ORLANDO L. GARCIA, District Judge.
Petitioner Manuel Garza, Jr, filed this federal habeas corpus action pursuant to Title 28 U.S.C. Section 2254 challenging his October, 2002 Bexar County conviction for capital murder and sentence of death. For the reasons set forth hereinafter, petitioner is entitled to neither federal habeas corpus relief nor a Certificate of Appealability from this Court.
There is no legitimate doubt as to the events of February 2, 2001 that resulted in the death of San Antonio Police Officer John "Rocky" Riojas. Within hours of his arrest on February 4, 2001, petitioner gave a voluntary, written statement in which he gave two, slightly different, accounts of how he fatally shot officer Riojas while violently resisting an otherwise lawful arrest on outstanding warrants.
Two days later, on February 6, 2001, petitioner gave a second written statement concerning his fatal shooting of officer Riojas.
On April 11, 2001, a Bexar County grand jury indicted petitioner in cause no. 2001-CR-1877 on a single Count of capital murder, to wit, intentionally and knowingly causing the death of officer Riojas by shooting Riojas with a deadly weapon, i.e., a firearm, while Riojas was in the lawful discharge of an official duty and petitioner knew Riojas was a police officer.
The state trial court appointed attorneys Raymond E. Fuchs and Edward Camara, Jr. as counsel for petitioner.
Petitioner filed both an unsuccessful objection in the trial court and an unsuccessful mandamus action in a state appellate court challenging the ex parte the substitution of attorney Fuchs with attorney Callahan.
The guilt-innocence phase of petitioner's capital murder trial commenced October 15, 2002.
In addition to petitioner's statements excerpted above, the prosecution presented testimony from (1) various law enforcement personnel regarding communications officer Riojas had with other officers immediately before his fatal shooting and the evidence collected following the discovery of officer Riojas' body immediately after the fatal shooting,
The defense called (1) a civilian employee of the San Antonio Police Department who testified, at the time petitioner executed his first written statement, the petitioner said his shooting of Riojas had been accidental,
On October 24, 2002, after deliberating less than three hours, petitioner's jury returned its verdict, finding petitioner guilty
The punishment phase of petitioner's capital murder trial commenced on October 25, 2002.
The prosecution presented police officers and lay witnesses who testified regarding a wide variety of crimes committed by petitioner, both as a juvenile and adult, including (1) the February 20, 1995 attempted burglary of an apartment,
The prosecution also presented documentary evidence establishing the petitioner had been convicted on separate occasions of multiple charges of unauthorized use of a motor vehicle, as well as charges of theft, escape, evading arrest, theft, criminal mischief, resisting arrest, and unlawfully carrying a weapon.
Petitioner's uncle (the brother of petitioner's mother) testified, in pertinent part, that (1) he was close to petitioner while petitioner was young, (2) petitioner was a good student in elementary school, (3) petitioner's mother was "always a good mother," (4) petitioner's father was sent to prison and was never around when petitioner was growing up, (5) petitioner continued to do well in school even after his father went to prison, (6) petitioner's father died from an overdose of heroin after being released from prison, (7) he never saw petitioner's father use drugs in front of petitioner or the other children, (8) petitioner was not trying to impress people or imitate his father by stealing cars, (9) he heard a little bit about abuse by petitioner's father, (10) petitioner's mother was a good person who raised her children correctly, made sure her children had food when they were hungry and a roof over their heads, (11) petitioner had "every advantage from his mother that a child could have," (12) he was proud of his sister's efforts to raise her children, and (13) he had been to prison himself but was the only adult male in petitioner's life other than petitioner's father.
Petitioner's mother testified, in pertinent part, that (1) she was eighteen when petitioner was born, (2) their family moved at least once a year because petitioner's father was using drugs, (3) petitioner's father did drugs (heroin) in front of their children, (4) petitioner's father was not a good provider or a good husband and was physically abusive toward their children, striking petitioner often, (5) petitioner's father went to prison four or five times, (6) petitioner was hurt when his father was released from prison but did not live with their family, (7) petitioner had to repeat the seventh grade but was a good student, (8) petitioner began acting out and hurting himself when his father died, (9) petitioner wanted more than she could furnish or provide, (10) petitioner was peaceful when incarcerated and would not be a danger to society if imprisoned, (11) petitioner attended a lot of elementary schools, (12) she had no knowledge of petitioner using drugs, and (13) she filed a formal complaint with Child Protective Services after she learned her husband had sexually abused their daughter.
On October 29, 2002, after deliberating just over two and a half hours, the jury returned its verdict at the punishment phase of petitioner's capital murder trial, finding (1) beyond a reasonable doubt there was a probability the petitioner would commit criminal acts of violence that would constitute a continuing threat to society and (2) taking into consideration all the evidence, including the circumstances of the offense and the petitioner's character and personal moral culpability, there were not sufficient mitigating circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed.
Petitioner appealed his conviction and sentence, asserting six points of error.
On October 25, 2004, petitioner filed his first state habeas corpus application, urging thirteen claims therein.
The state habeas trial court held an evidentiary hearing in petitioner's first state habeas corpus proceeding on March 24, 2008, March 31, 2008, and April 23, 2008 during which the parties presented the testimony of petitioner's paternal uncle Raul Gonzales, Jr., clinical psychologist
In an Order issued September 22, 2008, the state habeas trial court issued its findings of fact and conclusions of law and recommended that petitioner's first state habeas corpus application be denied.
