IN THE 366TH JUDICIAL DISTRICT COURT

OF COLLIN COUNTY, TEXAS

EX PARTE CHARLES DEAN HOOD,

Cause No. W296-80233-90

APPLICANT

FINDINGS OF FACT AND CONCLUSIONS OF LAW

On November 19, 2008, the Court of Criminal Appeals remanded Applicant

Charles Dean Hood's case to this Court for consideration of two issues: (1)

whether the equitable doctrine of laches should bar consideration of his judicial

bias claim; and (2) whether the claim satisfies the requirements for obtaining

merits review of a successive habeas petition. Ex parte Hood, No. WR-41,168-11

(Tex. Code Crim. App. Nov. 19, 2008). On March 6, 2009, the parties submitted

affidavits directed toward resolving these issues. On March 27, 2009, the parties

submitted proposed findings and conclusions. After reviewing the affidavits and

proposed findings, along with the record and legal briefs, this Court makes the

following Findings of Fact and Conclusions of Law:

I. LACHES

A. Findings of Fact

1. The Applicant, Charles Dean Hood, was tried and convicted for capital
murder, and received a sentence of death, in 1990.

2. Judge Verla Sue Holland of the 296th Judicial District Court of Collin
County, presided over Hood's capital murder trial.

3. The elected District Attorney of Collin County, Thomas S. O'Connell, Jr.,

participated in the prosecution of Hood for capital murder.

4. Judge Holland and Mr. O'Connell were involved in an intimate sexual

relationship prior to Hood's capital murder trial.

5. Judge Holland continued to serve as the presiding judge of the 296th

Judicial District Court during Hood's direct appeal (1990-94). During
Hood's state habeas proceedings (1994-99), she left the district court bench
and served as a judge on the Court of Criminal Appeals ("CCA"). She
continued to serve on the CCA during Hood's federal district court habeas
proceedings (1999-2000), as well as a portion of his Fifth Circuit appeal
(2000-04).' Prior to the capital murder trial - and during the appellate and
post-conviction proceedings - Judge Holland never disclosed her
relationship with Mr. O'Connell to Hood.

6. Mr. O'Connell served as the District Attorney of Collin County during the
time of Hood's indictment (1989), trial (1990), direct appeal (1990-94),
state habeas review (1994-99), federal district court habeas review (1999-
2000), and Fifth Circuit appeal (2000-04).2 During these proceedings, Mr.
O'Connell never disclosed his relationship with Judge Holland to Hood.

Judge Holland resigned from the CCA on September 2, 2001.

2
Mr. O'Connell left the District Attorney's Office on December 31, 2002.

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7. Judge Holland and Mr. O'Connell took deliberate measures to ensure that
their affair would remain secret. There were no public displays of affection.
Holland deposition at 52; O'Connell deposition at 43. Their sexual
encounters took place at each other's homes when their spouses were away.
Id. at 16-17; Holland deposition at 52. Mr. O'Connell could not recall
telling anyone, except possibly his sisters, about his romantic relationship
with Judge Holland. O'Connell deposition at 18. Judge Holland told no
one. Holland deposition at 31, 33.

B. Conclusions of Law

1. The equitable doctrine of laches is inapplicable to inmates seeking post-

conviction relief in a subsequent application pursuant to Article 11.071 of
the Texas Code of Criminal Procedure.

2. The CCA has repeatedly recognized that "Article 11.071 now contains the
exclusive procedures for the exercise of this Court's original habeas corpus
jurisdiction in death penalty cases." Ex parte Smith, 977 S.W.2d 610, 611
(Tex. Crim. App. 1998) (emphasis in original) (quoting Ex parte Davis, 947
S.W.2d 216, 224 (Tex. Crim. App. 1996) (opinion of McCormick, P.J.)).3

3. Any attempt to impose additional requirements on death-sentenced

prisoners challenging their conviction or punishment would undermine the
Legislature's clear intent in enacting Article 11.071 and violate the
separation of powers.

