Ex Parte Hood

304 S.W.3d 397 (2010)

Ex Parte Charles Dean HOOD, Applicant.

No. AP-75,370.

Court of Criminal Appeals of Texas.

February 24, 2010.

A. Richard Ellis, Mill Valley, CA, for Appellant.

Jeffrey Garon, Asst. Criminal District Attorney, McKinney, Jeffrey L. Van Horn, State's Attorney, Austin, for State.

OPINION

COCHRAN, J., announced the judgment of the Court and delivered the opinion of the Court as to Part III, in which PRICE, WOMACK, JOHNSON and HOLCOMB, JJ., joined, and an opinion as to Parts I and II in which PRICE, JOHNSON and HOLCOMB, JJ., joined.

We wade once more into the murky waters of Penry law and the Texas death-penalty sentencing scheme. The ebb and flow of constitutional jurisprudence concerning when and what special instructions are necessary for the jury to give meaningful consideration to relevant mitigating evidence has sharply divided the United States Supreme Court, the Fifth Circuit, and this Court for some twenty years. The Chief Justice of the Supreme Court has noted that the jurisprudence surrounding the intersection of mitigation evidence and the Texas "nullification instruction" in pre-1991 death-penalty cases is "a dog's breakfast of divided, conflicting, and ever-changing analyses."^[1] Reasonable jurists differ on these matters.

Therefore, we granted applicant a stay of execution on September 9, 2008, stating that, "[b]ecause of developments in the law regarding nullification instructions, . . . it would be prudent to reconsider the decision we issued [on January 10, 2007] in dismissing applicant's second subsequent writ application."^[2] We must reconsider whether applicant could have raised his Penry claim—a claim alleging that the entirety of the sentencing scheme employed by the trial court precluded the jury from giving full consideration and effect to his mitigating evidence—before May 24, 2004, when he filed a pro se subsequent writ.

We conclude that five United States Supreme Court decisions, all of which were issued after applicant filed his pro se writ on May 24, 2004,^[3] announced "new law" directly applicable to applicant's claim for purposes of Article 37.071, § 5.^[4] Therefore, his second subsequent writ application, filed in 2005, should be reinstated because it was not procedurally barred.^[5] We agree with the habeas judge's 2005 factual findings and legal conclusions and accept his recommendation that applicant is, under current and binding constitutional precedent, entitled to a new trial on punishment.^[6]

I.

Applicant was convicted of capital murder in 1990 for killing his boss and his boss's girlfriend.^[7] The evidence showed that applicant's boss had allowed applicant to live in his home, but that applicant had carefully planned and executed the murders, stolen his boss's credit cards, pawned his ring, and forged his name on stolen business checks to cash them.

During the punishment phase, the State offered significant evidence that applicant would constitute a continuing threat to society. This evidence included burglary of a school when a juvenile, theft and forgery convictions, assault on his 15-year-old girlfriend, rape of another 15-year-old girl, threats to a third young woman while he was in jail on this charge, and assault upon a fellow inmate. The State also offered expert testimony from a clinical psychologist and a forensic psychiatrist that applicant had an anti-social personality disorder with little chance of rehabilitation. The evidence was more than sufficient to support the jury's "yes" answers to the special issues.

When we remanded this writ application to the habeas judge in 2005,^[8] he made extensive factual findings concerning the mitigating evidence that had been offered at the 1990 trial.^[9] These findings included the following:

• when applicant "was three years old, he sustained severe injuries when he was crushed by a truck that backed over him. Hood was in a state of shock as he rode to the hospital in an ambulance. His left leg was broken in two places and his left hip was broken. He had additional injuries to his lower back requiring three skin grafts. He sustained internal injuries. Hood had several surgeries, and bones had to be rebroken. He wore a cast that covered nearly his entire body from his upper chest to his legs. He remained in the hospital for five months. Two years passed before Hood was able to relearn how to walk. He was left with permanent physical injuries from the accident. His left leg never grew to the size of his right leg, his hip joint remains cracked, and the skin grafts never healed properly on his back."

• applicant "appeared to undergo changes in his behavior after the accident. He had a noticeable problem with his speech and pronouncing the sounds of the alphabet. A doctor concluded he hears the sounds in a different way than they are pronounced. An expert who personally examined Hood stated that his speech defects also included stuttering. Behavioral changes after the accident were testified to by his mother, which include throwing things, school problems, fear of school, being made fun of by other children and phobias related to being inside building[s]."

• applicant "has learning disabilities and cognitive impairments which became apparent in his schooling. He received counseling and attended special education throughout his school career. He failed the second and seventh grades and dropped out of school in the seventh grade."

• additional evidence indicated that applicant "had learning disabilities and low intellectual functioning. He failed the Army entrance examination three times. The Indiana Department of Correction administered achievement and intelligence tests at age 19. Those tests indicated his reading and math skills fell below sixth grade level, his language and writing skills were at the level of a third grader and [he] has an I.Q. of 89, which placed him below the intellectual functioning of more [than] 75% of the population. Achievement scores were too low to satisfy literacy requirement for the prison work release program."

• applicant suffered "beatings and other injuries" when he was young, "including a head blow with a metal pipe." An uncalled expert defense witness wrote a report that applicant "suffers from brain impairment, evidenced by learning disabilities, verbal comprehensive problems, language impairment, speech defects and behavioral dysfunction, including impaired judgment and poor impulse control." The State's expert testified about this defense report and concluded that, although applicant may be suffering from one or more of the defense expert's findings, "he will be a continuing threat based on the State's hypothetical premise."^[10]

Applicant's case was tried after the Supreme Court decided Penry I,^[11] but before the Texas Legislature had convened to draft a statutory mitigation special issue to accommodate the Penry I holding.^[12] Thus, the trial court submitted the two statutory special issues, but also included a special nullification instruction discussing the manner in which the jury should account for mitigating evidence when answering those special issues.^[13] Applicant's counsel did not object to the nullification instruction itself, but his colloquies with the trial judge sound uncannily like the voice of the Supreme Court in its most recent cases.^[14] He did, however, request additional instructions on the proper use of mitigating evidence^[15] and asked that the jury be told to write the word "life" into the "yes" or "no" verdict forms if it should decide that the mitigating evidence called for such a sentence. The trial judge noted that nothing in Texas law allowed the jury to answer the special issues with the word "life" and that the explicit wording and specific answers to the special issues were statutorily required. Therefore, the trial judge declined to give applicant's additional instruction.