The Texas Court of Criminal Appeals adopted the trial court's findings and conclusions and denied state habeas relief in an unpublished order. Ex parte Manuel Garza, WR-70,797-01, 2008 WL 5245545 (Tex.Crim.App. December 17, 2008).
On December 16, 2009, petitioner filed his original petition for federal habeas corpus relief in this Court, along with a voluminous set of exhibits thereto. Docket entry nos. 11-12.
On January 7, 2010, petitioner filed a motion to stay, requesting abeyance of proceedings in this Court to permit petitioner to return to state court and exhaust state habeas corpus remedies on a variety of new claims and new evidence never previously presented to any state court. Docket entry no. 13. This Court granted that request in an Order issued February 18, 2010. Docket entry no. 17.
On June 17, 2010, petitioner filed his second state habeas corpus application.
The Texas Court of Criminal Appeals dismissed petitioner's second state habeas corpus application "as an abuse of the writ without considering the merits of the claims." Ex parte Manuel Garza, WR 70,797-02, 2011 WL 4826968 (Tex.Crim. App. October 12, 2011).
On January 26, 2012, petitioner filed his amended federal habeas corpus petition together with all of the voluminous documents
On March 26, 2012, respondent filed his answer to petitioner's amended petition, arguing in part that petitioner had procedurally defaulted on a portion of petitioner's ineffective assistance claims by failing to raise same in the state courts until petitioner's second state habeas corpus proceeding. Docket entry no. 31.
Because petitioner filed his federal habeas corpus action after the effective date of the AEDPA, this Court's review of petitioner's claims for federal habeas corpus relief is governed by the AEDPA. Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 1918, 150 L.Ed.2d 9 (2001). Under the AEDPA standard of review, this Court cannot grant petitioner federal habeas corpus relief in this cause in connection with any claim that was adjudicated on the merits in state court proceedings, unless the adjudication of that claim either: (1) 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, or (2) 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. Brown v. Payton, 544 U.S. 133, 141, 125 S.Ct. 1432, 1438, 161 L.Ed.2d 334 (2005); Williams v. Taylor, 529 U.S. 362, 404-05, 120 S.Ct. 1495, 1519, 146 L.Ed.2d 389 (2000); 28 U.S.C. § 2254(d).
The Supreme Court has concluded the "contrary to" and "unreasonable application" clauses of Title 28 U.S.C. Section 2254(d)(1) have independent meanings. Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 1850, 152 L.Ed.2d 914 (2002). Under the "contrary to" clause, a federal habeas court may grant relief if (1) the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or (2) the state court decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Brown v. Payton, 544 U.S. at 141, 125 S.Ct. at 1438; Mitchell v. Esparza, 540 U.S. 12, 15-16, 124 S.Ct. 7, 10, 157 L.Ed.2d 263 (2003) ("A state court's decision is `contrary to' our clearly established law if it `applies a rule that contradicts the governing law set forth in our cases' or it `confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.'"). A state court's failure to cite governing Supreme Court authority does not, per se, establish the state court's decision is "contrary to" clearly established federal law: "the state court need not even be aware of our precedents, `so long as neither the reasoning nor the result of the state-court decisions contradicts them.'" Mitchell v. Esparza, 540 U.S. at 16, 124 S.Ct. at 10.
Under the "unreasonable application" clause, a federal habeas court may grant relief if the state court identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the petitioner's case. Brown v. Payton, 544 U.S. at 141, 125 S.Ct. at 1439; Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 2534-35, 156 L.Ed.2d 471 (2003). A federal court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." McDaniel v. Brown, 558 U.S. 120, 132-33, 130 S.Ct. 665, 673, 175 L.Ed.2d 582 (2010) ("A federal habeas court can only set aside a state-court decision as `an unreasonable application of ... clearly established Federal law,' § 2254(d)(1), if the state court's application
As the Supreme Court has recently explained:
Bobby v. Dixon, ___ U.S. ___, ___, 132 S.Ct. 26, 27, 181 L.Ed.2d 328 (2011) (quoting Harrington v. Richter, 562 U.S. ___, ___, 131 S.Ct. 770, 786-87, 178 L.Ed.2d 624 (2011)).
Legal principles are "clearly established" for purposes of AEDPA review when the holdings, as opposed to the dicta, of Supreme Court decisions as of the time of the relevant state-court decision establish those principles. Yarborough v. Alvarado, 541 U.S. 652, 660-61, 124 S.Ct. 2140, 2147, 158 L.Ed.2d 938 (2004) ("We look for `the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'"); Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 1172, 155 L.Ed.2d 144 (2003).
