ROCHA v. THALER

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ef153 L.Ed.2d 335 (2002) (holding that the Eighth Amendment prohibits the execution of the mentally retarded).

See Moore v. Quarterman, 491 F.3d 213, 230 (5th Cir. 2007) (Dennis, J., dissenting) ("[A] petitioner can invoke the `miscarriage of justice' exception if, but for the failure to exhaust, the petitioner would have not been eligible for the death penalty because some constitutional or state statutory prerequisite for the imposition of a death sentence could not have been satisfied. Moore easily satisfies this exception because . . . the district court properly found that Moore is mentally retarded." (internal citations and quotation marks omitted)), rev'd en banc, 533 F.3d 338 (5th Cir. 2008).

See Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005).

See Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986).

See generally Nelson v. Quarterman, 472 F.3d 287, 318-19 (5th Cir. 2006) (en banc) (Dennis, J., concurring in the judgment) (cataloguing the various categorical exemptions from death-penalty eligibility recognized by the Supreme Court), cert. denied, 551 U.S. 1141, 127 S.Ct. 2974, 168 L.Ed.2d 719 (2007).

This is not to say that the two inquires become entirely identical. Compare Ex parte Blue, 230 S.W.3d at 163 (explaining that because the standard of proof under § 5(a)(3) is clear-and-convincing evidence, "[a] threshold showing that would allow the finder of fact to conclude no more than that the evidence preponderates in favor of a finding of mental retardation will obviously not suffice" on a successive application), with Ex parte Briseno, 135 S.W.3d 1, 12 (Tex.Crim.App. 2004) (adopting a preponderance-of-the-evidence standard of proof for Atkins claims raised in an original state habeas application).

Finally, it follows that this Court reviews de novo the CCA's determination that Rocha cannot establish that he is actually innocent of the death penalty. A gateway claim of actual innocence is not a basis for relief under AEDPA. Such a claim stands outside of AEDPA and offers to open a door into the statute that the petitioner's lack of diligence otherwise would have closed. Gateway claims of innocence are part of the federal common law of procedural default. De novo review is the norm in this area. Just as we make de novo determinations of whether a state-law ground of decision is independent of federal law or adequate to support the judgment, so too do We decide afresh whether a federal habeas petitioner is actually innocent of the death penalty.

See, e.g., Wilkerson v. Cain, 233 F.3d 886, 893 (5th Cir. 2000) (Garza, J., specially concurring) ("The claim of actual innocence does not itself provide a basis for relief."). Nothing we say today pertains to a freestanding, Herra-style claim of actual innocence that is not tethered to a claim of constitutional error at trial.

See, e.g., Sigala v. Quarterman, 338 Fed. Appx. 388, 393 (5th Cir. 2009) (per curiam) ("Because procedural default does not constitute an `adjudication on the merits' for AEDPA purposes, the state court's finding of procedural default itself is reviewed de novo. . . ."(citing Valdez v. Cockrell, 274 F.3d 941, 946-47 (5th Cir. 2001))), cert. denied sub nom. Sigala v. Thaler, ___ U.S. ___, 130 S.Ct. 1506, 176L.Ed.2d 119 (2010).

See, e.g., Wright v. Quarterman, 470 F.3d 581, 586 (5th Cir. 2006), cert. denied, 551 U.S. 1134, 127 S.Ct. 2996, 168 L.Ed.2d 707 (2007).

C.

Rocha raises three challenges to our conclusion that the CCA's dismissal of his state habeas application rested on an independent and adequate state-law ground. First, he contends our conclusion is in conflict with the rule announced in Ake v. Oklahoma. In Ake, the defendant's sanity was likely to be in issue at his trial. The defendant argued that the Constitution required the state to grant him access to a psychiatrist to assist him in preparing his defense. The Oklahoma state courts held that he had waived this argument. However, Oklahoma's waiver rule did not apply to fundamental trial error, and under Oklahoma law any violation of a federal constitutional right was fundamental trial error. As a result, the Supreme Court concluded that the Oklahoma courts' waiver ruling was not an independent and adequate state-law ground:

470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). Although the Supreme Court has declined to decide that Ake applies in the habeas context, see Coleman, 501 U.S. at 741, 111 S.Ct. 2546, we have held that it does, see Rivera, 505 F.3d at 359. See also Stewart v. Smith, 536 U.S. 856, 860, 122 S.Ct. 2578, 153 L.Ed.2d 762 (2002) (per curiam) (assuming without deciding that the rule announced in Ake, a direct-review case, also applies in habeas cases).

Ake, 470 U.S. at 74, 105 S.Ct. 1087.

Id. at 74-75, 105 S.Ct. 1087.

[T]he State has made application of the procedural bar depend on an antecedent ruling on federal law, that is, on the determination of whether federal constitutional error has been committed. Before applying the waiver doctrine to a constitutional question, the state court must rule, either explicitly or implicitly, on the merits of the constitutional question. . . . [W]hen resolution of the state procedural law question depends on a federal constitutional ruling, the state-law prong of the court's holding is not independent of federal law.

Ake stands for the proposition that when a state court's application of a procedural rule rests on an antecedent decision of an issue of federal law, a federal court can review or decide the same federal issue that the state court decided.

The difference between Ake and this case is that the federal-law issue the CCA decided when it applied § 5(a)(3) is not the same federal-law issue on which Rocha seeks habeas relief. By applying the waiver rule to Ake, the Oklahoma courts concluded that the federal constitutional claim that was the basis of Ake's habeas petition was meritless. By dismissing Rocha's state habeas application as an abuse of the writ, the CCA formed no conclusion about Rocha's Wiggins claim. Rather, it determined that (1) Rocha's Wiggins claim should be dismissed on an independent and adequate state-law ground unless Rocha could satisfy Sawyer's actual-innocence-of-the-death-penalty standard; and (2) Rocha could not satisfy Sawyer. State law — specifically, § 5(c) — was the basis for the CCA's dismissal. Unlike the Oklahoma courts in Ake, the CCA applies §§ 5(c) 5(a)(3) to all successive state habeas applications that cannot demonstrate actual innocence of the death penalty, regardless of the merits of the federal constitutional claims contained in those applications. Nothing in Ake suggests that a state court's resolution of a single issue of federal law allows a federal habeas court to decide any and all issues of federal law that the state court might have, but did not, reach.