During closing arguments, the defense stressed that, regardless of what the jury thought about the special issues, it could not forget to consider the mitigating evidence. Counsel emphasized applicant's youth, his poverty, and the trauma he had suffered when the truck ran over him as a three-year-old. He noted that at least one doctor thought he could have brain damage. The State reminded the jury that it bore the burden of proving the special issues, but the decision of whether mitigating circumstances existed was a decision solely for the jury to determine. The jury answered both special issues "yes," and the trial court sentenced applicant to death.

On November 24, 1993, this Court affirmed applicant's conviction and sentence on direct appeal.^[16] One of the issues that applicant raised on appeal was that the trial court erred "in failing to instruct the jury of a method to be used by them to give effect to mitigating evidence."^[17] Once again, applicant's claim echoed the Supreme Court's most recent pronouncements concerning the Texas death-penalty sentencing scheme. We rejected that claim, both because it was inadequately briefed and on its merits, concluding that the nullification instruction "did provide the jury with an adequate vehicle to express and give effect to its ``reasoned moral response'" to applicant's mitigation evidence, if any existed.^[18] The United States Supreme Court denied certiorari.^[19]

On December 22, 1997, applicant filed his first writ application under article 11.071.^[20] In that application, he initially challenged the nullification instruction, but then deleted that claim from his amended application.^[21] On April 21, 1999, we denied habeas corpus relief.^[22] Applicant then filed a writ application in federal court. The federal district court denied relief, but granted a certificate of appealability on two grounds related to an Ake^[23] claim. On April 2, 2004, the Fifth Circuit affirmed the district court's denial of relief in an unpublished opinion.^[24] Once again, the United States Supreme Court denied certiorari.^[25]

On May 24, 2004, applicant filed a pro se subsequent application for writ of habeas corpus, which we dismissed as an abuse of the writ under art. 11.071, § 5.^[26] That second application did not contain a Penry claim.

On June 22, 2005, eight days before his scheduled execution, applicant filed a third writ application, alleging that "the nullification instruction in applicant's case did not allow the jury to consider and give effect to mitigating evidence presented at trial."^[27] It "suffered from the same constitutional defects that the Supreme Court found fatal" in Penry II,^[28]Smith v. Texas ("Smith I"),^[29] and Tennard v. Dretke.^[30] We granted applicant's motion for stay of execution and concluded that "applicant has met the requirements for consideration of a claim the basis of which was not available at the time his initial application was filed."^[31] We remanded the case to the convicting court for consideration of the merits of applicant's Penry claim.^[32] On remand, the habeas judge set out his factual findings and concluded,

Although opinions may vary regarding how clearly the mitigating evidence was elicited at trial and whether such evidence is overwhelming or tenuous, the record contains such evidence that a jury must, under our current law, consider regarding the imposition of the death penalty.

The habeas judge also entered relevant conclusions of law: first, he concluded that applicant's "nullification" claim was unavailable at the time he filed his previous habeas application;^[33] second, he concluded that the two special issues did not provide an avenue for the jury to give full consideration and full effect to applicant's mitigating evidence.^[34] The habeas judge recommended that we grant applicant a new punishment trial based on the newly available decisions in Tennard and Smith I.

A majority of this Court held that, although we had originally determined that applicant's claim surmounted the section-5^[35] bar against subsequent claims because his Penry claim, raised after Tennard announced new law, was unavailable at the time he filed his first two writ applications, we were wrong.^[36] The majority concluded that applicant—by the time he filed his pro se application in May of 2004—should have known from the Penry II decision that he had a viable claim concerning both the lack of a special mitigation issue and the infirmity of the jury-nullification instruction.^[37] On January 10, 2007,^[38] we dismissed applicant's subsequent writ.^[39]

On September 8, 2008, just two days before his rescheduled execution, applicant filed a suggestion that the Court reconsider its January 10, 2007, order because the three newest Supreme Court cases, delivered after our dismissal, finally made it clear that our prior interpretations of Penry I and Penry II were incorrect.

Applicant also noted that, in several Penry habeas corpus application cases decided after Abdul-Kabir, Brewer, and Smith II, we had reconsidered our original dismissal, held that Tennard, Smith I, Abdul-Kabir, Brewer, and Smith II announced new law, and addressed the merits of the death-row inmate's habeas corpus claim.^[40] There are now several more such cases in which we have addressed the merits of a Penry claim in a subsequent writ application based upon the Supreme Court's five most recent cases,^[41] all of which were delivered after applicant had filed his pro se application on May 24, 2004.

II.

The crucial issue in the present case (as it was in the nine recent Texas cases cited above) is whether the five Supreme Court cases delivered between June 2004 and April 2007 announced "new law" that could serve as a basis for a subsequent writ application or whether they simply followed established law. Under our Texas habeas-corpus statute, an applicant may not have the merits of a subsequent writ considered unless he passes over the threshold of article 11.071, § 5, which requires a showing of newly available law or facts. Thus, if Tennard, Smith, et al. announced new law, we may consider the merits of applicant's claims. If they are mere applications of previously available law, we are statutorily required to dismiss his subsequent application as an abuse of the writ.^[42]

On the other hand, federal courts are not permitted to grant a state petitioner's writ application complaining about a state-court decision unless the state court's determination of the legal issue was an unreasonable application of clearly established law as announced by the Supreme Court.^[43] In other words, this Court may address applicant's claim only if Tennard, Smith, et al. are newly available legal claims, whereas federal courts may grant petitioner's claim only if this Court has misapplied clearly established federal law.

This is all very awkward. To grant a Texas death-row inmate relief on his subsequent Penry I and Penry II claim under the recently decided Tennard, Smith, et al. cases, we must find that those decisions announced new law, but the federal courts cannot grant relief on those very same claims unless they find that Texas courts misapplied clearly established law at the time of the relevant state-court decision.^[44] Hence, a death-row inmate must argue in this Court that Tennard, Smith, et al. announced new law, but, once he arrives in federal court, he must argue that those same cases simply reiterated clearly established law. There is no logical way in which Tennard, Smith, et al. can simultaneously be both "newly available law" for state-court purposes and "clearly established law" for federal-court purposes.

This conundrum has produced starkly different descriptions and versions of the historical development of Penry law. In each of the five most recent cases, the United States Supreme Court majority has been at pains to emphasize that "well before our decision in Penry I, our cases had firmly established that sentencing juries must be able to give meaningful consideration and effect to all mitigating evidence that might provide a basis for refusing to impose the death penalty[.]"^[45] Thus, Penry itself did not announce new law, nor did the five most recent cases, Tennard, Smith I, Abdul-Kabir, Brewer, and Smith II.^[46] Under the majority's reasoning, this Court (along with the Fifth Circuit) completely misunderstood the scope and applicability of Penry for almost twenty years and reached "``decision[s] that [were] contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States'"^[47] in virtually all of our Penry cases. Had the Supreme Court concluded otherwise, it could not have granted relief to any of the habeas corpus applicants in Tennard, Smith I, Abdul-Kabir, Brewer, or Smith II.