The AEDPA also significantly restricts the scope of federal habeas review of state court fact findings. Section 2254(d)(2) of Title 28, United States Code, provides federal habeas relief may not be granted on any claim that was adjudicated on the merits in the state courts unless the state court's adjudication of the claim resulted in a decision based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Wood v. Allen, 558 U.S. 290, 301, 130 S.Ct. 841, 849, 175 L.Ed.2d 738 (2010) ("[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance."); Williams v. Taylor, 529 U.S. at 410, 120 S.Ct. at 1522 ("[A]n unreasonable application of federal law is different from an incorrect application of federal law."). Even if reasonable minds reviewing the record might disagree about the factual finding in question (or the implicit credibility determination underlying the factual finding), on habeas review, this does not suffice to supersede the trial court's factual determination. Wood v. Allen, 558 U.S. at 300-01, 130 S.Ct. at 849; Rice v. Collins, 546 U.S. 333, 341-42, 126 S.Ct. 969, 976, 163 L.Ed.2d 824 (2006).
In addition, Section 2254(e)(1) provides a petitioner challenging state court factual findings must establish by clear and convincing evidence that the state court's findings were erroneous. Schriro v. Landrigan, 550 U.S. at 473-74, 127 S.Ct. at 1939-40 ("AEDPA also requires
However, the deference to which state-court factual findings are entitled under the AEDPA does not imply an abandonment or abdication of federal judicial review. See Miller-El v. Dretke, 545 U.S. at 240, 125 S.Ct. at 2325 (the standard is "demanding but not insatiable"); Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 1041, 154 L.Ed.2d 931 (2003) ("Even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. Deference does not by definition preclude relief.").
Finally, in this Circuit, a federal habeas court reviewing a state court's rejection on the merits of a claim for relief pursuant to the AEDPA must focus exclusively on the propriety of the ultimate decision reached by the state court and not evaluate the quality, or lack thereof, of the state court's written opinion supporting its decision. See Maldonado v. Thaler, 625 F.3d 229, 239 (5th Cir.2010) (federal habeas review of a state court's adjudication involves review only of a state court's decision, not the written opinion explaining the decision), cert. denied, ___ U.S. ___, 132 S.Ct. 124, 181 L.Ed.2d 46 (2011); St. Aubin v. Quarterman, 470 F.3d 1096, 1100 (5th Cir.2006) (holding Section 2254(d) permits a federal habeas court to review only a state court's decision and not the written opinion explaining that decision), cert. denied, 550 U.S. 921, 127 S.Ct. 2133, 167 L.Ed.2d 869 (2007); Amador v. Quarterman, 458 F.3d 397, 410 (5th Cir.2006) (holding the same), cert. denied, 550 U.S. 920, 127 S.Ct. 2129, 167 L.Ed.2d 866 (2007); Pondexter v. Dretke, 346 F.3d 142, 148 (5th Cir.2003) (holding the precise question before a federal habeas court in reviewing a state court's rejection on the merits of an ineffective assistance claim is whether the state court's ultimate conclusion was objectively reasonable), cert. denied, 541 U.S. 1045, 124 S.Ct. 2160, 158 L.Ed.2d 736 (2004); Anderson v. Johnson, 338 F.3d 382, 390 (5th Cir.2003) (holding a federal habeas court reviews only a state court's decision and not the opinion explaining that decision); Neal v. Puckett, 286 F.3d 230, 246 (5th Cir.2002) (en banc)(holding a federal court is authorized by § 2254(d) to review only a state court's decision and not the written opinion explaining that decision), cert. denied, 537 U.S. 1104, 123 S.Ct. 963, 154 L.Ed.2d 772 (2003).
In his first claim for relief in his amended petition herein, petitioner argues the
Petitioner presented a primarily state-law version of this same complaint to the Texas Court of criminal Appeals as point of error number one in his direct appeal.
Petitioner re-urged the same arguments, relying upon both state and federal constitutional authorities, as his first ground for relief in his first state habeas corpus application.
Petitioner presented an even more federalized version of this same complaint in his second state habeas corpus application.
"The [Sixth] Amendment guarantees defendants in criminal cases the right to adequate representation, but those who do not have the means to hire their own lawyers have no cognizable complaint so long as they are adequately represented by attorneys appointed by the courts. `A defendant may not insist on representation by an attorney he cannot afford.'" Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624, 109 S.Ct. 2646, 2652, 105 L.Ed.2d 528 (1989)(quoting Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 1697, 100 L.Ed.2d 140 (1988)). "Whatever the full extent of the Sixth Amendment's protection of one's right to retain counsel of his choosing, that protection does not go beyond `the individual's right to spend his own money to obtain the advice and assistance of ... counsel.'" Caplin & Drysdale, Chartered v. United States, 491 U.S. at 626, 109 S.Ct. at 2652. "A defendant has no Sixth Amendment right to spend another person's money for services rendered by an attorney, even if those funds are the only way that that defendant will be able to retain the attorney of his choice." Id. The right to counsel of choice does not extend to defendants who require counsel to be appointed for them. United States v. Gonzalez-Lopez, 548 U.S. 140, 151, 126 S.Ct. 2557, 2565, 165 L.Ed.2d 409 (2006).
