Where I messed up was that my Ground for Review Number Three began half of the way down the same page where the facts from my Ground of Review Number Two ended.
—a dismayed colleague
The Court of Criminal Appeals requires all applications for writs of habeas corpus to be filed on a prescribed form.1 The Court has a practice of dismissing these applications for any “violation” or “deviation” from the form’s designated format. Recently, a colleague filed an application for writ of habeas corpus. Unfortunately, she strayed from the form’s ordained format (as described in the quotation above), and her client’s application was dismissed.
Item 17 of the form contains the following direction:
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. If you have more than four grounds, use page 10 of the form, which you may copy as many times as needed to give you a separate page for each ground, with each ground numbered in sequence.
The foregoing charge at least implies that each ground of review should be detailed on a separate page. Consistent with this command, page six is labeled as Ground One, page seven is denominated as Ground Two, page eight is marked as Ground Three, page nine refers to Ground Four, and page ten allows for further grounds of review—one ground per page, of course. So as my colleague readily admits, when she set out two grounds of review on a single page, she “did violate an instruction.”
But the resultant dismissal of her client’s habeas application by the Court of Criminal Appeals seems out of proportion to her transgression. As my colleague lamented, “I am simply blown away that this ecologically friendly, space-saving, very de minimis problem would result in the dismissal of my client’s application.”
Beyond the issues of whether dismissing the application was befitting such a minor transgression, a question arises as to whether the Court of Criminal Appeals has the legal authority to dismiss a habeas application for such an error in the first place. For several reasons, I believe the answer is no.
The Court of Criminal Appeals Statutory Authority to Promulgate Rules
The Court of Criminal Appeals has been given limited rulemaking authority by the Legislature. The key statute is Section 22.108(a) of the Government Code, which provides:
The court of criminal appeals is granted rulemaking power to promulgate rules of post trial, appellate, and review procedure in criminal cases except that its rules may not abridge, enlarge, or modify the substantive rights of a litigant.
The statute, passed in 1987, was amended into its current form in 1989. Also significant is an act of the Legislature from 1995 that did not get codified, but is still the law. See Acts of 1995, 74th Leg., R.S., Ch. 319 §6. The enactment elaborates on the Court of Criminal Appeals’ rule-making authority in regard to writs of habeas corpus:
The rulemaking authority granted to the court of criminal appeals under Section 22.108, Government Code, is withdrawn with respect to rules of appellate procedure relating to an application for a writ of habeas corpus, but only to the extent the rules conflict with a procedure under Article 11.071, Code of Criminal Procedure, as added by this Act, or Article 11.07, Code of Criminal Procedure, as amended by this Act.
Thus, while the Court of Criminal Appeals clearly has power to establish rules relating to applications for writs of habeas corpus, the rules cannot abridge the rights of an applicant under other law.
Application of the “Rules”
Pursuant to its rulemaking authority, the Court of Criminal Appeals has promulgated the Texas Rules of Appellate Procedure (TRAP) 73.1 and 73.2. Rule 73.1 states that in a non-death-penalty case, an application for a post-conviction writ of habeas corpus must be made in the form prescribed by the Court of Criminal Appeals. Accordingly, the Court of Criminal Appeals has prescribed just such a form.
Rule 73.2 speaks to noncompliance with the requirement to use the form:
The clerk of the convicting court will not file an application that is not on the form prescribed by the Court of Criminal Appeals, and will return the application to the person who filed it, with a copy of the official form. The clerk of the Court of Criminal Appeals may, without filing an application that does not comply with this rule, return it to the clerk of the convicting court, with a note of the defect, and the clerk of the convicting court will return the application to the person who filed it, with a copy of the official form.
Significantly, noncompliance is described as “fil[ing] an application that is not on the [prescribed] form.” Noncompliance is not described as some deficiency in completing the form. The rules do not envision the Court of Criminal Appeals returning applications due to an imperfection in completing the required form. Rejecting my colleague’s application for a flaw on the form goes well beyond the rule’s charge to return applications that are not on the form at all.
In addition to the rules, the Court of Criminal Appeals has placed instructions on the form itself regarding situations in which applications will be returned to filers. The instructions say “[i]f any pages are missing from the form, or if the form has been downloaded and the questions have been renumbered or omitted, [the] entire application will be returned as non-compliant.” As an initial matter, whether the “instructions” can dictate when an application is non-compliant is questionable. It is not unreasonable to think only the rule could do that. But even if the instructions can dictate when an application is non-compliant, my colleague submitted a form with no missing pages, no re-numbered questions, and no omitted questions. Her application should not have been rejected for not complying with the form’s instructions.