Not surprisingly, the four dissenters in Abdul-Kabir—led by Chief Justice Roberts—set out an entirely different version of the Penry history.^[48] The dissenters noted that "[t]he only thing clear about our jurisprudence on the pertinent question [whether this Court's decision in Abdul-Kabir was ``objectively unreasonable' under firmly established Supreme Court precedent] in 1999, however, is that it was unsettled and confused."<sup>[49]</sup> Chief Justice Roberts stated, "It is a familiar adage that history is written by the victors, but it goes too far to claim that the meaning and scope of Penry I was ``clearly established' in 1990[.]"^[50]

Not only have the nine justices on the Supreme Court differed wildly in their view of the Penry saga, the nine judges on this Court have differed in exactly the same manner. For example, in the January 2007 decision rendered on applicant's Penry claim, five members of this Court set out a history of Penry jurisprudence similar to some of that of the Supreme Court majority in Abdul-Kabir. Under that understanding—Penry II announced new law, but Tennard and Smith did not— applicant was not entitled to have the merits of his claim addressed in his 2005 application because he had filed a pro se post-Penry II application that did not raise a Penry claim.^[51] But, according to the Supreme Court in Abdul-Kabir, we were wrong on that understanding as well: neither Penry I nor Penry II announced new law.^[52] Thus, under Abdul-Kabir, this applicant, during his 1990 trial, was simply asking for instructions that were required by clearly established Supreme Court law, and we were objectively unreasonable in failing to reverse the punishment verdict on direct appeal.^[53] The four dissenters in Ex parte Hood set out a version of the Penry litigation similar to that of Chief Justice Roberts's in Abdul-Kabir and contended that Tennard and Smith I announced new law and thus applicant was entitled to have the merits of his claim addressed.^[54]

But regardless of which historical version of Penry-litigation one accepts—(1) it was clearly established that the Texas sentencing scheme concerning the use of mitigation evidence was constitutionally flawed even before Penry I, or (2) Tennard, Smith, et al. announced new constitutional law—applicant is entitled to relief in one court or the other. He is entitled to relief in federal court if Penry did not announce new law because the Texas courts were "objectively unreasonable" in addressing his Penry claim all along.^[55] Or, if Tennard, Smith, et al. did announce new law, he is entitled to relief in this Court because his claim is not procedurally barred under article 11.071, § 5, and the habeas judge's factual findings and legal conclusions recommending relief are supported by the record.

III.

Because we have already held, in numerous subsequent habeas applications since 2007,^[56] that Tennard, Smith, et al. did announce new law and that those death-row inmates were entitled to have the merits of their Penry claims addressed, we must treat applicant's Penry claim in the same manner. Similarly situated litigants bringing similar claims should be treated similarly. Most recently, in Ex parte Davis, a case much like the present one, we reconsidered, on our own initiative, a previously dismissed Penry writ application "because of changes in the law" and concluded that

[t]he nullification instruction given to applicant's jury was not a sufficient vehicle to allow jurors to give meaningful consideration and full effect to the mitigating evidence presented by applicant. Because the mitigating evidence presented at applicant's trial is the type of evidence for which he was entitled to a separate and sufficient vehicle, we remand the case to the trial court for a new punishment hearing.^[57]

We see no reason to treat applicant inconsistently. Therefore, we adopt the habeas judge's factual findings, agree with his legal conclusions, and accept his recommendation to grant relief. This case is remanded to the trial court for a new punishment hearing.

MEYERS, J., dissented.

KEASLER, J., filed a dissenting opinion in which KELLER, P.J., and HERVEY, J., joined.

KEASLER, J., filed a dissenting opinion in which KELLER, P.J., and HERVEY, J., joined.

The plurality ignores the language of Texas Code of Criminal Procedure Article 11.071, Section 5(a), posits a false "conundrum," and relies upon cases that are distinguishable. Because Article 11.071 requires that Hood's application be dismissed, I dissent.

Under Article 11.071, the merits of a subsequent habeas application may be considered only under limited circumstances.^[1] At issue here is whether the legal basis of Hood's claim was "unavailable" on the date a previous application was filed.^[2] The Legislature has specifically defined what it means for a legal basis to be "unavailable":

For purposes of Subsection (a)(1), a legal basis of a claim is unavailable on or before a date described by Subsection (a)(1) if the legal basis was not recognized by or could not have been reasonably formulated from a final decision of the United States Supreme Court, a court of appeals of the United States, or a court of appellate jurisdiction of this state on or before that date.^[3]

We are not at liberty to ignore this definition. Addressing a prior legislative scheme that prohibited the consideration of late-filed habeas applications, we emphasized our duty to enforce the laws written by the Legislature:

Our oaths are to uphold the constitutions and laws of this country and state; they are not a commission to do what a majority of us think is fair. This law was passed by the legislature and approved by the governor, in accordance with our constitutional form of government. The law is clear: this court shall dismiss this application because it was filed late. If the law is barbarous, the legislature should repeal it or the governor should commute or pardon those who are subjected to it. In the meantime, we must follow it.^[4]

The plurality does not purport to explain how Hood has shown that the legal basis of his current claim was not available when he filed his previous application because it cannot. Notably, there is nothing but silence from Judge Price, who agreed with our disposition of this case on original submission.^[5] Judge Price's contrary opinion today is the sole reason that yesterday's minority view is now the law.

Penry II, decided in 2001,^[6] was the first time that the United States Supreme Court ever said that a nullification instruction would not satisfy the dictates of Penry I.^[7]Penry II was decided after applicant's direct appeal, where he had raised a Penry challenge, but before applicant filed his second habeas application, where he did not raise a Penry challenge. Unquestionably, then, Hood's current legal challenge could have been "reasonably formulated" from the Supreme Court's decision in Penry II.

The plurality contends that we can "forgive" Hood for not recognizing that he had a valid Penry claim, "because we had not yet recognized that fact ourselves."^[8] But whether this Court had recognized the validity of a claim is not the test under Article 11.071, Section 5(a)(1); the test, in part, is whether the claim was recognized by a decision from any court enumerated in the statute. Even if the validity of a claim is not recognized by this Court, it is considered "available" under the habeas statute if it is recognized by a decision from the United States Supreme Court, a federal appeals court, or a Texas state appeals court.