The constitutional standard for determining whether a criminal defendant has been denied the effective assistance of trial counsel, as guaranteed by the Sixth Amendment, was announced by the Supreme
To satisfy the first prong of Strickland, i.e., establish that his counsel's performance was constitutionally deficient, a convicted defendant must show that counsel's representation "fell below an objective standard of reasonableness." Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003); Williams v. Taylor, 529 U.S. 362, 390-91, 120 S.Ct. 1495, 1511, 146 L.Ed.2d 389 (2000). In so doing, a convicted defendant must carry the burden of proof and overcome a strong presumption that the conduct of his trial counsel falls within a wide range of reasonable professional assistance. Strickland v. Washington, 466 U.S. at 687-91, 104 S.Ct. at 2064-66. Courts are extremely deferential in scrutinizing the performance of counsel and make every effort to eliminate the distorting effects of hindsight. See Wiggins v. Smith, 539 U.S. at 523, 123 S.Ct. at 2536 (holding the proper analysis under the first prong of Strickland is an objective review of the reasonableness of counsel's performance under prevailing professional norms which includes a context-dependent consideration of the challenged conduct as seen from the perspective of said counsel at the time). "No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant." Bobby v. Van Hook, 558 U.S. 4, 7, 130 S.Ct. 13, 16, 175 L.Ed.2d 255 (2009); Strickland v. Washington, 466 U.S. at 688-89, 104 S.Ct. at 2065. It is strongly presumed counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland v. Washington, 466 U.S. at 690, 104 S.Ct. at 2066.
To satisfy the "prejudice" prong, a convicted defendant must establish a reasonable probability that, but for the objectively unreasonable misconduct of his counsel, the result of the proceeding would have been different. Wiggins v. Smith, 539 U.S. at 534, 123 S.Ct. at 2542; Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. Id.
In United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), decided the same day as Strickland, the Supreme Court held a presumption of prejudice similar to that recognized in Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980), arises in three narrow circumstances: first, when a criminal defendant is completely denied the assistance of counsel; second, when counsel entirely fails to subject the prosecution's case to meaningful adversarial testing; and finally, where the circumstances are such that even competent counsel very likely could not render effective assistance. United States v. Cronic, 466 U.S. at 659, 104 S.Ct. at 2047.
In Bell v. Cone, 535 U.S. 685, 695-96, 122 S.Ct. 1843, 1851, 152 L.Ed.2d 914 (2002), the Supreme Court reiterated that the second exception to the requirement of Strickland "prejudice" it had envisioned in Cronic was limited to situations in which defense counsel completely failed to subject the prosecution's case to meaningful adversarial testing. See Bell v. Cone, 535 U.S. at 697-98, 122 S.Ct. at 1851-52 (holding complaints about trial counsel's waiver of closing argument at the punishment phase of trial and failure to adduce mitigating evidence insufficient to create a presumption of prejudice absent a showing trial counsel completely failed to challenge the prosecution's case throughout the sentencing proceeding). Simply put, garden variety ineffective assistance claims of the nature asserted by petitioner herein do not warrant application of the presumption of prejudice recognized in Cronic.
The presumption of prejudice recognized in Cronic does not apply where the defendant complains of merely shoddy or poor performance by his trial counsel; for a defendant to be entitled to such a presumption, his attorney's failure must be complete. See Bell v. Cone, 535 U.S. at 697, 122 S.Ct. at 1851 (holding the presumption applicable only when counsel entirely failed to subject the prosecution's case to meaningful adversarial testing); United States v. Griffin, 324 F.3d 330, 364, 364 (5th Cir.2003)("When the defendant complains of errors, omissions, or strategic blunders, prejudice is not presumed; bad lawyering, regardless of how bad, does not support the per se presumption of prejudice."); Riddle v. Cockrell, 288 F.3d 713, 718 (5th Cir.2002)(holding "constructive denial of counsel" sufficient to support a presumption of prejudice arises only when counsel was absent from the courtroom, there was an actual conflict of interest, or there was official interference with the defense), cert. denied, 537 U.S. 953, 123 S.Ct. 420, 154 L.Ed.2d 300 (2002); Mayo v. Cockrell, 287 F.3d 336, 340 n. 3 (5th Cir. 2002) (holding the same), cert. denied, 537 U.S. 975, 123 S.Ct. 443, 154 L.Ed.2d 332 (2002); Burdine v. Johnson, 262 F.3d 336, 344 n. 4 (5th Cir.2001) (holding the same), cert. denied, 535 U.S. 1120, 122 S.Ct. 2347, 153 L.Ed.2d 174 (2002); Gochicoa v. Johnson, 238 F.3d 278, 284 (5th Cir.2000) ("`A constructive denial of counsel occurs in only a very narrow spectrum of cases where the circumstances leading to counsel's ineffectiveness are so egregious that the defendant was in effect denied any meaningful assistance at all.' We have found constructive denial in cases involving the absence of counsel from the courtroom, conflicts of interest between defense counsel and the defendant, and official interference with the defense; and have stated
Petitioner was represented at all times relevant to his capital murder charge by two court-appointed trial attorneys. One of those attorneys, Ed Camara, was appointed in February, 2001 and represented petitioner throughout petitioner's trial court proceedings.
A Jackson v. Denno hearing on petitioner's motion to suppress and a hearing on other pretrial motions was held on August 29, 2002, during which both attorneys Callahan and Camara represented petitioner.