4. Section 5 of Article 5 of the Texas Constitution expressly gives the

Legislature the complete authority to regulate "the means, manner, and
mode" of asserting a habeas claim. Davis, 947 S.W.2d at 223. The
Legislature's constitutional regulatory authority includes the right to impose
restrictions on a death row inmate's ability to file abusive or successive
habeas applications challenging the same criminal conviction or sentence.
Id. at 222-24; Ex parte Blue, 230 S.W.3d 151, 155-56 (Tex. Crim. App.
2007).

3
Although Presiding Judge McCormick's opinion in Davis is labeled a concurring opinion, a
majority of the CCA joined it and regards it as an opinion for the Court. Smith, 977 S.W.2d at
611 n.4.
5. The CCA has recognized that the intent of Article 11.071 is "to speed up the
habeas corpus procedures for capital cases, while retaining exceptions
which permit late filings" in a narrow set of circumstances. Smith, 977
S.W.2d at 611. By imposing strict deadlines for filing an initial habeas
application, the Legislature sought to expedite the capital post-conviction
process in support of the State's interest in finality. See Tex. Code Crim.
Proc. art. 11.071, §4.

6. The Legislature also created a set of narrowly-defined exceptions, allowing

the filing of a subsequent application if (1) the facts or law in support of the
claim were not previously available through the exercise of reasonable
diligence; (2) no rational juror would have found the inmate guilty; or (3) no
rational juror would have sentenced the inmate to death. See Tex. Code
Crim. Proc. art. 11.071, § 5. The Legislature imposed no time limits on the
CCA's consideration of the merits of a later-filed, successive application if
it otherwise meets one of the limited exceptions found in Section 5 of
Article 11.071.

7. As the CCA emphasized in Smith, when the applicant asked the Court to
create an exception to the strict filing deadlines for initial applications set
out in Article 11.071:

Our oaths are to uphold the constitutions and laws of this

country and state; they are not a commission to do what a
majority of us think is fair. This law was passed by the
legislature and approved by the governor, in accordance
with our constitutional form of government. The law is
clear: this court shall dismiss this application because it
was filed late. If the law is barbarous, the legislature
should repeal it or the governor should commute or
pardon those who are subjected to it. In the meantime,
we must follow it.

977 S.W.2d at 611; see Blue 230 S.W.3d at 167 (noting that Article
11.071 does not provide for appointment of counsel on a successive
petition and concluding that "this is a regrettable dilemma But it
is one we are not at liberty to solve for him, in light of the legitimate
legislative judgment as expressed in the statute. Counsel for the
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 applicant, and others similarly situated, must present their dilemma
for the consideration of the Legislature.").

8. The CCA has explained its duty to refrain from intruding into the legislative
realm:

Courts have no power to legislate. It is the court's duty

to observe, not to disregard statutory provisions. Courts
can neither ignore nor emasculate the statutes. Further,
courts have no power to create an exception to a statute,
nor do they have power to add to or take from legislative
pains, penalties and remedies.... It is for the
Legislature, not the courts, to remedy defects or supply
deficiencies in the laws, and to give relief from unjust
and unwise legislation.

State v. Ross, 953 S.W.2d 748, 751 n.4 (Tex. Crim. App. 1997).

9. In Smith, the courts lacked the power to create a judicial exception that
would have benefitted the applicant. Here, the courts lack the power to
impose an additional successive application requirement that would work to
the State's advantage. The Legislature has occupied the field of regulating
post-conviction proceedings in death penalty cases. If the State believes
that a successive petition filed after excessive delay - that otherwise meets
one of the exceptions to the general bar on successive applications - should
be rejected, then it must take up its complaint with the Legislature and urge
it to amend Article 11.071. The courts may not create an ad hoc judicial
requirement in this case or any other.

10. Ex parte Carrio, 992 S.W.2d 486 (Tex. Crim. App. 1999), is inapt. In
Carrio, the CCA adopted the doctrine of laches for non-death-sentenced
inmates filing an initial habeas petition under Article 11.07. The CCA
noted that, unlike Article 11.071, the post-conviction provisions of Article
11.07 contain no timeliness requirements for filing the initial application.
Id. at 488 n.3. More important, Carrio does not purport to allow a laches
defense to the filing of a subsequent petition that otherwise meets one of the
exceptions to the general prohibition on such petitions - exceptions that are
"virtually identical" to the ones found in Section 5 of Article 11.071. Davis,
 947S.W.2dat227

11. Even if the doctrine of laches should apply, the State cannot demonstrate
"clean hands."

12. The CCA has defined the doctrine of laches as:

the maxim that equity aids the vigilant and not those who
slumber on their rights. It is defined as neglect to assert
right or claim which, taken together with lapse of time
and other circumstances causing prejudice to an adverse
party, operates as a bar in a court of equity.

