Medina, Hector Rolando

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

---

NO. WR-75,835-01

---

EX PARTE HECTOR ROLANDO MEDINA, Applicant

---

ON APPLICATION FOR A WRIT OF HABEAS CORPUS IN CAUSE NO. W07-32923-S(A) IN THE 282ND JUDICIAL DISTRICT COURT DALLAS COUNTY

---

Per Curiam. Price, J., filed a concurring opinion in which Johnson and Cochran, JJ., joined. Keller, P.J., filed a dissenting opinion in which Hervey, J., joined. Keasler, J., filed a dissenting opinion in which Hervey, J., joined. Meyers, J., dissented.

ORDER

We have received a document entitled "Application for Writ of Habeas Corpus" in this death-penalty case. We conclude that this document is not, in fact, an "application for writ of habeas corpus" under Article 11.071 of the Texas Code of Criminal Procedure. We therefore appoint new counsel, and set a new filing date pursuant to Article 11.071, § 4A(b)(3). ⁽¹⁾

I.

In October 2008, a jury convicted applicant of the offense of capital murder. The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure Article 37.071, and the trial court, accordingly, set punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal. Medina v. State, No. AP-76,036, 2011 WL 378785 (Tex. Crim. App. Jan. 12, 2011) (not designated for publication). On direct appeal, he claimed, inter alia, that he received ineffective assistance of counsel during the punishment phase of trial. Id. at 26-31. We rejected that claim because it was not factually developed in the record. Id. at 31 ("By not specifying what evidence his counsel should have presented, the appellant has failed to present a basis to conclude that defense counsel's decision not to present evidence was unreasonable, or that there is a reasonable probability that the result would have been different.").

The trial judge timely appointed present habeas counsel, Mr. Robin Norris, who filed the document that is pending before us. That document asserts that "Applicant's restraint is illegal" for ten listed reasons. Each of these listed reasons allege ineffective assistance of either trial or appellate counsel. The entire "application" is only four pages long and merely states factual and legal conclusions. ⁽²⁾ That conclusory list does not satisfy our state pleading requirements, ⁽³⁾ and counsel knew it. Mr. Norris apparently intended to force this Court to readdress the pleading requirements, as he filed a thorough brief on that very issue in opposition to the State's motion to dismiss the "application." ⁽⁴⁾

In this case, both the State and the judge of the convicting court recognized that the document that habeas counsel filed was not a proper writ application as it did not set out specific facts or contain any exhibits, affidavits, or a memorandum of law that alleged any specific facts. The State even offered "to forfeit to applicant a portion of the time statutorily allotted to the State for preparing its response" ⁽⁵⁾ to ensure that applicant could have his claims addressed on the merits. According to the State, habeas counsel "informed the State and the [convicting] Court that he will not allege his claims with any greater specificity and will only provide 'boilerplate' caselaw if ordered to replead." ⁽⁶⁾

Because counsel waited until the last possible day to file this document, a dismissal, even though not on the merits, would foreclose the opportunity to file a new pleading, bringing those same claims. Similarly, a denial on the merits of the conclusory allegations would foreclose any opportunity to raise those same claims again. By all appearances, counsel has thrown his client under the bus. Therefore, we issued an order to counsel to appear before the Court on Wednesday, June 15, 2011, to explain his conduct.

II.

Mr. Norris duly appeared and began his explanation: "Since I did file a pleading designated as a writ of habeas corpus on time-I think perhaps that the Court regarded it as not being a writ of habeas corpus." Indeed, that is so. However, Mr. Norris maintained that he had a "good faith" belief that his document "sufficiently pleads cognizable grounds for habeas corpus relief" even though he did not set out specific facts to support his legal allegations. He agreed that "[t]he suggestion that I want to change the law is close to being right, at least in my view. But not exactly right. I'm not trying to change the law. I'm trying to get some law." He admitted that he had "frequently" discussed the situation with his client "[a]nd he's not happy about it. But he's a lay person." Mr. Norris maintained that it is "in the best interests of [his] client, Mr. Medina, and similarly situated death-row inmates not to plead evidence in briefing in the initial application because it promotes disposition without evidentiary hearings." He largely agreed that he did not want to plead facts that might support his allegations because he did not want the State to know what his evidence was.