Insofar as petitioner's first claim herein relies upon alleged violations of petitioner's state procedural or state constitutional rights in connection with the state trial court's replacement of attorney Fuchs with attorney Callahan, that claim does not present a legitimate basis for federal habeas corpus relief. Federal habeas corpus relief will not issue to correct errors of state constitutional, statutory, or procedural law, unless a federal issue is also presented. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991) (holding complaints regarding the admission of evidence under California law did not present grounds for federal habeas relief absent a showing that admission of the evidence in question violated due process); Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 3102, 111 L.Ed.2d 606 (1990) (recognizing that federal habeas relief will not issue for errors of state law); Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 874, 79 L.Ed.2d 29 (1984) (holding a federal court may not issue the writ on the basis of a perceived error of state law). In the course of reviewing state criminal convictions in federal habeas corpus proceedings, a federal court does not sit as a super-state appellate court. Estelle v. McGuire, 502 U.S. at 67-68, 112 S.Ct. at 480; Lewis v. Jeffers, 497 U.S. at
Coleman v. Thompson, 501 U.S. 722, 730, 111 S.Ct. 2546, 2554, 115 L.Ed.2d 640 (1991).
Insofar as petitioner complains that he was denied legal representation in violation of the principle announced in Gideon v. Wainwright, 372 U.S. 335, 342-45, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (holding Sixth Amendment was violated when state court refused to appoint counsel to represent indigent criminal defendant in a non-capital felony case), that complaint lacks any arguable merit. As was explained above, petitioner was represented by at least one court-appointed counsel at all times throughout petitioner's capital murder proceeding and, save for an eight-day period in July, 2002, was represented by two experienced criminal defense counsel. Petitioner's argument that he was deprived of counsel during a critical juncture in his state criminal proceeding is refuted by even a cursory review of the petitioner's trial court records and utterly without arguable merit.
Petitioner's reliance on Cronic is likewise unavailing. As was explained above, the presumed prejudice principle of Cronic arises only in three narrow circumstances: first, when a criminal defendant is completely denied the assistance of counsel; second, when counsel entirely fails to subject the prosecution's case to meaningful adversarial testing; and finally, where the circumstances are such that even competent counsel very likely could not render effective assistance. United States v. Cronic, 466 U.S. at 659, 104 S.Ct. at 2047.
The first of these three situations clearly does not apply to petitioner.
Petitioner's complaints about the performance of his trial counsel (detailed in petitioner's third claim herein) do not rise above the garden-variety type of complaints of ineffective assistance which must be evaluated under Strickland's dual prongs. See Bell v. Cone, 535 U.S. at 697-98, 122 S.Ct. at 1851-52 (holding complaints about trial counsel's waiver of closing argument at the punishment phase of trial and failure to adduce mitigating evidence insufficient to create a presumption of prejudice absent a showing trial counsel completely failed to challenge the prosecution's case throughout the sentencing proceeding); United States v. Griffin, 324 F.3d at 364 ("When the defendant complains of errors, omissions, or strategic blunders, prejudice is not presumed; bad lawyering, regardless of how bad, does not support the per se presumption of prejudice."); Riddle v. Cockrell, 288 F.3d at 718 (holding "constructive denial of counsel" sufficient to support a presumption of prejudice arises only when counsel was absent from the courtroom, there was an actual conflict of interest, or there was official interference with the defense).
Finally, petitioner has alleged no facts showing the circumstances of his capital murder trial were such as to render it impossible for his two, court-appointed, trial counsel to adequately represent petitioner within the parameters set forth in Strickland and Cronic. Attorney Callahan replaced attorney Fuchs more than a month before the pretrial hearing in petitioner's capital murder trial and almost
Petitioner's complaints about the substitution of attorney Fuchs by attorney Callahan do not implicate the Sixth Amendment's right to counsel of one's choosing. United States v. Gonzalez-Lopez, 548 U.S. at 151, 126 S.Ct. at 2565.
The Texas Court of Criminal Appeals' rejection on the permits of petitioner's primarily state-law complaints about the replacement of attorney Fuchs by attorney Callahan during the course of petitioner's direct appeal was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the petitioner's state court proceeding.
Furthermore, having examined de novo petitioner's federal constitutional arguments in support of his initial claim herein, which federal claims petitioner raised for the first time in his state habeas corpus proceedings and were summarily dismissed by the state habeas court, this Court concludes that because petitioner's federal constitutional complaints based upon Gideon v. Wainwright and Cronic (which the state habeas court summarily dismissed in the course of petitioner's first and second state habeas corpus proceedings) lack any arguable merit, petitioner's first ground for relief herein does not warrant federal habeas corpus relief.
In his third ground for relief herein, petitioner argues that his trial counsel rendered ineffective assistance in violation of the Sixth Amendment by failing to (1) adequately voir dire the jury venire regarding their views on the death penalty, (2) adequately investigate petitioner's background and present available mitigating evidence, (3) call the defense team's investigator as a witness to contradict prosecution witness Erica Henderson, and (4) introduce petitioner's hospital records to show petitioner suffered facial injuries in his confrontation with Riojas.
Petitioner presented his third and fourth assertions of ineffective assistance in his third claim herein (i.e., failing to introduce petitioner's hospital records or call the defense investigator to testify), and an abridged version of his second assertion of ineffective assistance herein (i.e., inadequate mitigation investigation), to the state court in his first state habeas corpus application.
Petitioner presented the state habeas court with the same four ineffective assistance claims he presents in his third claim herein in his second state habeas corpus application.
