Filed: Mar. 23, 2006
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FIFTH CIRCUIT March 23, 2006 Charles R. Fulbruge III Clerk No. 05-70036 ROBERT MARTINEZ PEREZ, 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 Northern District of Texas (3:03-CV-1073-L) Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges. PER CURIAM:* Convic
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FIFTH CIRCUIT March 23, 2006 Charles R. Fulbruge III Clerk No. 05-70036 ROBERT MARTINEZ PEREZ, 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 Northern District of Texas (3:03-CV-1073-L) Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges. PER CURIAM:* Convict..
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United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT March 23, 2006
Charles R. Fulbruge III
Clerk
No. 05-70036
ROBERT MARTINEZ PEREZ,
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 Northern District of Texas
(3:03-CV-1073-L)
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Convicted in Texas state court of capital murder for murdering
more than one person during the same criminal transaction and
sentenced to death, Robert Martinez Perez requests a certificate of
appealability (COA) on two habeas claims denied by the district
court. Those underlying claims are that he was denied due process
of law when the trial court: (1) permitted an inspector with the
United States Marshal Service near two prosecution witnesses, in
*
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this opinion should not be published and is not precedent except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.
view of the jury; and (2) admitted inadmissible, cumulative
evidence. COA DENIED.
I.
Perez was convicted of capital murder in 1999 and sentenced to
death for the 1994 murders of Jose Travieso and Robert Rivas,
members (as was Perez) of the “Mexican Mafia”, a violent street
gang in San Antonio, Texas. His conviction and sentence were
affirmed on direct appeal. Perez v. State, No. 73,457 (Tex. Crim.
App. 19 Sept. 2001) (unpublished). Perez did not seek a writ of
certiorari from the Supreme Court of the United States.
During the pendency of his direct appeal, Perez filed a state
habeas application, challenging his conviction and sentence on 45
grounds. In March 2003, the habeas trial court entered findings of
fact and conclusions of law, recommending denial of habeas relief.
That April, the Court of Criminal Appeals denied relief, adopting
the findings and conclusions in an unpublished order. Ex parte
Perez, Writ No. 55,333-01 (Tex. Crim. App. 30 Apr. 2003)
(unpublished).
Perez filed for federal habeas relief in October 2003, raising
the two claims for which he now seeks a COA. Relief was denied in
June 2005. Perez v. Dretke, 393 F. Supp. 2d 443, 448 (N.D. Tex.
2005). That August, the district court denied Perez’s COA request.
Perez v. Dretke, No. 3:03-CV-1073-L (N.D. Tex. 2 Aug. 2005)
(unpublished).
2
II.
For his COA request here, Perez’s underlying 28 U.S.C. § 2254
habeas petition is subject to the Antiterrorism and Effective Death
Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996)
(AEDPA). See, e.g., Penry v. Johnson, 532 U.S. 782, 792 (2001).
Pursuant to AEDPA, Perez cannot appeal the habeas-relief denial
unless he first obtains a COA from either the district, or this,
court. 28 U.S.C. § 2253(c)(1)(A); FED. R. APP. P. 22(b)(1). Under
Federal Rule of Appellate Procedure 22(b)(1), the district court
judge who denied relief “must either issue a [COA] or state why a
certificate should not issue”. For the same reasons it had denied
relief, the district court denied a COA for both issues.
Obtaining a COA requires “a substantial showing of the denial
of a constitutional right”. 28 U.S.C. § 2253(c)(2). Perez must
show “that reasonable jurists could debate whether (or, for that
matter, agree that) the [federal habeas] petition should have been
resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further”. Miller-El
v. Cockrell, 537 U.S. 322, 336 (2003) (internal citation and
quotation marks omitted). This determination is limited, inter
alia, “to a threshold inquiry into the underlying merit of [the
habeas petition’s] claims”.
