Filed: Jun. 02, 2005
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS June 1, 2005 For the Fifth Circuit Charles R. Fulbruge III Clerk _ No. 04-70046 _ MARIANO JUAREZ ROSALES, Petitioner - Appellant, VERSUS DOUG DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent - Appellee. Appeal from the United States District Court for the Southern District of Texas H-03-cv-01016 Before DAVIS, SMITH and DENNIS, Circuit Judges. W. EUGENE DAVIS
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS June 1, 2005 For the Fifth Circuit Charles R. Fulbruge III Clerk _ No. 04-70046 _ MARIANO JUAREZ ROSALES, Petitioner - Appellant, VERSUS DOUG DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent - Appellee. Appeal from the United States District Court for the Southern District of Texas H-03-cv-01016 Before DAVIS, SMITH and DENNIS, Circuit Judges. W. EUGENE DAVIS,..
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United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
June 1, 2005
For the Fifth Circuit
Charles R. Fulbruge III
Clerk
___________________________
No. 04-70046
___________________________
MARIANO JUAREZ ROSALES,
Petitioner - Appellant,
VERSUS
DOUG DRETKE, Director,
Texas Department of Criminal Justice, Correctional Institutions Division,
Respondent - Appellee.
Appeal from the United States District Court
for the Southern District of Texas
H-03-cv-01016
Before DAVIS, SMITH and DENNIS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge.*
Petitioner Mariano Rosales was convicted of capital murder in Texas and
sentenced to death. He now seeks a certificate of appealability from the district court’s
denial of habeas corpus relief. Because Rosales has failed to make a substantial showing
of a denial of a constitutional right on the issues of ineffective assistance of counsel and
denial of a mitigation instruction based on voluntary intoxication, we deny his application
for COA as to those issues. Because reasonable jurists could disagree over whether the
*
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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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procedural bar should apply to his Batson claim, we grant COA as to that issue only.
I.
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. Rosales v. State, 748 S.W.2d
451 (Tex. Crim. App. 1987). 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. Ex parte
Rosales, No. 70,847 (Tex. Crim. App. May 10, 1989)(unpublished). The Texas Court of
Criminal Appeals again affirmed Rosales’ conviction and sentence on his second direct
appeal. Rosales v. State,
841 S.W.2d 368 (Tex. Crim. App. 1992). The Supreme Court
denied Rosales’ petition for writ of certiorari, Rosales v. Texas,
510 U.S. 949 (1993).
In October 1996, Rosales filed a second state application for writ of habeas
corpus. The trial court entered findings of fact and conclusions of law recommending
denial of relief. The Court of Criminal Appeals adopted the trial court’s findings and
based on that record and its own review, denied relief. Ex Parte Mariano Juarez Rosales,
Application No. 16,180-03 (Tex. Crim. App. Sept. 25, 2002)(unpublished opinion).
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, denied Rosales’ request for discovery, habeas relief and a COA. Rosales
timely appealed and now seeks a COA from this court.
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II.
The Court of Criminal Appeals summarized the relevant facts of the crime in its
opinion on direct appeal:
The evidence at guilt/innocence shows that appellant was a forty-six year
old businessman in Houston. He and his wife of twenty-seven years, Mary
Rosales, had six children. In 1984 appellant and his wife began to
experience marital difficulties, and in January of 1985, Mary began seeing a
twenty-four year old man, Hector Balboa. In February, Mary moved into a
trailer she and appellant owned. She began spending some nights with
Hector at the home where he lived with his mother and two sisters. In early
March Mary sought a divorce. She still saw appellant on a daily basis,
however, and conjugal relations between them continued. At one point
appellant asked Mary if she was seeing Hector, with whom he was
acquainted, and she admitted that she was.
On Friday, March 29, 1985, Mary agreed to seek marriage counseling with
appellant. She had plans to meet Hector that evening, but appellant asked
her not to stay out long because he wanted to meet with her later. Mary
agreed in order to placate appellant, but ultimately spent the night at
Hector's house. Appellant went out that night with a friend, T. J. Tristan,
and drank more than "six or eight beers" and part of "a fifth of liquor." He
was last seen by Tristan at about 3:00 a.m. on the morning of Saturday,
March 30, 1985.
