IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Nos. 05-70028 and 09-70018

FELIX ROCHA, 

Petitioner – Appellant

v.

RICK THALER, Director, Texas Department of Criminal Justice,

Correctional Institutions Division, 

Respondent – Appellee

Appeals from the United States District Court

for the Southern District of Texas

ON PETITION FOR REHEARING

(Opinion September 9, 2010, 5th Cir. 2010 _______F.3d________)

Before JOLLY, HIGGINBOTHAM, and HAYNES, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

We treatPetitioner-AppellantFelix Rocha’s petition for rehearing en banc

as a petition for panel rehearing pursuant to Fifth Circuit Internal Operating

Procedures under Federal Rule of Appellate Procedure 35. We deny Rocha’s

petition for rehearing for the same reasons we held he is not entitled to have a

federal court review the merits of his federal constitutional claim for habeas

relief, reasons which this opinion clarifies and elaborates.

United States Court of Appeals

Fifth Circuit

F I L E D

November 17, 2010

Lyle W. Cayce

Clerk
1 505 U.S. 333 (1992).

2 See generally 28 U.S.C.A. § 2254 (West 2006). 

3 An actual-innocence claim is not a claim of constitutional error. It is a procedural

device that authorizes the adjudication of a federal constitutional claim that would otherwise

be procedurally defaulted. However, the federal constitutional claim of a habeas petitioner

who argues that the Constitution renders him ineligible for the death penalty is, in substance,

a claim that the petitioner is actually innocent of the death penalty. In cases presenting such

claims, the gateway issue and the underlying constitutional issue largely merge into a single

inquiry. See infra notes 46-51 and accompanying text.

2

TheTexas Court of Criminal Appeals (“the CCA”) determined that Rocha’s

state habeas application could not satisfy the requirements of Texas Code of

Criminal Procedure art. 11.071 § 5(a)(3) and dismissed it as an abuse of the writ

under art. 11.071 § 5(c). Rocha’s petition for rehearing contends that we erred

by holding that the CCA’s dismissal of his state habeas application rested on an

independent and adequate state-law ground. As we explain in Part I, Rocha’s

contention is without merit. It is true that § 5(a)(3) incorporates a federal

standard—specifically, the actual-innocence-of-the-death-penalty standard

articulated by Sawyer v. Whitley.

1 However, a claim of actual innocence of the

death penalty under Sawyer is not itself a claim for relief under the

Antiterrorism and Effective Death Penalty Act (“AEDPA”).2It is a gateway

claim that, if successful, authorizes a federal court to review the merits of a

habeas claim that would otherwise be procedurally barred. With only a few

possible exceptions,3 a gateway claim of actual innocence of the death penalty

and a federal constitutional claim for habeas relief are not equivalent. Section

5(a)(3) allows the CCA to decide the former without reaching the merits of the

latter. A determination by the CCA that a successive habeas application does

not satisfy the requirements of § 5(a)(3) does not empower us to reach the merits

of the underlying claim. All it empowers us to do is make a de novo
4 505 F.3d 349 (5th Cir. 2007), cert. denied, 129 S. Ct. 176 (2008). 

5 504 F.3d 523 (5th Cir. 2007).

6 609 F.3d 729 (5th Cir. 2010), vacated on rehearing, No. 09-70026 (5th Cir. Nov. 17,

2010).

7 530 F.3d 336 (5th Cir. 2008), cert. denied, 129 S. Ct. 2378 (2009). 

3

determination of whether the petitioner is actually innocent of the death

penalty—the same determination we make whenever we are asked to excuse a

procedural default.

Rocha contends that our decision cannot be reconciled with this Court’s

prior decisions in Rivera v. Quarterman,4 Ruiz v. Quarterman,

5 and Balentine

v. Thaler.

6 The state responds that Hughes v. Quarterman7

is evidence of the

correctness of our approach. Neither argument is fully sound. The cases the

parties rely on construe Texas Code of Criminal Procedure article 11.071

§ 5(a)(1). The CCA dismissed Rocha’s state habeas application because his

application did not satisfy § 5(a)(3). As we explain in Part II, our precedent

interpreting § 5(a)(1) does not compel us to conclude that the CCA did not

employ an independent state-law ground of decision when it determined that

Rocha could not satisfy § 5(a)(3). When the CCA determines that a successive

state habeas application does not satisfy § 5(a)(1) and dismisses it as an abuse

of the writ, it sometimes does so because it has concluded that the federal

constitutional claim on which the application seeks relief is meritless. We have

previously held that in such cases the CCA’s decision is interwoven with the

merits of the federal constitutional claim and thus does not rest on an

independent state-law ground. By contrast, when the CCA determines that a

successive state habeas application does not satisfy § 5(a)(3), it does so because

it has concluded that the habeas applicant cannot establish that he is actually
8 Again, subject to the possible exception of cases in which the applicant’s federal

constitutional claim is itself a claim that the applicant is ineligible to receive, and therefore

actually innocent of, the death penalty. See infra notes 46-51 and accompanying text.

9 See generally Wiggins v. Smith, 539 U.S. 510 (2003). 

10 Ex parte Rocha, No. WR-52,515-04, 2008 WL 5245553, at *1 (Tex. Crim. App. Dec.

17, 2008) (unpublished). 

4

innocent of the death penalty. To arrive at that conclusion, the CCA need not,

and does not, consider the merits ofthe underlying federal constitutional claim.8

I. 

A full summary of the facts is provided in our opinion; only those most

pertinent are included here. A jury convicted Rocha of capital murder, and on

the jury’s answers to the special issues the trial court sentenced him to death.

Rocha filed multiple unsuccessful habeas applications in the Texas state courts.

He then filed a federal habeas petition, which the district court denied and

dismissed. Rocha then filed a final habeas application with the CCA, the first

of his state habeas applications in which he raised for the first time the

ineffective-assistance-of-counsel-at-sentencing claim9that he presses here. The

Texas Court of Criminal Appeals found thatthe allegations of Rocha’s final state

habeas application “do not satisfy the requirements of Article 11.071, section

5(a)(3)” and therefore dismissed his application “as an abuse of the writ.”10 After

the CCA dismissed his successive application, Rocha returned to the district

court and filed a motion for relief from judgment under Rule 60(b) of the Federal

Rules of Civil Procedure. In it, he contended that the CCA’s order decided his

Wiggins claim on the merits, thereby opening it up for plenary review by a

federal court. The district court disagreed and found the claim was procedurally

defaulted. We affirmed.
11 See, e.g., Magwood v. Patterson, 130 S. Ct. 2788, 2801 (2010) (“If a petitioner does not

satisfy the procedural requirements for bringing an error to the state court's

attention—whether in trial, appellate, or habeas proceedings, as state law may

require—procedural default will bar federal review.”). This rule is subject to two exceptions,

which are discussed infra at notes 26-30 and in the accompanying text. In addition, AEDPA

allows a federal court to deny a habeas petition on its merits even if the claims it contains are

unexhausted. See 28 U.S.C. § 2254(b)(2).

12 Coleman v. Dretke, 395 F.3d 216, 220 (5th Cir. 2004), cert. denied, 546 U.S. 938

(2005). See generally O’Sullivan v. Boerckel, 526 U.S. 838, 850-56 (1999) (Stevens, J.,

dissenting) (explaining the differences between the two varieties of procedural default). 

13 See, e.g., Kittelson v. Dretke, 426 F.3d 306, 315-16 (5th Cir. 2005)

14 See, e.g., Harris v. Reed, 489 U.S. 255, 262 (1989). 

5

A.

A federal court generally cannot review the merits of a state prisoner’s

habeas petition if the claims in the petition are procedurally defaulted.11 A

habeas claim can be procedurally defaulted in either of two ways.12 First, if the

prisoner has never fairly presented that claim to the highest available state

court, the claim is unexhausted.13 The parties agree that Rocha exhausted his

Wiggins claim by presenting itto the CCA in a state habeas application. Second,

if the prisoner has presented the claim to the highest available state court but

that court has dismissed the claim on a state-law procedural ground instead of

deciding it on the merits, the claim has been decided on an independent and

adequate state-law ground.14 The parties vigorously dispute whether the CCA’s

dismissal of Rocha’s Wiggins claim as an abuse of the writ rested on an

independent and adequate state law-ground. 

“If a state court clearly and expressly bases its dismissal of a prisoner’s

claim on a state procedural rule, and that procedural rule provides an

independent and adequate ground for dismissal, the prisoner has procedurally
15 Nobles v Johnson, 127 F.3d 409, 420 (5th Cir. 1997), cert. denied, 523 U.S. 1139

(1998). 

16 Finley v. Johnson, 243 F.3d 215, 218 (5th Cir. 2001). 

17 Amos v. Scott, 61 F.3d 333, 339 (5th Cir.) (emphasis omitted), cert. denied, 516 U.S.

1005 (1995).

18 See CHARLES ALAN WRIGHT ET AL., 16B FED. PRAC. & PROC. JURIS. § 4019 (2d ed.

Westlaw current through the 2010 update) (“Review is . . . precluded if state substantive law

is sufficient to support the judgment no matter how the federal question is resolved . . . .”). For

example, the Supreme Court would lack jurisdiction to review a state-high-court decision

invalidating a state statute on both state and federal constitutional grounds. Even if the Court

reversed the federal constitutional decision, the statute would remain invalid under the state

constitution. See RICHARD H. FALLON, JR. ET AL., HART & WESCHLER’S THE FEDERAL COURTS

AND THE FEDERAL SYSTEM 463-64 (6th ed. 2009). Similarly, a federal court sitting in habeas

will decline to decide a federal constitutional claim that the state court rejected on procedural

grounds because even if the federal claim is meritorious, the federal court will decline to grant

relief on it out of deference to the state court’s procedural ruling.

6

defaulted his federal habeas claim.”15 The state procedural rule must be “both

independent of the merits of the federal claim and an adequate basis for the

court’s decision.”16 A state procedural rule is an adequate basis for the court’s

decision only if it is “strictly or regularly applied evenhandedly to the vast

majority of similar claims.”17 The parties agree that a state habeas application

that is dismissed because it does not satisfy § 5(a)(3) has been dismissed on an

adequate state-law ground. A state procedural rule operates independently of

the merits of the federal claim when a federal court could reverse the state

court’s disposition of any federal-law issues presented by the petition and,

because of the state court’s resolution of the state-law issues, the outcome of the

case would not change.18 Rocha’s petition for rehearing argues that the CCA’s

determination that Rocha’s state habeas application did not satisfy § 5(a)(3) did

not operate independently of the merits of his Wiggins claim.