Mr. Norris stated that he had been a practicing lawyer in Texas for some thirty-five years, had worked for a number of years at this Court, and had represented somewhere between ten and twenty death-row inmates on their post-conviction habeas-corpus applications. He admitted that, prior to this case, he had always included exhibits and stated facts that would support his legal contentions, but he did not do so in this case because he did not think the law was settled that a habeas application must contain facts. He stated that he had thoroughly investigated the facts underlying his claims, but that he intentionally did not include them in his client's pleading, and that he intentionally filed his pleading on the last possible day and refused the State's offer to give him more time to replead and add those crucial facts. It is abundantly clear that counsel's actions were not the result of mistake, inadvertence, negligence, or a lack of legal expertise. It is also abundantly clear that counsel is intentionally jeopardizing applicant's "one very well represented run at a habeas corpus proceeding." ⁽⁷⁾

On July 1, 2011, this Court issued an order inviting the trial judge, the State, and Mr. Norris to brief five issues concerning this matter. ⁽⁸⁾ In early August, applicant's pro bono counsel for purposes of filing a petition for certiorari in the United States Supreme Court ⁽⁹⁾ filed a "Motion for Appointment of Conflict-Free Counsel" to respond on applicant's behalf to the Court's questions. We appointed the Office of Capital Writs to represent applicant for that limited purpose on August 8, 2011. We have now received replies from the State, the Office of Capital Writs, and Mr. Norris. We have also received two pro se documents submitted to the trial court by applicant which purport to be motions to amend the original petition for habeas corpus. We dismiss these pro se filings because applicant is not entitled to hybrid representation under Article 11.071 and because his filing is a motion to amend the original "application," but an untimely amendment adding new claims is not allowed under Article 11.071.

The State and the Office of Capital Writs both agree that the document filed by Mr. Norris was not a proper writ application under Article 11.071 because it does not allege specific facts, which, if proven true, would entitle applicant to relief. Both agree that this Court should put aside that document, proceed under Section 4A of Article 11.071, and appoint new counsel to ensure that any claims that applicant may have are fully and fairly litigated in state court. Mr. Norris continues to assert that Texas law does not require him to plead specific factual allegations. He adds that if this Court decides otherwise, he should be given an opportunity to amend the pleadings, even though he previously rejected that opportunity when it was offered by the State.

We agree with the State and the Office of Capital Writs in their analysis of the law applicable to this particular case.

III.

Texas law has long required all post-conviction applicants for writs of habeas corpus to plead specific facts which, if proven to be true, might call for relief. ⁽¹⁰⁾ Counsel has not cited a single case in which this Court has granted a writ application that contained only conclusory allegations or even remanded such an application for further consideration by the convicting court. A Texas writ application must be complete on its face. It must allege specific facts so that anyone reading the writ application would understand precisely the factual basis for the legal claim. ⁽¹¹⁾ Our official form, required to be used in all non-death-penalty applications for a writ of habeas corpus, explicitly states that an applicant must "briefly summarize the facts supporting each ground" for habeas relief. ⁽¹²⁾ The application may, and frequently does, also contain affidavits, associated exhibits, and a memorandum of law to establish specific facts that might entitle the applicant to relief. ⁽¹³⁾

Furthermore, Article 11.071 of the Code of Criminal Procedure requires that, after the applicant files the application and the State files an answer, the convicting court (within 20 days) "shall determine whether controverted, previously unresolved factual issues material to the legality of the applicant's confinement exist and shall issue a written order of the determination." ⁽¹⁴⁾

If the applicant has not alleged facts, this determination could not be made. And the parties and the court would be unable to prepare for the hearing that is required when there are "controverted, previously unresolved factual issues material to the legality of the applicant's confinement." ⁽¹⁵⁾

Applicant's counsel told us that applicants should not be required to plead "evidence." We agree. There is no requirement in the statute that they do so, just as there is no requirement that the State allege evidence in an indictment. But there are clear statutory requirements for indictments and for these habeas-corpus applications to allege the facts which must be proved by evidence.

