Applicant claimed ineffective assistance of appellate counsel in that his lawyer failed to inform him that he had a right to file a pro se PDR. The trial court issued an order designating issues that ordered the attorney in question to submit an affidavit saying whether he did or did not inform the guy of his PDR right. The lawyer never submitted the affidavit.

Applicant submitted a second application making the same claim. I drafted an order saying "The Court never got the affidavit it ordered. Applicant has, therefore, failed to meet his burden of proof. The Court recommends that the application be denied." It got sent back with orders to "Give appellate counsel a chance to file an affidavit refuting or admitting the claims."

I've drafted and filed a new order doing just that, but does that seem just dead wrong to anyone else? We did give him a chance to file his affidavit. In fact we gave him years. He didn't do it. What if he fails to do it now? What if he dies before he can manage it and there's no laches claim because the applicant did everything he was supposed to in a timely fashion?

I looked this up in the my handy dandy TDCAA Appellate Manual and John Jasuta says that "Usually, an affidavit from trial counsel or other evidence must support the State's answer denying instances of ineffective assistance of counsel." He doesn't give any support for that, and I can't find it anywhere in 11.07 or in any of the case law, for that matter. Does this represent a shifting of the burden of proof on IAC claims? Do we have to disprove them somehow?

It seems to me that if the applicant can't get the evidence he needs (even if it's testimony of his lawyer who, arguably, incentive to lie and protect his reputation, or at least to decline to answer) then he can't meet his burden of proof. If he can't meet his burden of proof, his application should get denied.

If the shoe were on the other foot and a star State's witness just thumbed his nose at a subpoena, it isn't like the court would say "Oh, well, if the State can't prove its case through no fault of its own, we'll just have to make the defendant disprove the testimony the State says it would have offered..."

So what's the deal here? How can the State be required to submit an affidavit in support of its response to ~any~ claim on habeas? What happens if the affidavit can't be obtained? Any thoughts?

While I agree with you on the BOP, why not request the trial court allow counsel a reasonable time to file his affidavit--say three or four weeks. If at the end of the time counsel does not comply, prompt the the court to hold a show cause hearing. The threat of such is usually enough for the affidavit to appear--even if on the date of the hearing! If you prepare a short proposed order, the t/c can simply sign off on the schedule.

I'm familiar with the different arm-twisters that are available. I guess the problem is that I don't really want to do that. I don't want to drag a defense attorney into court, wagging my finger at him, even if he has been naughty. Not if I can circumvent it. So far I've been doing that (for months now, on at least five or six other applications) by just saying that the applicant hasn't proved his IAC claim, no matter what he said his lawyer did, if he didn't include an affidavit. It wasn't until today that I saw the thing in the Appellate manual that seems to put the onus on me. Now I'm afraid that (a) all of those are going to come back to me, and (b) I can't do that anymore and from now on I need to get affidavits from the defense attorneys up front denying the crazy claims their former clients have made about their performance.

The whole thing just seems positively unpleasant, which is what prompted the question: Why is this my job? Ex parte Empey 757 S.W.2d 771 and Ex parte Maldonado 688 S.W.2d 116 both clearly put the BoP on the Applicant to plead ~and prove~ facts that, if true, would entitle him to relief. Empey goes further and says that his mere allegation, even if sworn, isn't enough to get the job done.

There's even case law that says that if he gets his hearing, comes in and testifies under oath that his lawyer screwed up, even ~that~ isn't enough to get past the presumption of regularity, absent some corroborating evidence.

[This message was edited by David Nowlin on 08-31-06 at .]

Maybe I'm not understanding you. Though the responsibility of getting affidavits often/usually falls on us, it is required because the trial court has implicitly designated an issue requiring them. We simply expedite the process of obtaining them--messengers if you will. Courts can, and some do, simply direct the defense to submit an affidavit without any assistance from us. That is the better practice, but so many courts don't really seem to get the writ process and need a helping hand. Generally, I find a courtesy call then a letter to the defense attorney with a copy of the trial court's order to provide an affidavit and a copy of the application is not too great a strain on us and yields the desired result. If the trial court appointed writ counsel or counsel is retained, then, I think we would be in a much stronger position to claim the burden falls on the defense. But, in my experience, most of these IAC claims come from pro se inmates so the additional work falls on our shoulders.

I think I'm not asking my question very well. What I'm really interested in learning is what I should do on the next application.

Say tomorrow I get an application that alleges by three grounds of relief, the usual cocktail: (1) Actual Innocence (because I convinced my victim to recant), (2) Involuntary Plea (because lawyer informed me, quite accurately, that it was in my best interests to plead guilty), and (3) Ineffective Assistance of Counsel.

