In re Dow

481 S.W.3d 215, 58 Tex. Sup. Ct. J. 1457, 2015 WL 4072494, 2015 Tex. LEXIS 627
CourtTexas Supreme Court
DecidedJune 26, 2015
DocketNo. 15-0205
StatusPublished
Cited by3 cases

This text of 481 S.W.3d 215 (In re Dow) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Dow, 481 S.W.3d 215, 58 Tex. Sup. Ct. J. 1457, 2015 WL 4072494, 2015 Tex. LEXIS 627 (Tex. 2015).

Opinion

PER CURIAM

Court of Criminal Appeals Miscellaneous Rule 11-003 providés that “[a] motion for stay of execution ... musst be filed ... at least seven days before -the date of the scheduled execution date' (exclusive of the scheduled execution date)?’ 1, 'The Court of Criminal Appeals held David Dow, an experienced post-trial capital defense attorney, in contempt for violating this rule and suspended him from practicing before it for one -year, except in certain. already pending cases.2 Dow contends that the [220]*220Court of Criminal Appeals exceeded its authority, and seeks mandamus and declaratory relief in this Court.

The Texas Criminal Defense Lawyers Association, the Innocence Network, and hundreds of. lawyers have filed amicus letters and, briefs in support of Dow’s petition. . As Dow and several of the amici recognize, a significant threshold issue is whether this Court', has -jurisdiction to grant the relief sought. -Having carefully considered their arguments, we conclude that we do not and accordingly dismiss Dow’s petition for want of jurisdiction. Without jurisdiction, we may not address the merits of the case,3 and thus we intimate no view as to whether the Court of Criminal Appeals’ action was proper.

We begin by summarizing the proceedings leading to Dow’s contempt citation.

On September 17, 2000, Miguel Angel Paredes and three fellow gang members shot and killed three members of a rival gang.4 Paredes later told another fellow gang member he “should have been there,” he “would have had some fun.”5

Paredes was convicted of capital murder in October 2001.6 During the punishment phase of the trial, the State introduced evidence that Paredes had committed many other crimes, including another murder, a shooting in which two people were wounded, a kidnapping, and burning and disposing of the body of someone who had overdosed on drugs.7 The State also offered evidence that Paredes had no mental deficiency or learning disability, no history of physical, emotional, or sexual abuse, and no history of long-term narcotics abuse.8 Paredes offered no evidence during the punishment phase.. The jury found that

there was a probability [Paredes] “would commit criminal acts of violence that would constitute a continuing threat to society,” [and that] taking into consideration all of the evidence, including the circumstances of the offense, the petitioner’s character, background, and personal moral culpability, there were insufficient mitigating circumstances to warrant a life sentence.9

The trial court sentenced Paredes to [221]*221death.10 On appeal, Paredes raised 29 points of error.11 The Court of Criminal Appeals affirmed his conviction in 2004.12

In November 2003, before his conviction was affirmed, Paredes sought habeas relief in state court.13 Among the-many grounds asserted, Paredes claimed that his.'trial lawyer’s failure to develop .and present mitigating evidence during the punishment phase constituted ineffective assistance of counsel.14 But during the hearing ‘on his application in November 2004, Paredes directed'his habeas lawyer, Michael Gross, not to pursue-that claim.. Under repeated questioning by the court at the prosecutor’s insistence, Paredes, confirmed that he wanted to waive the claim.15 At the conclusion of the hearing thenourt made find: ings and recommended that relief be denied.16 Paredes then applied to the Court of Criminal Appeals for habeas relief, which it denied in 2005.17

In 2006, Paredes applied to the federal district court for habeas relief,18 Paredes, still represented by Gross, asserted many claims, including several claims o‘f ineffective assistance of counsel, but none com-

plaining of counsel’s failure to present mitigating evidence at the punishment phase of trial.19 The federal district court denied a hearing and relief,20 and the United States ’Court of Appeals1 for the Fifth Circuit affirmed in 200921 and 2010.22

On May ,22, 2014, Paredes wrote. to Gross acknowledging Gross’s notice to him that his execution had been set for October 28, 2014.23 Paredes also explained that at the state habeas hearing almost 10 years earlier, when he waived his ineffective assistance claim relating to the punishment phase of his trial, hé had been suicidal and on medication.24 On June 9, Dow received a similar letter from Paredes asking for “last minute” help.25 Due to, in his words, “a busy summer schedule” and a “heavy caseload,” Dow did not respond until August 1 and did not send anyone from his office to meet with' Paredes in prison until Séptember 2.26 From September 12 to October 14, Dow investigated whether Pa-redes’s trial counsel was ineffective in not presenting mitigating evidence and whether his habeas counsel was ineffective in allowing him to waive that claim without [222]*222determining whether he was competent to do so.27

On October 18, Dow moved the federal district court for relief from its prior order denying habeas relief and to stay Pa-redes’s execution.28 On the afternoon of October 21, Dow filed in the Court of Criminal Appeals:

• a motion to reconsider the court’s pri- or denial of habeas relief, based on evidence that in November 2004, Pa-redes was not competent to waive his claim of ineffective assistance of counsel during the punishment phase of his trial;29
• a new application for habeas relief arguing for the first time that Paredes acted in self-defense and was therefore actually innocent, based on newly discovered evidence—two May 2012 affidavits indicating that the murder victims had intended to kill members of Paredes’s gang;30
• two- motions to stay Paredes’s execution in the Court of Criminal Appeals;31 and ■
• two identical statements pursuant to Miscellaneous Rule 11-003 explaining why the filings were untimely.32

The federal district court and- the Court of Criminal Appeals denied all relief on October 23.33 Dow moved for relief and a stay of execution in the Fifth Circuit, which denied relief on October 25.34 The United States Supreme Court refused to stay Pa-redes’s execution on October 28,35 and Pa-redes was executed as scheduled later that day.

‘The stated'' purpose of Miscellaneous Rule 11-003 is “[t]o ensure that all appropriate state and federal courts, officials, and parties shall have an adequate opportunity to review and resolve legal and factual issues concerning an impending execution.” 36

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Bluebook (online)
481 S.W.3d 215, 58 Tex. Sup. Ct. J. 1457, 2015 WL 4072494, 2015 Tex. LEXIS 627, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-dow-tex-2015.