Filed: Sep. 21, 2006
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS September 21, 2006 FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 05-70053 VINCENT GUTIERREZ, Petitioner-Appellant, versus NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee. Request for Certificate of Appealability for Relief from the Denial of a Petition for Writ of Habeas Corpus in the United States District Court for the Eastern Dis
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS September 21, 2006 FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 05-70053 VINCENT GUTIERREZ, Petitioner-Appellant, versus NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee. Request for Certificate of Appealability for Relief from the Denial of a Petition for Writ of Habeas Corpus in the United States District Court for the Eastern Dist..
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United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS September 21, 2006
FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-70053
VINCENT GUTIERREZ,
Petitioner-Appellant,
versus
NATHANIEL QUARTERMAN, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
Request for Certificate of Appealability for Relief from the
Denial of a Petition for Writ of Habeas Corpus in the United
States District Court for the Eastern District of Texas
(SA-01-CA-1033-FB)
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Vincent Gutierrez was convicted in Texas state court of
capital murder and sentenced to death. The district court’s having
denied habeas relief and a certificate of appealability (COA),
Gutierrez seeks a COA for five issues. Concomitantly, he
challenges the district court’s denying funding for investigative
assistance. A COA is DENIED.
I.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
The following factual recitation is based primarily upon that
presented by the district court. Gutierrez v. Dretke (USDC Opn.),
392 F. Supp. 2d 802 (W.D. Tex. 2005).
On 10 March 1997, Gutierrez, Randy Arroyo, and several others
met at Christopher Suaste’s residence to discuss Arroyo’s desire to
steal an automobile. The next morning, Arroyo, Gutierrez, and
Suaste drove to an apartment complex where the target vehicle was
parked. It was owned by United States Air Force (USAF) Captain
Jose Cobo. Suaste parked his vehicle nearby and watched Gutierrez
and Arroyo approach the target vehicle, enter it, and drive out of
the complex. While returning to his home, Suaste saw Captain Cobo
lying on the shoulder of the highway with blood stains on his
shirt.
Several hours later, Suaste received several telephone calls
from Arroyo and Gutierrez, asking Suaste to pick them up. Upon
doing so, Suaste observed Gutierrez wearing different clothes than
those worn earlier that day. The newer clothes were a tee shirt
and a pair of gym shorts with the USAF logo. Gutierrez explained
his earlier clothes had blood on them, and the new clothes were
obtained from the back of the stolen automobile.
Upon Suaste’s inquiring about what happened after he left the
apartment complex, Gutierrez laughingly explained: upon entering
the target vehicle, he forced Captain Cobo at gunpoint to move to
the back seat; Arroyo drove the vehicle from the complex; when
2
Captain Cobo begged for his life and offered his wallet, Gutierrez
reassured him that he would be released; nonetheless, Captain Cobo
attempted to exit the vehicle, but was restrained by his seat belt;
Gutierrez grabbed Captain Cobo to prevent him from jumping from the
vehicle; at that point, Arroyo yelled “Shoot him. Shoot him.
He’s trying to escape.”; Gutierrez fired his pistol twice, striking
Captain Cobo in the back; Captain Cobo began choking and coughing
up blood; as Gutierrez and Arroyo drove on, Gutierrez stated he
did not want to drive around with a “dead man” in the car;
Gutierrez directed Arroyo to reduce the vehicle’s speed; and, upon
his doing so, Gutierrez shoved Captain Cobo out of the moving
vehicle onto the shoulder of the highway.
Later that day, Arroyo confessed to being involved in Captain
Cobo’s murder and led police to the pistol Gutierrez had used to
kill him. Gutierrez was charged with capital murder for an
intentional killing by firearm while in the course of kidnapping
and robbery.
On 2 March 1998, a jury found Gutierrez guilty of capital
murder, pursuant to § 19.03(a) of the Texas Penal Code. Pursuant
to the jury’s answers to the statutory special issues, he was
sentenced to death.
Gutierrez raised only two issues on direct appeal (jury
instruction on accomplice liability and facial challenge to the
constitutionality of Texas’ death penalty); neither is at issue
3
here. The Texas Court of Criminal Appeals affirmed. Gutierrez v.
State, No. 73,065 (Tex. Crim. App. 12 April 2000) (unpublished).
Gutierrez did not seek review by the Supreme Court of the United
States.