IAC comes in a lot of forms, of course, including variations of coercion, collusion with the state, failure to investigate, etc.. etc.. Every once in a while, though, an applicant hits the nail on the head and alleges something that, if true, really would entitle him to relief. Those are usually the failure-to-inform allegations or the time-delays. e.g. My lawyer didn't tell me I could appeal. My lawyer didn't tell me about a plea bargain offer. My lawyer didn't file my notice of appeal on time. Those are the troublesome ones.

Until today, I've been answering those by saying "Applicant has alleged, but failed to prove facts that, if true, would entitle him to relief. He's neither provided nor referenced any evidence of his claim. Therefore, he's failed to meet his burden. Therefore, his third ground for relief should be denied."

My question is: should I be filing proposed orders designating issues and requesting affidavits on these? Should I be trying to get affidavits from the defense attorneys before I file anything at all? Or should I just keep doing what I'm doing? It seems to work in the majority of cases.

I'm worried, though, that there might be the rare case that the Court refuses to sign my findings of fact, conclusions of law, recommendation and order, and sua sponte designates an issue. I'm also worried about remand from the Court of Criminal Appeals, as either of those situations could result in the scheduling of a hearing and the (expensive) appointment of counsel for an applicant who's just gotten lucky with a lie that would entitle him to relief if it were true.

This is simply our practice and other offices may approach these cases in other ways.

We carefully review IAC, Brady, and prosecutorial misconduct claims. If they are something more than a superficial allegation, we generally respond to them. If we need more than the record, we will prepare a proposed order designating the issues--usually having a hearing by way of documetary evidence. (We also submit our reply to any other claims that can be dealt with at this time.) The order will instruct defense counsel to respond to any IAC claims by way of affidavit and limit the development of any claims to those designated.

We do not answer conclusory IAC claims. If we become too cavalier, we may have one or two cases a year kicked back by the CCA, but that is all. So under our practice, I would say you may be too quick to dismiss some of the IAC claims. On the other hand, under your practice and I dare say others, we may have responded more than we needed to do so.

Roe Wilson's TDCAA manual on Capital Writs provides some useful practices and forms that can be adapted to non-capital writs.

I've discovered my question has a second part. If the answer to the practical portion mentioned above is, as I expect it to be, "Yes, you should be trying to track down affidavits from defense attorneys before you file your response" the second part of the question then is, "So who is the burden of proof ~really~ on." By which I mean: If I'm supposed to get affidavits from defense attorneys refuting claims of IAC when the applicant has managed to assert a claim that, if true, would entitle him to relief, what happens when I can't get it?

If the lawyer blows me off, I can submit a proposed order designating issues, and when the judge signs it, the lawyer is ordered to submit his affidavit. If he blows the court off, as John Stride said, I can try to get a show cause order. If he blows that off, I can request sanctions. If he just drops dead, presumably just to spite me, I got nothin'.

If he gets a hearing because the State can't get an affidavit refuting his claims, what happens if the State can't produce a witness contradicting his testimony at that hearing? Does he get the relief he requested? Because if he does, that means the burden is on the State. All he has to do is allege facts that, if true, would entitle him to relief, and that can't be disproved, and he wins. That's a BoP problem.

Again, I think Empey and Maldonado say that isn't true. I think a habeas applicant has to do more than just make allegations, even if they're sworn. I think he has to have something, aside from his own self-serving claims, that proves he's entitled to relief. And if he doesn't have that, he doesn't get his relief, or a hearing, or an order designating issues and ordering affidavits. Right?

And if that's right, then we can't have a duty to track down these affidavits, because the one leads to the other. Further, if we don't have a duty to do it, we shouldn't do it. It seems to me that, unless justice is somehow served by helping an inmate out, the State shouldn't do it. It should put him to his proof without any help. I've had cases where I asked the court to designate issues, but they were cases where I believed the applicant's story, believed he was entitled to relief, and knew that he would have more trouble getting proof of his claims than I would. In any other situation, I think it�s my job to ask the court to deny relief, right?

I am not sure I can keep up with you!

