Defense Lawyer Intentionally Failed to Comply with Longstanding Pleading Requirements in Death Penalty Writ


By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

It is not our habit, nor is it in our nature, to second guess any strategy employed by a fellow defense attorney, unless that strategy is patently harmful to the client. The Hector Rolando Medina case is such a case—and it indeed begs public exposure. To understand this case we must first discuss the habeas corpus statute involved: Article 11.071, Texas Code of Criminal Procedure (Procedure in Death Penalty Cases), and the case law setting forth longstanding pleading requirements under the statute. A prerequisite to securing habeas corpus relief in a death penalty case requires the applicant to “plead specific facts” which, if proven true, might entitle him to relief. Thus, the initial burden rest with the habeas applicant to file a fact-specific petition, which raises issue(s) of constitutional magnitude; in other words, a constitutional violation which has harmed the applicant.

In October 2008 Medina was convicted in Dallas County of capital murder and sentenced to death. On his direct appeal to the Texas Court of Criminal Appeals (“CCA”), Medina argued he had been ineffectively represented during the punishment phase of his trial by his defense counsel. Without designating its opinion for publication, the CCA on January 12, 2011 affirmed Medina’s conviction and death sentence. The appeals court concluded: “By not specifying what evidence his counsel should have presented, the appellant has failed to present a basis to conclude that defense counsel’s decision not to present evidence was unreasonable, or that there is a reasonable probability that the result would have been different.”

Medina then filed a habeas corpus application in the trial court pursuant to Art. 11.071, and the court appointed veteran criminal defense attorney R. Norris to represent the condemned inmate. Norris over his distinguished career of more than thirty-five years had previously represented between ten and twenty death row inmates. In all the habeas applications he filed for these condemned inmates, each application was supported by exhibits and well-pled facts in support of the legal issues presented in the applications.

However, for a reason we cannot fathom, Norris did not follow this standard practice in the Medina case. He told the CCA that he “did not think the law was settled that a habeas application must contain facts. He said he had thoroughly investigated the facts underlying his claims, but filed his pleading on the last possible day and refused the State’s offer to give him more time to replead and add those crucial facts.” The application Norris submitted to the CCA—what the court referred to as a “document” or a “non-application”—was “only four pages” that stated “mere … factual and legal conclusions” in support of a ten-point ineffective assistance of counsel claim. The CCA observed that Norris “intended to force this Court to readdress the pleading requirements, as he filed a thorough brief on that very issue in opposition to the State’s motion to dismiss the ‘application.’”

Norris said he had discussed this strategy with Medina before undertaking and “he was not happy about it” but added his client was “a lay person” who did not understand the law. This strategy amounted to a procedural power-play by Norris to force the CCA to abandon its historical precedents and change the pleading requirements under Art. 11.071. The CCA was clearly not pleased as the following observation reflects:

“ … In this case, both the State and the judge of the convicting court recognized that the document that [Norris] filed was not a proper writ application as it did not set out specific facts or contain any exhibits, affidavits, or a memorandum of law that alleged any specific facts. The State even offered ‘to forfeit to applicant a portion of the time statutorily allotted to the State for preparing its response’ to ensure that applicant could have his claims addressed on the merits. According to the State, [Norris] ‘informed the State and the [convicting] Court that he will not allege his claims with any greater specificity and will only provide ‘boilerplate’ case law if ordered to replead. Because [Norris] waited until the last possible to file this document, a dismissal, even though not on the merits, would foreclose the opportunity to file a new pleading, bringing those claims. Similarly, a denial on the merits of the conclusory allegations would foreclose any opportunity to raise those same claims again. By all appearances, [Norris] has thrown his client under the bus. Therefore, we issued an order to [Norris] to appear before the Court on Wednesday, June 15, 2011, to explain his conduct.”

After listening to Norris’ rather week explanation, the CCA said “it is abundantly clear that [Norris’] actions were not the result of mistake, inadvertence, negligence, or a lack of legal expertise. It is also abundantly clear that [Norris] is intentionally jeopardizing [his client’s] ‘one very well represented run at a habeas corpus proceeding.’”

The travesty in this particular case is that Norris deliberately filed an improper habeas corpus application over his client’s objections. His academic interest to challenge established case law governing Art. 11.071 pleading requirements superseded his ethical obligation to not only represent but protect his client’s interest. Medina, in effect, became no more than test lab monkey unable to control the legal experiment being conducted on him. Even after the CCA appointed the Office of Capital Writs, with the support of the State, to represent Medina, Norris continued to “assert that Texas law does not require him to plead specific factual allegations.”

The CCA saved the day for Medina by holding that the “unique and extraordinary circumstances” in his case required the court to grant the condemned inmate 180 days to file a new habeas corpus application.  The CCA underscored this “extraordinary” action by holding Norris in “contempt of court” and ordering that he not receive any compensation for representing Medina.

While Judge Keasler, joined by Judge Hervey, concurred with the majority’s sentiments about Norris, the dissenting judge felt the CCA had upset the historical pleading requirements of Art. 11.071. He stated that “by adopting the majority’s view, we are now required to grade 11.071 … applications and decide which allegations are sufficient enough to pass muster and which are not. What if an application presents all non-cognizable habeas claims? Does this mean that we should treat it as a ‘non-application?’ This very situation has occurred numerous times in the past, and we did not dismiss those applications as ‘non-applications … Over the past thirteen years that I have been on this Court, I have reviewed numerous 11.071 applications. Some of them have been just as poorly pled as this application. Yet, in those cases, we denied relief, despite the appalling deficiencies, which, under today’s decision, should have been characterized as non-cognizable applications. The applicants in those cases were victims of deficient and inadequate lawyering that was a result of ignorance but not necessarily incompetent.”

Judge Keasler distinguished Norris’ conduct from other attorneys who make pleading mistakes that are the result of “ignorance” by saying that Norris, in the “name of gamesmanship,” placed “his own interests above his client’s.” Judge Keasler added that “much to my dismay, [Norris] has intentionally failed his client. And because of that, I formally refer him to the State Bar’s grievance committee.”

While we certainly appreciate Norris’ frustration with the strict—sometimes seemingly impossible—pleading requirements of Art. 11.071, the respected attorney did not have the right, much less permission from his client, to engage in “gamesmanship” with the CCA at the expense of his client’s interest. There is simply no justification for throwing a client “under the bus” as Norris did Medina. We applaud the CCA for intervening with a remedy that prevented a travesty of justice. Had the court dismissed Medina’s habeas application as suggested by Judge Keasler the condemned inmate would have been “procedurally barred” from presenting his ineffective assistance claim to federal court. Established jurisprudence under the federal habeas statutes, 28 U.S.C. §§ 2254 and 2241, does not excuse a habeas applicant’s responsibility to follows state court pleading requirements, even when the fault rests with the applicant’s counsel. It is a gladiator’s world in the federal habeas arena.

The remedy the CCA reached in Medina’s case was the result of “unique and extraordinary circumstances” which will not exist in 99.9 percent of all other Art. 11.071 applications. Justice demands a remedy and that’s precisely what the CCA gave to Medina.

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified by Texas Board of Legal Specialization.