Carrio, 992 S. W.2d at 487 n.2 (citation omitted).

13. To prevail on its laches defense, the State must: (1) make a particularized
showing of prejudice; (2) show that the prejudice was caused by Hood's
having filed a delayed application; and (3) show that Hood did not act with
reasonable diligence as a matter of law. Id. at 488. The CCA explained that
the type of prejudice the State must show is prejudice in its ability to
respond to the allegations in the petition. Id. If the trial court finds that the
State has met its initial burden, the court shall afford the inmate an
opportunity to demonstrate either that the State actually has not been
prejudiced or that the inmate's delay in pursuing his claims is justified. Ex
parte Waites, 2009 WL 252355 (Tex. Crim. App. Feb. 4, 2009)
(unpublished), slip op. at *2.

14. As an equitable doctrine, laches is subject to equity's limitations. One of

those limitations is the doctrine of "clean hands." "A party cannot obtain
equitable relief if the party's own wrongful conduct is partially responsible
for the events at issue." Peacock v. State, 11 S.W.3d 285, 291-92 (Tex.
Crim. App. 2002) (Keller, J., dissenting); see Regional Properties, Inc. v.
Financial & Real Estate Consulting Co., 752 F.2d 178, 182 (5th Cir. 1985)
("An equitable defense cannot be used to reward inequities nor to defeat
justice."); see also Arroyo v. State, 117 S.W.3d 795, 798 (Tex. Crim. App.
2003) (holding that "a party may be estopped from asserting a claim that is
inconsistent with that party's prior conduct").

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15. The State cannot invoke the equitable doctrine of laches because its hands
are unclean: Judge Holland and Mr. O'Connell did not abide by their ethical
and constitutional duties to disclose the fundamental conflict caused by their
relationship. See Tex. Disciplinary R. Prof 1 Conduct, Rule 3.05(a), (b)
(prohibiting lawyers from improperly influencing tribunal or
communicating ex parte with tribunal); cmt. 3 (noting that "ex parte
contacts between a lawyer and a tribunal have been subjected to stringent
control because of the potential for abuse such contacts present"); Rule 3.09
cmt. 1 ("A prosecutor has the responsibility to see that justice is done, and
not simply to be an advocate."); Tex. Code of Judicial Conduct, Canon 1
("A judge should participate in establishing, maintaining, and enforcing
high standards of conduct, and should personally observe those standards so
that the integrity and independence of the judiciary is preserved."); Canon
2(A) ("A judge shall comply with the law and should act at all times in a
manner that promotes public confidence in the integrity and impartiality of
the judiciary."); Canon 2(B) ("A judge shall not allow any relationship to
influence judicial conduct or judgment."); Canon 3(B)(8) (prohibiting ex
parte contacts); Canon 4(A) ("A judge shall conduct all of the judge's extra-
judicial activities so that they do not: (1) cast reasonable doubt on the
judge's capacity to act impartially as a judge; or (2) interfere with the proper
performance of judicial duties."); Banks v. Dretke, 540 U.S. 668, 696 (2004)
("A rule thus declaring 'prosecutor may hide, defendant must seek,' is not
tenable in a system constitutionally bound to accord defendants due
process."); Strickler v. Greene, 527 U.S. 263, 280 (1999) (emphasizing "the
special role played by the American prosecutor in the search for truth in
criminal trials"); Berger v. United States, 295 U.S. 78, 88 (1935) (noting
that the State has an interest in a criminal prosecution to see "not that it shall
win a case, but that justice shall be done").

16. Even if the State could demonstrate "clean hands," it cannot show that the
delay has prejudiced its ability to respond to the allegations in the petition.