The test also includes whether the claim could have been "reasonably formulated" from a decision of this Court or one of the other courts mentioned above. There are many claims that can be reasonably formulated that we do not yet recognize as valid. We routinely grant petitions for discretionary review to consider such claims. When the plurality says that we should not expect Hood to be "more prescient than ourselves,"^[9] it reveals its confusion: The issue is whether a claim is colorable to the required degree (recognized by or can be reasonably formulated from a Supreme Court, federal circuit court, or Texas appellate court decision), not whether we currently recognize it as the controlling law in Texas. This is why we were correct on original submission when we said, "Another point that deserves emphasis is that lack of recognition is not enough to render a legal basis unavailable. If the legal basis could have been reasonably formulated from a decision issued by a requisite court, then the exception is not met."^[10]

The plurality also suggests that we can "forgive" Hood's dereliction because of our decision in Ex parte Smith,^[11] which held that an unambiguous nullification instruction (such as the one given here) was sufficiently distinguishable from the instruction given in Penry II so as to satisfy Penry I.^[12] There are two reasons that our decision in Smith could not have rendered applicant's Penry claim "unavailable." First, Smith was not a United States Supreme Court decision. Although Smith had interpreted Penry II in a manner that was adverse to Hood, the Supreme Court had not yet had occasion to address that interpretation. So the possibility remained that the Supreme Court could disagree with our interpretation. And as long as that possibility remained, then, under the habeas statute, there remained a Supreme Court decision—Penry II—from which Hood's claim could have been reasonably formulated.

Second, our decision in Smith was not final when Hood filed his application. The decision was only a month old, leaving the possibility open that Smith could file a petition for writ of certiorari with the Supreme Court of the United States,^[13] have that petition granted, and ultimately obtain a reversal. That is precisely what happened.^[14] By distinguishing Penry II (as not applicable to unambiguous instructions) in a published opinion, our decision in Smith in fact highlighted the issue, so that no one could rely on a lack of notice as to the issue's existence. And because it was the first time that Penry II had been distinguished in that fashion, and the decision was still subject to Supreme Court review, it was clearly a live issue that any person filing a capital habeas application should have taken into account.

The plurality contends that our scheme and the federal scheme create a "conundrum" because "a death-row inmate must argue in this Court that Tennard, Smith, et al. announced new law, but he must argue that those same cases simply reiterated clearly established law once he arrives in federal court."^[15] As a result, the plurality concludes that Hood "is entitled to relief in one court or the other."^[16] Even if this were true, that does not give us license to ignore a controlling state statute that requires the dismissal of the state habeas application. That an applicant may inevitably receive relief on federal habeas is never a reason to ignore the requirements of 11.071. If my stance seems harsh or unfair, it should be remembered that only the Legislature can remedy the situation. This case provides yet another egregious example of judges legislating from the bench, ignoring what the majority of our citizens, through their various state representatives, have declared is the law of the state.

Nevertheless, the so-called "conundrum" does not really exist. The statutory requirement that a state habeas claim be "new" applies only to subsequent applications.^[17] If a claim is filed in an initial state habeas application, both the state and federal courts may consider a claim based on long-standing, firmly established federal constitutional law. Ineffective assistance of counsel claims, for example, tend to be of this variety.

Even if we are just considering subsequent applications, a claim could easily qualify as "new" in state habeas court and yet be subject to consideration under the "unreasonable application of clearly established law"^[18] standard in federal court. This would occur if the Supreme Court announced a new rule of constitutional law, a death-row inmate raised a claim based on this new rule in a subsequent state habeas application that was his first application filed after the new rule was announced, and this Court held against the inmate in an opinion that unreasonably applied that newly established rule.

Further, as we explained in our opinion on original submission, the interplay between the law of cognizability and the subsequent application requirements of article 11.071, Section 5, can result in an issue becoming "new" as to a particular applicant even if it is not "new" in a general sense.^[19] Some court-made rules can affect the cognizability of a claim in an initial state habeas proceeding, and one such rule is implicated here: Hood would have been barred from raising his Penry claim in his first habeas application because a rule procedurally barring that claim prevents the relitigation of claims on habeas that were raised and rejected on direct appeal.^[20] In such a case, direct appeal, and ultimately a petition for writ of certiorari from our decision in that direct appeal, would be an available avenue for the adjudication of the claim. With the advent of Penry II, however, habeas corpus also became an avenue for litigating Hood's Penry claim because a change in the law is an exception to the procedural bar.^[21]

For that reason, the plurality is just plain wrong in saying that our opinion on original submission took a position inconsistent with the Supreme Court's later decision in Abdul-Kabir v. Quarterman^[22] in suggesting that "Penry II announced new law."^[23] We expressly declined to decide whether Penry II announced "new" law "in the abstract" but held that it was "new" as to the applicant because a nullification claim had been resolved against him in a prior proceeding.^[24] So even if our holdings before Penry II were "unreasonable applications of clearly established law,"^[25] it was still true that a Penry claim could not have been "reasonably formulated" by Hood while it remained non-cognizable. Even if Penry II did not establish "new" law in a general sense, it was a new legal authority for cognizability purposes and was also a new "Supreme Court decision" from which Hood's claim could have been "reasonably formulated." Had Hood raised his claim in the first application filed after Penry II was handed down, then he would have satisfied Article 11.071, Section 5. This rule of showing unavailability by exhaustion, articulated on original submission,^[26] is not a hollow one: In Ex parte Martinez, for example, we followed this rule, found that the claims in that case were not barred by Section 5, and granted relief.^[27]

If Hood faces a "conundrum," it is because, unlike other habeas applicants, he chose to file a pro-se habeas application without raising an available Penry claim. This is exactly the kind of behavior that the Legislature specifically sought to prohibit by enacting Section 5(a). But no "conundrum" exists for Hood because he is simply not entitled to relief in any forum. The plurality's contention that he is entitled to relief either in this Court or federal court is wrong because a dismissal under Article 11.071, Section 5 would be an adequate and independent state ground that would bar relief in federal court.^[28]

Finally, the plurality relies upon several prior, unpublished decisions for the proposition that other litigants have received relief under similar circumstances, and it concludes that we should treat Hood like those litigants.^[29] But those cases are distinguishable. The habeas applicants in Davis and Robertson did raise a Penry claim in their first post-Penry II applications.^[30] The same is true in the more recent cases cited by the plurality today.^[31] In some, but not all of the cases, the applicant also raised the claim on direct appeal and in an initial habeas application.^[32] Although our opinion on original submission did not decide whether Penry II made nullification claims newly available in general under article 11.071, Section 5, some of our subsequent unpublished decisions are consistent with doing so. Such a view is entirely understandable because Penry II was the first time the Supreme Court said that a nullification instruction was insufficient to satisfy Penry I's dictates. But until today, all of our cases were also consistent with the view that an applicant could not challenge a nullification instruction if the applicant failed to do so in a previous application filed after Penry II.