More importantly, Rule 73.2 does not say a noncompliant application for writ of habeas corpus is to be “dismissed.” Rather, the rule states the application is to be “returned” with a copy of the official form.2 “Returning” a writ is far different than “dismissing” a writ. A dismissal gives rise to serious statute-of-limitations concerns for §2254 writs of habeas corpus in federal court. The dismissal of the state writ would not toll the strict one year federal statute-of-limitations and could potentially render federal habeas review unattainable.3 Rule 73.2’s directive that the application be returned to the applicant “with a copy of the official form” suggests that the application be resubmitted using the required form. Indeed, the rule seems to envision a course of action by the Court similar to that employed in regard to noncompliant petitions for discretionary review. Noncompliant petitions for discretionary review are not “dismissed” or “returned.” Rather, they are “struck” and the petitioner is invited to “redraw” the petition.4
Even if the Court of Criminal Appeals were authorized to dismiss applications under Rule 73.2, the rule abridges the substantive rights of the applicant. An applicant’s substantive rights are not to be abridged by a rule promulgated by the Court of Criminal Appeals. See Acts of 1995, 74th Leg., R.S., Ch. 319 §6., supra. Section 5 of Article 11.07 of the Code of Criminal Procedure states that “[u]pon reviewing the record, the [Court of Criminal Appeals] shall enter its judgment remanding the applicant to custody or ordering his release, as the law and facts may justify.” The Court of Criminal Appeals is statutorily foreclosed from dismissing applications for writs of habeas corpus without reviewing the law and the facts.5 No law and facts are reviewed when an application is rejected on the basis of deficient form.
The Texas Constitutional Guarantee
Even if there is some question as to whether Texas Code Crim. Proc. Art 11.07 prohibits the Court of Criminal Appeals from dismissing applications on the basis of form, such a question should be resolved in favor of a prohibition. This is because
“[e]very provision relating to the writ of habeas corpus shall be most favorably construed in order to give effect to the remedy, and protect the rights of the person seeking relief under it.” See Texas Code Crim. Proc. Art. 11.04. Moreover, dismissals of habeas applications for deficiencies in form seems to contravene the spirit of the Texas Constitution’s guarantee that “[t]he writ of habeas corpus is a writ of right, and shall never be suspended.”
The best solution would be for the Court of Criminal Appeals to reconsider its dismissal policy. A form that is deemed “noncompliant” should be returned and given 30 days to correct any errors, as petitions for discretionary review are routinely handled. A new policy would better protect the constitutional right of persons to obtain habeas review. If the Court of Criminal Appeals believes that dismissal for noncompliance is the only option, then a legislative mandate addressing that action would be appropriate.
Final Note: On October 12, 2011, the Court of Criminal Appeals granted relief for Michael Morton on an 11.07 writ based upon actual innocence. This high-profile case was based upon the wrongful conviction and incarceration of an innocent man for over 25 years. The Innocence Project prepared a brilliant application for writ of habeas corpus, and it was filed along with agreed findings that relief be granted. However, the writ form was not properly filled out. The Court of Criminal Appeals granted relief, noting,
This application for writ of habeas corpus is non-compliant with the appellate rules because it contains more than one ground per page. TEX. R. APP. P. 73.1. However, because it is apparent from the face of the record that Applicant is entitled to relief, the State has not moved to dismiss the application as non-compliant, and the State agrees with the recommendation to grant relief, this Court will exercise our inherent jurisdiction in this matter and address the application on its merits. Ex parte Golden, 991 S.W.2d 859 (Tex. Crim. App. 1999).
Ex parte Morton, AP 76,663 (Tex. Crim. App. October 12, 2011). Mr. Morton got the relief he deserved. In the case of my colleague, and several other cases I have personal knowledge of, the State never objected to the “non-compliant” form. What is apparent is that inmates who do not possess the same high profile as Mr. Morton, are not afforded the same “exercise” from the Court.
2. “Return” is not defined in Black’s law dictionary. The Merriam-Webster online dictionary defines it as “to go back or come back again.”
Black’s law dictionary defines dismiss as “to terminate (an action or claim) without further hearing, esp. before the trial of the issues involved.”
3. In federal habeas law, the statute of limitations is tolled and not counted toward any period of limitation when “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending . . . 28 U.S.C.A. §2244 (d)(2). (West). The time between the “dismissal” and any “re-filed” writ would be counted against the applicant. And that is presuming an applicant has the funds or ability to re-file the writ at all.
4. The typical Court of Criminal Appeals order on noncompliant petitions for discretionary review states:
The petition for discretionary review violates Rule of Appellate Procedure 9.3(b) and 68.4(i) because the petition is not accompanied by 11 copies and the petition does not contain a complete copy of the opinion of the court of appeals. The petition is struck. See Rule of Appellate Procedure 68.6. The petitioner may redraw the petition. The redrawn petition and copies must be filed in the Court of Criminal Appeals within thirty days after the date of this Order.
5. In Ex parte Kerr, the Court of Criminal Appeals detailed a portion of the original thinking behind the “one writ” rule:
Representative Pete Gallego, in presenting the same habeas bill to the Texas House of Representatives stated:
And we tell individuals that everything you can possibly raise the first time, we expect you to raise it initially, one bite of the apple, one shot. . . . What we’re attempting to do here is to say “raise everything at one time.” You get one bite of the apple. If you have to stick the kitchen sink in there, put it all in there, and we will go through those claims one at a time and make a decision. But none of this “every week you file a new petition” which is currently basically what happens. . . . The idea is this: you’re going to be able to fund counsel in these instances and we are going to give you one very well-represented run at a habeas corpus proceeding. And unless you meet a very fine-tuned exception, you’re not going to be able to come back time after time after time.
Ex parte Kerr, 64 S.W.3d 414, 418–19 (Tex. Crim. App. 2002)(explaining the rationale behind S.B. 440, Acts 1005, 74th Leg., codified at Tex.Code Crim. Proc. Art. 11.071 (Presentation by Representative Pete Gallego at second reading of S.B. 440 on the floor of the House of Representatives, May 18, 1995)).