In requesting state-habeas relief, Gutierrez raised 11 claims,
including the claims for which he seeks a COA, but not including
the four claims for which he seeks a COA regarding insufficient
investigative funding. The judge who had presided at trial
presided over the state-habeas proceeding; granted part of the
amount requested for investigating possible claims; held an
evidentiary hearing; and, in a 61-page opinion, rendered findings
of fact and conclusions of law, recommending denial of relief. Ex
Parte Gutierrez, No. 97-CR-2457-B-W1 (226th Dist. Ct., Bexar
County, Tex. 2001). That court concluded, inter alia: Gutierrez
had procedurally defaulted his claims based on trial error, because
they were not raised on direct appeal. Id. In the alternative,
the court addressed each claim on the merits, concluding no relief
was warranted.
Id.
The Texas Court of Criminal Appeals adopted the state-habeas
court’s findings and conclusions and denied relief. Ex Parte
Vincent Gutierrez, No. 49,887-01 (Tex. Crim. App. 10 Oct. 2001)
(per curiam) (unpublished). Gutierrez did not seek review by the
Supreme Court of the United States.
4
In April 2002, Gutierrez presented 14 claims for federal
habeas relief. After filing his application, Gutierrez moved for
the appointment of an investigator, claiming such assistance was
necessary to rebut the state-habeas factual findings by clear and
convincing evidence, as required under the applicable Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-
132, 110 Stat. 1214 (1996). Gutierrez admitted, however, that the
claims for which he sought investigative assistance were
procedurally defaulted because they had not been exhausted in state
court.
The district court denied the requested investigative
assistance. Subsequently, in a 154-page opinion in September 2005,
it granted the State’s summary-judgment motion, denying habeas
relief on all 14 claims, and sua sponte denied Gutierrez a COA.
USDC Opn., 392 F. Supp. 2d at 810.
II.
As noted, Gutierrez’ 28 U.S.C. § 2254 habeas petition is
subject to AEDPA. See, e.g., Penry v. Johnson, 532 U.S. 782, 792
(2001). Under AEDPA, in order to appeal the denial of habeas
relief on a claim, he must obtain a COA from either the district,
or this, court. 28 U.S.C. § 2253(c); FED. R. APP. P. 22(b)(1); Slack
v. McDaniel,
529 U.S. 473, 478 (2000). To do so, he must “ma[k]e
a substantial showing of the denial of a constitutional right”. 28
U.S.C. § 2253(c)(2); see Miller-El v. Cockrell,
537 U.S. 322, 336
5
(2003); Slack, 529 U.S. at 483. In that regard, he must
demonstrate “reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were ‘adequate to
deserve encouragement to proceed further’”.
Miller-El, 537 U.S. at
336 (quoting
Slack, 529 U.S. at 484). Moreover, for a COA request
involving a procedural ruling by the district court, such as its
reviewing the procedural-default rulings by the state-habeas court
discussed infra, the petitioner must show jurists of reason would
find it debatable whether: (1) the underlying claim for the COA
request is a valid assertion of the denial of a constitutional
right; and (2) the district court’s procedural ruling was correct.
Slack, 529 U.S. at 484.
In deciding whether to grant a COA, a federal court is
limited, inter alia, “to a threshold inquiry into the underlying
merit of [Gutierrez’] claims”. Miller-El, 537 U.S. at 327. “This
threshold inquiry does not require full consideration of the
factual or legal bases adduced in support of the claims.”
Id. at
336. Instead, our analysis “requires an overview of the claims in
the habeas petition and a general assessment of their merits”.
Id.
This being a death penalty case, “any doubts as to whether a COA
should issue must be resolved in [Gutierrez’] favor”. Hernandez v.
Johnson,
213 F.3d 243, 248 (5th Cir.), cert. denied,
531 U.S. 966
(2000).
6
Of course, for purposes of the requisite threshold-inquiry, we
are mindful that, in ruling on the merits, the district court was
required by AEDPA to defer to the state court’s adjudication on
questions of law and mixed questions of law and fact, unless that
“decision ... ‘was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court’” (reasonable decision). Hill v. Johnson, 210
F.3d 481, 485 (5th Cir. 2000) (quoting 28 U.S.C. § 2254(d)(1))
(emphasis added), cert. denied,
532 U.S. 1039 (2001). A decision
is contrary to clearly established federal law if it “reaches a
legal conclusion in direct conflict with a prior decision of the
Supreme Court or if it reaches a different conclusion than the
Supreme Court based on materially indistinguishable facts”. Miniel
v. Cockrell,
339 F.3d 331, 337 (5th Cir. 2003), cert. denied,
540
U.S. 1179 (2004).