17. The CCA has adopted an understanding of laches for non-death-sentenced

inmates seeking initial habeas relief in which "the length of delay alone will
not constitute unreasonableness of delay or prejudice." Carrio, 992 S.W.2d
at 488. Instead, the State bears the burden of making a particularized
showing of prejudice in its ability to respond to the allegations in the
petition caused by the inmate's having filed a delayed petition. Id.
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18. The depositions of Mr. O'Connell and Judge Holland reveal that there is no
dispute that their intimate, sexual relationship began before Hood's trial.
Any disputes of fact possibly attributable to the erosion of memory caused
by the passage of time concern only the date the affair ended. These factual
disputes are immaterial. It is the appearance of partiality that is damaging to
the public's confidence in the integrity of the judicial process; Hood need
not prove actual bias. See In re Murchison, 349 U.S. 133, 136 (1955) ("[T]o
perform its high function in the best way, justice must satisfy the appearance
of justice."); Commonwealth Coatings Corp. v. Continental Casualty Co.,
393 U.S. 145, 150 (1968) (holding that "any tribunal permitted by law to try
cases and controversies not only must be unbiased but also must avoid even
the appearance of bias"); Kemp v. State, 846 S.W.2d 289, 305 (Tex. Crim.
App. 1992) (holding that the standard for assessing judicial bias is whether
the allegation of lack of impartiality is grounded on facts that would create
doubts concerning the judge's impartiality in the mind of a reasonable
person with knowledge of all the circumstances involved).

19. Under the doctrine of laches, even if the State could show that Hood's delay
caused the State prejudice in its ability to respond to the claim, the State
would still have to demonstrate that Hood did not act with reasonable
diligence in bringing the judicial bias claim. See Carrio, 992 S.W.2d at
488. This element of laches appears similar to the "reasonable diligence"
requirement found in Section 5 of Article 11.071. Hood acted with
reasonable diligence. See Part II, infra.
II. REASONABLE DILIGENCE

A. Findings of Fact

1. In its remand order, the CCA says that Hood "did not try to obtain proof of
the affair until some eighteen years after his trial." Ex parte Hood, No. WR-
41,168-11 (Tex. Code Crim. App. Nov. 19, 2008), slip op. at 4. This
statement is incorrect.

2. Based only on rumors of an affair, Hood's former habeas counsel decided to

look into the matter, prior to filing the initial habeas application. In 1995-
96, Hood's investigator, Tena S. Francis, conducted extensive records
research. She reviewed divorce records, records obtained from the Office of
Elections Administration, and case files in the Collin County District
Clerk's Office. Ms. Francis interviewed members of Hood's defense team,
attorneys practicing in Collin County, and Judge Holland's former husband,
Earl Holland. She attempted to interview Judge Holland's bailiff, but he
refused to discuss the judge's personal life with her. She contacted the State
Commission on Judicial Conduct. See Affidavit of Tena S. Francis (Aug. 1,
1996).

3. Ms. Francis was unable to develop any concrete evidence of the affair.

4. On June 27, 2005, shortly before Hood's scheduled execution date, A.

Richard Ellis, former counsel for Hood, contacted Judge Holland. She
refused to comment on the allegations that she had had a romantic affair
with Mr. O'Connell. On the same day, Mr. Ellis contacted Mr. O'Connell.
Mr. O'Connell denied that he had had a romantic affair with Judge Holland.
See Affidavit of A. Richard Ellis (Mar. 3, 2009).

5. On June 3, 2008, Hood received the affidavit of Matthew Goeller, a former

assistant district attorney in Collin County, Texas.

6. Mr. Goeller's affidavit marked the first time that a former employee of the
District Attorney's Office who had worked there during Mr. O'Connell's
tenure was willing to speak on the record and under oath about the
relationship.
7. Mr. Goeller stated that the romantic relationship between Judge Holland and
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 Mr. O'Connell was ongoing when Mr. Goeller began working at the District
Attorney's Office in 1987.

8. In June 2008, counsel for Hood retained Toni Knox, a private investigator.
She reviewed the work previously conducted by Ms. Francis, and then
interviewed approximately two dozen individuals in the Collin County area
who seemed likely to have some knowledge of the HolIand-O'Connell
affair. See Affidavit of Toni Knox, LCSW (Mar. 3, 2009).