Id. at 327. Such “inquiry does not
require full consideration of the factual or legal bases adduced in
support of the claims”; instead, it requires “an overview of the
3
claims in the habeas petition and a general assessment of their
merits”. Id. at 336. Because Perez faces the death penalty, we
resolve “any doubts as to whether a COA should issue ... in [his]
favor”. Hernandez v. Johnson,
213 F.3d 243, 248 (5th Cir.), cert.
denied,
531 U.S. 966 (2000).
Regarding our requisite threshold inquiry, we recognize that,
in ruling on the merits, the district court was required by AEDPA
to defer to the state court’s ruling “on the merits” for a claim,
“unless [that] adjudication ... resulted in”: (1) for questions of
law and mixed questions of law and fact, “a decision that was
contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the
United States”; or (2) for questions of fact, “a decision that was
based on an unreasonable determination of the facts in [the] light
of the evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d)(1) & (2); see Chavez v. Cockrell, 310 F.3d 805,
808 (5th Cir. 2002), cert. denied,
538 U.S. 915 (2003).
A.
Underlying Perez’s first COA request is his claimed denial of
due process when the trial court permitted an inspector with the
United States Marshal Service (the Marshal) to be near two
prosecution witnesses within view of the jury (Marshal’s presence).
4
1.
Outside the presence of the jury, Perez’s attorney objected
that the Marshal’s presence: put an aura on the witnesses’
testimony, suggesting they were so important that they had their
own private guard; made Perez look dangerous because the witnesses
needed a guard in order to be in the same room with him; and was
unnecessary because of the courtroom’s other security measures.
The objections were overruled. On direct appeal, Perez claimed the
Marshal’s presence denied him due process — a fair and impartial
trial. (Although Perez raised this issue again in his state habeas
petition, the habeas trial court ruled the claim had already been
decided adversely to Perez on direct appeal. As noted, the Court
of Criminal Appeals adopted the habeas trial court’s findings and
conclusions.) Perez raised the same claim in his federal habeas
petition. This claim’s having been exhausted, we consider whether
Perez is entitled to a COA. See 28 U.S.C. § 2254(b)(1).
2.
“The physical appearance of a defendant while in the presence
of the jury may adversely affect the presumption of innocence.”
Chavez, 310 F.3d at 808. To protect that fundamental requirement
for a fair trial, safeguards are placed on the defendant’s
appearance. See, e.g., Estelle v. Williams,
425 U.S. 501, 504
(1976) (“Courts have, with few exceptions, determined that an
accused should not be compelled to go to trial in prison or jail
5
clothing because of the possible impairment of the presumption so
basic to the adversary system.”) (internal footnote omitted).
These safeguards are balanced, however, with the court’s need “to
protect the court and its processes, and to attend to the safety
and security of those in the courtroom”. United States v.
Nicholson, 846 F.2d 277, 279 (5th Cir. 1988). Accordingly, courts
have been more liberal in allowing security personnel in the
courtroom. See
id. (holding that the presence of plainclothes
deputies in front of the jury did not unfairly prejudice the
defendant).
Outside the presence of the jury, the Marshal testified: for
the record, he was dressed in a suit and tie and his firearm was
not exposed; although he was wearing a red badge with the letters
“SCO”, he would remove it while in court; he was assigned to
protect the two witnesses as part of the witness security program;
and that program’s policy is to allow officers to sit close to
witnesses for their protection, especially if the defendant is in
custody or there is an audience in the courtroom. The trial judge
found: the Marshal wore a “snappy outfit of civilian nature”; and
the jury could have seen him “as a civilian sitting over there by
the door”.
On direct appeal, the Court of Criminal Appeals held Perez did
not meet his burden of demonstrating the Marshal’s presence caused
either actual or inherent prejudice. Likewise, on federal habeas,
6
the district court denied relief, ruling Perez “failed to
demonstrate that the presence of a plainclothes officer during the
testimony of [the two witnesses] was so inherently prejudicial that
he was denied his constitutional right to a fair trial”. Perez,
393 F. Supp. 2d at 450.
Whether the Marshal’s presence prejudiced Perez’s right to a
fair trial is a mixed question of law and fact. Accordingly, under
AEDPA, the district court was required to defer to the state
court’s adjudication “unless”, as discussed supra, it “resulted in
a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States”. 28 U.S.C. § 2254(d)(1).
In the light of this standard, Perez has failed for COA purposes to
make the requisite substantial showing that the Marshal’s presence
prejudiced his right to a fair trial.