Cf. ROMUALDO P. ECLAVEA, ET AL. 4 AM.JUR.2D APP, REV § 46 (Westlaw current through July 2010) ("An adequate state ground may preclude Supreme Court review of some federal issues which the state court refused to reach on state procedural grounds, while not precluding review of other federal issues which the state supreme court did decide, finding that there was no procedural bar to deciding those issues." (citing Cramp v. Bd. of Pub. Instruction, 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285 (1961))).

Second, Rocha contends that we are wrong to conclude that § 5(a)(3) adopts a definition of actual innocence of the death penalty that is coextensive with the definition announced in Sawyer. We disagree for two reasons. First, in Haynes v. Quarterman a panel of this Court held that § 5(a)(3) codifies Sawyer's requirement that the petitioner must present evidence that he is ineligible for the death penalty. Haynes is a published opinion, so its holding binds us. But we would have reached the same conclusion even if we were writing on a clean slate. As we explained in our opinion, in Ex parte Blue the CCA expressly declined to hold that § 5(a)(3) is anything more than a codification of Sawyer. We think it is beyond unlikely that the CCA announced a novel theory of § 5(a)(3) sub silentio in the course of dismissing Rocha's petition as an abuse of the writ.

See 526 F.3d at 197 ("Haynes alleges that mitigating evidence could have influenced the jury's discretion but does not argue that evidence not presented due to alleged ineffective assistance of counsel would render him ineligible for the death penalty. Therefore, he has no meritorious argument that the Texas Court of Criminal Appeals would allow him to file a successive application for post-conviction relief. . . .") .

See Rocha, 619 F.3d at 406.

See Ex parte Blue, 230 S.W.3d at 160 n. 42 ("[I]t is arguable that, in theory at least, . . . [§ 5(a)(3)] would also permit a subsequent state habeas applicant to proceed under circumstances that would not excuse a federal petitioner under Sawyer v. Whitley. We need express no ultimate opinion on this question here.").

Third, Rocha argues that our decision conflicts with this Court's previous decisions in Rivera, Ruiz, and Balentine. In effect, Rocha contends that prior decisions of both the CCA and this Court have robbed Texas's abuse-of-the-writ statute of its independent state-law character. We conclude otherwise. A full explanation of the reasons for our contrary conclusion requires us to trace the history of Texas's abuse-of-the-writ doctrine in some detail. We turn to that history now.

II. A.

We have long acknowledged that a state's abuse-of-the-write doctrine can sometimes qualify as an independent and adequate state-law ground that functions as a procedural bar to federal-court merits review of habeas claims. The Texas Court of Criminal Appeals first created an abuse-of-the-writ doctrine in 1974. But for the first twenty years of the doctrine's existence, Texas courts failed to apply it in a strict or regular manner. This failure rendered the doctrine an inadequate state-law ground, and "therefore, we . . . refused to honor it." That changed in 1994, when the Court of Criminal Appeals "announced the adoption of a strict abuse-of-the-writ doctrine, tempered only by an exception for cause." Tost-Barber, Texas's abuse-of-the-write doctrine became "an adequate procedural bar for purposes of federal habeas review," and we honored it accordingly.

See, e.g., Emery v. Johnson, 139 F.3d 191, 195 (5th Cir. 1997), cert. denied, 525 U.S. 969, 119 S.Ct. 418, 142 L.Ed.2d 339 (1998).

See Ex parte Carr, 511 S.W.2d 523 (Tex. Crim.App. 1974). See generally Charles M. Mallin, Death Penalty: Texas Law — Subsequent Writs and Abuse of the Writ Doctrine in Texas, 6 TEX. WESLEYAN L. REV. 151, 163-67 (2000) (tracing the origins and history of Texas's abuse-of-the-writ doctrine).

See Emery, 139 F.3d at 195.

Id. (citing Lowe v. Scott, 48 F.3d 873, 876 (5th Cir. 1995)).

Id. (citing Ex parte Barber, 879 S.W.2d 889, 891 n. 1 (Tex.Crim.App. 1994) (en banc)).

Emery, 139 F.3d at 196; see also Fearance, 56 F.3d at 642 ("After Barber, dismissals of Texas habeas petitions as an abuse of the writ should create a procedural bar under the Coleman standard.").

Just one year later the Texas legislature codified the CCA's abuse-of-the-writ doctrine in Article 11.07 § 4(a) — which applies to non-capital felonies — and Article 11.071 § 5(a), which applies to capital cases such as Rocha's. Initially, we were uncertain whether § 5(a) supplanted or merely supplemented the CCA's abuse-of-the-writ doctrine. The CCA soon clarified that § 5(a) is a codification of the judicially created abuse-of-the-writ doctrine. Over the next several years we developed an unbroken line of precedent holding that a successive state habeas application that had been dismissed as an abuse of the writ because it failed to satisfy § 5(a) had been dismissed on an independent and adequate state-law ground.

See, e.g., Nobles, 127 F.3d at 423 n. 32 ("In view of the dearth of judicial interpretation of Article 11.071 § 5(a), however, we cannot definitively say, and therefore do not venture to guess, whether that section was intended to codify the preexisting abuse-of-writ doctrine.").

See Barrientes v. Johnson, 221 F.3d 741, 759 n. 10 (5th Cir. 2000) ("We treat article 11.071 as a codification of the Texas abuse-of-the-writ doctrine." (citing Ex parte Smith, 977 S.W.2d 610, 611 n. 4 (Tex.Crim.App. 1998))), cert. denied, 531 U.S. 1134, 121 S.Ct. 902, 148 L.Ed.2d 948 (2001); see also Ex parte Kerr, 64 S.W.3d 414, 418 n. 11 (Tex.Crim.App. 2002) ("[T]his Court had long ago recognized the jurisprudential problems attendant to multiple writ filings and hinted of judicial invocation of the `abuse of the writ' doctrine. . . . Articles 11.07 and 11.071 now statutorily require the consistent application of the `abuse of the writ' doctrine to subsequent writ filings."); Ex parte Davis, 947 S.W.2d 216, 226 (Tex.Crim.App. 1996) (en banc) (McCormick, P.J., concurring) ("The successive writ provisions of Article 11.071, Section 5(a), for the most part are merely a legislative codification of the judicially created `abuse of the writ' doctrine.").

