Granados, Carlos

• Court: Court of Criminal Appeals of Texas
• Decided: January 10, 2007
• Docket: WR-51,135-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-51,135-01 EX PARTE CARLOS GRANADOS ON APPLICATION FOR WRIT OF HABEAS CORPUS

IN CAUSE NO. 98-758-K277A FROM THE

277^TH DISTRICT COURT OF WILLIAMSON COUNTY

Per Curiam. Johnson, J., filed a concurring statement, joined by Meyers and Price, JJ.

ORDER

Motions are before us relating to an application for writ of habeas corpus filed pursuant to Texas Code of Criminal Procedure, Article 11.071. ⁽¹⁾

Applicant was convicted of capital murder on April 23, 1999. The evidence at trial shows that applicant was the on-again, off-again boyfriend of Katherine Jimenez. At

the time of the capital murder, applicant was living in Katherine's Georgetown apartment, which she shared with her three-year-old son, Anthony. One day, applicant became furious that Katherine would not take a nap with him while Anthony was watching TV in the living room. Katherine said that she had too much work to do. Applicant attacked Katherine with a knife, stabbing her and slashing her neck until the knife broke. Katherine simultaneously struggled and attempted to placate applicant by telling him that she loved him. She tried to call the police or escape, but applicant caught her, dragged her into the kitchen, and repeatedly stabbed her again. She played dead. Applicant then left the kitchen and Katherine heard her son Anthony scream, "I don't want to die. Don't kill me. I don't want to die." Applicant stabbed Anthony in the chest and he died. Hours later, Katherine's family, concerned that she had not arrived at work, contacted the police who came to the apartment the next morning on a "welfare call." They found applicant inside, still holding the bloody knife, and they saw blood stains covering the carpet, walls, and chairs. Katherine had survived and told the officers, "He killed my baby, and I have been waiting for you to come." The jury convicted applicant of capital murder and, based on the jury's answers to the special issues, the trial judge sentenced him to death. This Court affirmed the conviction and sentence. Granados v. State, 85 S.W.3d 217 (Tex. Crim. App. 2002).

On August 23, 2001, applicant filed his initial application for writ of habeas corpus pursuant to Article 11.071. Although it was an unusually brief writ application, it raised a single constitutional claim with two subparts: (1) "The sentencing stage testimony of Walter

Quijano clearly injected the issue of race into applicant's sentencing proceeding"; and (2) even if trial counsel's decision to call Dr. Quijano as a defense witness could be called "trial strategy," it nonetheless "served to clear the way for jurors to feel free to consider the issue of race in assessing applicant's punishment." This writ application was filed after the Attorney General of Texas had confessed error in another death penalty case in which Dr. Quijano had testified for the State. See Saldano v. State, 70 S.W.3d 873 (Tex. Crim. App. 2002) (discussing Attorney General's earlier confession of error). The habeas court entered findings of fact and conclusions of law recommending denial of relief. Based on these findings, we denied relief. Ex parte Granados, No. WR-51,135-01 (Tex. Crim. App. September 18, 2002).

Applicant then filed a writ petition in federal court where he was represented by his current counsel, attorneys in the Austin law firm of Graves, Dougherty, Hearon & Moody. That law firm made basically the same two claims in federal court that applicant's state habeas counsel made in his state writ application. The law firm also added a claim concerning the applicability of Apprendi/Ring ⁽²⁾ to the Texas capital sentencing procedure. The federal district court denied relief, the Fifth Circuit, in a published opinion, affirmed the district court, and the United States Supreme Court denied certiorari. Granados v. Quarterman, 455 F.3d 529 (5^th Cir. 2006), cert. denied, 166 L.Ed.2d 568 (2006).

Two days before his scheduled execution, applicant moved this Court to vacate the judgment, appoint competent counsel and grant time for him to investigate and file another application for writ of habeas corpus. Alternatively he asks that this Court, on its own motion, rehear his initial application and permit him to raise unidentified new issues. Lastly he asks that his execution be stayed to accommodate granting the motion for a new application for writ of habeas corpus.

We have reviewed applicant's motion and find that there is no basis upon which to vacate the judgment and begin a new application for writ of habeas corpus.