9. Like Ms. Francis, Ms. Knox found no one who could confirm the existence
of a romantic relationship between Judge Holland and Mr. O'Connell. The
witnesses could only attest that they had heard rumors about the affair.

10. From June until September 2008, Ms. Knox spent over 80 hours
investigating the judicial bias claim. Hood's counsel paid her over $5,500
out-of-pocket for her time and expenses.

11. In 2008, Hood's counsel, Gregory W. Wiercioch, left a voice mail message
on Judge Holland's phone. She refused to cooperate with his investigation.
Holland deposition at 15-16.

12. Judge Holland and Mr. O'Connell wrongfully withheld relevant information
from defense counsel prior to and during the trial, the direct appeal, the state
habeas proceedings, the federal habeas proceedings, and the successive state
habeas proceedings. Indeed, Mr. O'Connell misled habeas counsel during
the successive state habeas proceedings and Judge Holland resisted
counsel's investigative efforts.

13. Hood filed his previous application on the morning of September 8, 2008.

14. Hood did not complete the deposition of Mr. O'Connell until 7:17 p.m. on
September 8, 2008. O'Connell deposition at 2. Hood did not complete the
deposition of Judge Holland until 12:19 p.m. on September 9, 2008.
Holland deposition at 2.

15. Hood filed the current application on September 26, 2008.

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B. Conclusions of Law

1. To obtain merits review of his judicial bias claim, Hood must show
"sufficient specific facts" establishing that the factual basis of the claim
"was not ascertainable through the exercise of reasonable diligence" at the
time he filed his previous habeas application. See Tex. Code. Crim. P art
11.071, §§ 5(a)(1), (e).

2. Hood exercised reasonable diligence.

3. Hood's unsuccessful efforts to obtain concrete evidence of the Holland-

O'Connell affair cannot be attributed to his failure to exercise reasonable
diligence but, instead, is explained by the principals' longstanding efforts to
keep the affair hidden.

4. In determining the scope of a habeas investigation, a reasonably diligent

attorney is entitled to rely on the presumption that State officials have fully
discharged their ethical and constitutional duties.

5. Hood cannot be faulted for failing to exercise reasonable diligence when

State officials prevented him from obtaining concrete evidence of the
Holland-O'Connell affair. Cf. Murray v. Carrier, All U.S. 478, 488 (1986)
(finding that "some objective factor external to the defense" - including
"interference by officials" -justifies inmate's failure to raise claim earlier).
Because conscientious counsel may presume that State officials have abided
by their ethical and constitutional responsibilities, counsel does not have a
procedural obligation to investigate constitutional error on the basis of mere
suspicion that some prosecutorial or judicial misconduct may have occurred.
Strickler v. Greene, 527 U.S. 263, 286-87 (1999).

6. In this case, however, the presumption proved false. Hood would never
have had to seek a reprieve from the Governor had Judge Holland or Mr.
O'Connell simply fulfilled their duty to disclose the fundamental conflict
caused by their relationship. See Tex. Disciplinary R. Prof 1 Conduct, Rule
3.05(a), (b) (prohibiting lawyers from improperly influencing tribunal or
communicating ex parte with tribunal); cmt. 3 (noting that "ex parte
contacts between a lawyer and a tribunal have been subjected to stringent
control because of the potential for abuse such contacts present"); Rule 3.09
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 cmt. 1 ("A prosecutor has the responsibility to see that justice is done, and
not simply to be an advocate."); Tex. Code of Judicial Conduct, Canon 1
("A judge should participate in establishing, maintaining, and enforcing
high standards of conduct, and should personally observe those standards so
that the integrity and independence of the judiciary is preserved."); Canon
2(A) ("A judge shall comply with the law and should act at all times in a
manner that promotes public confidence in the integrity and impartiality of
the judiciary."); Canon 2(B) ("A judge shall not allow any relationship to
influence judicial conduct or judgment."); Canon 3(B)(8) (prohibiting ex
parte contacts); Canon 4(A) ("A judge shall conduct all of the judge's extra-
judicial activities so that they do not: (1) cast reasonable doubt on the
judge's capacity to act impartially as a judge; or (2) interfere with the proper
performance of judicial duties."); Banks v. Dretke, 540 U.S. 668, 696 (2004)
("A rule thus declaring 'prosecutor may hide, defendant must seek,' is not
tenable in a system constitutionally bound to accord defendants due
process."); Strickler, 527 U.S. at 280 (emphasizing "the special role played
by the American prosecutor in the search for truth in criminal trials");
Berger v. United States, 295 U.S. 78, 88 (1935) (noting that the State has an
interest in a criminal prosecution to see "not that it shall win a case, but that
justice shall be done").