Because the Court's decision is contrary to our state habeas statute, I dissent.

NOTES

[1] Abdul-Kabir v. Quarterman, 550 U.S. 233, 267, 127 S. Ct. 1654, 167 L. Ed. 2d 585 (2007) (Roberts, C.J., dissenting). The Chief Justice noted:

We give ourselves far too much credit in claiming that our sharply divided, ebbing and flowing decisions in this area gave rise to "clearly established" federal law. If the law were indeed clearly established by our decisions "as of the time of the relevant state-court decision," it should not take the Court more than a dozen pages of close analysis of plurality, concurring, and even dissenting opinions to explain what that "clearly established" law was. When the state courts considered these cases, our precedents did not provide them with "clearly established" law, but instead a dog's breakfast of divided, conflicting, and ever-changing analyses. That is how the Justices on this Court viewed the matter, as they shifted from being in the majority, plurality, concurrence, or dissent from case to case, repeatedly lamenting the failure of their colleagues to follow a consistent path. Whatever the law may be today, the Court's ruling that ``twas always so—and that state courts were "objectively unreasonable" not to know it—is utterly revisionist.

Id. at 266-67, 127 S. Ct. 1654 (citations omitted).

[2] Ex parte Hood, Nos. WR-41,168-10 & AP-75,370, 2008 WL 4151666 (Tex.Crim.App. Sept. 9, 2008) (not designated for publication).

[3] See Tennard v. Dretke, 542 U.S. 274, 124 S. Ct. 2562, 159 L. Ed. 2d 384 (2004); Smith v. Texas ("Smith I"), 543 U.S. 37, 125 S. Ct. 400, 160 L. Ed. 2d 303 (2004); Abdul-Kabir v. Quarterman, 550 U.S. 233, 127 S. Ct. 1654, 167 L. Ed. 2d 585 (2007); Brewer v. Quarterman, 550 U.S. 286, 127 S. Ct. 1706, 167 L. Ed. 2d 622 (2007); Smith v. Texas ("Smith II"), 550 U.S. 297, 127 S. Ct. 1686, 167 L. Ed. 2d 632 (2007). The earliest of these five cases, Tennard, was decided on June 24, 2004, exactly one month after applicant filed his pro se subsequent writ.

[4] TEX.CODE CRIM. PROC. art. 11.071, § 5(a)(1). This section reads,

If a subsequent application for a writ of habeas corpus is filed after filing an initial application, 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:

(1) the current claims and issues have not been and could not have been presented previously in a timely initial application or in a previously considered application filed under this article or Article 11.07 because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application[.]

[5] In Ex parte Hood, 211 S.W.3d 767, 770 (Tex.Crim.App.2007), this Court held that we were "barred from considering the merits [of his second subsequent writ application filed in 2005] because the legal bases upon which applicant relies were available at the time he filed his second application." Id.

[6] The trial judge entered his findings on December 6, 2005, in accordance with our remand order of June 27, 2005, after we had found that "applicant has met the requirements for consideration of a claim the basis of which was not available at the time his initial application was filed." This remand order was based upon Tennard v. Dretke, 542 U.S. 274, 124 S. Ct. 2562, 159 L. Ed. 2d 384 (2004), and Smith v. Texas, 543 U.S. 37, 125 S. Ct. 400, 160 L. Ed. 2d 303 (2004).

[7] Hood v. State, No. 71,167 (Tex.Crim.App. Nov. 24, 1993) (not designated for publication).

[8] The habeas judge was a senior state district judge sitting by assignment. He was not the original trial judge.

[9] Both the State and applicant filed proposed findings of fact and conclusions of law. The habeas judge crafted his own findings and conclusions based upon the parties' submissions.

[10] Because the record supports these factual findings, we adopt them. See Ex parte Reed, 271 S.W.3d 698, 727 (Tex.Crim.App.2008).

[11] Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989).

[12] See Ex parte Staley, 160 S.W.3d 56, 58 (Tex.Crim.App.2005). In Staley, this Court noted,

The 1989 Penry I decision created a dilemma for Texas trial courts in capital-murder cases. As the Fifth Circuit has noted, Texas trial courts "could not craft entirely new jury interrogatories, as the precise questions had been written by the state legislature. Nor could they suspend the trials in anticipation of legislative remediation, as the legislature would not meet again until 1991 and its reaction was unknown." Thus, Texas state courts attempted to provide timely trials that complied with Penry I by drafting extra-statutory jury instructions or supplemental special issues until the Texas Legislature enacted a statutory mitigation special issue which went into effect on September 1, 1991.

Id. (citations omitted).

[13] That instruction read,

You are instructed that you shall consider in answering the special issues any evidence which in your opinion mitigates against the imposition of the death penalty. A mitigating circumstance may include, but is not limited to any aspect of the defendant's character, record, and the circumstances of the crime, which you believe could make a death penalty inappropriate in this case.

Further, if you believe from the evidence that the State has proven beyond a reasonable doubt that the answers to the Special Issues are "yes" but you are further [persuaded] by the mitigating evidence that the defendant should not be sentenced to death in this case, then you shall answer one or both of the Special Issues "no" in order to give the effect to your belief that the death penalty should not be imposed in this case.

[14] When the trial judge first suggested using the nullification instruction, applicant's counsel said,

As the Court knows, this is a pretty new concept in our capital litigation, and it is one about which we don't have any, at this point, formal guidance from our State Court. Nevertheless, it seems to me that in a case of this kind, if we make a mistake it ought to be on the side of fully explaining mitigation, fully explaining to the Jury how they can give effect to the mitigation, if they find that it exists, and not simply, for the sake of brevity, put something in there that sounds like it might be alright, but doesn't accurately explain to the Jury what their obligation is.

The trial court expressed his concern with applicant's proposal of having the jurors' write the word "life" in the blanks for the special issue, and noted, "By answering ``No' they may have decided that the State didn't meet its burden of proof, or that there is...." Defense counsel interrupted to explain how the statutory scheme itself was deficient:

But that's the whole—with regard to the Court, that's the whole idea of mitigation, that even if the evidence supports "Yes" answers to both the Special Issues beyond a reasonable doubt, even if that is the case, and the State has carried their burden of proof, the Jury can consider mitigating factors, and come to the conclusion that because of the mitigating factors, in spite of the fact that the evidence supports an answer to these two Special Issues of "Yes" beyond a reasonable doubt, because of the mitigating factors the jury feels that the death penalty should not be imposed—that is, indeed, the whole problem because our statutory scheme doesn't give any way to give effect to that.