If the application alleges facts which if true would entitle the party to relief, then sooner or later the CCA is going to order fact-gathering by the trial court. The typical order reads something like this: "The trial court shall provide Applicant's trial counsel with the opportunity to respond to Applicant's claim of ineffective assistance of counsel. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, sec. 3(d)." At that point, the trial judge has the obligation to secure the evidence, usually by ordering a knowledgeable witness to file an affidavit addressing the allegations. The State has no burden to disprove the allegations, but it would normally like to have some control over what proof ultimately gets before the CCA and what findings and recommendation the trial court makes. That is the reason why you may want to seek out the defense attorney (or other witnesses) for assistance. If they have rendered effective assistance, most are quite willing to aid in protecting the judgment. If they have not, then they are more likely to ignore your inquiry (and perhaps the court's). The court takes the initiative in securing the evidence and sees to it that a record is produced. But, I do not think you can take a laissez faire attitude, even though the burden remains on the applicant.

I am sure the folks in the AG's office who will be defending the upcoming federal writ would encourage you to develop a complete and truthful record, rather than just hoping the CCA will use the burden of proof to deny relief.

Generally, the self-serving testimony of the applicant would not permit relief. But, I suppose it might if not contradicted by an available witness. I think the burden of persuasion may actually shift if credible testimony in support of the claim is produced.

Martin says it the way I understand it too.

I'm gonna jump in.

I think David's first point is well-taken: the way current writ practice proceeds (as enforced by the Court of Criminal Appeals) the State has been put in the position of having to secure the Applicant's proof for him (in the form of an affidavit). This is backwards from any normal litigation procedure.

I also think he's tilting at windmills, because as long as there's an obligation on the trial court (per 11.07 sec 3(d)), the court will (in most cases) do its job by relying on the State to take care of it. That means letters to attorneys, drafting findings and orders, etc. I think it sux, but that's where we are.

Also, to the extent sec 3(d) does put the onus on the court to do things a litigant with the BoP would normally do (like find witnesses, etc.), the process is transformed into a kind of civil law-style inquisitorial system. And I think Texas judges are ill-equipped to deal with that. Which is (again) why those burdens are tossed back to the prosecutor.

Of course it works that way because 9 out of 10 IAC habeas claims are by pro se applicants (I made up that figure, so feel free to correct it). I guess no one wants to deal with the headaches of trying to treat an incarcerated applicant the same as any other litigant.

Finally, I'm less concerned with the BoP once the applicant actually produces something. If the applicant gets up in court and testifies to a lot of nonsense about his attorney and there's no contradictory evidence, he's obviously (at least) met his burden of production. Whether a trial judge would actually be persuaded by that is a different story.

I appreciate everyone's input. I'll be interested in seeing whether or not the CCA sends back any of the other applications that allege sufficient facts that I've responded to with a recommendation and order rather than an order designating issues. In the future I'll be more careful in making decisions about when to draft orders designating issues and when to hope the court finds the Applicant just hasn't met his burden.

Thanks again.

When I said the State becomes the "messenger" I should have said we become the "expediter."

However you say it, it sounds more like "waiter". As in, "Yes, Your Honor, may I take your order?"

You are right that the current system expects the prosecutor to collect information and submit it to the judge with a proposed order. The alternative is a free-for-all in which the defendant gets to dump nonsense into the system and wait to hit the lottery.

Prosecutors should embrace the opportunity to get an affidavit from the defense attorney. Most lawyers will come in, review the record, and submit something to defend themselves.

Yes, some lawyers will dodge the chance to defend themselves. The first step in such a case is to ask the trial court to issue an order requiring the defense attorney to submit an affidavit. If the lawyer fails to follow the order, consider asking the judge to hold the lawyer in contempt of court. If that doesn't work, consider asking for a live hearing and serve the defense attorney with a subpoena.

Any good lawyer should be willing to explain his/her work. I suppose the "sleeping dogs" response of saying the defendant didn't meet his burden is a way to go. But, you really don't want that approach if/when the writ heads to federal court.

Federal judges are not too crazy about a defendant not getting some kind of hearing -- even a paper hearing is better than nothing.

John Bradley
District Attorney
Williamson County, Texas

Please, even though you may not technically "have to," get the lawyer to file his *$^#@ affidavit. It's so much easier to deal with the federal writ when the state court had an affidavit to make credibility rulings about. You may be right in the sense that it's not your job, but I guarantee you, he *will* file in federal court, and the tighter you sew it up on the state level, the better and easier it is to deny relief on the federal level.

Georgette Oden
Asst. AG- Postconviction Litigation

Postconviction Litigation
Office of the Attorney General

Good advice from the AG's office. I don't know about the rest of you, but the CCA seems to be tightening up on issues like this. In revieiwing the hand down lists over the last year or so, I see that they are increasingly remanding for affidavits (and in some cases, live hearings) when in the past they did not. Capital and non-capital cases alike.