Likewise, for this threshold-inquiry, we are mindful that, in
ruling on the merits, the district court was required to defer to
the state court’s factual findings, unless they “resulted in a
decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding” (reasonable decision). 28 U.S.C. § 2254(d)(2)
(emphasis added). In that regard, those findings are “presumed to
be correct”; as noted, in district court, Gutierrez had “the burden
7
of rebutting [that] presumption ... by clear and convincing
evidence”. 28 U.S.C. § 2254(e)(1).
The first four claims for which a COA is requested are:
(1) whether the state-habeas and district courts erred in
construing Gutierrez’ due-process claim (regarding the
prosecution’s alleged failure to produce information about a
juror’s prior offense) as one arising under Brady v. Maryland, 373
U.S. 83 (1963) (holding prosecution’s suppression of favorable
material evidence violates due process);
(2) whether Gutierrez was denied a fair and impartial jury, as
required by the Sixth and Fourteenth Amendments, because (a) the
above-referenced juror misstated she had never been convicted of a
crime, thus precluding Gutierrez’ counsel from making a for-cause
challenge, and (b) the trial court granted the State’s for-cause
challenge for a prospective juror;
(3) whether the trial court’s denial of Gutierrez’ severance
motion at the trial’s penalty phase denied him the right to
individualized sentencing, pursuant to the Eighth Amendment; and
(4) whether, by failing to challenge on direct appeal both the
for-cause juror-dismissal and the severance-denial, Gutierrez’
counsel was constitutionally ineffective under Strickland v.
Washington, 466 U.S. 668 (1984) (two-pronged standard for making an
ineffective assistance of counsel (IAC) claim: counsel’s
performance was deficient; and that deficiency caused prejudice).
8
The fifth COA request concerns four unexhausted claims.
Gutierrez maintains he failed to exhaust them because the state-
habeas court refused to grant him enough funding to conduct an
investigation. Regarding that fifth COA request, Gutierrez
challenges the district court’s denial of investigative-assistance
funding.
A.
In the state-habeas and district courts, Gutierrez claimed he
was denied due process by the prosecution’s failing to disclose
potential-juror Rosemary Harrell had been arrested for, and
convicted of, theft in 1979 of an amount less than five dollars.
Subsequently, she served as a juror. Both courts analyzed this
claim under the well-known Brady framework: as stated supra, a
claimant must show the prosecution suppressed favorable evidence
material to the outcome of the trial.
Brady, 373 U.S. at 87.
Under Brady, evidence is “material” if there is a reasonable
probability the result of the proceeding would have been different
had the evidence been disclosed; a reasonable probability is one
sufficient to undermine confidence in the outcome. Martin v. Cain,
246 F.3d 471, 477 (5th Cir.), cert. denied,
534 U.S. 885 (2001).
Gutierrez claims prosecutorial misconduct — conduct barred by
the due-process clause. See, e.g., Brady, 373 U.S. at 85-88.
Although he insists both courts erred in applying Brady, he does
not explain why it is not the proper standard. In any event,
9
Gutierrez’ framing of the issue is quite similar to the Brady
standard. He maintains: “The issue ... involves the obligations
of the prosecutor, under the Due Process Clause[,] ... to disclose
to the trial court and defense[,] material evidence [that] raises
questions about whether a juror is categorically excludable from
the jury”. (Emphasis added.) Gutierrez does not claim such
misconduct requires automatic reversal and remand for a new trial.
See, e.g., United States v. Huey, 76 F.3d 638, 639 (5th Cir. 1996)
(where Batson v. Kentucky’s rule against the use of peremptory
strikes based on race,
476 U.S. 79 (1986), had been violated,
reversal and remand for new trial without analysis of prejudice to
the defendant). Indeed, not all prosecutorial misconduct requires
Batson-like reversal.
The prosecution’s failure to disclose information about a
prospective juror is not exculpatory, material evidence under
Brady. Jones v. Butler, 864 F.2d 348, 355 (5th Cir. 1988), cert.
denied,
490 U.S. 1075 (1989). Irrespective of the name utilized by
the state-habeas and district courts for their analysis of this
claim, a review for prejudice vel non was required. For example,
in Johnson v. Cabana, our court held: where a prosecutor
potentially knew a juror had made a false statement on a juror
questionnaire, namely that she did not have a relative in the same
jail as the defendant, there was no showing of prejudice.