Before turning to our discussion of § 5(a)(3), we pause for a precise

explanation of how Texas’s abuse-of-the-writ statute operates. Texas Code of
19 See, e.g., Murch v. Mottram, 409 U.S. 41, 45-46 (1972) (per curiam) (“In Sanders v.

United States, 373 U.S. 1, 18 (1963), this Court said, in speaking of habeas corpus for federal

prisoners: ‘Thus,for example,if a prisoner deliberately withholds one oftwo grounds for federal

collateral relief at the time of filing his first application . . . , he may be deemed to have waived

his right to a hearing on a second application presenting the withheld ground.’ . . . There can

be no doubt that States may likewise provide . . . that a prisoner seeking post-conviction relief

must assert all known constitutional claims in a single proceeding.”); see also Fearance v. Scott,

56 F.3d 633, 642 (5th Cir.) (explaining that Texas’s rule requiring a habeas applicant to

present all of his claims in his initial habeas application is state procedural requirement that

functions as an independent and adequate state-law ground), cert. denied, 515 U.S. 1153

(1995).

20 TEX. CODE CRIM. PROC. ANN. art. 11.071 § 5(a)(3) (Vernon’s 2005).

7

Criminal Procedure art. 11.071 § 5(c) requires a successive state habeas

application to be dismissed as an abuse of the writ unless it can satisfy the

requirements of one of the three subsections of art. 11.071 § 5(a). The rule

codified in §5(c)—that a Texas habeas applicant must bring all of his claims in

his first application—is grounded in state law and is procedural in nature.

Standing alone, § 5(c) inarguably would be an independent state-law ground for

decision.19 But § 5(c) does not stand alone. Its applicability is conditioned on a

finding that none of the three subsections of § 5(a) has been satisfied. Our core

inquiry thus reduces to this: Does a finding that § 5(a)(3) has not been satisfied

transform a dismissal under § 5(c) from one that rests on state law to one that

rests on federal law? 

Section 5(a)(3) provides that when a Texas prisoner files a successive

habeas application after having previously filed 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: . . . (3) by clear and convincing evidence, but for a

violation of the United States Constitution no rational juror would have

answered in the state's favor one or more of the special issues that were

submitted to the jury in the applicant's trial under Article 37.071, 37.0711,

or 37.072.20
21 See, e.g., Price v. City of San Antonio, 431 F.3d 890, 892 (5th Cir. 2005); F.D.I.C. v.

Abraham, 137 F.3d 264, 267-28 (5th Cir. 1998). “As we have stated, ‘[i]t is not our function

as a federal appellate court in a habeas proceeding to review a state’s interpretation of its own

law’, and ‘we defer to the state courts’ interpretation’ of its statute.” Arnold v. Cockrell, 306

F.3d 277, 279 (5th Cir. 2002) (quoting Weeks v. Scott, 55 F.3d 1059, 1053 (5th Cir. 1995)).

22 230 S.W.3d 151 (Tex. Crim. App. 2007) 

23 Id. at 163 (emphasis omitted). 

24 Id.

25 Id. at 160; see also id. (“Section 5(a)(3) of Article 11.071 represents the Legislature's

attempt to codify something very much like this federal doctrine of ‘actual innocence of the

death penalty’ for purposes of subsequent state writs.”). 

8

We are obliged to construe and apply § 5(a)(3) as the CCA construes and applies

it.21 Therefore we begin our analysis with a discussion of Ex parte Blue,

22 the

CCA’s seminal interpretation of the statute.

In Blue, the CCA held that § 5(a)(3) necessitates “a threshold showing of

evidence that would be at least sufficient to support an ultimate conclusion, by

clear and convincing evidence,that no rational factfinder would fail to find” that

the applicant is ineligible for the death penalty.”23 In other words, the CCA

makes a threshold determination of whether the facts and evidence contained

in the successive habeas application, if true, would make a clear and convincing

showing that the applicant is actually innocent of the death penalty.24 The CCA

concluded that performing this kind ofthreshold review was consistent with the

fact that, in enacting § 5(a)(3), the Texas “Legislature apparently intended to

codify, more or less, the doctrine found in Sawyer v. Whitley.”25

Sawyer embodies a federal standard. Under the federal common law of

procedural default,the general rule that a federal court cannot review the merits

of a state prisoner’s habeas claim ifthe claim is procedurally defaulted is subject
26 See, e.g., Dretke v. Haley, 541 U.S. 386, 388 (2004).

27 Wainwright v. Sykes, 433 U.S. 72, 87 (1977).

28 Murray v. Carrier, 477 U.S. 478, 495-96 (1986).

29 See Schlup v. Delo, 513 U.S. 298, 327 (1995) (“To establish the requisite probability,

the petitioner must show that it is more likely than not that no reasonable juror would have

convicted him in the light of the new evidence.”); In re Briscoe Enterprises, Ltd., II, 994 F.2d

1160, 1164 (5th Cir. 1993) (“‘Preponderance’ means that it is more likely than not.”).

30 505 U.S. at 350.

31 See Ex parte Blue, 230 S.W.3d at 159 (“‘The Legislature quite obviously intended

[§ 5(a)(3)], at least in some measure, to mimic the federal doctrine of ‘fundamental miscarriage

of justice.’”).

32 See TEX. CODE CRIM. PROC. art. 11.071 § 5(a)(3).

9

to two exceptions.26 First, a federal court can undertake merits review if the

prisoner can show cause for and prejudice from the procedural default.27 Rocha

does not contend that he can make a showing of cause and prejudice. Second,

a federal court can review the merits of the claim if the prisoner can show that

failure to do so would result in a fundamental miscarriage of justice.28 The

prisoner can satisfy the fundamental-miscarriage-of-justice exception in either

of two ways. First, he can show by a preponderance of the evidence that he is

actually innocent of the crime of which he has been convicted.29 Alternatively,

Sawyer allows him to show by clear and convincing evidence that he is “actually

innocent of the death penalty.”30 The Texas legislature incorporated into

§ 5(a)(3) both Sawyer’s definition of“actual innocence ofthe death penalty”31 and

Sawyer’s clear-and-convincing standard of proof for such a claim.32

The precise meaning of the phrase “actually innocent of the death

penalty,” as defined by the Supreme Court in Sawyer, is important to our

disposition of Rocha’s petition. Acknowledging that the concept of “actual

innocence ‘does not translate easily into the context of an alleged error at the
33 Sawyer, 505 U.S. at 340 (quoting Smith v. Murray, 477 U.S. 527, 537 (1986)).

34 Id. at 350. 

35 Haynes v. Quarterman, 526 F.3d 189, 197 (5th Cir. 2008) (granting a certificate of

appealability) (quoting Ex parte Blue, 230 S.W.3d at 160), habeas relief conditionally granted

by 561 F.3d 535 (5th Cir. 2009), conditional grant of habeas relief reversed sub nom. Thaler v.

Haynes, 130 S.Ct. 1171 (2010).

36 Accord Williams v. Thaler, 602 F.3d 291, 305-07 (5th Cir. 2010) (concluding that an

unexhausted successive habeas petition the merits of which the CCA would refuse to consider

on the ground that it did not satisfy the requirements of § 5(a)(3) was procedurally defaulted

10

sentencing phase of a trial on a capital offense,’”33the Supreme Court held in

Sawyer that a prisoner is actually innocent of the death penalty only if he can

“show by clear and convincing evidence that but for constitutional error at his

sentencing hearing, no reasonable juror would have found him eligible for the

death penalty under [state] law.”34 Sawyer thus “‘expressly rejected the

argument that a constitutional error that impacts only the jury’s discretion

whether to impose a death sentence upon a defendant who is unquestionably

eligible for it under state law can be considered sufficiently fundamental as to

excuse the failure to raise it timely in prior state and federal proceedings.’”35

B.

Rocha argues that when the CCA concluded that his successive state

habeas application did not satisfy the requirements of § 5(a)(3), it necessarily

also concluded that his Wiggins claim is without merit. Rocha effectively invites

us to treat an actual-innocence claim under Sawyer as synonymous with an

ineffective-assistance claim under Wiggins. Our panel opinion declined his

invitation, and we decline it again here. The CCA did not have to reach the

merits of Rocha’s Wiggins claim to conclude that he is not actually innocent of

the death penalty.36 A state court does not undermine the independent state-law
and precluded from merits review in federal court), cert. denied, __S. Ct.__, 2010 WL 2917636

(Nov. 1, 2010); Nobles, 127 F.3d at 422 (same); see also Busby v. Dretke, 359 F.3d 708, 724 (5th

Cir.) (treating a petition that could not satisfy any of the three subsections of § 5(a) as

procedurally barred), cert. denied, 541 U.S. 1087 (2004).

37 Schlup, 513 U.S. at 315 (quoting Herrera v. Collins, 506 U.S. 390, 404 (1993)).

38 See, e.g., Simpson v. Matesanz, 175 F.3d 200, 215 (1st Cir. 1999) (“Because there is

neither ‘cause’ nor ‘actual innocence,’ . . . the federal court sitting in habeas is precluded from

hearing the merits of Simpson's challenge.”), cert. denied, 528 U.S. 1082 (2000); Jones v. Keane,

329 F.3d 290, (2d Cir.) (“In the case of procedural default, we may reach the merits ofthe claim

only if the defendant can first demonstrate either cause and actual prejudice, or that he is

actually innocent. Since Jones has not attempted to meet this standard, we do not reach the

merits of his claim.” (internal citation and quotation marks omitted)), cert. denied, 540 U.S.

11

character of its procedural-default doctrine by using a federal standard to

determine whether an otherwise defaulted successive habeas application should

be permitted to bypass a procedural bar. 

A claim of actual innocence is “‘notitself a constitutional claim, butinstead

a gateway through which a habeas petitioner must pass to have his otherwise

barred constitutional claim considered on the merits.’”37 This statement is no

mere shibboleth. It teaches that consideration of a petitioner’s gateway claim

of innocence precedes consideration of his federal constitutional claim not just

temporally but analytically. Only if the petitioner can show that he is actually

innocent of the death penalty can a federal court proceed to consider the merits

of the alleged underlying constitutional violation. If a petitioner cannot

establish his actual innocence, a federal court cannot, and does not, consider the

merits of his habeas claim.