The predecessor statute to Article 11.07-a statue that governed both capital and non-capital habeas proceedings-explicitly required specific factual pleadings: "When a petition for writ of habeas corpus contains sworn allegations of fact, which, if true, would render petitioner's confinement under the felony conviction illegal. . . ." ⁽¹⁶⁾

This pleading requirement is similar to that set out for the use of federal courts considering applications for post-conviction writs of habeas corpus. ⁽¹⁷⁾ Under Rule 2 of the Rules Governing § 2254 Cases in the United States District Courts, a petitioner in federal court must both "specify all the grounds for relief available to the petitioner" and "state the facts supporting each ground." ⁽¹⁸⁾ The Advisory Committee's Notes to Rule 2 state that the petition generally must be on the designated form because "[i]n the past, petitions have frequently contained mere conclusions of law, unsupported by any facts. Since it is the relationship of the facts to the claim asserted that is important, these petitions were obviously deficient." ⁽¹⁹⁾

Indeed, the United States Supreme Court has recognized the importance of pleading specific facts in federal habeas applications because that requirement helps to sort out the obviously unmeritorious claims from those that deserve more attention. ⁽²⁰⁾ Under the federal rules, a petition that does not plead sufficient "particularity" of facts may be dismissed by the district court without even ordering a responsive pleading. ⁽²¹⁾ In federal courts, the standard to determine whether a hearing and findings of fact and conclusions of law are required, is whether the petitioner "has made specific factual allegations that, if true, state a claim on which relief can be granted." ⁽²²⁾

As was stated by the Seventh Circuit, a claim of ineffective assistance of counsel is one in which specific factual allegations and a sworn verification of those specific facts is particularly important:

If the allegation is proven, [the petitioner] has been deprived of an essential constitutional guarantee. If the allegation is false, it could damage seriously the professional reputation of counsel and disrupt the finality of a most serious undertaking: vindication of the public justice through a criminal conviction. Given the very important concerns at stake, the rules sensibly require some threshold showing, however minimal, of an evidentiary basis before requiring a district court to undertake the task of evaluating the allegations and determining whether relief is warranted. ⁽²³⁾  

In sum, we reiterate today what we have long held: an application for a writ of habeas corpus, whether filed under Article 11.07 or 11.071, must contain sufficient specific facts that, if proven to be true, might entitle the applicant to relief.

IV.

The document filed in this case does not contain such specific facts and is not a proper "application" for a writ of habeas corpus. For example, in his second claim, habeas counsel states,

Applicant's death sentence violates the Sixth Amendment to the United States Constitution because Applicant was deprived of the effective assistance of counsel at the punishment phase of his trial in that his defense attorney failed to exhaust all available avenues to procure the attendance of necessary witnesses for the defense in time to meet reasonable trial settings of the court. ⁽²⁴⁾

That is a perfectly appropriate legal claim, but habeas counsel fails to provide any facts that would support that claim: ⁽²⁵⁾ What necessary witnesses? What would they have testified to? What means did trial counsel use to procure their attendance? Why were these means constitutionally insufficient? What other means were available? Why were those means constitutionally necessary under the circumstances? How, if at all, was applicant harmed? A writ application must be complete on its face. It must allege specific facts so that anyone reading the writ application would understand precisely the factual basis for the legal claim. ⁽²⁶⁾ And, indeed, habeas counsel was fully aware of this rule as he expounded upon it in his legal brief in opposition to the State's motion to dismiss.

Under Article 11.07-the statute for non-capital writ applications-a document that does not contain specific factual contentions is not a true writ application and is dismissed without prejudice to refile. Dismissal is appropriate because such an inmate has no time limits within which to file an application. If he fails to comply with the pleading requirements under Article 11.07, his first "non-application" is dismissed and he may, at his leisure, file another. ⁽²⁷⁾ That is not always possible under Article 11.071, which contains strict time limits for filing a writ application. ⁽²⁸⁾ Habeas counsel in this case, acting with intentional design, ensured that he could not be required to replead because he filed the "non-application" on the last possible day. He intentionally filed an improper application despite his client's objections.

