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NO. 388,428-B

EX PARTE § IN THE 180TH JUDICIAL

§

§ DISTRICT COURT OF

§

KARLA FAYE TUCKER § HOUSTON, TEXAS

APPLICATION/PETITION FOR POST-CONVICTION WRIT OF HABEAS CORPUS

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW Applicant, Karla Faye Tucker, by and through her counsel, George McCall Secrest, Jr., David L. Botsford (also referred to as petitioner), and Walter Long, and pursuant to the provisions of Article 11.071, Vernon's Ann. C.C.P., presents this her Application/Petition For Post-Conviction Writ of Habeas Corpus, and as grounds therefore, would respectfully show this Honorable Court the following:

I.

ILLEGAL CONFINEMENT AND RESTRAINT

Applicant is currently being illegally confined and restrained of her liberty by the State of Texas on Death Row in the Mountain View Unit of the Texas Department of Criminal Justice, Institutional Division, in Gatesville, Texas. See Article 11.14, Vernon's Ann. C.C.P. Copies of the judgment and sentence in this case are attached as Exhibit 1.

II.

NOTICE TO DISTRICT COURT CLERK

This is Applicant's second application for habeas corpus relief. Effective September 1, 1995, any "subsequent application" for habeas corpus relief is subject to the procedures and requirements of Article 11.071, Section 5. Subsection 5(b) of the Article sets forth the procedures that the convicting court must follow in the event that a subsequent application is filed. The clerk of the court shall:

(1) attach a notation that the application is a subsequent or untimely original application;

(2) assign to the case a file number that is ancillary to that of the conviction being challenged; and

(3) immediately send to the court of criminal appeals a copy of:

(A) the application;

(B) the notation;

(C) the order scheduling the applicant's execution, if scheduled; and

(D) any order the judge of the convicting court directs to be attached to the application.

Tex. Code Crim. Proc. art. 11.071, § 5(b).

Upon receipt of the above documents from the district court clerk, the Court of Criminal Appeals shall determine whether the requirements of Art. 11.071, Sec. 5(a), have been satisfied. Tex. Code Crim. Proc. art. 11.071, Sec. 5(c). The convicting court may not take further action on the application before the court of criminal appeals issues an order finding that the requirements have been satisfied. Id.

In order to assist the Court of Criminal Appeals, twelve copies of this Application/Petition will be filed in the Court of Criminal Appeals on or about the same time that the original is filed in the District Court.

III.

NOTICE TO THE COURT OF CRIMINAL APPEALS:

STATEMENT OF IMPORTANT POLICY ISSUES

The State should not contest the fact that Applicant no longer poses a risk of future dangerousness, at least in an institutional setting. Her execution, therefore, would be against the will of the people of Texas as expressed in the current Tex. Code Crim. Proc. art. 37.071, as well as that statute's predecessor, under which Applicant was sentenced. For the reasons that Applicant is no longer death eligible under the statute, that our society would find her execution morally unacceptable, that her execution would serve none of the purposes of the death penalty, that it would be a mandatory penalty, Applicant's execution would also violate the Eighth and Fourteenth Amendments of the United States Constitution. See Evans v. Muncy, 498 U.S. 927 (1990) (Marshall, J., dissenting from denial of certiorari).

In addition to the constitutional concerns involved, the Court of Criminal Appeals should also allow merits review of Applicant's claims in order to address a number of pressing policy concerns:

1. The Court of Criminal Appeals should address the issue whether the federal and state constitutions require it to consider the merits of uncontested, post-conviction claims of lack of death-eligibility and future dangerousness, when the State does not seek commutation and commutation is de facto unavailable.

