The Supreme Court finds that because Trevino did not have the effective assistance of counsel with respect to his initial 11.071 writ, that he can raise ineffective assistance in a later federal writ, avoiding any claim of default (for federal writ purposes). True enough, the opinion says it does not make that ruling (expressly relying only on the obstacles inherent in Tex. R. App. P. 21). But, the decision of the CCA in Trevino's state writ was not based on the failure to pursue the matter through a motion for new trial, but rather on the fact that no "failure to investigate" claim was raised in the writ.

What does the result in the case mean for subsequent applications under 11.07 sec. 4 or 11.071 sec. 5? Should those statutes now be amended to conform to the Trevino exception (since presumably the State would rather have the first shot at judging the validity of its judgments)? Moreover, the court also implies that where a habeas applicant has no counsel on the first state writ, then he will be considered to have ineffective assistance of counsel and still suffers no default. That dicta seems a strong indication that ineffective assistance claims should not be raised in the state writ (as they will now be available at the federal level regardless). It seems the only way for the state to assure that its courts initially decide the issue is to provide an effective attorney in the post-conviction process. Trevino Chief Justice Roberts' dissenting opinion makes far more sense and honors the sound principles expressed in the first paragraph of his opinion.

I am not sure the sky is falling (yet). All this does is excuse a potential default on a claim in federal court if the applicant can prove the default was based on the lack of counsel. I don't think it freely permits applicants to sleep on claims of ineffective assistance and raise them for the first time on federal review, absent some showing that their failure to do so was due to their lack of counsel on their initial application (or, in the case of capital writs, due to ineffective assistance of counsel).

I think C.J. Roberts's prediction from his dissent will be largely true: the federal courts are in for a lot of tedious procedural wrangling over whether an applicant defaulted on a claim.

I also do not think there is a legislative solution to be found. If Texas law suddenly provided counsel for first-time habeas applicants, then we would simply shift the analysis from "I did not have counsel, how could I have known to raise ineffective assistance in this manner?" to "my counsel did not raise ineffective assistance in the manner I now think most advantageous!"

Ultimately, I think our appellate prosecutors could help themselves out by making sure that we are thorough in answering claims of ineffective assistance of counsel raised in state writs. When we engage in fact-finding after a claim of ineffective assistance of counsel is raised, it would be only to our benefit to make sure that we develop a good record and fully respond to such claims, leaving the applicants no room to argue that their procedural default should be excused due to an incomplete record or a claim that was not properly presented.

The more we can show that trial counsel did not render ineffective assistance of counsel, the easier it will be to argue procedural bars in federal court.