818 F.2d
10
333, 343 (5th Cir.), cert. denied,
481 U.S. 1061 (1987).
Furthermore, the Supreme Court has directed that claims for
prosecutorial misconduct in a state conviction are reviewed
deferentially. See, e.g., Donnelly v. DeChristoforo,
416 U.S. 637,
643 (1974) (prosecutorial misconduct must have “so infected the
trial with unfairness as to make the resulting conviction a denial
of due process”).
Part of the following facts were developed at the state-habeas
evidentiary hearing, at which Gutierrez’ trial counsel and the lead
prosecutor testified. As part of the jury selection for Gutierrez’
trial in 1998, Harrell responded to her jury questionnaire that she
had never been “charged or arrested with any type of shoplifting or
theft offense”. Before questioning her during voir dire, however,
the lead prosecutor, having performed a criminal background check,
learned: almost 20 years earlier, Harrell had been arrested in
1979 for theft under five dollars.
Accordingly, during voir dire, the prosecutor questioned
Harrell about the incident. She responded she believed it had been
“totally dismissed”. The prosecutor also asked her “to the best of
[her] recollection” whether she paid a fine or attended a court
hearing. She responded “no”.
During jury selection, the prosecutor conducted further
research into Harrell’s prior arrest, contacting the municipal
court in the county where it had occurred. An individual at that
11
court told the prosecutor Harrell had neither a conviction for the
theft offense nor an active case against her, but that her bond had
been forfeited. Based on that information, the prosecutor
concluded Harrell likely did not have a conviction for the charge.
The prosecutor was provided a letter to that effect but did not
remember showing it to Gutierrez’ counsel.
Gutierrez’ counsel’s questioning of Harrell during voir dire
did not relate to her prior theft arrest. As noted, she was
selected as a juror.
After holding the evidentiary hearing, the state-habeas court
made detailed findings, including: (1) there was no evidence
Harrell had been convicted of theft in connection with her 1979
shoplifting charge; (2) her bond forfeiture did not make her
ineligible to serve on a jury, or subject her to a successful for-
cause challenge; (3) the prosecution’s alleged failure to disclose
the bond-forfeiture evidence did not constitute “favorable” Brady
evidence; and (4) even if the evidence was favorable, there was no
reasonable likelihood that the result of Gutierrez’ trial would
have been different.
The district court held: under AEDPA, Gutierrez had not, by
the requisite clear-and-convincing evidence, rebutted the state-
habeas court’s factual findings. USDC Opn., 392 F. Supp. 2d at 835-
37. According the deference required by AEDPA to these detailed
findings, the court held the state-habeas decision was “an
12
objectively reasonable application of clearly established federal
law”. Id. at 852.
In his COA request, Gutierrez notes that Texas’ Constitution
and Code of Criminal Procedure require any prospective juror who
has been convicted of, or is currently under a charge of, theft be
excused from jury service. TEX. CONST. ART. XVI, § 2; TEX. CODE CRIM.
PRO. ART. 35.16(a)(2). He further insists that state law also
requires the dismissal “of any juror who ‘appears’ to be
disqualified to serve as a juror because of a conviction for
theft”. Because the prosecutor knew Harrell might have been
convicted of theft, Gutierrez maintains his due-process rights were
violated by the failure to disclose this information.
For COA purposes, reasonable jurists would not debate that,
under AEDPA, the district court concluded correctly that, in
holding Gutierrez had not stated a meritorious Brady claim, the
state-habeas decision was not unreasonable because: evidence of
Harrell’s bond forfeiture was not favorable evidence that would
have sustained a for-cause challenge; and, even if the evidence was
favorable, Gutierrez has not shown how Harrell’s replacement would
have voted in jury deliberations concerning Gutierrez’ conviction
and/or sentence. Again, irrespective of the state-habeas and
district courts’ classifying this as a Brady claim, that does not
render the state-habeas decision unreasonable under AEDPA or the
district-court decision debatable by reasonable jurists. Each
13
court was required to consider whether any alleged prosecutorial
misconduct was prejudicial to Gutierrez’ trial.
