for writ of habeas corpus, brought under the auspices of Article 11.071 of the Texas Code of Criminal Procedure. In it, the applicant alleges, just as he did in his first subsequent writ application, that his death sentence is constitutionally tainted by the ineffectiveness of his trial counsel at the punishment phase of his trial. Now, as then, he alleges that trial counsel failed to investigate the existence of fairly substantial mitigation evidence — as he was constitutionally obligated to do under Wiggins v. Smith. Out of deference to this Court's opinion in Ex parte Graves, I voted to dismiss the applicant's first subsequent writ application. Just this past Monday, however, the United States Supreme Court granted certiorari review of an Arizona case that significantly calls into question the premise of Graves that post-conviction habeas applicants have no constitutional right to the effective assistance of counsel, at least for claims that can be raised for the first time only on collateral attack. The applicant has filed a motion to stay his execution pending the Supreme Court's resolution of that question. Without comment or elaboration, the Court today nevertheless simply dismisses the applicant's second subsequent writ application as an abuse of the writ under Article 11.071, Section 5. As I did recently in Cleve Foster's and Cary Kerr's subsequent state applications for writ of habeas corpus, I dissent in this case to the Court's refusal to take up the issue squarely presented here. I would either file and set the applicant's subsequent writ application to decide the continuing vitality of Graves, as framed in my dissenting statement in Foster, or I would stay the applicant's execution so that we may at least preserve the status quo, possibly to revisit the issue in light of whatever disposition the Supreme Court may make of Martinez. Because the Court will not, I once again dissent.
Tex. Code Crim. Proc. art. 11.071.
539 U.S. 510 (2003).
70 S.W.3d 103 (Tex. Crim. App. 2002).
Ex parte Balentine, 2009 WL 3042425 (Tex. Crim. App., Nos. WR-54071-01 WR-54071-02, decided Sept. 22, 2009) (not designated for publication).
Martinez v. Ryan, ___ S.Ct. ___, 2011 WL 380903, No. 10-1001 (June 6, 2011). The question presented in Martinez is: "Whether a defendant in a state criminal case who is prohibited by state law from raising on direct appeal any claim of ineffective assistance of trial counsel, but who has a state-law right to raise such a claim in a first post-conviction proceeding, has a federal constitutional right to effective assistance of first post-conviction counsel specifically with respect to his ineffective-assistance-of-trial-counsel claim." While defendants in criminal cases in Texas are not legally prohibited from challenging the effectiveness of their trial counsel on direct appeal, such claims typically call for extensive factual development beyond what is disclosed in the appellate record, and thus, as a practical matter, post-conviction habeas corpus is the first opportunity to raise them. Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999).
Ex parte Foster, 2010 WL 5600129 (Tex. Crim. App., No. WR-65,799-02, decided Dec. 30, 2010) (not designated for publication) (Dissenting Statement of Price, J.); Ex parte Kerr, ___ S.W.3d ___, 2011 WL 1644141 (Tex. Crim. App. 2011) (Dissenting Statement of Price, J.).
See Ex parte Foster, supra, at *2 ("I would stay the applicant's execution in this cause and file and set it to examine two questions: First, whether we should regard a colorable claim of ineffective assistance of original habeas counsel as a newly available fact for purposes of [Article 11.071,] Section 5(a)(1) and (e); or, failing that, whether we should recognize a claim of ineffective assistance of original habeas counsel as, at least, a non-statutory gateway for raising discrete constitutional claims that would otherwise be barred under Article 11.071, Section 5.").