The eleven federal courts of appeals that regularly entertain habeas

petitions under 28 U.S.C. § 2254 have unanimously held that a federal court’s

determination that a petitioner cannot prove his actual innocence does not

constitute a decision on the merits of the petitioner’s constitutional claim for

habeas relief.38 Quite the contrary: such a determination precludes a federal
1046 (2003); Tice v. Wilson, 276 F. App’x 125, 126 (3d Cir.) (“[The petitioner] failed to establish

his actual innocence for purposes of the fundamental miscarriage of justice standard, and we

cannot overlook his procedural default and reach the merits of his ineffective assistance of

justice claim.”), cert. denied, 129 S. Ct. 402 (2008); Watkins v. Murray, 998 F.2d 1011, 1993 WL

243692, at *5 (4th Cir. 1993) (per curiam) (unpublished table decision) (“Because Watkins has

demonstrated neither cause and prejudice nor actual innocence, we cannot reach the merits

of his defaulted Edwards claim.”), cert. denied, 510 U.S. 1056 (1994); Montoya v. Collins, 988

F.2d 11, 13 (5th Cir.) (“Montoya . . . has not even alleged, much less demonstrated, that a

‘miscarriage of justice’ regarding actual innocence or ‘actual innocence of the death penalty’

could be established in his case. This petition . . . may not be considered on its merits.”), cert.

denied, 507 U.S. 1002 (1993); Harris v. Lindamood, 355 F. App’x 940, 943 (6th Cir. 2009)

(“Because Harris has failed to demonstrate her actual innocence for first degree felony murder,

her procedurally barred ineffective assistance of counsel claim cannot be considered on the

merits.”); Balsewicz v. Kingston, 425 F.3d 1029, 1035 (7th Cir. 2005) (“Because Balsewicz

cannot demonstrate the actual innocence necessary to pass through this “gateway,” we will not

reach the merits of his ineffective assistance of counsel claims.”), cert. denied, 546 U.S. 1144

(2006); McCoy v. Norris, 125 F.3d 1186, 1192 (8th Cir. 1997) (“McCoy cannot make his way

through the actual innocence gateway, so we will not consider his constitutional claims on the

merits.”), cert. denied, 523 U.S. 1008 (1998); Smith v. Baldwin, 510 F.3d 1127, 1139 (9th Cir.

2007) (en banc) (“Because we conclude that Smith has demonstrated neither actual innocence

nor cause and prejudice, we cannot consider the merits of Smith's procedurally defaulted

federal habeas petition.”), cert. denied sub nom. Smith v. Mills, 129 S. Ct. 37 (2008);

Richardson v. Dept. of Corrections, 198 F.3d 258, 1999 WL 820221, at *4 (10th Cir. Oct. 14,

1999) (unpublished table decision) (“Richardson does not supplement his claim with any

allegation of actual innocence. Therefore, the district court properly held that federal review

of the issues in his habeas petition was procedurally barred, and Richardson's claims cannot

be considered on the merits.”); Dowling v. Sec’y for Dept. of Corrections, 275 F App’x 846, 848

(11th Cir. 2008) (“Dowling claims that he is actually innocent of the offense with which he has

been convicted. However, Dowling offered no new evidence of actual innocence. . . . As Dowling

has not overcome the procedural default of his claim, we do not reach the merits of his claim.”).

12

courtfrom even considering the merits ofthe habeas claim. Rocha does not argue

thatthis rule is or should be different when it is a state court instead of a federal

court that determines that a habeas petitioner cannot prove his actual

innocence. Rather, he flatly asserts that a decision on actual innocence

constitutes a decision on the merits. That assertion blinks the distinction

between a innocence claim that functions as a gateway into AEDPA and a

constitutional claim that functions as a ground for habeas relief under AEDPA.
39 547 U.S. 518 (2006). 

40 Id. at 522 & 553-54. House contended that he was actually innocent of the crime for

which he had been convicted, not that he was actually innocent of the death penalty, but the

procedural steps are the same for both types of claims. 

41 Id. at 555

42 See House v. Bell, No. 3:96-cv-883, 2007 WL 4568444, at *1 (E.D. Ten. Dec. 20, 2007)

(unpublished) (conditionally granting habeas relief).

13

The Supreme Court’s decision in House v. Bell39 illustrates the lack of

overlap between a gateway claim of actual innocence and an underlying

constitutional claim for habeas relief. The Court concluded in House that the

petitioner had made a sufficient gateway showing of actual innocence to justify

having his federal habeas claim considered on the merits.40 Butthe Court did not

grant habeas relief. Instead, it remanded the petition to the district court,41

which subsequently considered the merits of House’s claim.42If Rocha were

correct that a decision on the gateway innocence claim is tantamount to a

decision on the underlying constitutional claim, there would have been no need

for the Court to remand House’s petition for further proceedings below.

The distinction between a gateway innocence claim and an underlying

constitutional claim is perhaps nowhere more clear than in the context of a

Wiggins claim of ineffective assistance of counsel at sentencing. When we

consider a properly presented Wiggins claim, we determine whether the

petitioner was prejudiced by counsel’s deficient performance by reweighing “‘the

evidence in aggravation against the totality of the available mitigating evidence’”

and asking whether the petitioner “has shown that, had counsel presented all

the available mitigating evidence, there is a reasonable probability that a juror

would have found that the mitigating evidence outweighed the aggravating
43 Gray v. Epps, 616 F.3d 436, 442 (5th Cir. 2010) (quoting Wiggins, 539 U.S. at 534).

44 Our view that the actual-innocence-of-the-death-penalty review that the CCA

conducts under § 5(a)(3) does not undermine the independent, state-law character of the

Texas’s abuse-of-the-writ statute is in accord with the views of seven of our sister circuits. See

Rocha v. Thaler, 619 F.3d 387, 403 nn.52-58 (5th Cir. 2010) (slip op. at 21 nn.52-58) (compiling

cases). Many state high courts review otherwise procedurally defaulted habeas claims for plain

error, fundamental error, a fundamental miscarriage of justice, or manifest injustice. Id.

Those standards of review are largely one and the same, and they entail a level of review that

is substantially similar to actual-innocence review. See Thirty-Ninth Annual Review of

Criminal Procedure: Appeals, 39 GEO. L.J. ANN. REV. CRIM. PROC. 856, 887 n.2630 (2010)

(collecting cases from the federal courts of appeals using the terms “plain error,” “miscarriage

of justice,” and “actually innocent” to define one another). 

This kind of review does not constitute a decision on the merits of the underlying

constitutional claim. A state high court can conclude that there was no plain error or

miscarriage of justice without concluding that the underlying claim for habeas reliefis without

merit. Such review “may require a glance at the merits,” but “it does not open up the merits

to plenary consideration by the federal court.” See Neal v. Gramley, 99 F.3d 841, 844 (7th Cir.

1996) (Posner, C.J.), cert. denied, 522 U.S. 834 (1997). Plain-error-style review allows state

high courts to avoid deciding the merits of a habeas claim by concluding that, even if

meritorious, the claim does not establish an error so fundamental that it seriously affects the

fairness andintegrity ofthe judicial proceedings in which the defendant was convicted. Actualinnocence review under § 5(a)(3) allows the CCA to do the same. 

14

evidence.”43 The contrast between that analysis and our analysis of an actualinnocence-of-the-death-penalty claim is stark. The quality of the mitigation

evidence the petitioner would have introduced at sentencing has no bearing on

his claim of actual innocence of the death penalty. Evidence that might have

persuaded the jury to decline to impose the death penalty is irrelevant under

Sawyer. The only question is whether the petitioner was eligible for the death

penalty. The distinction between these two inquiries further underscores the

basic point that the CCA did not decide the merits of Rocha’s Wiggins claim

when it concluded that Rocha is not actually innocent of the death penalty.44

There may well be some exceptions to the rule that a decision on the

gateway innocence claim does not constitute a decision on the underlying

constitutional claim. As Judge Dennis has previously recognized, an Atkins
45 See Atkins v. Virginia, 536 U.S. 304, 321 (2002) (holding that the Eighth Amendment

prohibits the execution of the mentally retarded).

46 See Moore v. Quarterman, 491 F.3d 213, 230 (5th Cir. 2007) (Dennis, J., dissenting)

(“[A] petitioner can invoke the ‘miscarriage of justice’ exception if, but for the failure to

exhaust, the petitioner would have not been eligible for the death penalty because some

constitutional or state statutory prerequisite for the imposition of a death sentence could not

have been satisfied. Moore easily satisfies this exception because . . . the district court properly

found that Moore is mentally retarded.” (internal citations and quotation marks omitted)),

rev’d en banc, 533 F.3d 338 (5th Cir. 2008). 

47 See Roper v. Simmons, 543 U.S. 551 (2005).

48 See Ford v. Wainwright, 477 U.S. 399 (1986).

49 See generally Nelson v. Quuarterman, 472 F.3d 287, 318-19 (5th Cir. 2006) (en banc)

(Dennis, J., concurring in the judgment) (cataloguing the various categorical exemptions from

death-penalty eligibility recognized by the Supreme Court), cert. denied, 551 U.S. 1141 (2007).

50 This is not to say that the two inquires become entirely identical. Compare Ex parte

Blue, 230 S.W.3d at 163 (explaining that because the standard of proof under § 5(a)(3) is

clear-and-convincing evidence, “[a] threshold showing that would allow the finder of fact to

conclude no more than that the evidence preponderates in favor of a finding of mental

retardation will obviously not suffice” on a successive application), with Ex parte Briseño, 135

S.W.3d 1, 12 (Tex. Crim. App. 2004) (adopting a preponderance-of-the-evidence standard of

proof for Atkins claims raised in an original state habeas application).

15

claim45 is a claim that the petitioner is ineligible for the death penalty.46 So too

is a claim that the petitioner was under eighteen at the time of his crime,47is

insane,48 or has some other characteristic that the Supreme Court has held

categorically justifies exemption from the death penalty.49 In such cases, the

inquiry into the gateway innocence claim will substantially overlap with the

inquiry into the merits of the underlying constitutional claim.50 Our panel

opinion’s holding does not implicate this limited class of cases, as Rocha’s

Wiggins claim is not a claim of categorical ineligibility for the death penalty. 

Finally, itfollows thatthis Court reviews de novo the CCA’s determination

that Rocha cannot establish that he is actually innocent of the death penalty.
51 See, e.g., Wilkerson v. Cain, 233 F.3d 886, 893 (5th Cir. 2000) (Garza, J., specially

concurring) (“The claim of actual innocence does not itself provide a basis for relief.”). Nothing

we say today pertains to a freestanding, Herrra-style claim of actual innocence that is not

tethered to a claim of constitutional error at trial. 