On the merits, pursuant to 28 U.S.C. § 2254(e)(1), a state-
court finding of fact is “presumed to be correct[;] [t]he applicant
[has] the burden of rebutting the presumption of correctness by
clear and convincing evidence”. Perez has not made the requisite
showing for COA purposes that the jury knew the Marshal was an
inspector with the United States Marshal Service.
Even if the jury did discern that the Marshal was an armed
guard, prejudice would not be shown automatically: “Our society
has become inured to the presence of armed guards in most public
7
places”. Holbrook v. Flynn, 475 U.S. 560, 569 (1986). The jurors
were exposed to numerous other security measures. Further, the
Marshal’s presence ensured that protection-program witnesses
received adequate security, pursuant to witness-security-program
policies.
Accordingly, Perez has failed to show reasonable jurists could
debate the district court’s ruling: (1) that the Marshal’s
presence did not deprive Perez of a fair and impartial trial; or
(2) that the claim is not “adequate to deserve encouragement to
proceed further”. See Miller-El, 537 U.S. at 336 (internal
citations and quotation marks omitted).
B.
The underlying basis for the other requested COA is Perez’s
claimed denial of a fair and impartial trial because the trial
court admitted evidence he asserts is inadmissible and cumulative.
His claim concerns seven items of evidence regarding the Mexican
Mafia.
1.
As discussed below, it appears part of this claim was not
exhausted. If so, we cannot consider that part. See 28 U.S.C. §
2254(b)(1)(A). In any event, a COA is denied.
a.
It appears two letters (from gang members Luis “Blue” Adames
and Herb “Star” Huerta) were challenged for the first time in
8
Perez’s federal petition. Id. Because it appears they were not
challenged in state court, the district court may have erred in
considering them. In any event, their being admitted at trial does
not alter the reasons for our COA denial.
b.
At trial, Perez objected on a variety of bases to the other
five items. They are: (1) testimony by a prosecution-witness
(former gang member) relating to the gang’s organization and
operations; (2) its constitution; (3) reading portions of the
constitution that discussed its members killing traitors to the
gang; (4) letters to Perez from the former gang member regarding
schisms, killings, and criminal conduct by the gang; and (5)
testimony by a Detective that he could not remember the exact
number of Mexican Mafia homicides he had investigated because there
had been so many.
In his federal petition, Perez claims the admission violated
“Rule 404(b)”, presumably of the Texas Rules of Evidence, which
mirrors Federal Rule of Evidence Rule 404(b) (character evidence
generally not admissible to prove conduct). Although it is
arguable whether each item was objected to on the grounds now
presented, and although, pursuant to 28 U.S.C. § 2254(b)(3), the
State has not waived the exhaustion requirement, the bases for the
objections are sufficient to permit our review of this COA
application for the five items.
9
On direct appeal, Perez claimed his due process rights were
violated by the trial court’s admitting cumulative improper
evidence regarding the gang. (Again, although Perez also made this
claim in his state habeas application, the habeas trial court ruled
the claim had already been decided adversely to Perez on direct
appeal, and the Court of Criminal Appeals adopted the trial court’s
findings and conclusions.) Perez raised the same claim in his
federal petition.
2.
On direct appeal, Perez challenged the admissibility of
evidence pertaining to the gang under Texas Rules of Evidence 403
(exclusion of relevant evidence on special grounds) and 404(b).
The Court of Criminal Appeals held: “[T]he evidence overwhelmingly
demonstrated that the murders resulted from the rift within the
[gang], an organization notorious for committing homicides, and in
accordance with provisions of [its] constitution”. Perez, No.
73,457 at 8 (emphasis added). Accordingly, it upheld the admission
of the evidence.
To support his cumulative-error COA request, Perez relies on
Derden v. McNeel, 978 F.2d 1453, 1457 (5th Cir. 1992) (en banc),
cert. denied,
508 U.S. 960 (1993), which held:
[F]ederal habeas corpus relief may only be
granted for cumulative errors in the conduct
of a state trial where (1) the individual
errors involved matters of constitutional
dimension rather than mere violations of state
law; (2) the errors were not procedurally
10
defaulted for habeas purposes; and (3) the
errors “so infected the entire trial that the
resulting conviction violates due process”.