7. Two U.S. Supreme Court cases, Williams v. Taylor, 529 U.S. 420 (2000),
and Strickler v. Greene, 527 U.S. 263 (1999), discuss the diligence of state
habeas counsel. Williams and Strickler recognize that reasonably diligent
habeas counsel, when determining the scope of their investigation, are
entitled to trust that State actors have fulfilled their professional and
constitutional obligations. Without this presumption, the burden on habeas
counsel to conduct a reasonably diligent investigation would be onerous
because the scope of the investigation would be limitless.

8. Instances in which the CCA has permitted applicants to proceed on the

merits of subsequent applications confirm a similar understanding of
Section 5(a)(1) of Article 11.071. When State officials have suppressed
favorable evidence, the CCA has found the reasonable diligence
requirement satisfied - even if habeas counsel could have uncovered the
evidence had counsel undertaken fairly routine investigative tasks during
the previous proceedings. See Ex parte Michael Roy Toney, WR-51,047-03
(Tex Crim. App. Sept. 20, 2006) (unpublished) (authorizing successive
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 proceedings on Brady and Napue claims based on evidence that subsequent
habeas counsel obtained through public information act request); Ex parte
Anibal Garcia Rousseau, WR-43,534-02 (Tex. Crim. App. Sept. 11, 2002)
(unpublished) (authorizing successive proceedings on Brady and actual
innocence claims based on evidence that subsequent habeas counsel
uncovered through request to review district attorney's file); see also Ex
parte Lemke, 13 S.W.3d 791, 794 (Tex. Crim. App. 2000) (authorizing
successive application raising ineffective assistance of counsel claim,
because "reasonable diligence" did not require inmate "to query the district
attorney about the existence of plea bargain offers when he had been
assured by his attorney that there were none").

9. In the face of rumors of an affair, Hood was entitled to presume that Judge
Holland's and Mr. O'ConnelPs behavior - refusing to recuse themselves
from cases Mr. O'Connell personally prosecuted in Judge Holland's
courtroom - indicated that the rumors were false.

10. Even assuming the absence of State interference, Hood exercised reasonable
diligence.

11. Section 5(a)(1) does not require a death-sentenced inmate to use Rule 202
of the Texas Rules of Civil Procedure in an attempt to force recalcitrant
witnesses to speak.

12. Hood's repeated attempts to uncover evidence of a secret affair cannot be

characterized as less than reasonably diligent simply because he did not
pursue Rule 202 proceedings earlier. Under the "reasonable diligence"
inquiry of Article 11.071, the question is not whether the facts could have
been ascertained previously, but whether the inmate was diligent in his
efforts. Diligence depends upon whether the prisoner made a reasonable
attempt, in light of the information available at the time, to investigate and
pursue his claims. Williams, 529 U.S. at 435. It does not depend upon
whether those efforts could have been successful. Id.

13. Hood's investigation satisfies Lemke's interpretation of the "reasonable

diligence" provision that "at least some kind of inquiry has been made into
the matter at issue." 13 S.W.3d at 794.

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14. Based on courthouse gossip and speculation about an intimate relationship
between Judge Holland and Mr. O'Connell, Hood's habeas counsel made
reasonable efforts in 1995-96 to develop the facts of the affair. Because
counsel was unable to confirm these suspicions, she did not have a good
faith basis to allege a judicial bias claim in the initial application. Under
these circumstances, diligence did not demand that counsel pursue every
conceivable option, including commencing civil litigation under Rule 202.
That Rule 202 would ultimately prove successful is immaterial. See
Williams, 529 U.S. at 435.