52 See, e.g., Sigala v. Quarterman, 338 F. App’x 388, 393 (5th Cir. 2009) (per curiam)

(“Because procedural default does not constitute an ‘adjudication on the merits’ for AEDPA

purposes, the state court’s finding of procedural default itself is reviewed de novo . . . .” (citing

Valdez v. Cockrell, 274 F.3d 941, 946-47 (5th Cir. 2001))), cert. denied sub nom. Sigala v.

Thaler, 130 S. Ct. 1506 (2010). 

53 See, e.g., Wright v. Quarterman, 470 F.3d 581, 586 (5th Cir. 2006), cert. denied, 551

U.S. 1134 (2007).

54 470 U.S. 68 (1985). Although the Supreme Court has declined to decide that Ake

applies in the habeas context, see Coleman, 501 U.S. at 741, we have held that it does, see

Rivera, 505 F.3d at 359. See also Stewart v. Smith, 536 U.S. 856, 860 (2002) (per curiam)

(assuming without deciding that the rule announced in Ake, a direct-review case, also applies

in habeas cases).

16

A gateway claim of actual innocence is not a basis for relief under AEDPA.51

Such a claim stands outside of AEDPA and offers to open a door into the statute

that the petitioner’s lack of diligence otherwise would have closed. Gateway

claims of innocence are part ofthe federal common law of procedural default. De

novo review is the norm in this area.52 Just as we make de novo determinations

of whether a state-law ground of decision is independent of federal law or

adequate to supportthe judgment,53 so too do we decide afresh whether a federal

habeas petitioner is actually innocent of the death penalty.

C.

Rocha raises three challenges to our conclusion that the CCA’s dismissal

of his state habeas application rested on an independent and adequate state-law

ground. First, he contends our conclusion is in conflict with the rule announced

in Ake v. Oklahoma.

54 In Ake, the defendant’s sanity was likely to be in issue at

his trial. The defendant argued that the Constitution required the state to grant
55 Ake, 470 U.S. at 74.

56 Id. at 74-75.

57 Id. at 75.

17

him access to a psychiatrist to assist him in preparing his defense. The

Oklahoma state courts held that he had waived this argument.55 However,

Oklahoma’s waiver rule did not apply to fundamental trial error, and under

Oklahoma law any violation of a federal constitutional right was fundamental

trial error.56 As a result, the Supreme Court concluded that the Oklahoma

courts’ waiver ruling was not an independent and adequate state-law ground: 

[T]he State has made application ofthe procedural bar depend on an

antecedent ruling on federal law, that is, on the determination of

whether federal constitutional error has been committed. Before

applying the waiver doctrine to a constitutional question, the state

court must rule, either explicitly or implicitly, on the merits of the

constitutional question. . . . [W]hen resolution of the state

procedural law question depends on a federal constitutional ruling,

the state-law prong of the court's holding is not independent of

federal law.57

Ake stands for the proposition that when a state court’s application of a

procedural rule rests on an antecedent decision of an issue of federal law, a

federal court can review or decide the same federal issue that the state court

decided. 

The difference between Ake and this case is that the federal-law issue the

CCA decided when it applied § 5(a)(3) is notthe same federal-law issue on which

Rocha seeks habeas relief. By applying the waiver rule to Ake, the Oklahoma

courts concluded thatthe federal constitutional claim that was the basis of Ake’s

habeas petition was meritless. By dismissing Rocha’s state habeas application

as an abuse of the writ, the CCA formed no conclusion about Rocha’s Wiggins

claim. Rather, it determined that (1) Rocha’s Wiggins claim should be dismissed
58 Cf. ROMUALDO P. ECLAVEA, ET AL., 4 AM. JUR. 2D APP. REV. § 46 (Westlaw current

through July 2010) (“An adequate state ground may preclude Supreme Court review of some

federal issues which the state court refused to reach on state procedural grounds, while not

precluding review of other federal issues which the state supreme court did decide, finding that

there was no procedural bar to deciding those issues.” (citing Cramp v. Bd. of Pub. Instruction,

368 U.S. 278 (1961))).

59 See 526 F.3d at 197 (“Haynes alleges that mitigating evidence could have influenced

the jury’s discretion but does not argue that evidence not presented due to alleged ineffective

assistance of counsel would render him ineligible for the death penalty. Therefore, he has no

meritorious argument that the Texas Court of Criminal Appeals would allow him to file a

successive application for post-conviction relief . . . .”).

60 See Rocha, 619 F.3d at 406 (slip op. at 24-26).

18

on an independent and adequate state-law ground unless Rocha could satisfy

Sawyer’s actual-innocence-of-the-death-penalty standard; and (2) Rocha could

not satisfy Sawyer. State law—specifically, § 5(c)— was the basis for the CCA’s

dismissal. Unlike the Oklahoma courts in Ake, the CCA applies §§ 5(c) & 5(a)(3)

to all successive state habeas applications that cannot demonstrate actual

innocence of the death penalty, regardless of the merits of the federal

constitutional claims contained in those applications. Nothing in Ake suggests

that a state court’s resolution of a single issue of federal law allows a federal

habeas court to decide any and all issues of federal law that the state court

might have, but did not, reach.58

Second, Rocha contends that we are wrong to conclude that § 5(a)(3) adopts

a definition of actual innocence of the death penalty that is coextensive with the

definition announced in Sawyer. We disagree for two reasons. First, in Haynes

v. Quarterman a panel of this Court held that § 5(a)(3) codifies Sawyer’s

requirementthatthe petitioner must present evidence that he is ineligible for the

death penalty.59 Haynes is a published opinion, so its holding binds us. But we

would have reached the same conclusion even if we were writing on a clean slate.

As we explained in our opinion,60 in Ex parte Blue the CCA expressly declined to
61 See Ex parte Blue, 230 S.W.3d at 160 n.42 (“[I]t is arguable that, in theory at least,

. . . [§ 5(a)(3)] would also permit a subsequent state habeas applicant to proceed under

circumstances that would not excuse a federal petitioner under Sawyer v. Whitley. We need

express no ultimate opinion on this question here.”). 

62 See, e.g., Emery v. Johnson, 139 F.3d 191, 195 (5th Cir. 1997), cert. denied, 525 U.S.

969 (1998).

63 See Ex parte Carr, 511 S.W.2d 523 (Tex. Crim. App. 1974). See generally Charles M.

Mallin, Death Penalty: Texas Law—Subsequent Writs and Abuse of the Writ Doctrine in Texas,

6 TEX.WESLEYAN L. REV. 151, 163-67 (2000) (tracing the origins and history of Texas’s abuseof-the-writ doctrine).

19

hold that § 5(a)(3) is anything more than a codification of Sawyer.

61 We think it

is beyond unlikely thatthe CCA announced a noveltheory of § 5(a)(3) sub silentio

in the course of dismissing Rocha’s petition as an abuse of the writ. 

Third, Rocha argues that our decision conflicts with this Court’s previous

decisions in Rivera, Ruiz, and Balentine. In effect, Rocha contends that prior

decisions of both the CCA and this Court have robbed Texas’s abuse-of-the-writ

statute of its independent state-law character. We conclude otherwise. A full

explanation of the reasons for our contrary conclusion requires us to trace the

history of Texas’s abuse-of-the-writ doctrine in some detail. We turn to that

history now. 

II.

A.

We have long acknowledged that a state’s abuse-of-the-write doctrine can

sometimes qualify as an independent and adequate state-law ground that

functions as a procedural bar to federal-court merits review of habeas claims.62

The Texas Court of Criminal Appeals first created an abuse-of-the-writ doctrine

in 1974.63 But for the first twenty years of the doctrine’s existence, Texas courts
64 See Emery, 139 F.3d at 195. 

65 Id. (citing Lowe v. Scott, 48 F.3d 873, 876 (5th Cir. 1995)).

66 Id. (citing Ex parte Barber, 879 S.W.2d 889, 891 n.1 (Tex. Crim. App. 1994) (en banc)).

67 Emery, 139 F.3d at 196; see also Fearance, 56 F.3d at 642 (“After Barber, dismissals

of Texas habeas petitions as an abuse of the writ should create a procedural bar under the

Coleman standard.”).

68 See, e.g., Nobles, 127 F.3d at 423 n.32 (“In view ofthe dearth of judicial interpretation

of Article 11.071 § 5(a), however, we cannot definitively say, and therefore do not venture to

guess, whether that section was intended to codify the preexisting abuse-of-writ doctrine.”).

69 See Barrientes v. Johnson, 221 F.3d 741, 759 n.10 (5th Cir. 2000) (“We treat article

11.071 as a codification of the Texas abuse-of-the-writ doctrine.” (citing Ex parte Smith, 977

S.W.2d 610, 611 n.4 (Tex. Crim. App. 1998))), cert. denied, 513 U.S. 1134 (2001); see also Ex

parte Kerr, 64 S.W.3d 414, 418 n.11 (Tex. Crim. App. 2002) (“[T]his Court had long ago

recognizedthe jurisprudentialproblems attendantto multiplewritfilings andhintedofjudicial

invocation of the ‘abuse of the writ’ doctrine . . . . Articles 11.07 and 11.071 now statutorily

require the consistent application of the “abuse of the writ” doctrine to subsequent writ

filings.”); Ex parte Davis, 947 S.W.2d 216, 226 (Tex. Crim. App. 1996) (en banc) (McCormick,

P.J., concurring) (“The successive writ provisions of Article 11.071, Section 5(a), for the most

20

failed to apply it in a strict or regular manner.64 This failure rendered the

doctrine an inadequate state-law ground, and “therefore, we . . . refused to honor

it.”65 That changed in 1994, when the Court of Criminal Appeals “announced the

adoption of a strict abuse-of-the-writ doctrine, tempered only by an exception for

cause.”66 Post-Barber, Texas’s abuse-of-the-write doctrine became “an adequate

procedural bar for purposes of federal habeas review,”67 and we honored it

accordingly. 

Just one year later the Texas legislature codified the CCA’s abuse-of-thewrit doctrine in Article 11.07 § 4(a)—which applies to non-capital felonies —and

Article 11.071 § 5(a), which applies to capital cases such as Rocha’s. Initially, we

were uncertain whether § 5(a) supplanted or merely supplemented the CCA’s

abuse-of-the-writ doctrine.68 The CCA soon clarified that § 5(a) is a codification

ofthe judicially created abuse-of-the-writ doctrine.69 Over the next several years
part are merely a legislative codification ofthe judicially created ‘abuse of the writ’ doctrine.”).