In Ex parte Kerr, ⁽²⁹⁾ we held that a death-penalty "writ application" that did not "challenge the validity of the underlying judgment" was no writ application at all. ⁽³⁰⁾ The rule in Kerr is as follows: "To constitute a document worthy of the title 'writ application' filed pursuant to article 11.071, the writ must seek 'relief from a judgment imposing a penalty of death.' A death penalty 'writ' that does not challenge the validity of the underlying judgment and which, even if meritorious, would not result in immediate relief from his capital-murder conviction or death sentence, is not an 'initial application' for purposes of art. 11.071, § 5 . . . ." ⁽³¹⁾ As Judge Overstreet stated in his dissent to the dismissal of a stay of execution for Ricky Kerr, such a "non-application" is

a farce and travesty of applicant's legal right to apply for habeas relief. It appears that this Court, in approving such a charade, is punishing applicant, rewarding the State, and perhaps even encouraging other attorneys to file perfunctory "non-applications." Such a "non-application" certainly makes it easier on everyone--no need for the attorney, the State, or this Court to consider any potential challenges to anything that happened at trial. Nevertheless, the Legislature has provided convicted capital defendants with the right to make such challenges by habeas corpus application. ⁽³²⁾

Indeed, that is precisely why this Court held, in its later decision involving Ricky Kerr, that the initial "non-application" filed by his habeas counsel did not qualify as a writ application for purposes of Article 11.071. Therefore, Kerr was entitled to have a true writ application, filed after the denial of the "non-application," considered on its merits. ⁽³³⁾ What Kerr called a "subsequent application" was actually his initial application because it was "the first document in which applicant's claims and contentions, if true, might merit 'relief from a judgment imposing a penalty of death.'" ⁽³⁴⁾ That is, the application must contain both legal claims and factual contentions.

The Great Writ protects a "proper respect for the concept of justice" and therefore courts require "that petitions be filed in earnest and that all contentions of merit be presented and ruled upon as expeditiously as possible." ⁽³⁵⁾ The process for deciding those factual contentions is found in Article 11.071, § 9, which states, "If the convicting court determines that controverted, previously unresolved factual issues material to the legality of the applicant's confinement exist, the court shall enter an order . . . designating the issues of fact to be resolved[.]" ⁽³⁶⁾ But the fact issues that must be resolved are those contained within the writ application and the State's controverting answer. Without specific facts, factual contentions, and factual issues set out in the application, the convicting court has nothing to resolve.

Applicant, because of his counsel's intentional refusal to plead specific facts that might support habeas-corpus relief, has not had his "one full and fair opportunity to present his constitutional or jurisdictional claims in accordance with the procedures of [Article 11.071]." ⁽³⁷⁾ Not full because he is entitled to one bite at the apple, i.e., one application, and the document filed was not a proper writ application. Not fair because applicant's opportunity, through no fault of his own, was intentionally subverted by his habeas counsel.

It has been suggested that the reasoning and result in this case could open the proverbial floodgates to protracted and repetitious litigation by those who have filed (or might in the future file) defective pleadings. But as the State appropriately notes, this is one of those extremely rare situations envisioned in Kerr, in which habeas counsel has employed a "'Machiavellian strategy designed to thwart the proper statutory procedure for filing a death penalty writ.'" ⁽³⁸⁾ We do not foresee that other counsel will emulate such conduct. ⁽³⁹⁾ As the State notes, "[t]here should be no landslide of similarly deficient applications. If the court explicates the pleading requirements in death-penalty writ applications, the outcome in this case could prevent other habeas counsel from using any ambiguity in the law as an excuse to file a similarly deficient application." ⁽⁴⁰⁾ Furthermore, this case is doubly sui generis because the State agrees that counsel's filing was not a proper habeas-corpus application, and it recommends that this Court proceed under Article 11.071, § 4A. We commend the State for its position and note its statement that "[t]his is an unusual posture for the State to take and one that it will not likely assume with regularity in the future."

Under these unique and extraordinary circumstances, involving not habeas counsel's lack of competence but his misplaced desire to challenge the established law at the peril of his client, we conclude that under Article 11.071, § 4A(a), counsel failed to file a cognizable writ application. Thus, we shall proceed pursuant to Section 4A(b)(3). Under that section we shall appoint new counsel, specifically the Office of Capital Writs, to represent applicant. ⁽⁴¹⁾ We establish a new filing date for the application to be filed in the convicting court as being 180 days from the date of this order. ⁽⁴²⁾ We dismiss applicant's pro se Motion to Amend the Petition for State Habeas Corpus. We hold original habeas counsel, Mr. Robin Norris, in contempt of court and enter an order denying him compensation under Section 2A of Article 11.071. ⁽⁴³⁾

Copies of this Order shall be sent to applicant, counsel, the convicting court, and the Office of Capital Writs.