See, e.g., Aguilar v. Dretke, 428 F.3d 526, 533 (5th Cir. 2005) ("This court has consistently held that Texas' abuse-of-writ rule is ordinarily an `adequate and independent' procedural ground on which to base a procedural default ruling." (citing Matchett v. Dretke, 380 F.3d 844, 848 (5th Cir. 2004), Henderson v. Cockrell, 333 F.3d 592, 605 (5th Cir. 2003), and Horsley v. Johnson, 197 F.3d 134, 137 (5th Cir. 1999))), cert. denied, 547 U.S. 1136, 126 S.Ct. 2059, 164 L.Ed.2d 793 (2006).

Then, in 2002, the Supreme Court held in Atkins v. Virginia that the Eighth Amendment prohibits the execution of mentally retarded persons. This new rule of constitutional law was made retroactive on habeas review. Section 5(a)(1) permits the filing of "a subsequent application for a writ of habeas corpus" if the claim that the application presents could not have been presented in a previous application "because the . . . legal basis for the claim was unavailable on the date the applicant filed the previous application." By its terms, then, § 5(a)(1) would have entitled any Texas death-row inmate who had filed an initial habeas application before June 20, 2002, to file a successive application.

536 U.S. at 321, 122 S.Ct. 2242.

Bell v. Cockrell, 310 F.3d 330, 332 (5th Cir. 2002).

TEX. CODE CRIM. PROC. art. 11.071 § 5(a)(1).

See Ex parte Williams, No. 43, 907-02, 2003 WL 1787634, at *3 (Tex.Crim.App. Feb. 26, 2003) (unpublished) (Price, J., dissenting) ("The applicant filed this subsequent application for writ of habeas corpus under Texas Code of Criminal Procedure Article 11.071. He alleges that he is mentally retarded, that the United States Constitution prohibits execution of the mentally retarded, and that the legal basis for this claim, Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335, (2002), was not available when his initial application was filed. According to the plain meaning of Article 11.071, the applicant's case should be remanded for the convicting court to determine the merits of his claim.").

Confronted with the specter of state district courts being forced to consider large numbers of successive habeas applications raising meritless Atkins claims, the Court of Criminal Appeals made a choice. It opted to create a new requirement for habeas applicants who sought to bring a subsequent Atkins petition under § 5(a)(1):

See id. at *1 (Cochran, J., concurring) ("A second or subsequent . . . which makes the naked assertion, `I am mentally retarded,' obviously does not suffice [under § 5(a)(1)]. If it did, every inmate on death row would be equally entitled to file a subsequent writ in the hope that something, somewhere might turn up to support this bare assertion."); see also Ex Parte Brooks, 219 S.W.3d 396, 400 (Tex.Crim.App. 2007) ("While Article 11.071, section 5(a)(1) does not state that the application must include facts establishing that the applicant has a prima facie Atkins claim, it would be absurd to consider applications in which the applicant does not show that the previously unavailable legal basis applies to his claim. To read the statute otherwise would mean that every time a new law is passed or precedent is set, every inmate could file a subsequent application for writ of habeas corpus, regardless of whether the newly available legal basis applied to his situation, and the court would have to consider the merits. This clearly undermines the purpose of the subsequent-writ provisions."); Ex Parte Staley. 160 S.W.3d 56, 64 (Tex.Crim.App. 2005) (per curiam) (explaining that "a death-row inmate may file a subsequent writ application based upon the newly available legal claim of mental retardation under Atkins v. Virginia, but if his application states that his • I.Q. has repeatedly been tested at 120-130, he has failed to state sufficient specific facts establishing a cognizable claim under Atkins" and his application should be dismissed under § 5(a)(1) (footnote omitted)).

A second or subsequent writ must contain "sufficient specific facts" to support an applicant's Atkins claim. . . . The mere assertion of a valid legal claim, unsupported by sufficient specific factual allegations which, if true, would entitle the applicant to relief, is not enough to overcome a Section 5 bar. . . . [The applicant] must provide evidence of a prima facie case, sufficient evidence to withstand a directed verdict or a "no evidence" summary judgment motion that he has a factual basis for his claim under newly-established law.

With this preliminary screening, the Court responded to an anticipated flood of meritless Atkins claims.

This choice came with costs. The CCA's screening function entailed a prima facie review of the substantive merits of each applicant's Atkins claim. This prima-facie review meant that CCA decisions dismissing Atkins claims for failure to satisfy § 5(a)(1) rested on the merits of those claims. Consequently, the federal courts were not procedurally barred from considering federal habeas petitions advancing Atkins claims that had been dismissed as abuses of the writ for failure to satisfy § 5(a)(1). We first recognized that this new, Atkins-specific screening function had robbed § 5(a)(1) dismissals of their independent, state-law character in our 2005 decision in Morris v. Dretke.

See, e.g., Ex parte Johnson, No. 36, 139-04, 2003 WL 21715265, at *2 (Tex.Crim.App. June 6, 2003) (unpublished) (Johnson, J., concurring) (detailing what kind of evidence is necessary "[t]o fulfill the prima facie requirement for an Atkins claim" and concurring in the dismissal because of the "applicant's failure to produce `sufficient specific facts' to support an Atkins claim").

This new requirement that Atkins claims make a prima facie showing of merit was, as the CCA itself recognized, judicial gloss on § 5(a)(1) not mandated by the text of the statute. See Williams, 2003 WL 1787634, at *3-*6 (Price, J., dissenting) (criticizing the majority for departing from the text of the statute). But its judge-made character did not, and does not, make it any less binding on the federal courts. See supra note 21 and cases cited therein.

