Ex Parte Kerr , 2002 Tex. Crim. App. LEXIS 2 ( 2002 )

JOHNSON, J.,

filed a concurring opinion.

I join Parts I and II of the majority opinion and concur in the judgment of the Court.

As the majority holds, the original application was so lacking in merit that it cannot even be considered a true application for a writ of habeas corpus. However, I disagree with the position of the majority that this Court “decline[s] to place blame upon anyone for [applicant’s] situation,” ante, at 420, and that “[the] original habe-as counsel was competent and qualified to handle this matter when he was appointed.” Id. Holding a general license to practice law does not guarantee that the attorney possesses sufficient knowledge of relevant areas of law such that the client receives competent counsel rather than the mere presence of a licensed attorney. Mere presence is not enough.

I also cannot agree that it is possible to differentiate between “competent counsel” and “effective counsel.” Ex parte Graves, # 73,424, 2002 WL 4528, slip op. at 16-17 (Tex.Crim.App.2002). As I said in Ex Parte Graves, Id. at-n. 3 (slip op. at 4 n. 3) (Johnson, J., dissenting), the United States Supreme Court has made it clear that “competent” encompasses “effective.” That “effective” counsel is required is also indicated by the legislative history cited by the majority when it quoted Representative Pete Gallego; “[W]e are going to give you one very well-represented run at a habeas corpus proceeding.” Ante, at 418-19 (Emphasis added.)

In any case, this Court bears some responsibility in this matter, as we appointed the counsel who filed the initial “non-writ.” As the majority notes, one of the stated purposes of the current habeas statute for death-penalty applicants is to give those applicants “one very-well represented run at a habeas corpus proceeding.” Ante, at 418-19. That surely cannot be said of the previous application here.

This case, combined with Graves, allows relief on a claim of ineffective assistance of habeas counsel only when habeas counsel is so ineffective that the writ application filed cannot even be considered a true ivrit application. Surely we can do better than that.