As discussed infra, any alleged prosecutorial misconduct
concerning Harrell’s selection as a juror did not deny Gutierrez an
impartial jury. In fact, for several reasons, including Harrell’s
Catholic faith, as discussed infra, Gutierrez’ counsel wanted her
on the jury. In any event, for COA purposes, Gutierrez has not
adequately shown pursuant to AEDPA that he was prejudiced by the
alleged prosecutorial misconduct, or that it “so infected [his]
trial with unfairness as to make [his] conviction a denial of due
process”. DeChristoforo, 416 U.S. at 643. Moreover, this claim is
not “adequate to deserve encouragement to proceed further”.
Slack,
529 U.S. at 484.
B.
Next, Gutierrez seeks a COA for whether he was denied an
impartial jury, in violation of the Sixth and Fourteenth
Amendments, because: (1) Harrell made a material misstatement that
she had never been arrested or convicted of a crime of theft; and
(2) the prosecution successfully challenged Gerald Becker for
cause, based solely on his religious beliefs, in violation of
Witherspoon v. Illinois, 391 U.S. 510 (1968) (holding prospective
jurors may not be excused from jury service in a capital case
14
because, based on religious beliefs, they voice general objections
to the death penalty).
1.
In both his state and federal habeas petitions, Gutierrez
claimed Harrell made a material misrepresentation when she stated:
in the jury questionnaire, that she had never been charged, or
arrested, with theft or shoplifting; and, during voir dire, that,
although she had been charged with theft in 1979, the charges had
been dismissed, and she had not been arrested. Gutierrez asserted
Harrell had been arrested, charged, and convicted of theft, making
her ineligible for jury service under Texas law. Furthermore,
under McDonough Power Equipment, Inc. v. Greenwood, Gutierrez
claimed his due-process rights were violated, because his trial
counsel did not make a for-cause challenge based on Harrell’s voir-
dire answers. 464 U.S. 548 (1984) (holding due process violated
where a potential juror’s failure to answer a material question on
voir dire deprived the defendant of information permitting a valid
for-cause challenge).
The state-habeas court held Gutierrez had procedurally
defaulted this claim because he did not raise it on direct appeal.
Alternatively, it held: no judgment of conviction had been entered
against Harrell; during voir dire, Harrell had responded
truthfully, to the best of her knowledge; and, even if she had been
disqualified under Texas law for jury service, this potential error
15
did not warrant reversal because Gutierrez neither made a timely
objection nor established he suffered significant harm as a result.
The district court likewise denied relief, noting: the state-
habeas court was correct in concluding the claim had been
procedurally defaulted, USDC Opn., 392 F. Supp. 2d at 835; and,
under Texas law, it is well settled that an otherwise final
conviction may not be collaterally attacked because a jury member
was statutorily disqualified.
Id. at 834 (citing Ex Parte Bronson,
254 S.W.2d 177 (Tex. Crim. App. 1952)). Therefore, the district
court held: because the state-habeas court’s factual findings were
reasonable and its conclusions were not an unreasonable application
of clearly-established federal law, Gutierrez was not entitled to
federal habeas relief.
Id. at 837. It further held: because the
state-habeas court reasonably determined Harrell did not testify
falsely and was not disqualified from jury service under Texas law,
the state-habeas court’s application of McDonough was objectively
reasonable.
Id. at 837, 841.
Gutierrez maintains it is debatable among reasonable jurists
whether Harrell was dishonest about her theft conviction, and
whether that conviction would have subjected her to a for-cause
challenge. He does not contest, however, the district court’s
holding the claim was procedurally defaulted. Accordingly, he
fails to satisfy the above-described two-prong standard for
16
obtaining a COA when a district-court procedural ruling is at
issue.
2.
In his state and federal habeas petitions, Gutierrez claimed
he was denied an impartial jury by the trial court’s granting the
prosecution’s for-cause challenge against prospective juror Becker.
During voir dire, Becker stated repeatedly that, because of his
Catholic faith, he would find it “very difficult, if not virtually
impossible, ... to impose [the death penalty]”. (As noted above,
even though Gutierrez now challenges Harrell’s having served on the
jury, one reason Gutierrez’ trial counsel wanted her as a juror was
because of that faith.) Becker also stated: during the trial’s
penalty phase, and based on his religious beliefs, he would be
“more inclined to say ... there is sufficient mitigat[ing
evidence]” not to impose a death sentence. Based on these, and
other, statements, such as his religious beliefs would interfere
with his ability to fairly answer a special issue, the prosecution
made, and the trial court granted, the for-cause challenge. (The
trial court initially denied the motion and heard additional
examination on the issue.)
