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. A. 1. 2. 3. 4.

LACHES Findings of Fact The Applicant, Charles Dean Hood, was tried and convicted for capital murder, and received a sentence of death, in 1990. Judge Verla Sue Holland of the 296th Judicial District Court of Collin County, presided over Hood's capital murder trial. The elected District Attorney of Collin County, Thomas S. O'Connell, Jr., participated in the prosecution of Hood for capital murder. Judge Holland and Mr. O'Connell were involved in an intimate sexual relationship prior to Hood's capital murder trial. 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. 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 (19992000), and Fifth Circuit appeal (2000-04).2 During these proceedings, Mr. O'Connell never disclosed his relationship with Judge Holland to Hood.

5.

6.

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

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

-2-

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. Conclusions of Law The equitable doctrine of laches is inapplicable to inmates seeking postconviction relief in a subsequent application pursuant to Article 11.071 of the Texas Code of Criminal Procedure. 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 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. 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).

B. 1.

2.

3.

4.

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. 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. 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
-4-

6.

7.

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. 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,

10.

947S.W.2dat227 11. 12. Even if the doctrine of laches should apply, the State cannot demonstrate "clean hands." 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. 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"). -6-

14.

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 extrajudicial 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"). 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. 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.
-7-

16.

17.

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). 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.

19.

II. A. 1.

REASONABLE DILIGENCE Findings of Fact 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. WR41,168-11 (Tex. Code Crim. App. Nov. 19, 2008), slip op. at 4. This statement is incorrect. 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 199596, 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). Ms. Francis was unable to develop any concrete evidence of the affair. 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). On June 3, 2008, Hood received the affidavit of Matthew Goeller, a former assistant district attorney in Collin County, Texas. 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. Mr. Goeller stated that the romantic relationship between Judge Holland and -9-

2.

3. 4.

5. 6.

7.

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). 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. 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. 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. 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. Hood filed his previous application on the morning of September 8, 2008. 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. Hood filed the current application on September 26, 2008.

9.

10.

11.

12.

13. 14.

15.

-10-

B. 1.

Conclusions of Law 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). Hood exercised reasonable diligence. Hood's unsuccessful efforts to obtain concrete evidence of the HollandO'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. 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. 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). 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 -11-

2. 3.

4.

5.

6.

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 extrajudicial 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. 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 -12-

8.

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. Even assuming the absence of State interference, Hood exercised reasonable diligence. 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. 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. 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.
-13-

10.

11.

12.

13.

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. 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). 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. 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 HollandO'Connell affair from a credible source who was willing to provide a sworn statement. Only after obtaining the Goeller affidavit did Hood have a good faith basis for seeking investigatory depositions under Rule 202. He could not have -14-

15.

16.

17.

18.

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. 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). 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. 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. 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). •15-

20.

21.

22.

23.

III. 1.

RECOMMENDATION 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). 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.

2.

SIGNED this

JUDGE GREG BREWER

-16-

Sign up to vote on this title
UsefulNot useful