Later, defense counsel again reiterated that the statutory special issues are one thing, but that the jury must receive instructions such that it can use and give effect to the mitigating evidence outside of the statutory special-issue scheme.

[15] Applicant's proposed additional instruction read,

You may use a mitigating circumstance to answer a Special Issue "no" or you may use a mitigating circumstance as a basis for leniency even if you are persuaded that all of the Special Issues must be answered "yes." If you decide that all of the Special Issues must be answered "yes" and you also have found mitigating circumstances which call for a life sentence, you must not answer the Special Issues. Instead, to give effect to the mitigating circumstances, you must write the word "life" in each of the spaces on the verdict sheet where you would otherwise answer the Special Issues "yes" or "no." A verdict of life has the same effect as a verdict that answers at least one Special Issue "no."

[16] Hood v. State, No. 71,167 (Tex.Crim.App. Nov. 24, 1993) (not designated for publication).

[17] Id., slip op. at 18.

[18] Id., slip op. at 20 (emphasis in original).

[19] Hood v. Texas, 513 U.S. 834, 115 S. Ct. 111, 130 L. Ed. 2d 58 (1994).

[20] TEX.CODE CRIM. PROC. art. 11.071.

[21] Presumably applicant eliminated that Penry claim because it had already been rejected on direct appeal and this Court does not re-review claims in a habeas corpus application that have already been raised and rejected on direct appeal. Ex parte Reynoso, 257 S.W.3d 715, 723 (Tex.Crim.App.2008) (a claim that was raised and rejected on direct appeal is not cognizable on habeas review under art. 11.071); Ex parte Acosta, 672 S.W.2d 470, 472 (Tex.Crim.App. 1984).

[22] Ex parte Hood, No. 41,168-01 (Tex.Crim. App. Apr. 21, 1999) (not designated for publication).

[23] Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985).

[24] Hood v. Dretke, 93 Fed.Appx. 665 (5th Cir. 2004) (not designated for publication).

[25] Hood v. Dretke, 543 U.S. 836, 125 S. Ct. 255, 160 L. Ed. 2d 58 (2004).

[26] Ex parte Hood, No. WR-41,168-02, 2005 WL 914225 (Tex.Crim.App. April 13, 2005) (not designated for publication).

[27] Ex parte Hood, No. WR-41,168-03, slip op. at 2 (Tex.Crim.App. June 27, 2005) (not designated for publication).

[28] Penry v. Johnson, 532 U.S. 782, 121 S. Ct. 1910, 150 L. Ed. 2d 9 (2001).

[29] 543 U.S. 37, 125 S. Ct. 400, 160 L. Ed. 2d 303 (2004).

[30] 542 U.S. 274, 124 S. Ct. 2562, 159 L. Ed. 2d 384 (2004).

[31] Ex parte Hood, No. WR-41,168-03, slip op. at 2.

[32] Id.

[33] The habeas court's conclusions of law included the following:

1. Prior to the Supreme Court's decisions in Tennard and Smith, the Court of Criminal Appeals had concluded that, without a "prima facie" showing of a severe and permanent handicap, not of his own making, which is [at] least related to the commission of the capital offense, a defendant could not pursue a claim challenging the failure of the special issues to provide a vehicle for the consideration of mitigating evidence. This standard was overturned by the Supreme Court in Smith which makes [it] clear that the legal basis for asserting a meritorious nullification claim was unavailable to Hood at the time he filed his previous habeas application.

2. On March 15, 2005, the Court of Criminal Appeals held that the legal basis for raising a meritorious nullification claim was previously unavailable prior to the Supreme Court's decisions in Tennard and Smith in Ex parte Robertson. In Robertson, this Court acknowledged that these Supreme Court decisions provided grounds for authorizing a subsequent habeas application in stating, "Accordingly, the legal basis for Applicant's claim was unavailable on the date he filed the previous application, and he meets the requirements of Article 11.071, § 5(a)(1)."

4. In Tennard and Smith, the Court indicated that mitigating evidence includes potential organic learning disabilities, speech handicaps, low I.Q. (but not within the range of mental retardation), special education training in school, difficult childhood circumstances, impaired intellectual functioning and mental and emotional development that lagged several years behind chronological age, having mitigating value.

[34] The habeas judge's seventh conclusion of law reads,

The two special issues given the jury in this case do not provide an avenue for the jury to give full consideration of the mitigating evidence adduced at trial.... Thus, under the evidence in this case, to be constitutional, there should have been a special issue submitted to the jury that allowed the jury to give full consideration and full effect to the mitigating evidence. That special issue must allow them to answer the questions directly as the current[ ] law provides.

[35] TEX.CODE CRIM. PROC. art. 11.071, § 5(a)(1).

[36] Ex parte Hood, 211 S.W.3d 767, 770 (Tex. Crim.App.2007).

[37] Id. at 777-78.

[38] This date was a little more than three months before the Supreme Court issued its opinions in Abdul-Kabir and Smith II, the cases that clarified the interplay between mitigating evidence and the instructions required for the jury to fully consider that evidence under the Texas sentencing scheme.

[39] Ex parte Hood, 211 S.W.3d at 780.

[40] Applicant cited Ex parte Moreno, 245 S.W.3d 419, 429-31 (Tex.Crim.App.2008) (reconsidering applicant's previously dismissed Penry claim, concluding that Abdul-Kabir, Brewer, Smith II, and Tennard constituted a new legal basis under 11.071, § 5, and holding that those cases held that a defendant's mitigating evidence of "a troubled childhood" required special instructions so that the jury could fully consider its mitigating value outside the statutory special issues; relief granted); Ex parte Martinez, 233 S.W.3d 319, 323 (Tex.Crim.App.2007) (relief granted on subsequent habeas corpus application on Penry claims based on Smith I, Tennard, Abdul-Kabir, Brewer, and Smith II; "We further believe that the recent United States Supreme Court precedent ... compels a decision that applicant presented ``constitutionally relevant mitigating evidence' at his 1989 trial and that the jury did not have a vehicle to give this evidence ``meaningful consideration'") (quoting Abdul-Kabir); Ex parte Kim Ly Lim, No. WR-56,297-01, 2008 WL 2391119 (Tex.Crim. App. June 4, 2008) (per curiam) (not designated for publication) (remanding subsequent writ containing Penry claim to habeas court; "Upon reviewing the subsequent application, and in light of intervening United States Supreme Court decisions, this Court has determined that Applicant's third claim concerning the nullification instruction given at the punishment stage of his trial should not have been dismissed as an abuse of the writ but remanded to the trial court for its consideration."); Ex parte Hathorn, No. AP-75917, 2008 WL 2058677 (Tex.Crim.App. May 14, 2008) (per curiam) (not designated for publication) (reconsidering applicant's previously dismissed Penry claim). Hathorn received relief and was granted a new trial on punishment in Ex parte Hathorn, 296 S.W.3d 570 (Tex.Crim.App.2009) (relying on Brewer and Abdul-Kabir and holding that applicant was not required to object at trial or raise Penry issue on appeal to obtain relief under most recent Supreme Court cases; "Because the mitigating evidence presented at Applicant's trial is the type of evidence for which he was entitled to a separate vehicle for consideration, we remand the case to the trial court for [a] new punishment hearing.").