Because Gutierrez failed to raise this issue on direct appeal,
the state-habeas court held it was procedurally defaulted. In the
alternative, it held this Witherspoon claim lacked merit because,
under “Adams v. Texas, [448 U.S. 38 (1980)], a venireman may be
17
struck if his views prevent or substantially impair the performance
of his duties as a juror in accordance with the court’s
instructions and the juror’s oath”. Ex Parte Gutierrez, at 10.
The district court held this Witherspoon claim procedurally
defaulted. USDC Opn., 392 F. Supp. 2d at 822. Furthermore, it held
that, Becker’s having repeatedly made clear his death-penalty views
would not enable him to impose that penalty and having never stated
he could set aside those beliefs: Gutierrez had not presented
clear and convincing evidence to rebut the state-habeas court’s
factual findings,
id. at 825; and, based on those findings, that
court’s application of Witherspoon and Adams was not contrary to,
nor an unreasonable application of, clearly-established federal
law,
id. at 823.
In his COA request, Gutierrez maintains this claim was not
procedurally defaulted; in the alternative, he claims he has made
the requisite cause-and-prejudice showing for this claim to be
considered. Citing Ex Parte Frazier, 67 S.W.3d 189, 190 (Tex.
Crim. App. 2001), Gutierrez claims Texas courts have not
consistently held that a legitimate claim, not raised on direct
appeal, is procedurally defaulted for habeas purposes.
Furthermore, he maintains that, because he has made a colorable IAC
claim, discussed infra, this shows the requisite cause and
prejudice to enable the claim to be considered.
18
Pursuant to the above-stated two-prong test for obtaining a
COA concerning a district-court’s procedural ruling, Gutierrez must
show, inter alia, that reasonable jurists would debate whether that
ruling was correct. He has not done so.
In all cases in which a state prisoner has
defaulted his federal claims in state court
pursuant to an independent and adequate state
procedural rule, federal habeas review of the
claims is barred unless the prisoner can
demonstrate cause for the default and actual
prejudice as a result of the alleged violation
of federal law, or demonstrate that failure to
consider the claims will result in a
fundamental miscarriage of justice.
Aguilar v. Dretke, 428 F.3d 526, 532-33 (5th Cir. 2005), cert.
denied,
126 S. Ct. 2059 (2006). Ex Parte Gardner,
959 S.W.2d 189
(Tex. Crim. App. 1996), held a state-habeas petitioner may not
raise for the first time in his petition a constitutional error
occurring at trial. The Gardner rule is “an adequate state ground
capable of barring federal habeas review”.
Aguilar, 428 F.3d at
535. Furthermore, as discussed infra, Gutierrez has not made,
through his related IAC claim, a cause-and-prejudice showing.
Again, he fails to satisfy the above-discussed two-prong test for
obtaining a COA to contest the district court’s procedural ruling.
C.
19
Gutierrez seeks a COA for whether the trial court
constitutionally erred in failing to grant him a severance during
the penalty phase. He concedes: he did not raise this severance-
denial claim on direct appeal and instead raised it for the first
time in his state-habeas proceedings.
The state-habeas court held the claim was procedurally
defaulted because it was not raised on direct appeal. In the
alternative, it held: the trial court’s instruction to the jury
that all the evidence must be considered individually with respect
to each of the two defendants prevented any prejudice resulting
from evidence admitted about Gutierrez’ co-defendant, Arroyo; and
the Eighth Amendment’s mandate for individual sentencing was not
violated.
In denying relief, the district court held: Gutierrez’
severance claim was procedurally defaulted; in the alternative, the
claim had no merit because, under Zafiro v. United States, 506 U.S.
534 (1993), the trial of co-defendants should be severed “only if
there is a serious risk that a joint trial [, inter alia,] would
compromise a specific trial right of one of the
defendants”. 506
U.S. at 539. Furthermore, the district court noted that, under
Zafiro, proper jury instructions can be sufficient to prevent
prejudice where the penalty for each co-defendant is being
considered during the same proceeding. Along this line, the
district court held: because the trial court instructed the jury
20
to consider evidence individually for each defendant to whom it
pertained, and because the evidence was not so complicated that the
jury could not have compartmentalized it, severance was not
required. USDC Opn., 392 F. Supp. 2d at 827-29.