It is so ordered this the 12th day of October, 2011.

Publish

1. Tex. Code Crim. Proc. art. 11.071, § 4A(b)(3) (if counsel does not file a timely writ application, "the court may . . . appoint new counsel to represent the applicant and establish a new filing date for the application").

2. Counsel's tenth claim, for example, asserts simply that "Applicant was deprived of the effective assistance of counsel at the guilt stage of trial in that his defense attorney failed to raise the defensive issue of insanity." Is every trial counsel who does not raise the issue of insanity in every trial purportedly constitutionally ineffective? Or are there some specific facts and reasons why trial counsel in this particular case should have raised the issue of insanity? Who knows?

3. Ex parte Maldonado, 688 S.W.2d 114, 116 (Tex. Crim. App. 1985) (holding that "it is not sufficient that the [application for a writ of habeas corpus] allege . . . mere conclusions of law").

4. The trial judge found that some of applicant's claims sufficiently "state grounds upon which, if proven to be true, relief could be granted." However, the application also contained "assertions that do not sufficiently state specific, particularized facts on the face of the application that enable the court to determine whether the application merits further inquiry." Rather than address the few discernible claims that the document contained, the trial judge recommended that "the more prudent action" was to grant the State's motion and let this Court resolve the problem.

5. State's Motion to Dismiss at 5.

6. Id.

7. See Ex parte Kerr, 64 S.W.3d 414, 418-19 (Tex. Crim. App. 2002) (quoting Representative Pete Gallego).

8. Those issues were:

1. Do any of applicant's allegations sufficiently allege specific facts, which if proven true, would entitle him to habeas relief, thus requiring further proceeding in the trial court?

2. What statute or other legal authority supports the State's motion to dismiss and the trial court's recommendation to dismiss the writ application?

3. Is a dismissal consistent with current caselaw in this type of situation?

4. What are the consequences to the defendant and to past, present, and future 11.071 writ applications and Article 11.07 writ applications if this Court: (1) appoints new counsel under Article 11.071, §4A, and allows applicant to file a new application; (2) dismisses the application in accord with the State's motion; or (3) denies relief on the application?

5. Under the circumstances of this case, what other alternative are available under Article 11.071 to ensure that an application obtains a "full and fair opportunity" to have his legal claims reviewed by this Court?

9. That petition was filed in the Supreme Court on May 27, 2011, and is still pending.

10. The cases are legion in which we remand habeas-corpus applications to the convicting court for further development when the applicant "has alleged facts that, if true, might entitle him to relief." Some remand cases from a single week include, Ex parte Lahood, No. WR-72,580-01, 2011 WL 2369392 (Tex. Crim. App. June 8, 2011); Ex parte Edwards, No. WR-75,213-01, 2011 WL 2378180 (Tex. Crim. App. June 8, 2011); Ex parte Griffin, No. WR-75,528, 2011 WL 2382917 (Tex. Crim. App. June 8, 2011); Ex parte Haas, No. WR-75,757, 2011 WL 2383225 (Tex. Crim. App. June 8, 2011); Ex parte Foster, No. WR-75,856-01, 2011 WL 2383996 (Tex. Crim. App. June 8, 2011). All of these remand orders state that the applicant had "alleged facts that, if true, might entitle him to relief."

11. See Ex parte Maldonado, 688 S.W.2d 114, 116 (Tex. Crim. App. 1985) ("In a postconviction collateral attack, the burden is on the applicant to allege and prove facts which, if true, entitle him to relief."); see also Ex parte Tovar, 901 S.W.2d 484, 485-86 (Tex. Crim. App. 1995) ("In order to be entitled to post conviction

collateral relief the applicant must raise a question of constitutional magnitude, allege facts establishing the constitutional violation and, if appropriate, prove that he was harmed."); Ex parte Akhtab, 901 S.W.2d 488, 490 (Tex. Crim. App. 1995) ("Because applicant does not allege or prove facts which, if true, would entitle him to relief, all requested relief is denied.").