At about 7:00 a.m. appellant telephoned Hector's brother in an effort to find
out where Hector lived. He spoke to Hector's niece, who was able to
provide him the unlisted telephone number but not the address. He hung up
before the girl could bring her father to the phone. Appellant next called
Hector's home and spoke to his sister, Patricia Balboa. He told Patricia he
was a friend of Hector's who wanted to come visit him sometime, and asked
her for directions to the house. She complied. Fifteen minutes later
appellant walked into the house with a pistol in his hand. Without a word
he walked up to Pete Rodriguez, Patricia's boyfriend, who was watching
television on a sofa, and shot him at point blank range in the head, killing
him. He then shot Patricia in the chest, crossed the room, and shot her again
in the back. Appellant next proceeded to the front bedroom, where fifteen
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year old Rachel Balboa was asleep. He shot her twice, mortally.2 He then
went to Hector's room and fired through the door, striking Hector twice.
Appellant kicked the door open and a struggle ensued, during which both
Hector and appellant were shot. Hector fled outside, followed by appellant,
who continued to point the pistol at Hector and pull the trigger, though the
gun was out of rounds. Appellant then got in his truck and drove away.
Hector and Patricia survived.
Rosales v. State, 841 S.W.2d at 381.
Additional facts necessary to the issues will be presented in the sections that
follow.
III.
Rosales filed the instant Section 2254 application for habeas relief after the April
24, 1996 effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA).
His application is therefore subject to the AEDPA. Lindh v. Murphy, 521 U.S. 320,
336(1997). Under the AEDPA, a petitioner must obtain a COA before appealing the
district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(2). “This is a jurisdictional
prerequisite because the COA statute mandates that ‘[u]nless a circuit justice or judge
issues a certificate of appealability, an appeal may not be taken to the court of appeals. . .
.’” Miller-El v. Cockrell,
123 S. Ct. 1029, 1039 (2003) (citing 28 U.S.C. §2253(c)(1)) .
“The COA statute requires a threshold inquiry into whether the circuit court may
entertain an appeal.”
Id. (citing Slack v. McDaniel,
529 U.S. 473, 482 (2000); Hohn v.
United States,
524 U.S. 236, 248 (1998)). A COA will be granted only if the petitioner
2
Both Patricia and Rachel were pregnant, and engaged to be married.
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makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). To make such a showing, a petitioner “must demonstrate that the issues are
debatable among jurists of reason; that a court could resolve the issues [in a different
manner]; or that the questions are adequate to deserve encouragement to proceed further.”
Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983) (citation and internal quotation marks
omitted)(emphasis in original). Any doubt regarding whether to grant a COA is resolved
in favor of the petitioner, and the severity of the penalty may be considered in making
this determination. Fuller v. Johnson,
114 F.3d 491, 495 (5th Cir. 1997).
The analysis “requires an overview of the claims in the habeas petition and a
general assessment of their merit.” Miller-El, 123 S. Ct. at 1039. The court must look to
the district court’s application of AEDPA to the petitioner’s constitutional claims and
determine whether the court’s resolution was debatable among reasonable jurists.
Id.
“This threshold inquiry does not require full consideration of the factual or legal bases
adduced in support of the claims.”
Id. Rather, “‘[t]he petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.’”
Id. at 1040. (citing Slack v. McDaniel
529 U.S. 473, 484).
IV.
Rosales asks this court to grant a COA in connection with the following claims:
1. Whether Rosales’ Batson claim is procedurally defaulted;
2. Whether Rosales was entitled to a mitigation instruction based on voluntary
intoxication; and
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3. Whether Rosales received ineffective assistance of counsel when
a. At the guilt-innocence phase of trial, counsel failed to present
psychiatric evidence;
b. At the punishment phase of trial, counsel failed to present
psychiatric evidence;
c. At the punishment phase of trial, counsel failed to offer certain
character witnesses;
d. The trial court required Rosales to go to trial without counsel of his
choice; and
e. The trial court denied a continuance to allow Rosales to go to trial
with counsel of his choice.
For essentially the reasons stated by the federal district court, we refuse a certificate on
issue two, sustaining the trial court’s refusal to give a mitigation instruction on voluntary
intoxication, and issue three, Rosales’ claim of ineffective assistance of counsel. We are
not persuaded that jurists of reason could disagree with the district court’s resolution of
these issues nor could they conclude that they are adequate to deserve encouragement to
proceed further. As discussed in more detail below, we reach a different conclusion on
issue one, Rosales’ Batson claim.
Rosales alleges that the state’s use of race-based peremptory strikes violated the
Equal Protection Clause of the Constitution. The federal district court noted that the
Texas state court relied on an adequate and independent state law ground to deny relief
and honored that procedural default. Before this court, Rosales argues that it was error to
honor the state court’s ruling on procedural default because the procedural default rule
applied was not firmly established at the time of his trial. Jurists of reason could disagree
with the district court’s conclusion.