[41] See, e.g., Ex parte Davis, No. AP-76,263, 2009 WL 3839065 (Tex.Crim.App. Nov. 18, 2009) (per curiam) (not designated for publication) (reconsidering and granting relief on applicant's second subsequent habeas corpus application, by relying on Texas's post-Abdul-Kabir, and Tennard cases, even though applicant had failed to object at trial to the sentencing scheme and special issues; concluding that "[b]ecause the mitigating evidence presented at applicant's trial is the type of evidence for which he was entitled to a separate and sufficient vehicle, we remand the case to the trial court for a new punishment hearing."); Ex parte Buntion, No. AP-76236, 2009 WL 3154909 (Tex.Crim.App. Sept. 30, 2009) (per curiam) (not designated for publication) (granting relief on subsequent writ application alleging Penry error and relying on other post-Abdul-Kabir and Tennard Texas cases; remanding for new punishment hearing); Ex parte Rachal, No. WR-60394-02, 2009 WL 3042631 (Tex.Crim.App. Sept. 23, 2009) (per curiam) (not designated for publication) (remanding subsequent writ application for determination of the merits of Penry claim because requirements of art. 11.071, § 5 were met); Ex parte Jones, No. AP-75896, 2009 WL 1636511 (Tex.Crim.App. June 10, 2009) (not designated for publication) (relying on Abdul-Kabir, Brewer, and post-Abdul-Kabir Texas cases to address the merits of a subsequent habeas application claiming Penry error, but denying relief because applicant's mitigating evidence could be fully addressed under the scope of the former special issues); Ex parte Robertson, No. AP-74720, 2008 WL 748373 (Tex.Crim.App. March 12, 2008) (per curiam) (not designated for publication) (finding that applicant met the requirements for consideration of his subsequent claim under art. 11.071, § 5, based on Smith I, and granting relief because "applicant presented mitigating evidence, for which under Penry I there had to be an adequate means for the jury to consider beyond the limits of he special issues").

[42] TEX.CODE CRIM. PROC. art. 11.071, § 5.

[43] 28 U.S.C. § 2254(d)(1). Under the Antiterrorism and Effective Death Penalty Act (AEDPA), "a federal court may not grant a writ of habeas corpus ``with respect to any claim that was adjudicated on the merits in State court proceedings' unless the petitioner shows that the state court's adjudication ``resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,' or that the state court's adjudication of a claim ``resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'" Nelson v. Quarterman, 472 F.3d 287, 292 (5th Cir.2006); see Brown v. Payton, 544 U.S. 133, 141-43, 125 S. Ct. 1432, 161 L. Ed. 2d 334 (2005) (concluding that 9th Circuit erred in granting relief; holding that, under AEDPA, "[e]ven on the assumption that [the California Supreme Court's] conclusion was incorrect, it was not unreasonable, and is therefore just the type of decision that AEDPA shields on habeas review"); Williams v. Taylor, 529 U.S. 362, 406, 409, 412, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000) ("Stated simply, a federal habeas court making the ``unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable"; holding that "clearly established Federal law" means "the holdings, as opposed to the dicta, of this Court's decisions as of the time of the relevant state-court decision," and explaining that a state-court decision is contrary to the Supreme Court's "clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent").

[44] See, e.g., Nelson, 472 F.3d at 303 (concluding that Tennard and Smith merely reaffirmed clearly established law that existed in 1994 when Nelson's conviction became final).

[45] Abdul-Kabir, 550 U.S. at 246, 127 S. Ct. 1654.

[46] See id., at 246-65, 127 S. Ct. 1654 (concluding that "[o]ur cases following Lockett have made clear that when the jury is not permitted to give meaningful effect or a ``reasoned moral response' to a defendant's mitigating evidence—because it is forbidden from doing so by statute or a judicial interpretation of a statute—the sentencing process is fatally flawed.").

[47] See id. at 246, 127 S. Ct. 1654 (quoting 28 U.S.C. § 2254(d)(1)).

[48] See Abdul-Kabir, 550 U.S. at 268-78, 127 S. Ct. 1654 (Roberts, C.J., dissenting).

[49] Id. at 268, 127 S. Ct. 1654.

[50] Id. at 275, 127 S. Ct. 1654.

[51] Ex parte Hood, 211 S.W.3d 767, 780 (Tex. Crim.App.2007). The majority concluded,

Applicant was excused from presenting a Penry-type claim in his first application because we held on his direct appeal that the nullification instruction was adequate. That holding was sufficient to defeat a claim for relief, and binding precedent suggesting the incorrectness of that holding (i.e. Penry II) did not yet exist. But applicant was not excused from presenting this claim in his second application because it was filed after Penry II, which afforded a new basis to challenge our previous holding. Smith II did not supply a previously unavailable legal basis for challenging our original nullification holding because that basis had already been supplied by Penry II, and, even though applicant had the opportunity to litigate Penry II in his second application, he did not do so and thus received no adverse ruling from this Court holding Penry II inapplicable.

Id. One might forgive applicant for not recognizing that he had a valid Penry I and Penry II claim in May of 2004, because we had not yet recognized that fact ourselves. Just one month earlier, in April of 2004, we delivered our opinion in Ex parte Smith, 132 S.W.3d 407 (Tex.Crim.App.2004), in which we held that (1) the defendant's troubled childhood and somewhat limited ability did not qualify as constitutionally significant Penry evidence such that it required any special instruction as a vehicle for the jury to give it mitigating effect; and (2) the nullification instruction was a sufficient vehicle to accord full weight to his mitigating evidence. In other words, we would have treated applicant's 2004 Penry claims (had he raised them) just as we had treated Smith's. The Supreme Court reversed our decision as incorrect on both counts. Smith v. Texas (Smith I), 543 U.S. 37, 125 S. Ct. 400, 160 L. Ed. 2d 303 (2004); Smith v. Texas (Smith II), 550 U.S. 297, 127 S. Ct. 1686, 167 L. Ed. 2d 632 (2007). If we did not recognize the validity of a Penry claim in April of 2004, we can hardly expect a death-row inmate, filing his pro se application one month later, to be more prescient than ourselves.