See 413 F.3d 484, 500 n. 4 (5th Cir. 2005) (Higginbotham, J., concurring) ("A dismissal under article 11.071(5)(a) normally constitutes an adequate and independent procedural bar to federal review. However, in the Atkins context, Texas courts have imported an antecedent showing of `sufficient specific facts' to merit further review, rendering dismissal of such claims under article 11.071(5)(a) a decision on the merits." (internal citations omitted)).

Change was afoot. Over the next several years we reached the merits of at least four Atkins claims notwithstanding the fact that the CCA had determined that they failed to satisfy § 5(a)(1) and dismissed them as abuses of the writ. The first case in which we did so was Rivera v. Quarterman:

[T]o decide whether an Atkins claim is an abuse of the writ, the CCA examines the substance of the claim to see if it establishes a prima facie case of retardation. . . . Thus, a decision that an Atkins petition does not make a prima facie showing — and is, therefore, an abuse of the writ — is not an independent state law ground. . . . Although Texas' abuse of the writ doctrine is superficially procedural . . ., it steps beyond a procedural determination to examine the merits of an Atkins claim. For an Atkins claim, the merits determination is at a minimum "interwoven" with the constitutional prohibition against executing the mentally retarded.

See Eldridge v. Quarterman, 325 Fed.Appx. 322, 324 (5th Cir.), cert. denied sub nom. Eldridge v. Thaler, ___ U.S. ___, 130 S.Ct. 536, 175 L.Ed.2d 352 (2009); Williams v. Quarterman, 293 Fed.Appx. 298, 301-02 (5th Cir. 2008) (per curiam); Rosales v. Quarterman, 291 Fed.Appx. 558, 562 (5th Cir. 2008), cert. denied, ___ U.S. ___, 129 S.Ct. 1317, 173 L.Ed.2d 596 (2009); Rivera, 505 F.3d at 359-60; see also Moreno v. Dretke, 450 F.3d 158, 165 n. 3 (5th Cir. 2006) (noting a division among the district courts of this circuit over whether a CCA dismissal on the grounds that a petitioner failed to allege sufficient facts to establish a prima facie Atkins claim was a procedural or merits-based dismissal, but declining to resolve the question), cert. denied, 549 U.S. 1120, 127 S.Ct. 935, 166 L.Ed.2d 717(2007).

Although it does not say so explicitly, Rivera dealt specifically with dismissals under § 5(a)(1). See Ex parte Rivera, No. 27, 065-02, 2003 WL 21752841, at *1 (Tex.Crim.App. July 25, 2003) (en banc) (per curiam) (unpublished) ("Our habeas corpus statute, Article 11.071, Section 5(a), states that: a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that . . . the current claims and issues have not been and could not have been presented previously . . . because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application." (quoting TEX. CODE CRIM. PROC. Art. 11.071 § 5(a)(1))).

But even as we announced this holding we took care to limit its reach: "Of course, this court has held in other circumstances that Texas' abuse of the writ doctrine is an adequate and independent state law ground, but the merits showing now incorporated for Atkins claims changes the character of the doctrine." Rivera did not overrule our numerous previous holdings that successive state habeas applications that were dismissed because they could not satisfy § 5(a) were dismissed on an independent and adequate state-law ground. The new prima-facie-showing requirement the CCA had engrafted onto § 5(a)(1) was specific to Atkins claims. It bears emphasizing that the state of Texas itself — well aware that it could gain the substantial benefits of AEDPA deference by treating dismissals under § 5(a)(1) as dismissals on the merits — took the tack that an Atkins claim dismissed under § 5(a)(1) was dismissed on the merits and therefore not procedurally barred. But even as we were reaching the merits of Atkins claims that had been dismissed under § 5(a)(1), we continued to treat other kinds of petitions that had been dismissed under § 5(a)(1) as having been dismissed on an independent and adequate state-law ground. The prima facie showing requirement was, at the time, strictly confined to the Atkins context.

Id. at 359 n. 37 (citations omitted).

See supra note 70 and cases cited therein.

See, e.g., Response in Opposition to Request for Certificate of Appealability at 12, Eldridge v. Quarterman, 325 Fed.Appx. 322 (5th Cir. 2009) (No. 08-70012) ("The Court of Criminal Appeals denied Eldridge's subsequent state petition finding that he failed to establish `a prima facie claim'. . . . Accordingly, the Texas court's dismissal of Eldridge's successive application was an adjudication on the merits entitled to deference by this Court."); Brief of Respondent-Appellant at 33-35, Moore v. Quarterman, 491 F.3d 213, 219 (5th Cir. 2007), rev'd en banc, 533 F.3d 338 (5th Cir. 2008) (No. 05-70038) ("[A] review of the state court's treatment of subsequent Atkins claims indicates a significant reliance on the underlying merits of the claim. The cases reveal that the state court is actively reviewing the quantity and the quality of the evidence presented and considering whether the evidence is sufficient to support a claim of mental retardation. . . . Therefore, in the instant case, the lower court was not empowered to apply a de novo standard.").

See, e.g., Moore v. Quarterman, 534 F.3d 454, 463 (5th Cir. 2008) ("Here, the CCA explicitly dismissed Moore's successive application (where he first raised Brady) as an abuse of the writ, and `Texas's abuse of the writ doctrine is a valid state procedural bar foreclosing federal habeas review.'") (quoting Coleman v. Quarterman, 456 F.3d 537, 542 (5th Cir. 2006), cert. denied, 549 U.S. 1343, 127 S.Ct. 2030, 167 L.Ed.2d 772 (2007)).

That began to change in April 2005 when the CCA decided Ex parte Staley. Staley involved a successive habeas application that raised a Penry II claim. The CCA declined to decide whether the Penry II claim was legally unavailable at the time the applicant filed his first application, holding instead that the successive application did not "`contain sufficient specific facts establishing that' his claim is cognizable." The CCA explained that "it is not sufficient to allege that a legal claim was unavailable at the time of the applicant's original filing if the facts alleged in the subsequent application do not bring the constitutional claim under the umbrella of that `new' legal claim."

160 S.W.3d 56 (Tex.Crim.App. 2005) (per curiam).

Id. at 62. See generally Penry v. Johnson, 532 U.S. 782, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001) (holding that Texas's nullification jury instruction at the sentencing phase of capital-punishment cases violated the Eighth Amendment by failing to give juries adequate opportunity to give effect to mitigating circumstances).