Id. at 1454 (quoting Cupp v. Naughten,
414 U.S. 141, 147 (1973))
(emphasis added).
In deciding this claim, the district court concluded that,
under 28 U.S.C. § 2254(d)(1), “[b]ecause the ‘cumulative error’
doctrine has not been clearly established by the Supreme Court,
habeas relief is not available”. Perez, 393 F. Supp. 2d at 448.
In doing so, it failed to address this court’s holding that,
although rare, instances of cumulative trial-court errors resulting
in federal habeas relief “fit the Supreme Court’s description of a
denial of due process as ‘the failure to observe that fundamental
fairness essential to the very concept of justice’”.
Derden, 978
F.2d at 1457 (quoting Lisenba v. California,
314 U.S. 219, 236
(1941)). In the alternative, as discussed infra, the district
court denied the claim on the merits, holding that, because the
challenged evidence was relevant to the issues being decided, there
was no constitutional error.
For COA purposes, Perez fails to make the requisite
substantial showing that his claim falls within the cumulative-
error doctrine. Under this doctrine, “errors of state law,
including evidentiary errors, are not cognizable in habeas corpus”.
Id. at 1458 (emphasis added). Instead, such errors are of the
requisite constitutional nature only if they “infuse[] the trial
11
with unfairness as to deny due process of law”. Id. (quoting
Lisenba, 314 U.S. at 228).
Perez claims evidence was improperly admitted based on lack of
relevance, unfair prejudice, and prior criminal conduct. For COA
purposes, we cannot consider the state court’s rulings on these
state-law bases. See Estelle v. McGuire, 502 U.S. 62, 68 (1991)
(“In conducting [federal] habeas review, a federal court is limited
to deciding whether a conviction violated the Constitution, laws,
or treaties of the United States.”).
In conjunction with his due process cumulative-error COA
request, Perez’s only colorable non-state-law claim is that his
First Amendment right to freedom of association was violated by the
trial court’s allowing evidence of his gang involvement. In
support, Perez cites Dawson v. Delaware, 503 U.S. 159, 167 (1992).
In Dawson, however, the defendant’s First Amendment rights were
violated because of the admission of evidence at sentencing that
proved nothing more than his “abstract beliefs”.
Id. In contrast,
Perez’s gang involvement concerned the motive and reason for the
murders. See Vasquez v. State,
67 S.W.3d 229, 239 (Tex. Crim. App.
2002) (holding “gang-affiliation is relevant to show a motive for
a gang-related crime”).
In this regard, as described supra, the challenged evidence
involves: (1) the gang’s organization and operation in San
Antonio; (2) killings and criminal conduct by the gang; and (3) the
12
number of homicides associated with it. The district court ruled
this evidence
support[ed] the state’s theory that [Perez]
killed the two victims to succeed in a power
struggle within the San Antonio Mexican Mafia
by establishing that: (1) [he] was a leader
in the organization; (2) there was a dangerous
power struggle within the organization at the
time of the killings; (3) the victims were on
the opposite side of that power struggle; (4)
the organization’s rules required [Perez] to
carry out the murders; and (5) the victims
were killed because of the power struggle.
Perez, 393 F. Supp. 2d at 448. Obviously, if there was no error in
admitting the challenged evidence, there was no cumulative error.
Perez’s challenge to the admission of this evidence is a
question of law. United States v. Meserve, 271 F.3d 314, 327 (1st
Cir. 2001) (“[T]he district court’s construction of evidentiary
rules is a question of law”.) (internal citation omitted).
Accordingly, on the merits, the district court was required by
AEDPA to defer to the state court’s “adjudicat[ion] on the merits
... unless the adjudication of the claim ... resulted in a decision
that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court
of the United States”. 28 U.S.C. § 2254(d)(1). Perez has failed
to show reasonable jurists could debate the district court’s
ruling: (1) that Perez’s gang affiliation was relevant to the
murders for which he was convicted; or (2) that the issue is not
13
“adequate to deserve encouragement to proceed further”. Miller-El,
537 U.S. at 336 (internal citations and quotation marks omitted).
III.
For the foregoing reasons, a COA is
DENIED.
14