In his COA request, Gutierrez reiterates his claim that the
Eighth Amendment required severance because there was overwhelming
aggravating evidence presented during the penalty phase against
Arroyo, and much less aggravating evidence presented against him.
Furthermore, he contends he has shown the requisite cause and
prejudice to overcome any procedural default.
As discussed, a federal-habeas petitioner must not have
procedurally defaulted his claim for relief. Furthermore, because
we do not grant a COA on Gutierrez’ IAC claim related to the
severance-motion denial, addressed below, the requisite cause and
prejudice has not been shown. He fails to satisfy the two-prong
standard for receiving a COA concerning a district-court procedural
ruling.
D.
Next, Gutierrez requests a COA for his claim that his
appellate counsel was constitutionally ineffective under Strickland
for failing to challenge on appeal: the for-cause dismissal of
Becker; and the severance-denial at the penalty phase.
1.
21
Concerning his claim in his state and federal habeas petitions
that his appellate counsel was constitutionally ineffective for
failing to appeal the for-cause dismissal, Gutierrez contends the
prosecution made the challenge based on Becker’s religious beliefs,
discussed supra. The state-habeas court held: (1) the trial
court’s granting the for-cause challenge was not unconstitutional
in the light of Witherspoon; and (2) Gutierrez failed to show
counsel’s not raising this issue on appeal constituted IAC.
The district court held similarly:
Becker’s exclusion was consistent with
Witherspoon and its progeny, [and] even if
erroneous, was nonetheless reasonable under
clearly established federal law .... For
similar reasons, there was nothing
unreasonable with the state habeas court’s
determination that the failure of petitioner’s
state appellate counsel to pursue a
Witherspoon claim on direct appeal did not
cause the performance of said counsel to fall
below an objective level of reasonableness.
USDC Opn., 392 F. Supp. 2d at 883. Finally, the court noted that
Gutierrez had failed to show, under Strickland, how appellate
counsel’s not raising this issue caused Gutierrez prejudice because
there is “no reasonable probability that, but for [this failure],
the outcome of [his] direct appeal would have been any different”.
Id. at 884.
Gutierrez maintains he made a colorable IAC claim because:
the state court’s factual determination that Becker’s religious
22
views would have precluded him from serving on the jury is not
supported by the record; appellate counsel’s failure to raise this
issue is inexplicable and was objectively unreasonable; and
resulting prejudice is shown because an automatic reversal is
required where a for-cause challenge is erroneously granted under
Witherspoon.
Of course, appellate counsel need not, and should not, raise
every non-frivolous issue on appeal. E.g., Smith v. Robbins, 528
U.S. 259, 288 (2000). As reflected earlier in describing the bases
for the for-cause challenge, reasonable jurists would not debate
that the district court correctly concluded the state-habeas court
was not unreasonable in holding appellate counsel’s performance did
not fall below an objectively reasonable standard. Furthermore,
this claim does not “deserve encouragement to proceed further”.
See
Slack, 529 U.S. at 484.
2.
Concerning Gutierrez’ claim that his appellate counsel
rendered IAC for failing to appeal the penalty-phase severance-
denial, the state-habeas court held: because there were proper
jury instructions and the evidence presented was not too difficult
to be compartmentalized, a severance was not constitutionally
required; appellate counsel’s performance was not objectively
unreasonable for failing to raise this non-meritorious claim; and
23
Gutierrez failed to show there is a reasonable probability that,
but for counsel’s failing to raise this issue, the result of his
appeal would have been different.
The district court likewise held that, under AEDPA, the
following state-court determinations were not unreasonable in the
light of clearly-established federal law: a severance was not
required under state and federal law; appellate counsel’s
performance was not deficient for failing to raise this issue; and
no prejudice resulted from counsel’s failing to do so. USDC Opn.,
392 F. Supp. 2d at 885-86.
For his COA request premised on his claim appellate counsel
was constitutionally deficient for failing to raise the severance-
denial issue, Gutierrez insists that, because the aggravating
evidence against him consisted primarily of prior, non-violent
property crimes, and that against Arroyo concerned substantially
more violent conduct, appellate counsel’s performance was not
objectively reasonable. He maintains he suffered prejudice as a
result because, under the Eighth Amendment’s harmless error
standard, the appeals court would have been required to reverse his
conviction.