15. In short, "reasonable diligence" does not impose on counsel a duty to

conduct a broad, unfocused investigation grounded on mere speculation or
rumor, without any basis in triggering/ac*. Article 11.071 nowhere requires
counsel to launch such a "fishing expedition." Instead, habeas counsel's
duty requires that counsel conduct an investigation concerning specific
triggering facts that come to counsel's attention in the course of, among
other things, reviewing the reporter's record and the clerk's record,
examining trial counsel's files, reading the appellate briefs, and
interviewing the client and trial counsel. See generally State Bar of Texas,
Guidelines and Standards for Texas Capital Counsel, 69 Tex. Bar J. 966,
977-81 (2006).

16. Despite relying on nothing but speculation as the basis for pursuing an
investigation, Hood nonetheless made a conscientious attempt to determine
whether there was any truth to the rumors of the Holland-O'Connell affair.
The failure to develop the facts of the judicial bias claim in the first or
subsequent rounds of habeas review is squarely attributable to Judge
Holland and Mr. O'Connell's deception and non-disclosure, rather than the
lack of reasonable diligence on Hood's part.

17. Mere speculation or suspicion does not suffice to "impose a duty on counsel
to advance a claim for which they have no evidentiary support." Strickler,
527 U.S. at 286. Only last year did Hood obtain evidence of the Holland-
O'Connell affair from a credible source who was willing to provide a sworn
statement.

18. Only after obtaining the Goeller affidavit did Hood have a good faith basis
for seeking investigatory depositions under Rule 202. He could not have
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 filed such a petition any earlier without running afoul of Rule 13 of the
Texas Rules of Civil Procedure. See Tex. R. Civ. Proc. 13 ("The signatures
of attorneys or parties constitute a certificate by them t h a t . . . to the best of
their knowledge, information, and belief formed after reasonable inquiry the
instrument is not groundless and brought in bad faith or groundless and
brought for the purpose of harassment.").

19. Hood's pursuit of Rule 202 anticipatory depositions demonstrates

extraordinary diligence.

20. Rule 202 is a rule of civil - not criminal - procedure. Hood argued in the
Rule 202 proceedings that depositions could lead to evidence supporting an
application for clemency or request for reprieve. Simply because Rule 202
yielded evidence pertinent to a challenge to Hood's conviction and sentence
does not mean that habeas counsel must pursue civil remedies to satisfy
their duty of exercising reasonable diligence. In fact, the State repeatedly
accused Hood of improperly using civil procedure to pursue habeas relief.
See, e.g., Motion to Correct Misnomer of Pleadings and File as Subsequent
Habeas Petition (docketed Aug. 22, 2008); Motion to Forward All Pleadings
in Cause Number 296-80233-90 in the 296th Judicial District Court of
Collin County, Texas (docketed Sept. 2, 2008).

21. Hood did not use Rule 202 until after the CCA had dismissed his successive
habeas petition raising the judicial bias claim for the first time - despite the
Goeller affidavit. In other words, Hood did not attempt to use Rule 202
until the habeas process had proved futile.

22. Pursuing depositions under Rule 202 demanded painstaking research, as

well as substantial time and money to conduct the litigation - including
responding to the notices of removal filed by Judge Holland and Mr.
O'Connell. An attorney exercising ordinary care and reasonable diligence
would not have felt compelled to expend limited resources on such a
speculative undertaking.
23. The deposition testimony of Judge Holland and Mr. O'Connell constitutes a
new factual basis for the judicial bias claim that "was not ascertainable
through the exercise of reasonable diligence" at the time Hood filed his
previous application. Tex. Code. Crim. P. art 11.071, §§ 5(e).

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III. RECOMMENDATION

1. The Court has collected and adduced the evidence necessary to make a
recommendation on the two issues presented by the Court of Criminal
Appeals. Based upon the evidence, pleadings and arguments of counsel, the
Court recommends that the doctrine of laches does not bar the consideration
of Applicant's claim. Based upon the evidence, pleadings and arguments of
counsel, the Court recommends that Applicant meets the dictates of Article
11.071 §5 of the Texas Code of Criminal Procedure. The Court
recommends that Applicant has satisfied the showing required by Article
11.071 §5 (a)(1).

2. The Clerk of this Court is ordered to send these Recommendations and the
record of any proceedings conducted in connection with this matter to the
Court of Criminal Appeals instanter.

SIGNED this

JUDGE GREG BREWER

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