Ex parte Staley, 160 S.W.3d at 63 (quoting TEX. CODE CRIM. PROC. Art. 11.071 § 5(a)).

Id.

Two years later, § 5(a)(1)'s transformation was complete. In Ex parte Campbell, the CCA extended the prima-facie-showing requirement it had developed under Atkins to all successive habeas claims brought under § 5(a)(1). Campbell argued that he was entitled to habeas relief under Brady v. Maryland and Barefoot v. Estelle. The CCA concluded that the factual basis for his claims was unavailable at the time he filed his original application but nonetheless dismissed his successive application, holding:

226 S.W.3d 418 (Tex.Crim.App. 2007).

Id. at 422 (citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)).

Id. at 421-22.

To satisfy section 5(a)(1), . . . 1) the factual or legal basis for an applicant's current claims must have been unavailable as to all of his previous applications; and 2) the specific facts alleged, if established, would constitute a constitutional violation that would likely require relief from either the conviction or sentence.

Post-Campbell, a two-step inquiry — unavailability, then merits — is required before any successive habeas application can be permitted to proceed under § 5(a)(1).

See, e.g., Ex parte Alba, 256 S.W.3d 682, 691 n. 28 (Tex.Crim.App. 2008) (applying the two-part unavailability-merits test under § 5(a)(1) to an Eighth Amendment challenge to Texas's lethal-injection protocol); see also Williams, 602 F.3d at 306 (noting that the CCA "has grafted an additional requirement on the first prong of 11.071 § 5(a)").

One feature of the CCA's decision in Campbell warrants particular attention. Campbell establishes that the two requirements of § 5(a)(1) should be applied sequentially. The CCA first examines whether the factual or legal basis of the claim was unavailable at the time of the original application. Only if the applicant can surmount the unavailability hurdle does the CCA proceed to ask whether the application makes out a claim that is prima facie meritorious. Understanding this second point is critical to our own jurisprudence. If an applicant fails to satisfy the unavailability requirement, the § 5(a)(1) inquiry is over, and no merits determination takes place.

See Ex parte Campbell, 226 S.W.3d at 422 ("Applicant also must jump over the rest of the section 5(a)(1) bar. That is, his application must allege sufficient specific facts that, if proven, establish a federal constitutional violation sufficiently serious as to likely require relief from his conviction or sentence." (emphasis added))

See, e.g., Ex parte Hood, 211 S.W.3d 767, 770 (Tex.Crim.App.) (concluding that § 5(a)(1) did not authorize the CCA to consider the merits of a claim presented in a successive habeas application "because the legal bases upon which applicant relies were available at the time he filed his second application" and undertaking no discussion of the prima facie merits of the applicant's claim), cert. denied, 552 U.S. 829, 128 S.Ct. 48, 169 L.Ed.2d 43 (2007), reconsideration granted on other grounds, No. WR-41, 168-11, 2008 WL 4946276 (Tex.Crim.App. Nov. 19, 2008) (per curiam).

It did not take us long to register the significance of the change announced in Campbell. A few months later, in Ruiz v. Quarterman, we took note, in passing, of the change in the law that Campbell had wrought:

504 F.3d 523 (5th Cir. 2007).

The Texas Code of Criminal Procedure, as interpreted by the CCA, provides for subsequent applications where (1) the factual or legal basis for the subsequent claim was previously unavailable and (2) where the facts alleged would constitute a federal constitutional violation that would likely require relief from either the conviction or sentence. The boilerplate dismissal by the CCA of an application for abuse of the writ is itself uncertain on this point, being unclear whether the CCA decision was based on the first element, a state-law question, or on the second element, a question of federal constitutional law.

In his petition for rehearing, Rocha misreads this passage from Ruiz in three ways. First, he reads it to be binding precedent that controls our interpretation of all three subsections of § 5(a), including § 5(a)(3). That reading is more than Ruiz will bear. As its citation to Campbell made clear, Ruiz spoke only of dismissals under § 5(a)(1). Subsections 5(a)(1) and 5(a)(3) carry different meanings — different enough that in Ex parte Blue, the CCA's seminal decision interpreting § 5(a)(3), the CCA did not even cite to, much less discuss, its prior decision in Campbell

See id. at 527 n. 11.

See Ex parte Blue, 230 S.W.3d at 159-63.

Second, Rocha ignores the fact that our decision in Ruiz was a product of the unique procedural posture in which the case arrived at our court. Ruiz emerged from a fractured CCA that produced three separate opinions, two of which discussed the merits of Ruiz's state habeas application. Only four judges joined in

See Ex parte Ruiz, No. WR-27,328-03, 2007 WL 2011023, at *1 (Tex.Crim.App. July 6, 2007) (per curiam) (unpublished).

See Ex parte Ruiz, No. WR-27,328-03 (Tex.Crim.App. July 6, 2007) (per curiam) (unpublished) (Womack, J., statement respecting dismissal) ("Ruiz . . . alleges that he was denied effective assistance of counsel when his trial attorneys failed to present certain evidence at the punishment hearing. . . . The evidence in question was of two kinds: certain facts about the applicant's experiences during childhood and the opinion of a psychologist. Trial counsel hired the psychologist, considered his report, and chose not to call him at trial because his findings about the applicant would do more harm than good. This was not an unreasonable decision."), available at http://www.cca.courts.state.tx.us/ opinions/HTMLOpinionInfo.asp?OpinionID = 15705; id. (Holcomb, J., dissenting) ("[T]he applicant in this case has suffered a violation of his Sixth Amendment right to counsel . . . ."), available at http://www.cca.courts.state.tx.us/opinions/HTMLOpinionlnfo.asp? OpinionID = 15706.

the plurality opinion's dismissal of Ruiz's application as an abuse of the writ. The necessary fifth vote for the CCA's decision came from Judge Womack, whose concurring opinion concluded that Ruiz had failed to allege a meritorious claim of ineffective assistance of counsel at sentencing. As such, Judge Womack's concurrence was inarguably merits-based. We thus concluded that the CCA's decision as a whole rested not on § 5(a)(1) but on its rejection of Ruiz's Wiggins claim on the merits: "Judge Womack's opinion, necessary to the court's judgment, pushes the court toward a clear merit ruling, and in any event deprives the plurality of a fifth vote on an independent and adequate state ground." We reached the merits of Ruiz's claim because Judge Womack — and hence the CCA's decision — reached the merits, not because of any conclusion we drew about the state- or federal-law character of a dismissal under § 5(a)(1).

