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Texas Supreme Court Rules Compensation Required in Schlup-type Innocence Cases

by Matt Clarke

On May 18, 2012, the Supreme Court of Texas held that a former prisoner whose murder conviction was reversed due to ineffective assistance of counsel after he proved that he was likely actually innocent was entitled to compensation.

Billy Frederick Allen was convicted of a double homicide in 1984 and sentenced to 99 years. At his trial, a police officer, who was present with one of the fatally-wounded victims and two emergency medical technicians (EMTs), testified that the victim had identified the shooter as “Billy Allen.” Allen, who knew the victim, did not discover until many years after his conviction that the EMTs had heard a middle name, and one of them recalled it was “Wayne,” not Frederick. There was in fact a “Billy Wayne Allen” living in the area at the time of the murders; he was known as a violent drug dealer and had ties to the victim.

Based on this newly-discovered evidence, Allen filed multiple pro se petitions for a writ of habeas corpus without success, even when the trial court determined that his conviction should be reversed because it no longer had confidence in the verdict. Finally, Allen filed a habeas petition with the pro bono assistance of Austin attorney Roy Greenwood. In reversing Allen’s conviction, the state’s highest criminal court, the Texas Court of Criminal Appeals, stated “it is not surprising that the habeas court found that the newly discovered evidence ‘of innocence [was] so strong that [it could not] have confidence in the outcome of the trial.’ We agree.”

Allen’s claim of innocence was not a Herrera-type claim – based on Herrera v. Collins, 506 U.S. 390 (1992) – which requires the petitioner to show “by clear and convincing evidence that, despite the evidence of guilt that supports the conviction, no reasonable juror could have found the applicant guilty in light of the new evidence.” Instead, Allen used his claim of actual innocence as a gateway through the procedural bar preventing the hearing of subsequent petitions for a writ of habeas corpus. That type of innocence claim is referred to as a Schlup-type claim, after Schlup v. Delo, 513 U.S. 298 (1995); it required that he show actual innocence by a preponderance of the evidence and that a constitutional error, which otherwise would have been procedurally barred, likely resulted in the conviction of an actually innocent person. [See: PLN, March 2003, p.16].

Allen alleged ineffective assistance of counsel due to his defense attorney’s failure to interview the EMTs before trial as his constitutional claim, and the Court of Criminal Appeals granted habeas relief on that basis. See: Ex parte Allen, 2009 WL 282739 (Tex.Crim.App. 2009). The district attorney’s office later dismissed the charges in 2011, and Allen filed for compensation under the Tim Cole Act (TCA), § 103.001, Texas Civil Practice & Remedies Code.

The TCA provides for compensation if a person has served time in a Texas prison for a criminal offense, then was exonerated and released based on a judicial finding that he was “actually innocent” of the crime. Allen had served almost 26 years in prison, but because his habeas petition was based on ineffective assistance of counsel, the Texas Comptroller refused to provide compensation.

Represented by attorneys Greenwood, Kristopher Edwin Moore and Kevin Glasheen, Allen filed a petition for a writ of mandamus in the Texas Supreme Court, the state’s highest civil court, seeking to compel the Comptroller to authorize compensation pursuant to the TCA.

The Supreme Court held that the TCA required compensation under either a Herrera-type or Schlup-type claim of actual innocence. Further, the language of the Court of Criminal Appeals opinion granting habeas relief clearly stated that Allen was actually innocent, and any grant of relief on a Schlup-type claim requires an implicit finding of actual innocence before the petitioner can have the otherwise procedurally-barred constitutional claim heard.

Therefore, the writ was conditionally granted and the Comptroller ordered to compensate Allen under the TCA. Allen was consequently eligible to receive over $2 million plus an annuity and other benefits. See: In re Allen, 366 S.W.3d 696 (Tex. 2012).

“Now that we have helpful guidance from the Supreme Court, we have immediately started the process of paying Billy Allen approximately $2 million for wrongful-imprisonment compensation,” stated R.J. DeSilva, a spokesman for the Texas Comptroller’s office. “The court’s decision will also help us pay any other exonerees with similar circumstances to Mr. Allen.”

Additional sources: Los Angeles Times,

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Related legal cases

In re Allen

Ex parte Allen