70 See, e.g., Aguilar v. Dretke, 428 F.3d 526, 533 (5th Cir. 2005) (“This court has

consistently held that Texas’ abuse-of-writ rule is ordinarily an ‘adequate and independent’

procedural ground on which to base a procedural default ruling. (citing Matchett v. Dretke, 380

F.3d 844, 848 (5th Cir. 2004), Henderson v. Cockrell, 333 F.3d 592, 605 (5th Cir. 2003), and

Horsley v. Johnson, 197 F.3d 134, 137 (5th Cir. 1999))), cert. denied, 547 U.S. 1136 (2006).

71 536 U.S. at 321.

72 Bell v. Cockrell, 310 F.3d 330, 332 (5th Cir. 2002). 

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

74 See Ex parte Williams, No. 43,907-02, 2003 WL 1787634, at *3 (Tex. Crim. App. Feb.

26, 2003) (unpublished)(Price, J., dissenting)(“The applicant filed this subsequent application

for writ of habeas corpus under Texas Code of Criminal Procedure Article 11.071. He alleges

that he is mentally retarded, that the United States Constitution prohibits execution of the

mentally retarded, and that the legal basis for this claim, Atkins v. Virginia, 536 U.S. 304,

(2002), was not available when his initial application was filed. According to the plain meaning

of Article 11.071,the applicant’s case should be remanded for the convicting court to determine

the merits of his claim.”).

21

we developed an unbroken line of precedent holding that a successive state

habeas application that had been dismissed as an abuse of the writ because it

failed to satisfy § 5(a) had been dismissed on an independent and adequate statelaw ground.70

Then, in 2002, the Supreme Court held in Atkins v. Virginia that the

Eighth Amendment prohibits the execution of mentally retarded persons.71 This

new rule of constitutional law was made retroactive on habeas review.72 Section

5(a)(1) permits the filing of “a subsequent application for a writ of habeas corpus”

if the claim that the application presents could not have been presented in a

previous application “because the . . . legal basis for the claim was unavailable on

the date the applicant filed the previous application.”73 By its terms, then,

§ 5(a)(1) would have entitled any Texas death-row inmate who had filed an initial

habeas application before June 20, 2002, to file a successive application.74

Confronted with the specter of state district courts being forced to consider
75 See id. at *1 (Cochran, J., concurring) (“A second or subsequent . . . which makes the

naked assertion, ‘I am mentally retarded,’ obviously does not suffice [under § 5(a)(1)]. If it did,

every inmate on death row would be equally entitled to file a subsequent writ in the hope that

something, somewhere might turn up to support this bare assertion.”); see also Ex Parte

Brooks, 219 S.W.3d 396, 400 (Tex. Crim. App. 2007) (“While Article 11.071, section 5(a)(1) does

not state that the application must include facts establishing that the applicant has a prima

facie Atkins claim, it would be absurd to consider applications in which the applicant does not

show that the previously unavailable legal basis applies to his claim. To read the statute

otherwise would mean that every time a new law is passed or precedent is set, every inmate

could file a subsequent application for writ of habeas corpus, regardless of whether the newly

available legal basis applied to his situation, and the court would have to consider the merits.

This clearly undermines the purpose ofthe subsequent-writ provisions.”); Ex Parte Staley, 160

S.W.3d 56, 64 (Tex. Crim. App. 2005) (per curiam) (explaining that “a death-row inmate may

file a subsequent writ application based upon the newly available legal claim of mental

retardation under Atkins v. Virginia, but if his application states that his I.Q. has repeatedly

been tested at 120-130, he has failed to state sufficient specific facts establishing a cognizable

claim under Atkins” and his application should be dismissed under § 5(a)(1) (footnote omitted)).

76 See Ex parte Williams, 2003 WL 1787634, at *1 (Cochran, J., concurring) (footnote

omitted).

22

large numbers of successive habeas applications raising meritless Atkins claims,75

the Court of Criminal Appeals made a choice. It opted to create a new

requirement for habeas applicants who sought to bring a subsequent Atkins

petition under§ 5(a)(1): 

A second or subsequent writ must contain ‘sufficient specific facts’

to support an applicant’s Atkins claim. . . . The mere assertion of a

valid legal claim, unsupported by sufficient specific factual

allegations which, if true, would entitle the applicantto relief, is not

enough to overcome a Section 5 bar. . . . [The applicant] must

provide evidence of a prima facie case, sufficient evidence to

withstand a directed verdict or a ‘no evidence’ summary judgment

motion that he has a factual basis for his claim under

newly-established law.76

With this preliminary screening, the Court responded to an anticipated flood of

meritless Atkins claims. 

This choice came with costs. The CCA’s screening function entailed a
77 See, e.g., Ex parte Johnson, No. 36,139-04, 2003 WL 21715265, at *2 (Tex. Crim. App.

June 6, 2003) (unpublished) (Johnson, J., concurring) (detailing what kind of evidence is

necessary “[t]o fulfill the prima facie requirement for an Atkins claim” and concurring in the

dismissal because of the “applicant's failure to produce ‘sufficient specific facts’ to support an

Atkins claim”).

78 This new requirement that Atkins claims make a prima facie showing of merit was,

as the CCA itself recognized, judicial gloss on § 5(a)(1) not mandated by the text of the statute.

See Williams, 2003 WL 1787634, at *3-*6 (Price, J., dissenting) (criticizing the majority for

departing from the text of the statute). But its judge-made character did not, and does not,

make it any less binding on the federal courts. See supra note 21 and cases cited therein.

79 See 413F.3d484, 500 n.4 (5th Cir. 2005) (Higginbotham, J., concurring) (“A dismissal

under article 11.071(5)(a) normally constitutes an adequate and independent procedural bar

to federal review. However, in the Atkins context, Texas courts have imported an antecedent

showing of ‘sufficient specific facts’ to merit further review, rendering dismissal of such claims

under article 11.071(5)(a) a decision on the merits.” (internal citations omitted)). 

80 See Eldridge v. Quarterman, 325 F. App’x 322, 324 (5th Cir.), cert. denied sub nom.

Eldridge v. Thaler, 130 S. Ct. 536 (2009); Williams v. Quarterman, 293 F. App’x 298, 301-02

(5th Cir. 2008) (per curiam); Rosales v. Quarterman, 291 F. App’x 558, 562 (5th Cir. 2008), cert.

denied, 129 S. Ct. 1317 (2009); Rivera, 505 F.3d at 359-60; see also Moreno v. Dretke, 450 F.3d

158, 165 n.3 (5th Cir. 2006) (noting a division among the district courts of this circuit over

whether a CCA dismissal on the grounds that a petitioner failed to allege sufficient facts to

establish a prima facie Atkins claim was a procedural or merits-based dismissal, but declining

to resolve the question), cert. denied, 549 U.S. 1120 (2007). 

23

prima facie review of the substantive merits of each applicant’s Atkins claim.77

This prima-facie review meant that CCA decisions dismissing Aktins claims for

failure to satisfy § 5(a)(1) rested on the merits of those claims. Consequently, the

federal courts were not procedurally barred from considering federal habeas

petitions advancing Atkins claims that had been dismissed as abuses of the writ

for failure to satisfy § 5(a)(1).78 We first recognized that this new, Atkins-specific

screening function had robbed § 5(a)(1) dismissals oftheir independent, state-law

character in our 2005 decision in Morris v. Dretke.

79

Change was afoot. Over the next several years we reached the merits of at

least four Atkins claims notwithstanding the fact that the CCA had determined

that they failed to satisfy § 5(a)(1) and dismissed them as abuses of the writ.80
81 Although it does not say so explicitly, Rivera dealt specifically with dismissals under

§ 5(a)(1). See Ex parte Rivera, No. 27,065-02, 2003 WL 21752841, at *1 (Tex. Crim. App. July

25, 2003) (en banc) (per curiam) (unpublished) (“Our habeas corpus statute, Article 11.071,

Section 5(a), states that: a court may not consider the merits of or grant relief based on the

subsequent applicationunless the applicationcontains sufficient specific facts establishing that

... the current claims and issues have not been and could not have been presented previously

... because the factual or legal basis for the claim was unavailable on the date the applicant

filed the previous application.” (quoting TEX. CODE CRIM. PROC. Art. 11.071 § 5(a)(1))). 

82 505 F.3d at 359-60 (footnotes omitted).

83 Id. at 359 n.37 (citations omitted). 

84 See supra note 70 and cases cited therein.

24

The first case in which we did so was Rivera v. Quarterman:

81

[T]o decide whether an Atkins claim is an abuse ofthe writ, the CCA

examines the substance of the claim to see if it establishes a prima

facie case of retardation . . . . Thus, a decision that an Atkins

petition does not make a prima facie showing—and is, therefore, an

abuse of the writ—is not an independent state law ground. . . .

Although Texas’ abuse of the writ doctrine is superficially

procedural . . ., it steps beyond a procedural determination to

examine the merits of an Atkins claim. For an Atkins claim, the

merits determination is at a minimum “interwoven” with the

constitutional prohibition against executing the mentally retarded.82

But even as we announced this holding we took care to limit its reach: “Of

course, this court has held in other circumstances that Texas’ abuse of the

writ doctrine is an adequate and independent state law ground, but the

merits showing now incorporated for Atkins claims changes the character

of the doctrine.”83

Rivera did not overrule our numerous previous holdings that

successive state habeas applications that were dismissed because they

could not satisfy § 5(a) were dismissed on an independent and adequate

state-law ground.84 The new prima-facie-showing requirement the CCA

had engrafted onto § 5(a)(1) was specific to Atkins claims. It bears
85 See, e.g., Response in Opposition to Request for Certificate of Appealability at 12,

Eldridge v. Quarterman, 325 F. App’x 322 (5th Cir. 2009) (No. 08-70012) (“The Court of

Criminal Appeals denied Eldridge’s subsequent state petitionfinding that he failedto establish

‘a prima facie claim’ . . . . Accordingly, the Texas court’s dismissal of Eldridge’s successive

application was an adjudication on the merits entitled to deference by this Court.”); Brief of

Respondent-Appellant at 33-35, Moore v. Quarterman, 491 F.3d 213, 219 (5th Cir. 2007), rev’d

en banc, 533 F.3d 338 (5th Cir. 2008) (No. 05-70038) (“[A] review ofthe state court’s treatment

of subsequent Atkins claims indicates a significant reliance on the underlying merits of the

claim. The cases reveal that the state court is actively reviewing the quantity and the quality

of the evidence presented and considering whether the evidence is

sufficient to support a claim of mental retardation. . . . Therefore, in the instant case, the

lower court was not empowered to apply a de novo standard.”).