When the CCA is convened en banc,"`the concurrence of five Judges shall be necessary for a decision.'" Ruiz, 504 F.3d at 527 n. 12 (quoting TEX. CONST., art. 5, § 4(b)).

See supra note 103. Under binding CCA precedent, "the rule for determining a majority holding in a case decided by a fragmented court" in which "`no single rationale explaining the result enjoys the assents of five Justices'" is that "`the holding of the Court may be viewed as the position taken by those Members who concurred in the judgment on the narrowest grounds.'" Haynes v. State, 273 S.W.3d 183, 188-89 (Tex.Crim.App. 2008) (emphasis omitted) (quoting Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977)).

Ruiz, 504 F.3d at 528.

Third, Rocha argues that Ruiz obliges us to conclude that § 5(a)(1) is dependent on federal law in all cases. Not so. It is true that prior to Campbell, our decisions had assumed that a dismissal under § 5(a)(1) always rested on an independent and adequate state-law ground. That assumption cannot survive Campbell. At the same time, it is not the case that a post-Campbell dismissal under § 5(a)(1) never rests on an independent and adequate state-law ground. Whether a § 5(a)(1) dismissal is independent of federal law turns on case-specific factors. If the CCA's decision rests on availability, the procedural bar is intact. If the CCA determines that the claim was unavailable but that the application does not make a prima facie showing of merit, a federal court can review that determination under the deferential standards of AEDPA.

We correctly interpreted the CCA's application of its "unavailability, then merits" approach to § 5(a)(1) in Hughes v. Quarterman. There, the CCA had issued a boilerplate abuse-of-the-writ order dismissing a successive application that raised a Penry II claim. We held that the claim was procedurally barred, reasoning that "[n]o application or interpretation of federal law is required to determine whether a claim has, or could have, been presented in a previous habeas application." There was "nothing in [the CCA's] perfunctory dismissal of the claims that suggested] that it actually considered or ruled on the merits." Especially in light of the CCA's holding that the legal basis for a Penry claim had been available since 1989, everything about the CCA's perfunctory dismissal of Hughes's claim under § 5(a)(1) suggested that the dismissal rested an independent state-law ground — specifically, on the fact that the factual and legal bases for the claim were available when Hughes filed his first state habeas application. Under Campbell, if a successive habeas application cannot satisfy the requirement of unavailability, the court need not inquire any further.

530 F.3d 336 (5th Cir. 2008), cert. denied, ___ U.S. ___, 129 S.Ct. 2378, 173 L.Ed.2d 1299 (2009).

Id. at 340.

Id. at 342.

Id.

See Ex parte Hood, 211 S.W.3d at 778 (" Penry I stood as a Supreme Court decision from which an applicant could `reasonably formulate' the contention that he was entitled to jury consideration of any type of mitigating evidence." (citing Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), rev'd in part on other grounds by Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002))); id. at 779 (" Penry I afforded a legal basis for contending that the defendant's mitigating evidence was constitutionally relevant to determining whether he should receive the death penalty.").

Hughes illustrates the proper application of Coleman v. Thompson to a CCA determination that a successive habeas application does not satisfy § 5(a)(1). Under Coleman, we are required to presume that a state-court habeas decision does not rest on an independent state-law ground only if we first determine that the state-court decision we are reviewing "`fairly appears to rest primarily on federal law, or to be interwoven with the federal law.'" We observed in Ruiz that "[t]he boilerplate dismissal by the CCA of an application for abuse of the writ [under § 5(a)(1)] is . . . unclear whether the CCA decision was based on [unavailability], a state-law question, or on [prima facie lack of merit], a question of federal constitutional law." It does not follow from that observation that every dismissal under § 5(a)(1) fairly appears to rest on or be interwoven with federal law. A CCA decision fairly appears to rest on state law if it dismisses a subsequent habeas application under § 5(a)(1) because the application does not raise a claim that was factually or legally unavailable. Coleman does not require us to check our common sense at the door when we read an opinion of the CCA with an eye toward ascertaining its decisional basis. The Supreme Court's overarching aim in Coleman was to reduce the number of habeas cases in which the lower federal courts applied the Harris presumption. Adopting the rule that all post-Campbell § 5(a)(1) dismissals are based on federal law "would greatly and unacceptably expand the risk that federal courts will review the federal claims of prisoners in custody pursuant to judgments resting on independent and adequate state grounds." We should be especially mindful of that concern as we interpret § 5(a), a state statute whose express purpose is to reduce the number of successive habeas applications that receive full merits review. When the CCA dismisses a successive habeas application on the ground that it does not satisfy § 5(a)(1), we can — and should — read its order of dismissal to determine which of the two elements of § 5(a)(1) was the basis of the court's dismissal. A boilerplate dismissal might be ambiguous on this point, but finding clarity in ambiguity is the bread-and-butter work of a federal court of appeals.

501 U.S. 722, 735, HI S.Ct. 2546, 115 L.Ed.2d 640 (1991) ("In habeas, if the decision of the last state court to which the petitioner presented his federal claims fairly appeared to rest primarily on resolution of those claims, or to be interwoven with those claims, and did not clearly and expressly rely on an independent and adequate state ground, a federal court may address the petition."); see also Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) (holding that a state-court decision that fairly appears to rest on or be interwoven with federal law will be presumed to be based on federal law unless the state high court whose judgment the Supreme Court is reviewing makes a clear and express statement to the contrary); Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (extending the Long presumption to the federal-habeas context).