The Sixth Amendment entitles criminal defendants to "the effective assistance of counsel," i.e., legal representation that does not (1) fall below an objective standard of reasonableness in light of prevailing professional norms and the circumstances of the defendant's case (Wong v. Belmontes, 558 U.S. 15, 16-17, 130 S.Ct. 383, 384, 175 L.Ed.2d 328 (2009); Bobby v. Van Hook, 558 U.S. at 6-7, 130 S.Ct. at 16); and (2) give rise to a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different (Porter v. McCollum, 558 U.S. 30, 38-41, 130 S.Ct. 447, 452-53, 175 L.Ed.2d 398 (2009); Wong
As was explained in Section III.C. above, the constitutional standard for determining whether a criminal defendant has been denied the effective assistance of trial counsel, as guaranteed by the Sixth Amendment, was announced by the Supreme Court in Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064.
In evaluating prejudice in the context of the punishment phase of a capital trial, a federal habeas court must re-weigh all the evidence in aggravation against the totality of available mitigating evidence (had the petitioner's trial counsel chosen a different course). Wong v. Belmontes, 558 U.S. at 19-20, 130 S.Ct. at 386; Wiggins v. Smith, 539 U.S. at 534, 123 S.Ct. at 2542. Strickland does not require the State to "rule out" or negate a sentence of life in prison to prevail; rather, it places the burden on the defendant to show a "reasonable probability" that the result of the punishment phase of a capital murder trial would have been different. Wong v. Belmontes, 558 U.S. at 26-29, 130 S.Ct. at 390-91.
In evaluating petitioner's complaints about the performance of his counsel under the AEDPA, the issue before this Court is whether the Texas Court of Criminal Appeals could reasonably have concluded petitioner's complaints about his trial counsel's performance failed to satisfy either prong of the Strickland analysis. Schaetzle v. Cockrell, 343 F.3d 440, 444 (5th Cir.2003), cert. denied, 540 U.S. 1154, 124 S.Ct. 1156, 157 L.Ed.2d 1050 (2004). In making this determination, this Court must consider the underlying Strickland standard. Id. In those instances in which the state courts failed to adjudicate either prong of the Strickland test, this Court's review of the un-adjudicated prong is de novo. See Porter v. McCollum, 558 U.S. at 38-39, 130 S.Ct. at 452 (holding de novo review of the allegedly deficient performance of petitioner's trial counsel was necessary because the state courts had failed to address this prong of Strickland analysis); Rompilla v. Beard, 545 U.S. 374, 390, 125 S.Ct. 2456, 2467, 162 L.Ed.2d 360 (2005) (holding de novo review of the prejudice prong of Strickland required where the state courts rested their rejection of an ineffective assistance claim on the deficient performance prong and never addressed the issue of prejudice); Wiggins v. Smith, 539 U.S. at 534, 123 S.Ct. at 2542 (holding the same).
A habeas petitioner has the burden to prove both prongs of the Strickland ineffective assistance standard by a preponderance of the evidence. Rogers v. Quarterman, 555 F.3d 483, 489 (5th Cir. 2009), cert. denied, 558 U.S. 839, 130 S.Ct. 365, 175 L.Ed.2d 62 (2009); Blanton v. Quarterman, 543 F.3d 230, 235 (5th Cir. 2008), cert. denied, ___ U.S. ___, 129 S.Ct. 2383, 173 L.Ed.2d 1301 (2009); Montoya v. Johnson, 226 F.3d 399, 408 (5th Cir.2000), cert. denied, 532 U.S. 1067, 121 S.Ct. 2220, 150 L.Ed.2d 212 (2001).
Under the well-settled Strickland standard, the Supreme Court recognizes a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Bell v. Cone, 535 U.S. at 698, 122 S.Ct. at 1852; Strickland v. Washington, 466 U.S. at 690, 104 S.Ct. at 2066; Scheanette v. Quarterman, 482 F.3d 815, 820 (5th Cir.2007), stay denied, 555 U.S. 1160, 129 S.Ct. 1305, 173 L.Ed.2d 482 (2009); Sonnier v. Quarterman, 476 F.3d 349, 356 (5th Cir.2007), cert. denied, 552 U.S. 948, 128 S.Ct. 374, 169 L.Ed.2d 259 (2007); Amador v. Quarterman, 458 F.3d at 410; Gonzales v. Quarterman, 458 F.3d 384, 390 (5th Cir.2006), cert. denied,
Respondent correctly points out that petitioner presented the Texas Court of Criminal Appeals with his first assertion of ineffective assistance herein, i.e., petitioner's complaint about the performance of his trial counsel during voir dire, in petitioner's second state habeas corpus application, which the state habeas court dismissed under state writ-abuse principles.