As discussed supra, Gutierrez did not make the requisite
showing he was denied a constitutional right to individual
sentencing because his severance motion was denied. Accordingly,
it is not debatable among reasonable jurists that the district
24
court correctly concluded the state-habeas court was not
unreasonable in holding appellate counsel’s performance was not
objectively unreasonable for failing to raise a non-meritorious
claim.
E.
Gutierrez seeks a COA for the following claims, which he
admits are procedurally-defaulted because he did not raise them in
his state-habeas proceedings: trial counsel IAC; juror misconduct;
and due-process violations for a possible undisclosed agreement
between a prosecution witness and the State, and the suppression of
impeachment evidence relating to a prosecution witness. He
maintains the state-habeas court’s denial of sufficient funding to
investigate these claims creates cause and prejudice for the
procedural default. (Along this line, as discussed in part II.F.
below, Gutierrez challenges the district court’s denial of
investigative assistance.)
Gutierrez moved in the state-habeas trial court for funding to
investigate the factual bases for these potential claims. It
granted him $3000 of the requested $6500 ($1500 of which was
granted seven days before his state-habeas petition was due).
Despite this funding, Gutierrez claimed in his state-habeas
petition he was not able to sufficiently develop the facts to state
cognizable claims for relief. The state-habeas court held
Gutierrez: had not contended any of the grounds for investigation
25
were meritorious; and had not produced any witnesses to testify
about the limitations on his investigative ability. Therefore, it
held these claims procedurally defaulted.
Likewise, the district court denied habeas relief, holding:
a federal court is not an alternative forum for the development of
the factual bases for a claim; Gutierrez would only be entitled to
a federal evidentiary hearing upon showing the claim relies on a
new rule of constitutional law or the facts could not have been
previously discovered through the exercise of due diligence, and
those facts would show, by clear and convincing evidence, Gutierrez
was actually innocent of the offense, see 28 U.S.C. § 2254(e)(2);
and Gutierrez had been afforded a full opportunity at the state-
habeas evidentiary hearing to develop the factual basis for his
claims. USDC Opn., 392 F. Supp. 2d at 890-91.
Gutierrez maintains a COA should issue on whether he can show
cause and prejudice, based on insufficient funding, for
procedurally defaulting on these claims in the state-habeas court.
Reasonable jurists, however, would not debate that the district
court was correct in concluding that the state-habeas court was not
unreasonable in holding them procedurally defaulted. As the
district court noted: “Petitioner alleges no specific facts
showing his state habeas counsel exercised due diligence to
investigate, develop, and present any of [his] unexhausted claims
herein to [the] state habeas court”. Id. at 891. Accordingly,
26
Gutierrez fails to satisfy the two-prong standard for obtaining a
COA for the district court’s procedural ruling.
F.
In the final point for consideration, Gutierrez contests the
district court’s denial of his motion for investigative assistance
to develop the procedurally-defaulted claims discussed above in
part II.E. Pursuant to 21 U.S.C. § 848(q)(9), a district judge, in
a capital case, “upon a finding that investigative, expert, or
other services are reasonably necessary for the representation of
the defendant”, may authorize funding for such services.
“This court has held that a COA is not necessary to appeal the
denial of funds for expert assistance.” Smith v. Dretke, 422 F.3d
269, 288 (5th Cir. 2005). Instead, we review for an abuse of
discretion the denial of § 848(q) funding.
Id. As Smith noted,
[t]his court has upheld the denial of such
funding when a petitioner has (a) failed to
supplement his funding request with a viable
constitutional claim that is not procedurally
barred, or (b) when the sought-after
assistance would only support a meritless
claim, or (c) when the sought after assistance
would only supplement prior evidence.
Id. (internal citation omitted; emphasis added).
Gutierrez has not shown the district court abused its
discretion in failing to grant additional investigative assistance.
“[Gutierrez’] right under 21 U.S.C. § 848(q)(9) to the assistance
27
of experts where reasonably necessary to press his habeas claims
does not entitle him to a federal evidentiary hearing when he has
failed to ... develop his evidence in state court”. Turner v.
Johnson, 106 F.3d 1178, 1184 n.16 (5th Cir. 1997) (internal
citations omitted); see also Riley v. Dretke,
362 F.3d 302 (5th
Cir. 2004) (holding petitioner cannot show a substantial need for
investigative assistance when the claims he seeks to pursue are
procedurally barred), cert. denied,
543 U.S. 1056 (2005).
III.
For the foregoing reasons, a COA is
DENIED.
28
