Texas Wesleyan Law Review

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This Comment argues that the Texas Court of Criminal Appeals was correct in refusing to engraft a constitutional standard of effective assistance of counsel to post-conviction habeas corpus review. In reaching the appropriate decision, however, the court failed to provide any guiding standards of competence for appointed capital habeas attorneys. Specifically, the court did not elaborate on either the type or amount of qualifications, experience, or ability necessary for a finding of attorney "competence." The resulting inadequate definition of "competency" for appointed post-conviction counsel in death penalty cases leaves habeas petitioners without a remedy when statutorily mandated, post-conviction review is nullified by grossly deficient, appointed counsel. The solution lies in providing a standard of "competence" through a statutory amendment because the specification of binding attorney qualifications will ensure that capital petitioners receive their "one full bite" at the habeas "apple." Part II of this Comment provides background information on postconviction state habeas corpus review by illustrating the function of habeas writs, outlining Texas's statutory writ provisions, and describing the current crisis in post-conviction representation. Part III analyzes the argument for applying Sixth Amendment effective assistance of counsel to a statutory grant of habeas counsel, explaining that even though the Sixth Amendment does not apply to post-conviction proceedings, petitioners attempt to claim the right to effective assistance under the statutory grant of counsel in article 11.071. Part IV explains how the doctrines of finality and abuse of the writ converge to prohibit application of the constitutional effectiveness standard to post-conviction review. Part V concludes that the appropriate solution to the crisis in post-conviction representation lies in the establishment of qualification standards for the appointment of post-conviction counsel, which the Texas Legislature should provide via an amendment to article 11.071 itself.



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