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Defendants who knowingly and voluntarily plead guilty would be barred from collaterally attacking their pleas in habeas corpus applications based on actual-innocence claims under a rule pitched to the Texas Court of Criminal Appeals on Oct. 2. “The state’s position is a bright line should be formed,” Dallas County Assistant District Attorney Laura Anne Coats told the court during arguments in Ex Parte Tuley. Extending the CCA’s 1996 holding in Ex Parte Elizondo to include cases involving guilty pleas would “open the floodgates,” Coats argued. Austin solo Keith Hampton, one of the attorneys who argued before the CCA on Wesley Ronald Tuley’s behalf, says in an interview that Elizondo was the floodgate. “If there was a flood, it should have happened by now,” Hampton says. The court ruled 5-4 in Elizondo that a prisoner seeking habeas corpus relief was entitled to a new trial because there was clear and convincing evidence that no rational jury would convict him in light of the recantation of a witness. Hampton argued that prisoners who pleaded guilty could make claims of actual innocence under Elizondo. The only new situation, he told the court, is the state’s proposed bar on Elizondo claims in guilty pleas. Coats says in an interview that Tuley is the test case. “This is the first case that’s arising out of a guilty plea,” she says. The proposed rule would bar collateral attacks on valid voluntary guilty pleas in habeas applications if actual innocence is claimed and there is no claim of constitutional error, Coats says. “The state and the victims have an interest in these cases not being litigated endlessly, and that’s what we’re afraid will happen,” she says. The CCA indicated its interest in the issue in a June 5 order that directed attorneys for Tuley and the state to address in their briefs whether Tuley’s guilty plea and jury waiver preclude him from receiving habeas corpus relief under Elizondo. CCA Presiding Judge Sharon Keller said allowing people who pleaded guilty to claim actual innocence could disrupt the plea bargain process. Tuley pleaded guilty to sexually assaulting a girl younger than 14 but claimed he was innocent in an application for habeas writ filed in October 2001. Judge Karen Greene of Dallas’ 282nd District Court, who presided over Tuley’s 1997 trial, has recommended that he be granted a new trial based on the ground that he proved his innocence pursuant to Elizondo. At the heart of Tuley’s claim, Greene said in findings filed last week, is the recantation of the girl who had accused him of sexually assaulting her and corroborating testimony by two of the girl’s friends that she didn’t tell the truth at the trial. Michael P. Levine, a Dallas solo who also argued on Tuley’s behalf, told the CCA that the girl lied because Tuley had abused her mother and used drugs with the mother. “She did what her mother couldn’t do � get this man out of the house,” Levine said. Greene said in the findings that she’s satisfied Tuley presented evidence that “unquestionably establishes” his innocence of the crime for which he is imprisoned. Also in the findings, Greene said she believes Tuley’s assertions that his guilty plea was entered “solely for the purpose of extricating himself from the situation he found himself in” and was not indicative of any credible admission of guilt. THE CLEMENCY PROCESS James L. Bright, another Dallas solo who represents Tuley, says in an interview that Tuley had spent 10 months in jail when he entered the guilty plea. Tuley also spent “every penny he had” on his defense and was told he would be facing another $6,000 in legal expenses if retried, Levine says. Coats argued before the CCA that the habeas writ is the wrong route for people who entered guilty pleas and said they should go through the clemency process. The state accepted Tuley’s plea in good faith, Coats said, and she questioned why the state should be forced to reconstruct its case for a new trial. She also said that allowing defendants to attack voluntary guilty pleas would encourage them to pressure victims to recant. Coats’ suggestion that prisoners who pleaded guilty be required to take innocence claims through the clemency process prompted a question from one member of the court. Judge Cheryl Johnson asked what could be done if a governor has an “ironclad rule” that anyone who’s convicted is guilty. “My concern is the clemency procedure is discretionary to the extreme,” Johnson said. Those seeking clemency in Texas face a two-step procedure. Their first hurdle is the Board of Pardons and Paroles, which decides whether an appeal for clemency has merit. A recommendation by the board for clemency goes to the governor, who has the final say. Although Coats acknowledged that the facts in Tuley’s case are “compelling,” she argued that he had forfeited habeas relief by his own actions. According to the state’s brief, Tuley pleaded not guilty to the sexual assault charge at his trial but accepted a plea bargain after the jury deadlocked. In exchange for his guilty plea, Tuley received deferred adjudication and was placed on community supervision for 10 years, the brief said. Levine says Tuley’s community supervision was revoked after he tested positive for drugs and refused to admit he was guilty of sexual assault during counseling sessions. After the October 1999 revocation, Tuley was sent to prison to begin serving the rest of his 10-year sentence, a brief filed on his behalf said. “This is a sad case because everybody involved concedes the innocence of this man,” Bright says. Robert O. Dawson, a University of Texas School of Law professor who teaches criminal law, says the state appears to have taken “an extremely sweeping position” with regard to voluntary guilty pleas. Defendants are induced to take pleas when the state tells them they face long prison sentences if they go to trial, he says. “I cannot see any principled justification for saying that if you were convicted after a trial and can show actual innocence, you can do so, but if you pled guilty, you cannot,” Dawson says. Notes Dawson: “That takes finality to sort of the ultimate step. If you plead guilty, we don’t want to hear anything more.”

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