In Ex parte Maldonado, this Court explained why it was necessary to dismiss the writ application in that case.

In the context of an allegation of an egregiously erroneous charge, one which rises to the level of having denied the applicant a fair and impartial trial, this requirement of pleading will be strictly pursued. In other words, it is not sufficient that the petition allege the denial of a fair and impartial trial or due process of law, which are mere conclusions of law; neither is it adequate to allege the bare fact that the court's charge was somehow erroneous.

Rather, the applicant must allege the reasons a given error in the charge, in light of the trial as a whole, so infected the procedure that the applicant was denied a fair and impartial trial. Once alleged, the burden on the applicant to prove such a denial is heavy and cannot be carried by merely attaching a certified copy of the court's charge to the application for writ of habeas corpus, as was done here.

688 S.W.2d at 116.

12. Application for a Writ of Habeas Corpus Seeking Relief From Final Felony Conviction Under Code of Criminal Procedure, Article 11.07 ("Beginning on page 6, state concisely every legal ground for your claim that you are being unlawfully restrained, and then briefly summarize the facts supporting each ground. You must present each ground on the form application and a brief summary of the facts. If your grounds and brief summary of the facts have not been presented on the form application, the Court will not consider your grounds."), available at http://www.cca.courts.state.tx.us/forms/AMENDED11.07%20Writ%20App%20Form.wpd.

13. See State Bar of Texas Guidelines and Standards for Texas Capital Counsel, Guideline 12.1(B)(7)(d) (Duties of Post-Trial Counsel) (2006). These guidelines recommend the following: Habeas counsel should attach all available proof to the application (affidavits, documentary evidence, etc.) even though doing so is not technically required by state law. Failing to attach proof in state court will likely waive the client's ability to present it in federal court. When proof is unavailable, habeas counsel should plead all factual allegations with the greatest possible specificity.

14. Tex. Code Crim. Proc. art. 11.071, § 8.

15. Id.

16. Tex. Code Crim. Proc. art. 11.07, § 2(b) (Act of May 1, 1967, 60^th Leg., R.S., ch. 659, § 7, 1967) (amended 1977).

17. See 19A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, Jurisdiction and Related Matters, Appendix of Forms, at 372 (Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus.) In that form, a petitioner must set out "supporting facts" for each ground asserted for relief. The instructions state, "Do not argue or cite law. Just state the specific facts that support your claim."

18. Id., Rules Governing § 2254 Cases in the United States District Courts, Rule 2 at 337-38.

19. Id., Rules Governing § 2254 Cases in the United States District Courts, Rule 2, Advisory Committee Notes to 1976 Adoption, Subdivision (c) at 339.

20. Mayle v. Felix, 545 U.S. 644, 655 (2005) (noting the heightened pleading requirements in post-conviction writs of habeas corpus and distinguishing those requirements from the "notice" pleadings applicable to "ordinary" civil lawsuits). The Court quoted the Advisory Committee's Note to Rule 4 that "'notice' pleading is not sufficient, for the petition is expected to state facts that point to a real possibility of constitutional error." See also id. at 669-70 (Souter, J., dissenting) ("the purpose of the heightened pleading standard in habeas cases is to help a district court weed out frivolous petitions before calling on the State to answer").

21. Id. at 656.

See also id. at 670 (Souter, J., dissenting), citing 1 R. Hertz & J. Liebman, Federal   Habeas Corpus Practice and Procedure § 11.6, at 573 n. 3 (4th ed.2001) ("[  F]act   pleading, like other   habeas corpus rules and practices, enables courts . . . to separate substantial petitions from insubstantial ones quickly and without need of adversary proceedings"); Note, Developments in the Law--Federal Habeas Corpus, 83 Harv. L.Rev. 1038, 1175 (1970) ("The justification for stringent pleading requirements in habeas corpus is thought to lie in the need to protect the courts from the burden of entertaining frivolous applications").