Coleman, 501 U.S. at 735, 111 S.Ct. 2546 (quoting Long, 463 U.S. at 1040-41, 103 S.Ct. 3469); see also Young v. Herring, 938 F.2d 543, 553 (5th Cir. 1991) (en banc) (" `A predicate to the application of the Harris presumption . . . is that the decision of the last state court to which the petitioner presented his federal claims must fairly appear to rest primarily on federal law or to be interwoven with federal law.'" (quoting Coleman, 501 U.S. at 735, 111 S.Ct. 2546)), cert. denied, 503 U.S. 940, 112 S.Ct. 1485, 117 L.Ed.2d 627 (1992).

Ruiz, 504 F.3d at 527.

See, e.g., Maldonado v. Thaler, No. 10-70003, 2010 WL 3155236, at *6-*7 (5th Cir. Aug. 10, 2010) (per curiam) (unpublished) ("Maldonado has never, in this court or before the district court, contended that the factual or legal bases for these Fifth and Sixth Amendment claims were unavailable when he filed his initial habeas petition, and there is no basis in the record to conclude that they were. . . . Accordingly, we conclude that the dismissal of Maldonado's subsequent habeas application was premised on an adequate and independent state procedural ground.").

See, e.g., Coleman, 501 U.S. at 740, 111 S.Ct. 2546 ("There is . . . little that the federal courts will gain by applying a presumption of federal review in those cases where the relevant state court decision does not fairly appear to rest primarily on federal law or to be interwoven with such law, and much that the States and state courts will lose. We decline to so expand the Harris presumption."); id. at 736, 111 S.Ct. 2546 ("Coleman urges a broader rule: that the presumption applies in all cases in which a habeas petitioner presented his federal claims to the state court. This rule makes little sense."); id. at 739-40, 111 S.Ct. 2546 ("In the absence of a clear indication that a state court rested its decision on federal law, a federal court's task will not be difficult.").

See id. at 739, 111 S.Ct. 2546.

See Ex parte Brooks, 219 S.W.3d at 399 ("The purpose of the Habeas Corpus Reform Act of 1995 was to . . . limit[] the availability of subsequent applications. . . .").

The opinion on rehearing in Balentine v. Thaler (hereinafter, " Balentine II) lies comfortably with our analysis. Balentine's successive habeas application raised a Wiggins claim of ineffective assistance of counsel at sentencing. The Court of Criminal of Appeals issued a perfunctory three-paragraph order dismissing his successive application on the ground that it "failed to satisfy the requirements of Article 11.071 § 5." The CCA did not specify which of § 5(a)'s three subsections it was addressing. Balentine had not argued that he did not commit the crime for which he had been convicted, so § 5(a)(2) did not apply. The CCA must have dismissed his successive application because it did not satisfy the requirements of either § 5(a)(1) or § 5(a)(3). Balentine II determined that this dismissal did not constitute a merits determination.

See Balentine v. Thaler, No. 09-70026, 626 F.3d 842, 2010 WL 4630829 (5th Cir. Nov. 17, 2010) (" Balentine II"). Balentine II withdraws Balentine I, see Balentine v. Thaler, 609 F.3d 729 (5th Cir. 2010), thereby mooting Rocha's objection that our panel opinion conflicts with Balentine I.

See id., 626 F.3d at 854-55, 2010 WL 4630829 at *13. Balentine's successive state habeas application also raised a Batson claim, but Balentine did not continue to pursue that claim in federal court. Id.

Ex parte Balentine, No. WR-54,071-01, 2009 WL 3042425, at *1 (Tex.Crim.App. Sept. 22, 2009) (per curiam) (unpublished).

Balentine II, No. 09-70026, 626 F.3d at 854-55, 2010 WL 4630829, at *13.

As to § 5(a)(1), Balentine II acknowledged that the two-part unavailability-merits inquiry announced in Campbell introduces some uncertainty into dismissals under § 5(a)(1), but it rejected the position that this "uncertainty should be transformed into a presumption that the state court reached the merits." As Judge Southwick observed, such a presumption would run afoul of the Supreme Court's holding in Coleman that we may not presume that there is no independent and adequate state-law grounds for a state court's decision unless we first determine that "`it fairly appears that the state court addressed'" the merits of the prisoner's federal constitutional claims for habeas relief. Campbell teaches that, absent an express indication otherwise, the CCA assesses the merits of a successive state habeas application only if it first concludes that the factual or legal basis for the claim was unavailable. There was no question that the legal basis for Balentine's claims was available when he filed his first state habeas application in 2001, and nothing suggested that Balentine could not have discovered the factual basis for his Wiggins claim through the exercise of reasonable diligence before he filed his first application. As a result, Balentine II concluded that the CCA had not reached the merits of Balentine's Wiggins claim in determining that his successive state habeas application did not satisfy the requirements of § 5(a)(1).

Id. at 854, 2010 WL 4630829 at *11.

Id. at 854, 2010 WL 4630829 at *12.

The Supreme Court first "established the legal principles that govern claims of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)." Wiggins, 539 U.S. at 521, 123 S.Ct. 2527.

See generally TEX. CODE CRIM. PROC art. 11.071 § 5(e) ("For purposes of Subsection (a)(1), a factual basis of a claim is unavailable on or before a date described by Subsection (a)(1) if the factual basis was not ascertainable through the exercise of reasonable diligence on or before that date.").

See Balentine II, No. 09-70026, 626 F.3d at 855, 2010 WL 4630829, at *14 ("Balentine's subsequent application made no effort to show that the facts or law underlying his Wiggins claim were unavailable to him at the time of his first state application. . . . Therefore, Section 5(a)(1) was not satisfied.").

As to § 5(a)(3), Balentine II noted that Balentine did not argue in his successive state habeas application that he could satisfy § 5(a)(3) and that, in any event, Balentine's Wiggins claim was not a claim of ineligibility for the death penalty. In this latter regard, Balentine II's conclusion and analysis are identical to our own.

See id. at 855-57, 2010 WL 4630829 at *14-*15.

