record-based grounds for relief

Generally  speaking, an inmate or person convicted of a crime is not allowed to raise grounds for relief in an application for writ of habeas corpus based entirely on events that occurred during trial. Such grounds are described as “record-based” because they are a part of the reporter’s record. The Court of Criminal Appeals established the prohibition against raising such claims in the context of Article 11.07 writ jurisprudence (i.e. writs filed post-conviction under Article 1107 of the Code of Criminal Procedure), but the general prohibition against “record-based” claims could also be applied to writs filed to challenge misdemeanor convictions and other types of statutory and non-statutory writs.

The rationale behind the prohibition is simple. If the claim is record-based, then it could have been raised on direct appeal. If the defendant did raise the issue on appeal, then the Court of Criminal Appeals considers it resolved – you don’t get “another bite at the apple.” Conversely, if you didn’t raise that issue on appeal, then you have effectively waived the issue – you had your chance to bite the apple, but didn’t, so . . . no apple for you. I promise no more apple metaphors.

In any event, that’s the rule. But as always, an inmate looking to file an 11.07 application should be mindful of a few exceptions.

First, some issues, such as a claim of ineffective assistance of trial counsel, can be raised in a writ application even if the defendant previously raised that issue on direct appeal. Many criminal defense attorneys misunderstand the case law on this issue and assume they “waive” their client’s right to raise ineffective assistance claims on a writ if they brief that type of claim in the appeal. This is incorrect. Typically, a defendant will lose an ineffective assistance of counsel claim on direct appeal because the record is simply insufficient to support the claim. For example, if the defendant asserts that his attorney should have investigated certain defenses or called certain witnesses, there is no way to verify this on the record unless the trial court allows the appellate attorney to hold an evidentiary hearing on a motion for new trial (very rare). Because the record does not tell us one way or the other what the defense attorney’s strategy was, or if there were other things she could have done to help her client, the defendant will loose this issue. On an 11.07 writ, however, the situation is reversed. There’s no point in referring to the record. Instead, the writ procedures allow both the writ attorney and the judge to do an independent investigation, either through a live hearing or through affidavits, to determine what the defense attorney’s strategy was at trial. The Court of Criminal Appeals has made it clear that raising an ineffective claim on direct appeal does not infringe on an inmate’s ability to return to that claim later in a writ. Rather, the gist of the caselaw is that proving ineffective assistance is for the most part a futile effort without an independent investigation that goes outside the record.

Another exception to, or way around, the “record-based claim” prohibition is to “bootstrap” such a claim through an ineffective assistance of counsel allegation. It works like this:

  1. An inmate raises an ineffective assistance of counsel claim (IAC).
  2. Inside that claim, the inmate asserts various things his lawyer could have done, such as file a motion to suppress evidence or challenge a witness identification that was facilitated with an improper photo array, etc.
  3. The inmate can therefore bootstrap in these record-based claims as examples of ineffective assistance.

As the above discussion shows, the way you frame your grounds for relief in an 11.07 writ are important. Make sure you consider your application carefully before filing it!