22. See, e.g., United States v. Withers, 638 F.3d 1055, 1062 (9th Cir. 2011); Koch v. Puckett,

907 F.2d 524, 530 (5th Cir. 1990) (habeas petitioner's conclusory allegations failed to establish valid ineffective-assistance-of-counsel claim, no evidentiary hearing necessary); Puglisi v. United States, 586 F.3d 209, 213 (2d Cir. 2009) (setting out requirements that would entitle a federal prisoner filing a claim under 28 U.S.C. § 2255 to an evidentiary hearing; "The procedure for determining whether a hearing is necessary is in part analogous to, but in part different from, a summary judgment proceeding. The petitioner's motion sets forth his or her legal and factual claims, accompanied by relevant exhibits: e.g., an affidavit from the petitioner or others asserting relevant facts within their personal knowledge and/or identifying other sources of relevant evidence."); Galbraith v. United States, 313 F.3d 1001, 1009 (7th Cir. 2002) ("While [the petitioner] is correct that this court requires a district court to grant an evidentiary hearing if a § 2255 petitioner 'alleges facts that, if proven would entitle him to relief,' the threshold determination that the petitioner has sufficiently alleged such facts requires the petitioner to submit a sworn affidavit showing what specific facts support the petitioner's assertions.").

23. Kafo v. United States, 467 F.3d 1063, 1069 (7th Cir. 2006).

24. Writ Application at 2.

25. Indeed, this is the very same ineffective-assistance claim that was included in applicant's direct appeal, but we rejected it because there was no factual basis in the record to support the claim. There is still no factual basis in the present document to support that claim.

26. Compare Blackledge v. Allison, 431 U.S. 63, 75-76 (1977) (habeas petitioner's claims were sufficiently supported by specific factual allegations to survive summary dismissal; petitioner "alleged as a ground for relief that his plea was induced by an unkept promise. But he did not stop there. He proceeded to elaborate upon this claim with specific factual allegations. The petition indicated exactly what the terms of the promise were; when, where, and by whom the promise had been made; and the identity of one witness to its communication.").

27. See Ex parte Blacklock, 191 S.W.3d 718, 719 (Tex. Crim. App. 2006) ("Because applicant did not complete the portions of the

application form which require a list of the claimed grounds for relief and the supporting facts, we dismiss applicant's application for writ of habeas corpus as non-compliant.").

28. Tex. Code Crim. Proc. art. 11.071, § 4(a) ("An application for a writ of habeas corpus, returnable to the court of criminal appeals, must be filed in the convicting court not later than the 180th day after the date the convicting court appoints counsel under Section 2 or not later than the 45th day after the date the state's original brief is filed on direct appeal with the court of criminal appeals, whichever date is later.").

29. 64 S.W.3d 414 (Tex. Crim. App. 2002).

30. Id. at 419.

31. Id. (emphasis in original) (quoting Tex. Code Crim. Proc. art. 11.071, § 1).

32. Ex parte Kerr, 977 S.W.2d 585, 585 (Tex. Crim. App. 1998) (Overstreet, J., dissenting).

33. Ex parte Kerr, 64 S.W.3d 414, 415 (Tex. Crim. App. 2002) ("We conclude that applicant's original filing was not an application for a writ of habeas corpus as defined under article 11.071, and therefore his application of August 6, 2000, is his initial writ. We consider it timely filed as of today's date.").

34. Id. at 419 (emphasis added) (quoting Tex. Code Crim. Proc. art. 11.071, § 1).

35. Ex parte Carr, 511 S.W.2d 523, 525 (Tex. Crim. App. 1974), quoted in Kerr, 64 S.W.3d at 418 n.11.

36. Tex. Code Crim. Proc. art. 11.071, § 9(a).

37. Kerr, 64 S.W.3d at 419.

38. State's Response at 23 (quoting Ex parte Kerr, 64 S.W.3d 414, 421 (Tex. Crim. App. 2002)).

39. While not entitled to relief on a claim of ineffective assistance of habeas counsel under Ex parte Graves, 70 S.W.3d 103 (Tex. Crim. App. 2002), and its progeny, a defendant is entitled to not have his right to habeas review deliberately sacrificed by highly competent counsel.

40. Id. at 24-25.

41. Tex. Code Crim. Proc. art. 11.071, § 4A(b)(3), (e).

42. Id. § 4A(b)(3), (d).

43. Id. § 4A(c).