Wilbert Evans, the petitioner in Evans v. Muncy, supra, petitioned the Supreme Court on writ of certiorari to consider a claim identical to one of the ones Applicant raises below. The State did not contest the fact that Evans no longer posed any risk of dangerousness. Evans, 498 U.S. at 930 (Marshall, J., dissenting from denial of certiorari) ("[T]he State concedes that the sole basis for Evans' death sentence -- future dangerousness -- in fact does not exist."). Evans had saved the lives of several prison guards during an attempted death row escape at the Mecklenberg Correctional Facility:

According to uncontested affidavits presented by guards taken hostage during the uprising, Evans took decisive steps to calm the riot, saving the lives of several hostages, and preventing the rape of one of the nurses.

Id. at 928. Evans filed a writ of habeas corpus urging that "the jury's prediction of his future dangerousness be reexamined in light of his conduct during the Mecklenberg uprising." Id. at 929. Virginia's death penalty statute, like that of Texas, requires a finding of future dangerousness for the prisoner to be eligible for the penalty. Va. Code Ann. § 19.2-264.2 (1997). The Supreme Court refused to grant certiorari, even though Evans raised a very serious constitutional claim, probably because of the State's sole argument that, if petitioners in Evans' procedural position were allowed to raise such claims, an "endless stream of litigation" would result, undermining the State's interest in procedural finality. Id. Justice Marshall wrote in dissent:

In my view, the Court's decision to let Wilbert Evans be put to death is a compelling statement of the failure of this Court's capital jurisprudence. This Court's approach since Gregg v. Georgia has blithely assumed that strict procedures will satisfy the dictates of the Eighth Amendment's ban on cruel and unusual punishment. As Wilbert Evans' claim makes crystal clear, even the most exacting procedures are fallible. Just as the jury occasionally "gets it wrong" about whether a defendant charged with murder is innocent or guilty, so, too, can the jury "get it wrong" about whether a defendant convicted of murder is deserving of death, not withstanding the exacting procedures imposed by the Eighth Amendment.

Id. at 930. Marshall wrote that the State's interest in finality could not be an acceptable answer to this flaw in the system. If the State could not "realistically accommodate post-sentencing evidence casting doubt on a jury's finding of future dangerousness," wrote Marshall, it "hardly follow[ed]" that the petitioner should bear the burden (execution) of the procedural limitation. Id. at 930-31. Marshall concluded: "[I]f it is impossible to construct a system capable of accommodating all evidence relevant to a man's entitlement to be spared death -- no matter when that evidence is disclosed -- then it is the system, not the life of the man sentenced to death, that should be dispatched." Id. at 931.

Applicant would argue that the Supreme Court erred in denying certiorari in Evans because, under the facts of that case, the State's finality interests were met. Rare will be the case in which the prosecutor does not contest a petitioner's claim that he or she no longer poses a risk of dangerousness. Although the State has sought and obtained an execution date for Applicant, it presumably will not contest the petitioner's lack of dangerousness. The Court of Criminal Appeals should recognize the cognizability and meritoriousness of Eighth Amendment claims brought under such circumstances.

Secondly, unlike Evans' case, some of Applicant's jurors informed the trial prosecutor after sentencing that they had not wished to give Applicant the death penalty, suggesting that they may have had lingering doubts about her future dangerousness: an admission, in fact, that Applicant's sentencing jury "got it wrong." Evans, 498 U.S. at 930 (Marshall, J., dissenting).

2. The Court of Criminal Appeals should address the issue whether the federal and state constitutions require it to consider the merits of an uncontested, post-conviction claim of lack of future dangerousness because, although there is a statutory right to seek commutation, the lack of precedent and the Governor's policy demonstrate that commutation is not available as an option for relief.