In sum, Rivera holds that the CCA reaches the merits of an Atkins claim when it determines that the Atkins claim is prima facie without merit and dismisses the claim for failure to satisfy § 5(a)(1). Ruiz holds that we can reach the merits of a successive habeas claim that the CCA does not dismiss as an abuse of the writ under § 5(c) but rather denies on the merits. Hughes holds that a dismissal for failure to satisfy the "factual or legal unavailability" requirement of § 5(a)(1) rests on state-law grounds. And Balentine II holds first that we should not treat every dismissal under § 5(a)(1) as a dismissal on the merits and second that a Wiggins claim is not a claim of actual innocence of the death penalty.

B.

There is no dissonance between any of those cases and our holding that we cannot reach the merits of Rocha's Wiggins claim, which the CCA determined did not satisfy § 5(a)(3) and dismissed as an abuse of the writ. The CCA's conclusion that Rocha's successive habeas application did not satisfy § 5(a)(3) encompassed two separate determinations: (1) because Rocha did not raise his Wiggins claim in his initial state habeas application, the claim was procedurally defaulted; and (2) because Rocha could not establish that he is actually innocent of the death penalty, his procedural default should not be excused. The first of those determinations is based on a § 5(c), state procedural rule that is independent of federal law. Indeed, the rule that a prisoner waives any claim he does not present in his first state habeas application is the quintessential example of a state-law procedural rule that, when strictly and regularly applied, bars the federal courts from reaching the merits of a habeas claim.

The second of those determinations is based on the federal actual-innocence-of-the-death-penalty standard announced in Sawyer. But the fact that § 5(a)(3) incorporates a federal standard for determining when a procedural default should be excused did not empower the district court — and does not empower this Court — to review the merits of the federal constitutional claim that has been procedurally defaulted. A claim that a prisoner is actually innocent of the death penalty is legally distinct from a claim that a prisoner's trial counsel was constitutionally ineffective at sentencing. When the CCA rejects the former, it does not simultaneously decide the merits of the latter. As a result, the CCA's determination that Rocha is not actually innocent of the death penalty did not open up Rocha's Wiggins claim for merits review under AEDPA.

Rivera and Ruiz do not compel a contrary conclusion. When the CCA dismisses a successive habeas application because it cannot satisfy the "merits" prong of § 5(a)(1), it has conditioned the applicability of § 5(c)'s procedural bar on an antecedent determination that the federal constitutional claim on which the applicant seeks relief is without merit. Under Afce, such a dismissal fairly appears to rest on or be interwoven with the merits of the federal constitutional claim and thus triggers a presumption under Harris that the dismissal was not based on an independent and adequate state-law ground. By contrast, the CCA's order dismissing Rocha's habeas application does not satisfy the "fairly appears" requirement that is a predicate to the application of the Harris presumption. The CCA's dismissal of Rocha's habeas application does not fairly appear to rest on or be interwoven with resolution of the merits of Rocha's Wiggins claim. Rather, the CCA's dismissal fairly appears to — and in fact does — rest on its twin determinations that Rocha had previously filed other state habeas applications and that Rocha cannot establish that he is actually innocent of the death penalty under § 5(a)(3).

See supra notes 94-97 and accompanying text.

See supra notes 54-58 and accompanying text.

See Coleman, 501 U.S. at 734-35, 111 S.Ct. 2546 (citing Harris, 489 U.S. at 266, 109 S.Ct. 1038).

See id. at 736, 111 S.Ct. 2546 ("` Harris . . . [applies] only in those cases in which `it fairly appears that the state court rested its decision primarily on federal law.'" (quoting Harris, 489 U.S. at 261, 109 S.Ct. 1038)).

By enacting § 5(a)(3), the Texas Legislature ceded nothing to the federal courts that they did not already possess. Sawyer is a federally mandated escape valve from the doctrine of procedural bar. Sawyer obligates the federal courts to decide the merits of any claim presented in the first federal habeas petition filed by a state prisoner who can make a clear and convincing showing of actual innocence of the death penalty, irrespective of whether a state court has previously decided the claim on its merits. There is no law the Texas Legislature could have passed that would have insulated successive habeas applications from the rule announced in Sawyer. Section § 5(a)(3) merely gives Texas's courts the first crack at applying the Sawyer escape valve. To conclude that the Texas Legislature somehow expanded the scope of the Sawyer escape valve merely by importing it into state law would be to turn the legislative effort on its head.

Contra 28 U.S.C. § 2244(b)(2) (barring consideration of a successive federal habeas petition unless the petitioner can show either legal unavailability or newly discovered evidence plus actual innocence of the underlying offense); In re Webster, 605 F.3d 256, 258-59 (5th Cir. 2010) (concluding in a § 2255(h) case that the use of the phrase "guilt of the offense" in 28 U.S.C. § 2255(h)(1) and § 2244(b)(1)(B)(ii) bars a federal habeas petitioner from bringing a successive petition based only on a claim of actual innocence of the death penalty), cert. filed, No. 10-150, U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___, 79 USLW 3077 (July 27, 2010).

The district court denied Rocha's Rule 60(b) motion on the ground that his Wiggins claim remains procedurally defaulted. We granted a certificate of appealability because jurists of reason could have debated the correctness of the district court's decision in light of the uncertainty in this area of our jurisprudence. A careful review of our precedent reveals that Judge Harmon did not err by concluding that Rocha procedurally defaulted his Wiggins claim. A fortiori her decision to deny Rocha's Rule 60(b) motion was not an abuse of discretion.

See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) ("When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows . . . that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.").

In the end, Rocha finds himself in the same position he was in when he first filed this federal habeas petition in 2003. At that time, his Wiggins claim was unexhausted and thus procedurally defaulted; he could have overcome that procedural default by showing that he is actually innocent of the death penalty. Rocha did not cure his procedural default by obtaining a ruling from the CCA that his successive state habeas application was subject to dismissal as an abuse of the writ under § 5(c) because it did not satisfy § 5(a)(3). That § 5(a)(3) employs a federal standard to determine when a procedural default should be excused does not change the fact that the CCA dismissed Rocha's Wiggins claim on an independent and adequate state-law ground. Consequently, our role is limited to performing the same threshold review under Sawyer that the CCA performed under § 5(a)(3): for actual innocence of the death penalty. Rocha's petition for rehearing does not argue that we erred by concluding that he cannot establish that he is actually innocent of the death penalty. Therefore, his petition for rehearing is denied.