86 See, e.g., Moore v. Quarterman, 534 F.3d 454, 463 (5th Cir. 2008) (“Here, the CCA

explicitly dismissed Moore’s successive application (where he first raised Brady) as an abuse

of the writ, and ‘Texas’s abuse of the writ doctrine is a valid state procedural bar foreclosing

federal habeas review.’” (quoting Coleman v. Quarterman, 456 F.3d 537, 542 (5th Cir. 2006),

cert. denied, 549 U.S. 1343 (2007)).

87 160 S.W.3d 56 (Tex. Crim. App. 2005) (per curiam). 

88 Id. at 62. See generally Penry v. Johnson, 532 U.S. 782 (2001) (holding that Texas’s

nullification jury instruction at the sentencing phase of capital-punishment cases violated the

25

emphasizing that the state of Texas itself—well aware that it could gain

the substantial benefits of AEDPA deference by treating dismissals under

§ 5(a)(1) as dismissals on the merits—took the tack that an Atkins claim

dismissed under § 5(a)(1) was dismissed on the merits and therefore not

procedurally barred.85 But even as we were reaching the merits of Atkins

claims that had been dismissed under § 5(a)(1), we continued to treat other

kinds of petitions that had been dismissed under § 5(a)(1) as having been

dismissed on an independent and adequate state-law ground.86 The prima

facie showing requirement was, at the time, strictly confined to the Atkins

context. 

That began to change in April 2005 when the CCA decided Ex parte

Staley.

87 Staley involved a successive habeas application that raised a

Penry II claim.88 The CCA declined to decide whether the Penry II claim
Eighth Amendment by failing to give juries adequate opportunity to give effect to mitigating

circumstances).

89 Ex parte Staley, 160 S.W.3d at 63 (quoting TEX.CODE CRIM.PROC.Art. 11.071 § 5(a)).

90 Id.

91 226 S.W.3d 418 (Tex. Crim. App. 2007).

92 Id. at 422 (citing Brady v. Maryland, 373 U.S. 83 (1963), and Barefoot v. Estelle, 463

U.S. 880 (1983)).

93 Id. at 421-22.

26

was legally unavailable at the time the applicant filed his first application,

holding instead that the successive application did not “‘contain sufficient

specific facts establishing that’ his claim is cognizable.”89 The CCA

explained that “it is not sufficient to allege that a legal claim was

unavailable at the time of the applicant’s original filing if the facts alleged

in the subsequent application do not bring the constitutional claim under

the umbrella of that ‘new’ legal claim.”90

Two years later, § 5(a)(1)’s transformation was complete. In Ex parte

Campbell,

91 the CCA extended the prima-facie-showing requirementit had

developed under Atkins to all successive habeas claims brought under

§ 5(a)(1). Campbell argued that he was entitled to habeas relief under

Brady v. Maryland and Barefoot v. Estelle.

92 The CCA concluded that the

factual basis for his claims was unavailable at the time he filed his original

application93 but nonetheless dismissed his successive application, holding:

To satisfy section 5(a)(1), . . . 1) the factual or legal basis

for an applicant's current claims must have been unavailable

as to all of his previous applications; and 2) the specific facts

alleged, if established, would constitute a constitutional

violation that would likely require relief from either the
94 Id. at 421 (footnote omitted). 

95 See, e.g., Ex parte Alba, 256 S.W.3d 682, 691 n.28 (Tex. Crim. App. 2008) (applying

the two-part unavailability–merits test under § 5(a)(1) to an Eighth Amendment challenge to

Texas’s lethal-injection protocol); see also Williams, 602 F.3d at 306 (noting that the CCA “has

grafted an additional requirement on the first prong of 11.071 § 5(a)”).

96 See Ex parte Campbell, 226 S.W.3d at 422 (“Applicant also must jump over the rest

of the section 5(a)(1) bar. That is, his application must allege sufficient specific facts that, if

proven, establish a federal constitutional violation sufficiently serious as to likely require relief

from his conviction or sentence.” (emphasis added))

97 See, e.g., Ex parte Hood, 211 S.W.3d 767, 770 (Tex. Crim. App.) (concluding that

§ 5(a)(1) did not authorize the CCA to consider the merits of a claim presented in a successive

habeas application “because the legal bases upon which applicant relies were available at the

time he filed his second application” and undertaking no discussion of the prima facie merits

of the applicant’s claim), cert. denied, 552 U.S. 829 (2007), reconsideration granted on other

grounds, No. WR-41,168-11, 2008 WL 4946276 (Tex. Crim. App. Nov. 19, 2008) (per curiam).

27

conviction or sentence.94

Post-Campbell, a two-step inquiry—unavailability, then merits—is required

before any successive habeas application can be permitted to proceed under

§ 5(a)(1).95

One feature of the CCA’s decision in Campbell warrants particular

attention. Campbell establishes that the two requirements of § 5(a)(1) should be

applied sequentially.96 The CCA first examines whether the factual or legal basis

of the claim was unavailable at the time of the original application. Only if the

applicant can surmount the unavailability hurdle does the CCA proceed to ask

whether the application makes out a claim that is prima facie meritorious.

Understanding this second point is critical to our own jurisprudence. If an

applicant fails to satisfy the unavailability requirement, the § 5(a)(1) inquiry is

over, and no merits determination takes place.97

It did not take us long to register the significance of the change announced
98 504 F.3d 523 (5th Cir. 2007).

99 Id. at 527 (footnote omitted).

100 See id. at 527 n.11.

101 See Ex parte Blue, 230 S.W.3d at 159-63. 

102 See Ex parte Ruiz, No. WR-27,328-03, 2007 WL 2011023, at *1 (Tex. Crim. App. July

6, 2007) (per curiam) (unpublished). 

28

in Campbell. A few months later, in Ruiz v. Quarterman,

98 we took note, in

passing, of the change in the law that Campbell had wrought: 

The Texas Code of Criminal Procedure, as interpreted by the

CCA, provides for subsequent applications where (1) the factual or

legal basis for the subsequent claim was previously unavailable and

(2) where the facts alleged would constitute a federal constitutional

violation that would likely require relief from either the conviction

or sentence. The boilerplate dismissal by the CCA of an application

for abuse of the writ is itself uncertain on this point, being unclear

whether the CCA decision was based on the first element, a

state-law question, or on the second element, a question of federal

constitutional law.99

In his petition for rehearing, Rocha misreads this passage from Ruiz in

three ways. First, he reads it to be binding precedent that controls our

interpretation of all three subsections of § 5(a), including § 5(a)(3). That reading

is more than Ruiz will bear. As its citation to Campbell made clear,100 Ruiz

spoke only of dismissals under § 5(a)(1). Subsections 5(a)(1) and 5(a)(3) carry

different meanings—different enough that in Ex parte Blue, the CCA’s seminal

decision interpreting § 5(a)(3), the CCA did not even cite to, much less discuss,

its prior decision in Campbell.

101

Second, Rocha ignores the fact that our decision in Ruiz was a product of

the unique procedural posture in which the case arrived at our court. Ruiz

emerged from a fractured CCA that produced three separate opinions,102 two of
103 See Ex parte Ruiz, No. WR-27,328-03 (Tex. Crim. App. July 6, 2007) (per curiam)

(unpublished) (Womack, J., statement respecting dismissal) (“Ruiz . . . alleges that he was

deniedeffective assistance of counsel when his trial attorneys failed to present certainevidence

at the punishment hearing . . . . The evidence in question was of two kinds: certain facts about

the applicant's experiences during childhood and the opinion of a psychologist. Trial counsel

hired the psychologist, considered his report, and chose not to call him at trial because his

findings about the applicant would do more harm than good. This was not an unreasonable

decision.”), available at http://www.cca.courts.state.tx.us/opinions/

HTMLOpinionInfo.asp?OpinionID=15705; id. (Holcomb, J., dissenting) (“[T]he applicant in this

case has suffered a violation of his Sixth Amendment right to counsel . . . .”), available at

http://www.cca.courts.state.tx.us/opinions/HTMLOpinionInfo.asp?OpinionID=15706.

104 When the CCA is convened en banc, “‘the concurrence of five Judges shall be

necessary for a decision.’” Ruiz, 504 F.3d at 527 n.12 (quoting TEX. CONST. art. 5, § 4(b)).

105 See supra note 103. Under binding CCA precedent, “the rule for determining a

majority holding in a case decided by a fragmented court” in which “‘no single rationale

explaining the result enjoys the assents of five Justices’” is that “‘the holding of the Court may

be viewed as the position taken by those Members who concurred in the judgment on the

narrowest grounds.’” Haynes v. State, 273 S.W.3d 183, 188-89 (Tex. Crim. App. 2008)

(emphasis omitted) (quoting Marks v. United States, 430 U.S. 188, 193 (1977)). 

106 Ruiz, 504 F.3d at 528.

29

which discussed the merits of Ruiz’s state habeas application.103 Only four

judges joined in the plurality opinion’s dismissal of Ruiz’s application as an

abuse of the writ. The necessary fifth vote for the CCA’s decision104 came from

Judge Womack, whose concurring opinion concluded that Ruiz had failed to

allege a meritorious claim of ineffective assistance of counsel at sentencing.105

As such, Judge Womack’s concurrence was inarguably merits-based. We thus

concluded that the CCA’s decision as a whole rested not on § 5(a)(1) but on its

rejection of Ruiz’s Wiggins claim on the merits: “Judge Womack’s opinion,

necessary to the court’s judgment, pushes the court toward a clear merit ruling,

and in any event deprives the plurality of a fifth vote on an independent and

adequate state ground.”106 We reached the merits of Ruiz’s claim because Judge

Womack—and hence the CCA’s decision—reached the merits, not because of any

conclusion we drew about the state- or federal-law character of a dismissal under
107 530 F.3d 336 (5th Cir. 2008), cert. denied, 129 S. Ct. 2378 (2009). 

108 Id. at 340. 

109 Id. at 342. 

110 Id.

30

§ 5(a)(1).

Third, Rocha argues that Ruiz obliges us to conclude that § 5(a)(1) is

dependent on federal law in all cases. Not so. It is true that prior to Campbell,

our decisions had assumed that a dismissal under § 5(a)(1) always rested on an

independent and adequate state-law ground. That assumption cannot survive

Campbell. At the same time, it is not the case that a post-Campbell dismissal

under § 5(a)(1) never rests on an independent and adequate state-law ground.

Whether a § 5(a)(1) dismissal is independent of federal law turns on case-specific

factors. If the CCA’s decision rests on availability, the procedural bar is intact.

If the CCA determines that the claim was unavailable but that the application

does not make a prima facie showing of merit, a federal court can review that

determination under the deferential standards of AEDPA.