The Texas Court of Criminal Appeals' summary dismissal of petitioner's second state habeas corpus application (which included petitioner's first presentation of his initial assertion herein of ineffective assistance) on state writ-abuse principles constitutes a form of procedural default on same which bars federal habeas review of that claim. See, e.g., Hughes v. Quarterman, 530 F.3d 336, 342 (5th Cir. 2008) ("This court has held that, since 1994, the Texas abuse of the writ doctrine has been consistently applied as a procedural bar, and that it is an independent and adequate state ground for the purpose of imposing a procedural bar."), cert. denied, ___ U.S. ___, 129 S.Ct. 2378, 173 L.Ed.2d 1299 (2009); Aguilar v. Dretke, 428 F.3d 526, 533 (5th Cir.2005) (holding the Texas abuse of the writ rule ordinarily is an adequate and independent procedural ground on which to base a procedural default ruling), cert. denied, 547 U.S. 1136, 126 S.Ct. 2059, 164 L.Ed.2d 793 (2006); Matchett v. Dretke, 380 F.3d 844, 848 (5th Cir.2004) (holding the violation of the Texas writ-abuse rule ordinarily furnishes an adequate and independent procedural ground which bars federal habeas review of a claim), cert. denied, 543 U.S. 1124, 125 S.Ct. 1067, 160 L.Ed.2d 1074 (2005); Cotton v. Cockrell, 343 F.3d 746, 755 (5th Cir.2003) (holding the Texas writ abuse doctrine is an adequate and independent barrier to federal habeas review of unexhausted claims), cert. denied, 540 U.S. 1186, 124 S.Ct. 1417, 158 L.Ed.2d 92 (2004); Henderson v. Cockrell, 333 F.3d 592, 605 (5th Cir.2003) (recognizing the Texas writ-abuse doctrine has been strictly and regularly applied since before August, 1997), cert. denied, 540 U.S. 1163, 124 S.Ct. 1170, 157 L.Ed.2d 1208 (2004).
The Supreme Court's recent holding in Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), affords petitioner no relief from his procedural default on his initial assertion of ineffective assistance herein. In Martinez, the Supreme Court carved out of its procedural default jurisprudence a narrow exception for claims of ineffective assistance by trial counsel which were not raised in a convicted criminal defendant's first state habeas corpus proceeding because of the deficient performance of the defendant's state habeas counsel. See Martinez v. Ryan, ___ U.S. at ___, 132 S.Ct. at 1315 ("Inadequate assistance of counsel at initial review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial"). For the reasons set forth hereinafter, there was nothing professionally deficient about the failure of petitioner's first state habeas counsel to present this same complaint to the state habeas court in the course of petitioner's first state habeas corpus proceeding.
Petitioner argues that his trial counsel failed to properly voir dire the jury venire regarding their views on the death penalty.
As explained above, however, petitioner did not present this specific complaint of ineffective assistance to the state courts until he included same in his second state habeas corpus application, which the Texas Court of Criminal Appeals summarily dismissed under state writ-abuse principles.
Because no state court has ever addressed the merits of this aspect of petitioner's multi-faceted ineffective assistance claims herein, this Court's review of the merits of this complaint is necessarily de novo. See Porter v. McCollum, 558 U.S. at 38-39, 130 S.Ct. at 452 (holding de novo review of the allegedly deficient performance of petitioner's trial counsel was necessary because the state courts had failed to address this prong of Strickland analysis); Rompilla v. Beard, 545 U.S. at 390, 125 S.Ct. at 2467 (holding de novo review of the prejudice prong of Strickland was required where the state courts rested their rejection of an ineffective assistance claim on the deficient performance prong and never addressed the issue of prejudice).
Petitioner summarizes the voir dire examination of each of the twelve venire members who served as his petit jurors but does not recite any facts concerning the voir dire of the venire as a whole. Significantly, petitioner has failed to furnish this Court with the juror questionnaires completed by the jury venire prior to the start of individual voir dire examination. As this Court has explained previously, without access to the extensive juror questionnaires routinely employed in Bexar County capital cases, it is virtually impossible to properly evaluate the efforts of either the prosecution or criminal defense counsel to screen biased or unqualified venire members. See Jasper v. Thaler, 765 F.Supp.2d 783, 816 n. 62 (W.D.Tex. 2011) (discussing the analytical hurdles to evaluating a Batson claim without access to the juror questionnaires completed by the venire members whom the petitioner claimed had been improperly struck by the prosecution), affirmed 466 Fed.Appx. 429 (5th Cir.2012). It is not an exaggeration to state that the extensive and detailed juror questionnaires routinely employed in Bexar County capital cases furnish the starting point for any objective analysis of the performance of either the prosecuting attorneys or defense counsel during voir dire in a capital case.
Petitioner's complaints about the performance of his trial counsel during voir dire do not furnish specific facts alleging objectively unreasonable conduct on the part of his trial counsel. For instance, petitioner repeatedly complains that his trial counsel failed to object to the prosecution's explanations of the terms employed in the Texas capital sentencing special issues.
Petitioner also faults his trial counsel for failing to specifically question many of the venire members who served as petitioner's petit jurors regarding their views on the death penalty.
If petitioner wishes to attack the performance of his trial counsel during voir dire, petitioner must furnish this Court with specific facts showing why in the context of the voir dire of the entire jury venire, including said counsels' review of the venire members' extensive juror questionnaire answers, his trial counsel's efforts to identify disqualifying bias were objectively unreasonable.
Petitioner admits that his trial counsel did, in fact, make challenges for cause against several of the venire members who served as petit jurors.
Petitioner does complain that his trial counsel failed to adequately inquire of the venire members (1) if someone convicted of murder of a police officer would automatically be a future danger within the meaning of the first capital sentencing special issue, (2) if a conviction for the murder of a police officer and a finding of future dangerousness would cause the person to "not consider mitigating evidence," and (3) they would be able to consider and give effect to all relevant mitigating evidence offered by petitioner.
