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Click here for the full text of this decision FACTS:Rosales was convicted and sentenced to death in November 1985 for the capital murder of Rachel Balboa committed during a burglary. On direct appeal, the Texas Court of Criminal Appeals affirmed the conviction and sentence. In response to Rosales’ state application for habeas relief alleging that appellate counsel violated his constitutional right to effective legal assistance, the Texas Court of Criminal Appeals granted Rosales a new appeal. In this second appeal, Rosales raised, among other issues, the claim that the trial court erred by not requiring the state to explain its peremptory challenges of Hispanic veniremen. The Texas Court of Criminal Appeals held that the claim as presented appeared to be premised on the Sixth Amendment, which had been rejected by the Supreme Court in Holland v. Illinois, 493 U.S. 474 (1990), as a basis for a claim under Batson v. Kentucky, 476 U.S. 79 (1986). The court also held that to the extent Rosales raised an equal protection complaint under Batson, his trial objection was inadequate to preserve the claim for appellate review. The Texas Court of Criminal Appeals thus affirmed Rosales’ conviction and sentence. The U.S. Supreme Court denied Rosales’ petition for writ of certiorari. In October 1996, Rosales filed a state application for writ of habeas corpus. Among other issues, Rosales complained that the trial court’s failure to have the state specify the reasons for its peremptory strikes denied him a fair trial. The state habeas court noted that on direct appeal the Texas Court of Criminal Appeals had concluded that Rosales failed to preserve his complaint for review. It concluded that, because Rosales failed to preserve the error, he was barred from advancing this claim and denied relief. The Court of Criminal Appeals adopted the trial court’s findings, and based on that record and its own review, denied relief. Rosales filed his federal habeas petition in March 2003, raising four claims for relief. In September 2004, the district court granted the director’s motion for summary judgment and denied Rosales’ request for discovery, habeas relief and a certificate of appealability. The district court concluded that state procedural law barred consideration of his Batson claim. Rosales timely appealed. This court concluded that reasonable jurists could disagree over whether the procedural bar should apply to Rosales’ Batson claim and granted a COA on that issue. COA was denied on Rosales’ other claims. HOLDING:The court vacates the district court’s dismissal of Rosales’ writ application and remands for further proceedings. The procedural bar applied by the Texas Court of Criminal Appeals and honored by the district court was not adequate to support the judgment and preclude federal court review of Rosales’ constitutional claim, the court concludes. The procedural bar was not firmly established and regularly followed by the Texas Court of Criminal Appeals for cases like Rosales’, which were on direct appeal when Batson was decided. OPINION:Davis, J.; Davis, Smith and Dennis, JJ.

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