[52] Abdul-Kabir, 550 U.S. at 248 n. 10, 127 S. Ct. 1654 (noting that the rule sought by applicant in Penry I was not "a new rule" because it was "dictated" by earlier precedent), at 253, 127 S. Ct. 1654 (reiterating that "Penry was not asking us to make new law because he was relying on a rule that was ``dictated' by earlier cases").

[53] Hood v. State, No. 71,167 (Tex.Crim.App. Nov. 24, 1993) (not designated for publication), see e.g., Nelson v. Quarterman, 472 F.3d 287, 303 (5th Cir.2006).

[54] Ex parte Hood, 211 S.W.3d at 795 (Cochran, J., dissenting).

[55] Abdul-Kabir, 550 U.S. at 237, 127 S. Ct. 1654 (stating that we "misapplied the law as clearly established" before Abdul-Kabir's 1990 trial when we denied his habeas corpus claim that "there is a reasonable likelihood that the trial judge's instructions to the Texas jury that sentenced him to death prevented jurors from giving meaningful consideration to constitutionally relevant mitigating evidence."). If the applicable constitutional law was "clearly established" in 1990 when Abdul-Kabir was tried, it was clearly established when applicant was tried that same year.

[56] See notes 40 & 41 supra.

[57] Ex parte Davis, No. AP-76,263, 2009 WL 3839065 at *2 (Tex.Crim.App. Nov. 18, 2009) (per curiam) (not designated for publication).

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

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

[3] TEX.CODE CRIM. PROC. art. 11.071 § 5(d).

[4] Ex parte Smith, 977 S.W.2d 610, 611 (Tex. Crim.App.1998).

[5] Ex parte Hood, 211 S.W.3d 767, 770 (Tex. Crim.App.2007).

[6] Penry v. Johnson (Penry II), 532 U.S. 782, 121 S. Ct. 1910, 150 L. Ed. 2d 9 (2001).

[7] Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989); see Penry II, 532 U.S. at 798-800, 121 S. Ct. 1910.

[8] Plurality op. at 407-08 n. 51.

[9] Id.

[10] See Ex parte Hood, 211 S.W.3d at 775.

[11] 132 S.W.3d 407 (Tex.Crim.App.), rev'd, Smith v. Texas, 543 U.S. 37, 125 S. Ct. 400, 160 L. Ed. 2d 303 (2004).

[12] See Plurality op. at 407-08 n. 51; see also Smith, 132 S.W.3d at 416-17.

[13] U.S. SUPREME CT. R. 13(1) ("Unless otherwise provided by law, a petition for a writ of certiorari to review a judgment in any case, civil or criminal, entered by a state court of last resort ... is timely when it is filed with the Clerk of this Court within 90 days after entry of the judgment.").

[14] See Smith v. Texas, 543 U.S. 37, 125 S. Ct. 400, 160 L. Ed. 2d 303 (2004).

[15] Plurality op. at 406-07.

[16] Id. at 408.

[17] See TEX.CODE CRIM. PROC. art. 11.071 § 5.

[18] See 28 U.S.C. § 2254(d)(1).

[19] See Hood, 211 S.W.3d at 776-77.

[20] See Ex parte McFarland, 163 S.W.3d 743, 748 (Tex.Crim.App.2005).

[21] Ex parte McFarland, 163 S.W.3d at 748; Ex parte Drake, 883 S.W.2d 213, 215 (Tex. Crim.App.1994).

[22] 550 U.S. 233, 127 S. Ct. 1654, 167 L. Ed. 2d 585 (2007).

[23] See Plurality op. at 407-08.

[24] See Hood, 211 S.W.3d at 776.

[25] See 28 U.S.C. § 2254(d)(1).

[26] See Hood, 211 S.W.3d at 777.

[27] 233 S.W.3d 319, 322-23 (Tex.Crim.App. 2007).

[28] See Hughes v. Quarterman, 530 F.3d 336, 341-42 (5th Cir.2008), cert. denied, ___ U.S. ___, 129 S. Ct. 2378, 173 L. Ed. 2d 1299 (2009); see also Kunkle v. Texas, 543 U.S. 1039, 1039-1040, 125 S. Ct. 818, 160 L. Ed. 2d 605 (2004) (Stevens, J., concurring); Moore v. Texas, 535 U.S. 1044, 122 S. Ct. 1814, 152 L. Ed. 2d 668 (2002) (Scalia, J., dissenting).

[29] See Plurality op. at 405 n. 41, 409.

[30] See Hood, 211 S.W.3d at 780, 780 n. 56 (distinguishing Ex parte Robertson, No. AP-74, 720, 2008 WL 748373 (Tex.Crim.App. Mar. 16, 2008) (not designated for publication) and Ex parte Davis, No. WR-40,339-06, 2006 WL 829616 (Tex.Crim.App. Mar. 29, 2006) (not designated for publication)).

[31] See Ex parte Buntion, No. AP-76,236, 2009 WL 3154909 (Tex.Crim.App. Sept. 30, 2009) (not designated for publication) (prior application filed in 1996); Ex parte Rachal, No. WR-60,394-02, 2009 WL 3042631 (Tex.Crim. App. Sept. 23, 2009) (not designated for publication) (prior application filed in 1997); Ex parte Jones, No. AP-75,896, 2009 WL 1636511 (Tex.Crim.App. June 10, 2009) (not designated for publication) (while not setting forth the procedural history about prior habeas applications, internal court records show that both prior applications were filed in 1997).

[32] See Hood, 211 S.W.3d at 780 (outlining Robertson's procedural history and indicating that Robertson raised his claim on direct and appeal and his initial habeas application); Ex parte Buntion, No. WR-22,548-02 (Tex.Crim. App. Nov. 5, 2003) (not designated for publication) (internal court records indicate that Buntion raised his claim on direct appeal and in his initial habeas application); Ex parte Jones, No. 2009 WL 1636511 at *3 (summarizing State's allegations and noting that Jones did not raise his claim on direct appeal or in his initial application); Rachal v. State, 917 S.W.2d 799 (Tex.Crim.App. 1996) (claim not raised on direct appeal); Ex parte Rachal, WR-60,394-01 (Tex.Crim.App. Mar. 23, 2005) (not designated for publication) (claim not raised in initial habeas application); Ex parte Davis, No. AP-76,263, 2009 WL 3839065 at *4 n. 26 (Tex.Crim.App. Nov. 18, 2009) (Keller, P.J. dissenting) (not designated for publication) (referring to trial court's findings).