We correctly interpreted the CCA’s application of its “unavailability, then

merits” approach to § 5(a)(1) in Hughes v. Quarterman.107 There, the CCA had

issued a boilerplate abuse-of-the-writ order dismissing a successive application

that raised a Penry II claim.108 We held that the claim was procedurally barred,

reasoning that “[n]o application or interpretation of federal law is required to

determine whether a claim has, or could have, been presented in a previous

habeas application.”109 There was “nothing in [the CCA’s] perfunctory dismissal

of the claims that suggest[ed] that it actually considered or ruled on the

merits.”110 Especially in light of the CCA’s holding that the legal basis for a
111 See Ex parte Hood, 211 S.W.3d at 778 (“Penry I stood as a Supreme Court decision

from which an applicant could ‘reasonably formulate’ the contention that he was entitled to

jury consideration of any type of mitigating evidence.” (citing Penry v. Lynaugh, 492 U.S. 302

(1989), rev’d in part on other grounds by Atkins v. Virginia, 536 U.S. 304 (2002))); id. at 779

(“Penry I afforded a legal basis for contending that the defendant’s mitigating evidence was

constitutionally relevant to determining whether he should receive the death penalty.”). 

112 501 U.S. 722, 735 (1991) (“In habeas, if the decision of the last state court to which

the petitioner presented his federal claims fairly appeared to rest primarily on resolution of

those claims, or to be interwoven with those claims, and did not clearly and expressly rely on

an independent and adequate state ground, a federal court may address the petition.”); see also

Michigan v. Long, 463 U.S. 1032 (1983) (holding that a state-court decision that fairly appears

to rest on or be interwoven with federal law will be presumed to be based on federal law unless

the state high court whose judgment the Supreme Court is reviewing makes a clear and

express statement to the contrary); Harris v. Reed, 489 U.S. 255 (1989) (extending the Long

presumption to the federal-habeas context).

113 Coleman, 501 U.S. at 735 (quoting Long, 463 U.S. at 1040-41); see also Young v.

Herring, 938 F.2d 543, 553 (5th Cir. 1991) (en banc) (“‘A predicate to the application of the

Harris presumption . . . is that the decision of the last state court to which the petitioner

presented his federal claims must fairly appear to rest primarily on federal law or to be

interwoven with federal law.’” (quoting Coleman, 501 U.S. at 735)), cert. denied, 503 U.S. 940

(1992).

31

Penry claim had been available since 1989,111 everything about the CCA’s

perfunctory dismissal of Hughes’s claim under § 5(a)(1) suggested that the

dismissal rested an independent state-law ground—specifically, on the fact that

the factual and legal bases for the claim were available when Hughes filed his

first state habeas application. Under Campbell, if a successive habeas

application cannot satisfy the requirement of unavailability, the court need not

inquire any further. 

Hughes illustrates the proper application of Coleman v. Thompson112 to a

CCA determination that a successive habeas application does not satisfy

§ 5(a)(1). Under Coleman, we are required to presume that a state-court habeas

decision does not rest on an independent state-law ground only if we first

determine that the state-court decision we are reviewing “‘fairly appears to rest

primarily on federal law, or to be interwoven with the federal law.”113 We
114 Ruiz, 504 F.3d at 527.

115 See, e.g., Maldonado v. Thaler, No. 10-70003, 2010 WL 3155236, at *6-*7 (5th Cir.

Aug. 10, 2010) (per curiam) (unpublished) (“Maldonado has never, in this court or before the

district court, contended that the factual or legal bases for these Fifth and Sixth Amendment

claims were unavailable when he filed his initial habeas petition, and there is no basis in the

record to conclude that they were. . . . Accordingly, we conclude that the dismissal of

Maldonado's subsequent habeas application was premised on an adequate and independent

state procedural ground.”). 

116 See, e.g., Coleman, 501 U.S. at 740 (“There is . . . little that the federal courts will

gain by applying a presumption of federal review in those cases where the relevant state court

decision does not fairly appear to rest primarily on federal law or to be interwoven with such

law, and much that the States and state courts will lose. We decline to so expand the Harris

presumption.”); id. at 736 (“Coleman urges a broader rule: that the presumption applies in all

cases in which a habeas petitioner presented his federal claims to the state court. This rule

makes little sense.”); id. at 739-40 (“In the absence of a clear indication that a state court

rested its decision on federal law, a federal court’s task will not be difficult.”).

32

observed in Ruiz that “[t]he boilerplate dismissal by the CCA of an application

for abuse of the writ [under § 5(a)(1)] is . . . unclear whether the CCA decision

was based on [unavailability], a state-law question, or on [prima facie lack of

merit], a question of federal constitutional law.”114 It does not follow from that

observation that every dismissal under § 5(a)(1) fairly appears to rest on or be

interwoven with federal law. A CCA decision fairly appears to rest on state law

if it dismisses a subsequent habeas application under § 5(a)(1) because the

application does not raise a claim that was factually or legally unavailable.115

Coleman does not require us to check our common sense at the door when

we read an opinion of the CCA with an eye toward ascertaining its decisional

basis. The Supreme Court’s overarching aim in Coleman was to reduce the

number of habeas cases in which the lower federal courts applied the Harris

presumption.116 Adopting the rule that all post-Campbell § 5(a)(1) dismissals are

based on federal law “would greatly and unacceptably expand the risk that

federal courts will review the federal claims of prisoners in custody pursuant to
117 See id. at 739.

118 See Ex parte Brooks, 219 S.W.3d at 399 (“The purpose of the Habeas Corpus Reform

Act of 1995 was to . . . limit[] the availability of subsequent applications . . . .”). 

119 See Balentine v. Thaler, No. 09-70026 (5th Cir. Nov. 17, 2010) (“Balentine II”).

Balentine II withdraws Balentine I, see Balentine v. Thaler, 609 F.3d 729 (5th Cir. 2010),

thereby mooting Rocha’s objection that our panel opinion conflicts with Balentine I.

120 See id. slip op. 19. Balentine’s successive state habeas application also raised a

Batson claim, but Balentine did not continue to pursue that claim in federal court. Id.

121 Ex parte Balentine, No. WR-54,071-01, 2009 WL 3042425, at *1 (Tex. Crim. App.

Sept. 22, 2009) (per curiam) (unpublished). 

33

judgments resting on independent and adequate state grounds.”117 We should

be especially mindful ofthat concern as we interpret § 5(a), a state statute whose

express purpose is to reduce the number of successive habeas applications that

receive full merits review.118 When the CCA dismisses a successive habeas

application on the ground that it does not satisfy § 5(a)(1), we can—and

should—read its order of dismissal to determine which of the two elements of

§ 5(a)(1) was the basis of the court’s dismissal. A boilerplate dismissal might be

ambiguous on this point, butfinding clarity in ambiguity is the bread-and-butter

work of a federal court of appeals.

The opinion on rehearing in Balentine v. Thaler (hereinafter, “Balentine

II”)119 lies comfortably with our analysis. Balentine’s successive habeas

application raised a Wiggins claim of ineffective assistance of counsel at

sentencing. 120 The Court of Criminal of Appeals issued a perfunctory threeparagraph order dismissing his successive application on the ground that it

“failed to satisfy the requirements of Article 11.071 § 5.”121 The CCA did not

specify which of § 5(a)’s three subsections it was addressing. Balentine had not

argued that he did not commit the crime for which he had been convicted, so
122 Balentine II, No. 09-70026, slip op. 20. 

123 Id. slip op. 18.

124 Id.

125 The Supreme Court first “established the legal principles that govern claims of

ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984).” Wiggins,

539 U.S. at 521. 

34

§ 5(a)(2) did not apply.122 The CCA must have dismissed his successive

application because it did not satisfy the requirements of either § 5(a)(1) or

§ 5(a)(3). Balentine II determined that this dismissal did not constitute a merits

determination. 

As to § 5(a)(1), Balentine II acknowledged that the two-part

unavailability–merits inquiry announced in Campbell introduces some

uncertainty into dismissals under § 5(a)(1), but it rejected the position that this

“uncertainty should be transformed into a presumption that the state court

reached the merits.”123 As Judge Southwick observed, such a presumption would

run afoul of the Supreme Court’s holding in Coleman that we may not presume

that there is no independent and adequate state-law grounds for a state court’s

decision unless we first determine that “‘it fairly appears that the state court

addressed’” the merits of the prisoner’s federal constitutional claims for habeas

relief.124 Campbell teaches that, absent an express indication otherwise, the

CCA assesses the merits of a successive state habeas application only if it first

concludes that the factual or legal basis for the claim was unavailable. There

was no question that the legal basis for Balentine’s claims was available when

he filed his first state habeas application in 2001,125 and nothing suggested that

Balentine could not have discovered the factual basis for his Wiggins claim

through the exercise of reasonable diligence before he filed his first
126 See generally TEX. CODE CRIM.PROC. art. 11.071 § 5(e) (“For purposes of Subsection

(a)(1), a factual basis of a claim is unavailable on or before a date described by Subsection (a)(1)

if the factual basis was not ascertainable through the exercise of reasonable diligence on or

before that date.”).

127 See Balentine II, No. 09-70026, slip op. 21 (“Balentine’s subsequent application made

no effort to show that the facts or law underlying his Wiggins claim were unavailable to him

at the time of his first state application. . . . Therefore, Section 5(a)(1) was not satisfied.”).

128 See id. slip op. 21-23.

35

application.126 As a result, Balentine II concluded that the CCA had not reached

the merits of Balentine’s Wiggins claim in determining that his successive state

habeas application did not satisfy the requirements of § 5(a)(1).127

As to § 5(a)(3), Balentine II noted that Balentine did not argue in his

successive state habeas application that he could satisfy § 5(a)(3) and that, in

any event, Balentine’s Wiggins claim was not a claim of ineligibility for the death

penalty.128 In this latter regard, Balentine II’s conclusion and analysis are

identical to our own.

In sum, Rivera holds that the CCA reaches the merits of an Atkins claim

when it determines that the Atkins claim is prima facie without merit and

dismisses the claim for failure to satisfy § 5(a)(1). Ruiz holds that we can reach

the merits of a successive habeas claim that the CCA does not dismiss as an

abuse of the writ under §5(c) but rather denies on the merits. Hughes holds that

a dismissal for failure to satisfy the “factual or legal unavailability” requirement

of § 5(a)(1) rests on state-law grounds. And Balentine II holds first that we

should not treat every dismissal under § 5(a)(1) as a dismissal on the merits and

second that a Wiggins claim is not a claim of actual innocence of the death

penalty. 