As will be developed in the first Claim for Relief, infra, the de facto exercise of clemency does not exist in Texas. Although provision is made for commutation in the law, Applicant is eligible for commutation under the law, and Applicant has a compelling case for commutation, there is no Texas precedent that would indicate Applicant has a chance for commutation. In no instance has a post-Furman Governor commuted a death sentence for any legal reason based upon the Board of Pardons and Paroles and Governor's independent review. The only commutations that have occurred have been for judicial expediency: the avoidance of the expense of retrial. In addition, Governor Bush has announced his own extra-statutory policy that excludes the exercise of clemency or commutation powers for all humanitarian reasons aside from actual innocence of the offense (excluding mercy, mental health issues, equity, and rehabilitation). In practice, post-Furman Texas Governors have allowed executions in all cases raising these issues. Applicant asserts in her first Claim for Relief, infra, that she has a constitutional right to meaningful review by the Governor and Board of Pardons and Paroles of constitutional and humanitarian grounds for granting her commutation of sentence. In deciding whether to address the merits of Applicant's claims herein, the Court of Criminal Appeals should take into account that both precedent and the Governor's stated policy dictate that neither he nor the Board will consider them, nor their underlying (compelling) facts, in making their clemency, commutation, or reprieve determinations. If the Court does not allow review, more likely than not it will perpetuate a system incapable "of accommodating all evidence relevant to a man's entitlement to be spared death," a system that could only be described as "shocking to the conscience."

3. The Court of Criminal Appeals should examine the merits of Applicant's due process and equal protection claims regarding the clemency process, because of the nature of the right involved and the irretrievable loss caused by imminent deprivation of that right.

Applicant has the right under the constitutions of the United States and the State of Texas not to have her life taken without due process and equal protection of the law. The Court of Criminal Appeals must address the merits of her claims that the Texas clemency/commutation procedures are unconstitutional before the Board of Pardons and Paroles and Governor announce the outcome in her case, because clemency decisions, according to the proper policy, are not announced until immediately prior to execution. This timing of the process otherwise leaves Applicant little opportunity for meaningful court consideration of her Fourteenth Amendment claims, almost guaranteeing that the relief she seeks would be forfeited by the schedule for no fault of her own. Such a state of affairs cannot be in accord with the "need for reliability in determination that death is the appropriate punishment" in Applicant's case. Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (announcing the Supreme Court's "death is different" doctrine).

4. The Court of Criminal Appeals should examine Applicant's claims to be constitutionally ineligible for the death penalty as an opportunity, critically needed by the defense bar, to clarify the requirements to be met under the new 11.071, Section 5(a) gateway provisions for successor applications for writ of habeas corpus.

In response to Applicant's claims for relief, the Court of Criminal Appeals should meaningfully distinguish its new statutory "abuse of the writ" doctrine from the federal counterpart, which does not include a provision equivalent to subsection (3) of Section 5(a), Texas Code of Criminal Procedure Article 11.071. The disjunctive connector ("or") demonstrates legislative intent to separate subsections (2) and (3) from subsection (1), which pertains to "claims and issues that . . . could not have been presented previously in a timely initial application . . . because the factual or legal basis for the claim was unavailable." By its terms, subsection (1) would allow merits consideration of any claim of federal constitutional dimension that was previously unavailable. In contrast, the clear language of the statute requires that subsections (2) and (3) focus on claims that impact "actual innocence" of the offense and "actual innocence" of the death penalty, regardless of when the evidence in support of those claims became available.

The interpretation that subsections (2) and (3) are not time-bound not only is the only sensible textual conclusion, but also is supported by Texas' unique jurisprudence regarding a defendant's substantive due process rights, which would not limit merits consideration of actual innocence claims to only those claims for which evidence was unavailable at the time of the first writ opportunity. See Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996); Holmes v. Third Court of Appeals, 885 S.W.2d 389 (Tex. Crim. App. 1994). Under Texas law, therefore, the "exception" in subsection (1) would definitely "permit" the Court of Criminal Appeals to consider an actual innocence claim, as Presiding Judge McCormick suggested in his concurring opinion in Ex parte Davis. Ex parte Davis, 947 S.W.2d 216, 221, 231 n.14 (Tex. Crim. App. 1996) (McCormick, P.J., concurring, joined by Baird, J., and Mansfield, J.). The "exception" in subsection (2) would require consideration of an adequately-proven actual innocence claim that did not meet the time requirements of subsection (1). Such a claim could not be heard if subsection (2) were not so interpreted. Subsection (3), which is parallel to subsection (2), must therefore be found to require consideration of an adequately-proven claim of ineligibility for the death penalty, no matter when the factual basis for that claim arises.