First, applicant has failed to demonstrate that he is entitled to a stay of execution. The United State Supreme Court has described a stay of execution as "an equitable remedy" that "must take into consideration the State's strong interest in proceeding with its judgment and . . . [an applicant's] attempt[s] at manipulation." ⁽³⁾ Accordingly,

before granting a stay, a district court must consider not only the likelihood of success on the merits and the relative harms to the parties, but also the extent to which the inmate has delayed unnecessarily in bringing the claim. Given the State's significant interest in enforcing its criminal judgments, there is a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay. ⁽⁴⁾

Recently, four members of this Court employed the Supreme Court's standard when concurring with the majority's decision to lift a temporary stay of execution. ⁽⁵⁾ In that case, a temporary stay was granted to consider a subsequent habeas application challenging the

chemicals used by the Texas Department of Criminal Justice in its lethal injection protocol. ⁽⁶⁾ The four concurring judges concluded that Applicant had failed to make a prima facie showing that his constitutional claim was meritorious and joined the majority decision to lift the stay and deny habeas relief. ⁽⁷⁾

Second, in his present motion, applicant fails to raise any constitutional claim or issue that would invalidate his conviction or sentence. Although applicant's current lawyers have apparently represented him for four years in federal court and are presumably familiar with their client, the facts of the case, the law relating to the case, and the lawyers who originally represented applicant, they make no constitutional claims concerning the original trial and sentencing in this case. The only claim they make is that applicant's original habeas attorney is no longer on the list of 11.071 lawyers for appointment of indigent death row inmates, and he had filed a very short state-court writ application raising only one claim. In essence, applicant is asking for a "Do-over" not because his trial or sentencing was fundamentally unfair, but because his original writ attorney is no longer on the attorney appointment list and he filed a succinct writ application.

In some circumstances, brevity is the wisest course. A single valid legal claim is all that is necessary to achieve the desired result. The "kitchen sink" approach is not necessarily a positive one as forty-seven invalid claims are not weightier than a single valid one. Nor is verbosity a suitable substitute for cogency. A single, well-crafted sentence may speak volumes while a 150 page application may be full of sound and fury signifying nothing. Courts do not (and should not) measure the worth of a writ application by either the number of claims presented or the length of the application.

In the present case, a competent, highly qualified writ attorney might well have believed that a single, succinct claim that invoked a prior legal claim by another death row inmate concerning the possible racial overtones of testimony for which the Texas Attorney General confessed error was a valid strategy. Although applicant's claim ultimately did not result in relief, there is certainly nothing inappropriate in the making or urging of that claim. Nor, given the recency of the Saldano case, did this Court need any lengthy legal or factual recitation to understand the constitutional claim.

Furthermore, applicant's current lawyers raised the same two-part claim in federal court, although it was ultimately rejected on its merits in the Fifth Circuit. Granados v. Quarterman, 455 F.3d 529 (5^th Cir. 2006). And applicant raised one additional claim in federal court, demonstrating that there was a second constitutional claim which these new lawyers thought sufficiently important to raise even though it had not been made in the state proceedings. Thus, had there been other constitutional claims to raise, there is reason to believe that his lawyers would have included them in the federal petition, even though they had not been first raised in the state proceeding. Further, these lawyers apparently did not raise any issue in federal court concerning the relative brevity of applicant's state habeas application. Had it done so, the Fifth Circuit presumably would have mentioned this fact in its published opinion, and applicant's lawyers would surely have mentioned that court's response in their current motion.

Applicant has failed to persuade us that we should reconsider our previous denial of relief on his writ application, or that he is entitled to any other relief. We deny applicant's motion to vacate the judgment and his motion for stay of execution.

IT IS SO ORDERED THIS THE 10^TH DAY OF JANUARY, 2007.

Do Not Publish

1. Applicant entitles his document, "Motion to Vacate Judgment, For Appointment of Competent State Post-Conviction Counsel and For Time to Prepare and File a Meaningful Application for Post-Conviction Writ of Habeas Corpus[,] Alternatively Suggestion for Rehearing on the Court's Own Motion to Address and Provide Remedy for Deficiant Representation."

2.

Apprendi v. New Jersey, 530 U.S. 466 (2000); Ring v. Arizona, 536 U.S. 584 (2002).

3.

Nelson v. Campbell, 541 U.S. 637, 649 (2004) (quoting Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U.S. 653, 654 (1992) (per curiam)).

4.

Id. at 649-50.

5.

Ex parte O'Brien, 190 S.W.3d 677, 678-83 (Tex. Crim. App. 2006) (Cochran, J., concurring).

6.

Id. at 678.

7.

Id. at 680-83.