B.
36

There is no dissonance between any ofthose cases and our holding that we

cannot reach the merits of Rocha’s Wiggins claim, which the CCA determined

did not satisfy § 5(a)(3) and dismissed as an abuse of the writ. The CCA’s

conclusion that Rocha’s successive habeas application did not satisfy § 5(a)(3)

encompassed two separate determinations: (1) because Rocha did not raise his

Wiggins claim in his initial state habeas application,the claim was procedurally

defaulted; and (2) because Rocha could not establish that he is actually innocent

of the death penalty, his procedural default should not be excused. The first of

those determinations is based on a § 5(c), state procedural rule that is

independent of federal law. Indeed, the rule that a prisoner waives any claim

he does not present in his first state habeas application is the quintessential

example of a state-law procedural rule that, when strictly and regularly applied,

bars the federal courts from reaching the merits of a habeas claim. 

The second of those determinations is based on the federal actualinnocence-of-the-death-penalty standard announced in Sawyer. But the fact that

§ 5(a)(3) incorporates a federal standard for determining when a procedural

default should be excused did not empower the district court—and does not

empower this Court—to review the merits of the federal constitutional claim

that has been procedurally defaulted. A claim that a prisoner is actually

innocent of the death penalty is legally distinct from a claim that a prisoner’s

trial counsel was constitutionally ineffective at sentencing. When the CCA

rejects the former, it does not simultaneously decide the merits of the latter. As

a result, the CCA’s determination that Rocha is not actually innocent of the

death penalty did not open up Rocha’s Wiggins claim for merits review under

AEDPA.

Rivera and Ruiz do not compel a contrary conclusion. When the CCA

dismisses a successive habeas application because it cannot satisfy the “merits”
129 See supra notes 94-97 and accompanying text.

130 See supra notes 54-58 and accompanying text.

131 See Coleman, 501 U.S. at 734-35 (citing Harris, 489 U.S. at 266).

132 See id. at 736 (“Harris . . . [applies] only in those cases in which ‘it fairly appears that

the state court rested its decision primarily on federal law.’ (quoting Harris, 489 U.S. at 261)).

133 Contra 28 U.S.C. § 2244(b)(2) (barring consideration of a successive federal habeas

petition unless the petitioner can show either legal unavailability or newly discoveredevidence

plus actual innocence of the underlying offense); In re Webster, 605 F.3d 256, 258-59 (5th Cir.

2010) (concluding in a § 2255(h) case that the use of the phrase “guilt of the offense” in 28

U.S.C. § 2255(h)(1) and § 2244(b)(1)(B)(ii) bars a federal habeas petitioner from bringing a

37

prong of § 5(a)(1),129 it has conditioned the applicability of § 5(c)’s procedural bar

on an antecedent determination that the federal constitutional claim on which

the applicant seeks relief is without merit. Under Ake,

130 such a dismissal fairly

appears to rest on or be interwoven with the merits of the federal constitutional

claim and thus triggers a presumption under Harris that the dismissal was not

based on an independent and adequate state-law ground.131 By contrast, the

CCA’s order dismissing Rocha’s habeas application does not satisfy the “fairly

appears” requirement that is a predicate to the application of the Harris

presumption.132 The CCA’s dismissal of Rocha’s habeas application does not

fairly appear to rest on or be interwoven with resolution of the merits of Rocha’s

Wiggins claim. Rather, the CCA’s dismissal fairly appears to—and in fact

does—rest on its twin determinations that Rocha had previously filed other state

habeas applications and that Rocha cannot establish that he is actually innocent

of the death penalty under § 5(a)(3).

By enacting § 5(a)(3), the Texas Legislature ceded nothing to the federal

courts that they did not already possess. Sawyer is a federally mandated escape

valve from the doctrine of procedural bar. Sawyer obligates the federal courts

to decide the merits of any claim presented in the first federal habeas petition133
successive petition based only on a claim of actual innocence of the death penalty), cert. filed,

No. 10-150 (July 27, 2010).

134 See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (“When the district court denies a

habeas petition on procedural grounds without reaching the prisoner’s underlying

constitutional claim, a COA should issue when the prisoner shows . . . that jurists of reason

would find it debatable whether the district court was correct in its procedural ruling.”).

38

filed by a state prisoner who can make a clear and convincing showing of actual

innocence of the death penalty, irrespective of whether a state court has

previously decided the claim on its merits. There is no law the Texas Legislature

could have passed that would have insulated successive habeas applications

from the rule announced in Sawyer. Section § 5(a)(3) merely gives Texas’s courts

the first crack at applying the Sawyer escape valve. To conclude that the Texas

Legislature somehow expanded the scope of the Sawyer escape valve merely by

importing it into state law would be to turn the legislative effort on its head. 

The district court denied Rocha’s Rule 60(b) motion on the ground that his

Wiggins claim remains procedurally defaulted. We granted a certificate of

appealability because jurists of reason could have debated the correctness ofthe

district court’s decision in light of the uncertainty in this area of our

jurisprudence.134 A careful review of our precedent reveals that Judge Harmon

did not err by concluding that Rocha procedurally defaulted his Wiggins claim.

A fortiori, her decision to deny Rocha’s Rule 60(b) motion was not an abuse of

discretion.

In the end, Rocha finds himself in the same position he was in when he

first filed this federal habeas petition in 2003. At that time, his Wiggins claim

was unexhausted and thus procedurally defaulted; he could have overcome that

procedural default by showing that he is actually innocent of the death penalty.

Rocha did not cure his procedural default by obtaining a ruling from the CCA

that his successive state habeas application was subjectto dismissal as an abuse
Nos. 05-70028 & 09-70018

39

ofthe writ under § 5(c) because it did not satisfy § 5(a)(3). That § 5(a)(3) employs

a federal standard to determine when a procedural default should be excused

does not change the fact that the CCA dismissed Rocha’s Wiggins claim on an

independent and adequate state-law ground. Consequently, our role is limited

to performing the same threshold review under Sawyer that the CCA performed

under § 5(a)(3): for actual innocence of the death penalty. Rocha’s petition for

rehearing does not argue that we erred by concluding that he cannot establish

that he is actually innocent of the death penalty. Therefore, his petition for

rehearing is denied.

HAYNES, Circuit Judge, specially concurring:

I concur in the actual denial of panel rehearing, while noting that

the petition for rehearing en banc remains pending. I respectfully do not

join in the lengthy opinion accompanying the order denying panel

rehearing because, I submit, it is largely unnecessary. The concern that
Nos. 05-70028 & 09-70018

1 This section is the operative one for Rocha and provides for certain aggravating

circumstances to be presented to the jury in a sentencing hearing following a guilty verdict in

a capital case where the death penalty is sought. After the jury in Rocha’s case unanimously

answered “yes” to the aggravating circumstances questions, the following question, known as

the “mitigating circumstances” question was asked: “Whether, taking into consideration all of

the evidence, including the circumstances of the offense, the defendant’s character and

background, and the personal moral culpability of the defendant, there is a sufficient

mitigating circumstance or circumstances to warrant that a sentence of life imprisonment

rather than a death sentence be imposed.” TEX. CODE CRIM. PROC. ANN. art. 37.071, § 2(e)

(West 1998). The current version of the mitigating circumstances question is identical except

in that it now provides for life imprisonment “without parole.” See TEX. CODE CRIM. PROC.

ANN. art. 37.071, § 2(e)(1) (West 2010).

2 TEX. CODE CRIM. PROC. ANN. art. 11.071, §5(a)(3)(West 2010)(emphasis added).

40

animated my original dissent to the portion at issue came to pass: Balentine I

has now been transmuted into Balentine II with a different result and rationale

that, somewhat ironically, encompasses some of the original reasoning of the

original opinion in this case. Rather than adding to this volley of opinions, I

conclude that we are required to follow the decision of Balentine II, specifically,

the last few pages addressing § 5(a)(3), the only subsection at issue in our case,

given the CCA’s wording. 

Under Balentine II’s reading of prior precedent (including our original

opinion in Rocha),the CCA’s perfunctory dismissal of an application raising only

mitigation issues is to be read as a conclusion that Rocha’s state writ application

did not raise issues “sufficiently fundamental as to excuse the failure to raise it

timely in prior state and federal proceedings.” Balentine II, slip op. at 21-22

(internal citations and quotation marks omitted). Unfortunately, this leads to

the anomalous result that denial of a writ expressly referencing a statute that

actually mentions the federal constitution – “by clear and convincing evidence,

but for a violation of the United States Constitution no rational juror would have

answered in the state’s favor one or more of the special issues that were

submitted to the jury in the applicant’s trial under Article 37.071,1 37.0711, or

37.072”2 – is nonetheless not sufficiently intertwined with the United States
Nos. 05-70028 & 09-70018

3 The statute itself intertwines the question of a federal constitutional violation with

the answer to special issues, including the mitigation issue. This circumstance is thus different

from Sawyer, a case which, of course, predates Wiggins. Wiggins, though not a subsequent

habeas case, was, of course, a habeas case about an attorney’s failure to investigate and

present mitigating evidence in a death penalty case.

4Balentine II necessarily concludes that the CCA has closed the door that footnote 42

left open. Blue declined to address the issue because it was an Atkins case that did not raise

a mitigation issue. See 230 S.W.3d at 159, 160 n.42. Presented squarely with a § 5(a)(3)

mitigation claim here and in Balentine II, the CCA dismissed the applications. In order to

declare § 5(a)(3) inapplicable, the CCA must either have concluded (1) that the statute

prohibited consideration of the mitigation question or (2)that the statute required assessment

of the merits of the petitioners’ mitigation claims and found them lacking; § 5(a)(3) is not

discretionary in nature. I acknowledge that Balentine II views the former possibility as more

likely and binds us here, but I note that in doing so we have implicitly held that the CCA has,

without comment, rejected the grounds for review suggested by footnote 42.

41

Constitution to allow our review. “One of the special issues” in question is the

mitigation one. It is this one to which Rocha’s Wiggins claim is focused. Because

the Texas statute itself intertwines all special issues – mitigating and

aggravating – with the federal constitutional violation without distinction, I do

not see a basis for treating the mitigating issues differently than any other

arising under this statute for the purpose of deciding which ones involve federal

constitutional issues and which do not.3 But that is where we are. Perhaps our

court will reconsider this subject en banc. Perhaps the Texas Court of Criminal

Appeals will elaborate on the tantalizing Blue footnote 42.4 Given where we are

now, however, I am bound to join in the determination to deny panel rehearing.