The Court of Criminal Appeals must respond to the threat of serious constitutional violation in Applicant's case by staying her execution so as to hear argument on these important matters of statutory interpretation and to provide the guidance, so far lacking, for the defense bar to be able to distinguish the Court's application of the gateway procedures in Section 5 from the federal counterpart. Applicant's Claims for Relief Two through Six assert that her execution would violate the Cruel and Unusual Punishment Clause of the Eighth Amendment, as applied to the states through the Fourteenth Amendment, and the Cruel or Unusual Punishment Clause of the Texas Constitution. The merits of these claims should be addressed under subsection (3), because Applicant has shown, infra, by clear and convincing evidence that she is not eligible for the death penalty.

In response to all of Applicant's Claims for Relief, the Court of Criminal Appeals should address the question of how that Court's own doctrine of ripeness effects merits review under Section 5 (a) (1) of Article 11.071. Applicant claims, infra, that the "legal basis" of all these claims was not available to her at the time of her first application for writ of habeas corpus, because they were all unripe for review and the Court of Criminal Appeals would not have addressed them.

5. The Court of Criminal Appeals should examine Applicant's Second through Sixth Claims for Relief as an opportunity to clarify within its own jurisprudence whether claims pertaining to a defendant's right to avoid unconstitutional punishment may be barred in a successive state writ without unconstitutional suspension of the writ.

The Supreme Court has repeatedly noted that Eighth Amendment Claims in capital cases are only ripe in proximity to execution, because they necessarily pertain to the constitutionality of punishment. See Herrera v. Collins, 506 U.S. 390, 406 (1993). The Supreme Court has granted certiorari review in a Ninth Circuit case on the question whether a successor bar to an execution competency claim suspends the Great Writ. Martinez-Villareal v. Stewart, 118 S. Ct. 294 (October 14, 1997). Applicant's claims provide the Court of Criminal Appeals the same opportunity to consider whether Eighth Amendment claims can be barred under a restrictive interpretation of 11.071, Section 5 (a) without unconstitutional suspension of the Great Writ of this State.

6. The Court of Criminal Appeals should examine Applicant's Eighth Amendment Claims because such claims are more properly reviewed by a court than left for review in clemency proceedings, due to the almost unreviewable nature of clemency proceedings.

The Supreme Court has repeatedly noted that reliance upon the clemency/commutation practices of the states to vindicate Eighth Amendment rights to avoid disproportionate punishment would make judicial review of Eighth Amendment claims meaningless. Herrera v. Collins, 506 U.S. 390, 440 (1993) (Blackmun, J., joined by Stevens, J., and Souter, J., dissenting) (actual innocence); Ford v. Wainwright, 477 U.S. 399, 416 (1986) (execution competency); Solem v. Helm, 463 U.S. 277, 303 (1983) (proportionality of sentence). The most proper venue of Applicant's claims is in the Court of Criminal Appeals. In addition, the Eighth Amendment requires that claims involving the death penalty receive the most reliable adjudication, which only the courts can provide. Herrera, 506 U.S. at 405 (opinion of the court) (citing four additional cases).

7. The Court of Criminal Appeals should examine Applicant's Eighth Claim for Relief -- that denial of merits review of her claims would "shock the conscience" -- because Applicant has shown that the Texas death penalty system as it presently operates (not as it is constituted) will not prevent the unconscionable and unconstitutional denial of her right to life.

In response to Applicant's Claim for Relief Number Nine, the Court of Criminal Appeals should address the question of how denial of merits review to Applicant would not be fundamentally unfair, given the de facto, rather than de jure, unavailability of clemency as a bulwark against unconstitutional deprivation of life. In Justice Marshall's words, the Court of Criminal Appeals must not "endorse[] the State's conclusion that it is entitled to look the other way when late-arriving evidence upsets its determination that a particular defendant can lawfully be executed." Evans, 498 U.S. at 930.

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