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At trial, on the first day of jury selection, the State used peremptory strikes to
excuse three venire panel members, Esmerelda Lopez, Alicia Taylor, and Raymond
Trevino. The next morning, the defense raised the matter with the trial court. Counsel
said that they wanted to take up the “familiar patterns already developing” and pointed
out that the State had used peremptory strikes on “two Mexican Americans and one black
woman.” Counsel said that Rosales had a “constitutional right to a cross section of his
peers” and “if the State is going to persist in using their peremptories to eliminate all
minorities, both Mexican Americans and Chicanos and black people, this defendant is
going to be denied his right to a fair trial by his peers.” Defense counsel asked the court
to require the state to give its reason for any future peremptory strikes used to exclude
minority panel members. The court denied the request. However, it did allow the parties
to place into the trial record the race of each panel member on which the State used a
peremptory strike and granted the defense’s request for a running objection on the issue.
After the first day of jury selection, the defense objected to the state’s use of a
peremptory strike against a minority panel member once more in connection with juror
James Hamilton, who was black. The defense stated that the state’s strike was “blatantly
racial” and complained again that the procedure violated Rosales’ right to a jury of his
peers and his right to a jury drawn from a cross section of the community.
On direct appeal, Rosales argued that the trial court erred in failing to require the
state to explain its use of peremptory challenges against Hispanic venire persons. Rosales
argued that his objection alerted the trial court to the “systematic exclusion of venire men
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based on their race or ethnic background to invoke the protections of Batson,” which case
was decided between his trial and appeal. Batson v. Kentucky, 476 U.S. 79 (1986). The
Court of Criminal Appeals noted that although Rosales’ trial objection was couched in
terms of a purported right to a fair cross section of the community on the petit jury, his
objection on appeal was premised on the Equal Protection Clause of the Fourteenth
Amendment, the basis for the Batson decision. It concluded that Rosales failed to make
an objection adequate to raise a Fourteenth Amendment violation, and, even if he had,
that he received all the relief he requested. Rosales’ counsel had requested in his initial
objection that the State be required to explain future peremptory challenges made against
Hispanic venire persons. The court stated that record does not indicate that any another
Hispanic venire persons were struck by the State.
In state writ proceedings, Rosales again raised an Equal Protection claim alleging
that the trial court erred by not requiring the State to give its reasons for using peremptory
strikes against minority venire persons. The state habeas court concluded that Rosales
was procedurally barred from advancing that complaint in state writ proceedings because
he had failed to preserve the error. Alternatively, the state habeas court found that a
procedural bar prevented consideration of that claim because Rosales had already raised
it on direct appeal.
Rosales again raises his Batson claim in his federal habeas petition. The federal
district court concluded that state procedural law bars federal consideration of this claim.
It also found that Rosales failed to meet his burden of showing that Texas did not
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adequately and regularly enforce its procedural law in similar cases.
Jurists of reason could disagree with the district court’s conclusion. Objections
similar to those presented in this case were found to adequately raise a Batson claim in
several trials that took place, like that of Rosales, in the time before Batson was decided.
See generally Henry v. State, 729 S.W.2d 732 (Tex. Crim. App. 1987); DeBlanc v. State,
732 S.W.2d 640 (Tex. Crim. App. 1987); Chambers v. State,
742 S.W.2d 695 (Tex. Crim.
App. 1988); Tompkins v. State,
774 S.W.2d 195 (Tex. Crim App. 1987), aff’d
490 U.S.
754 (1987); Trevino v. Texas,
503 U.S. 562 (1992). The cases relied on by the State as
establishing that the Texas contemporaneous objection rule was strictly and regularly
applied to this issue involved situations in which the defendants failed to make any
objection or create any record regarding peremptory strikes of minority members of the
venire. Williams v. State,
773 S.W.2d 525 (Tex. Crim App. 1988); Matthews v. State,
768 S.W.2d 731 (Tex. Crim. App. 1989).
Because jurists of reason would find it debatable whether the district court was
correct in its procedural ruling as to whether the State strictly or regularly followed a
procedural bar to pre-Batson challenges to the State’s use of peremptory challenges
around the time of Rosales’ direct appeal, we grant COA on this issue.
V.
For the foregoing reasons, Rosales’ petition for COA is denied as to issue two, the
trial court’s refusal to give a mitigation instruction on voluntary intoxication, and issue
three, Rosales’ claim of ineffective assistance of counsel. Rosales’ petition for COA on
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issue one, his Batson claim, is granted.
The clerk will calender this case for oral argument and establish a briefing
schedule for supplemental briefs on the merits of this issue.
Petition for COA DENIED IN PART and GRANTED IN PART.
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