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Ex Parte Banks

Court of Criminal Appeals of Texas
1989 WL 29611, 1989 Tex. Crim. App. LEXIS 71, 769 S.W.2d 539 (1989)
ELI5:

Sections

Rule of Law:

The writ of habeas corpus is available only to review jurisdictional defects or denials of fundamental constitutional rights and cannot be used to litigate statutory procedural errors that should have been raised on direct appeal.


Facts:

  • Delma Banks was prosecuted for capital murder.
  • During the voir dire process of jury selection, prospective juror McAfee was questioned.
  • McAfee testified that he knew both the defendant and the victim.
  • McAfee stated that while it would be difficult, he would do his best to serve if chosen.
  • The State challenged McAfee for cause based on bias.
  • The trial judge sustained the State's challenge and excused McAfee, reasoning that McAfee knew more about the parties than other jurors.
  • Banks's trial attorney objected to the excusal of McAfee at the time it occurred.

Procedural Posture:

  • The defendant was convicted of capital murder and sentenced to death in the trial court.
  • The Texas Court of Criminal Appeals affirmed the conviction on direct appeal (where the juror issue was not raised).
  • The United States Supreme Court denied certiorari.
  • The applicant filed an initial application for writ of habeas corpus, which was denied by the Texas Court of Criminal Appeals.
  • The applicant filed a second application for writ of habeas corpus raising the juror exclusion issue.
  • The trial court recommended the second application be denied.
  • The Texas Court of Criminal Appeals initially denied relief on the second application.
  • The applicant filed a motion for rehearing on the second application.

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Issue:

May a habeas corpus applicant raise a claim regarding the improper exclusion of a prospective juror based on a statutory procedural violation for the first time in a post-conviction writ of habeas corpus if the issue was not raised on direct appeal?


Opinions:

Majority - Judge Miller

No, the writ of habeas corpus cannot be used to litigate matters involving statutory procedural errors that were not raised on direct appeal. The Court reasoned that the Great Writ is traditionally reserved for reviewing jurisdictional defects or denials of fundamental constitutional rights. The Court distinguished this case from Ex parte Bravo, noting that Bravo involved a constitutional violation under Witherspoon/Adams regarding the death penalty, whereas Banks alleged a violation of a procedural statute (Art. 35.16) regarding juror bias. Since the claim did not rise to the level of a constitutional or jurisdictional error, and was not raised on direct appeal, it is not cognizable on habeas corpus.


Dissenting - Judge Clinton

Yes, the writ should be available because the exclusion involves an 'illegality' rather than a mere irregularity. Judge Clinton argued that the majority relied on a rote axiom that 'habeas cannot substitute for an appeal' without understanding its historical context. He asserted that while mere irregularities are not cognizable, 'radical defects' or illegalities that render proceedings void should be reviewable. He criticized the majority for refusing to examine whether the statutory violation actually raised a constitutional due process question.


Dissenting - Judge Teague

Yes, the Court should review the claim because the error implicates due process and the effective assistance of counsel. Judge Teague argued that the majority is participating in a movement to improperly restrict the Great Writ. He contended that the exclusion of McAfee was a clear error as he was not disqualified under the law, and that appellate counsel's failure to raise this obvious issue constituted ineffective assistance. He asserted that the writ must remain flexible to correct miscarriages of justice, particularly in capital cases.



Analysis:

This case establishes a significant threshold for post-conviction relief in Texas, sharply distinguishing between constitutional/jurisdictional errors and statutory/procedural errors. By ruling that statutory violations regarding jury selection are forfeited if not raised on direct appeal, the Court limits the scope of habeas corpus review. This decision enforces a strict procedural default rule, preventing the use of habeas corpus as a 'second appeal' for non-constitutional trial errors, essentially requiring appellate counsel to perfect all statutory claims on the initial direct appeal or lose them forever.

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