In point of fact, however, at several points during the voir dire of the venire members who ultimately served as petitioner's petit jury, petitioner's trial counsel did make voir dire inquiry regarding whether a venire member felt that a conviction for capital murder, standing alone, would justify an affirmative answer to the Texas capital sentencing scheme's future dangerousness special issue.
As explained above, the prosecution carefully discussed the Texas capital sentencing special issues with almost every venire member who eventually served as a petit juror at petitioner's capital murder trial, including discussing the nature of mitigating evidence from the prosecution's perspective.
Finally, this Court's independent review of the voir dire examination of the petitioner's petit jurors reveals many objectively reasonable bases for most of the decisions by petitioner's trial counsel to accept those individuals as jurors. The first juror, Hazel Knipp, repeatedly described the burden of serving as a juror in a capital case as "a very serious thing," "a lot of responsibility," and "just overwhelming."
Each of the twelve persons asserted during their voir dire examination by the prosecution that they could follow the trial court's instructions regarding the Texas capital sentencing scheme's special issues and render a verdict based upon the evidence. In such a context, this Court independently concludes the failure of petitioner's trial counsel to ask potentially offensive voir dire questions suggesting or implying that the venire member might willfully ignore the trial court's instructions or disregard the plain language of the mitigation special issue commanding
Having independently reviewed the voir dire examination of all twelve members of petitioner's petit jury, and in light of the limited record in this proceeding (i.e., the absence from the record before this Court of the juror questionnaires completed by all of the petitioner's venire members), this Court concludes petitioner has failed to carry his burden of proving the performance of his trial counsel during voir dire fell below an objective level of reasonableness.
Petitioner alleges no specific facts showing that any of the twelve persons who served as his petit jurors possessed any disqualifying bias. As this Court has explained on several occasions, the standard for determining the constitutional fitness of a capital sentencing juror is set forth in a series of Supreme Court opinions dating back several decades:
Bartee v. Quarterman, 574 F.Supp.2d 624, 662-64 (W.D.Tex.2008), CoA denied, 339 Fed.Appx. 429 (5th Cir.2009), cert. denied, 559 U.S. 1009, 130 S.Ct. 1882, 176 L.Ed.2d 370 (2010).
Having independently reviewed the entirety of the voir dire examination of the twelve venire members who served as petitioner's petit jurors, this Court concludes none of those individuals were properly subject to challenges for cause based upon any disqualifying bias or demonstrated inability to set aside their personal opinions and render a verdict based solely upon the law and evidence. All of the jurors in question asserted they could set aside their personal views and render a verdict at both phases of petitioner's capital murder trial based solely upon the evidence and the law as defined by the trial court. The Constitution requires nothing more.
Furthermore, the evidence presented by the prosecution at the guilt-innocence phase of petitioner's capital murder trial was more than compelling, it was overwhelming. Petitioner confessed in writing to fatally shooting officer Riojas while engaging in conduct which can most charitably be called a violent attempt to avoid apprehension. At no point in his written statements did petitioner indicate he had made any attempt to surrender to officer Riojas. On the contrary, petitioner's written statements are filled with petitioner's firm assertions that he did not want to be arrested despite petitioner's actual knowledge that warrants for his arrest were outstanding. None of the eyewitnesses to the confrontation between petitioner and officer Riojas, including petitioner's long time friend Jamie Martinez, claimed to have seen Riojas strike petitioner in the face as petitioner claimed. None of the relatives and friends with whom petitioner stayed in the days immediately after Riojas'
All of petitioner's jurors indicated they understood the Texas capital sentencing special issues, could follow the trial court's instructions regarding same, and render a verdict based upon the evidence.
Petitioner procedurally defaulted on this aspect of his multi-faceted ineffective assistance claim herein by failing to present this same complaint about the performance of his trial counsel during voir dire to the state courts until petitioner's second state habeas corpus proceeding.
Alternatively, after an independent, de novo, review, this Court concludes petitioner's complaints about the performance of his trial counsel during voir dire all fail to satisfy either prong of Strickland analysis. Petitioner's complaints about the performance of his trial counsel during voir dire do not warrant federal habeas corpus relief.
Petitioner argues that his trial counsel failed to adequately investigate petitioner's abused and neglected childhood and to present then-available mitigating evidence showing, among other things, that (1) petitioner suffers from Fetal Alcohol Syndrome as a result of his mother's heroin abuse and drinking alcohol during her pregnancy with petitioner, (2) petitioner's father was physically and emotionally abusive toward petitioner and petitioner's mother, (3) petitioner's father sexually assaulted petitioner's sister when she was six
Petitioner presented most of these same complaints during his first state habeas corpus proceeding.
During the evidentiary hearing held in petitioner's first state habeas corpus proceeding, petitioner also presented live testimony from (1) petitioner's paternal uncle Raul Gonzales, Jr describing (a) the severe physical and emotional abuse of petitioner and petitioner's mother he witnessed at the hands of petitioner's father and (b) the criminal history and drug abuse of petitioner's father,
The parties also agreed to the admission of extensive school and TDCJ records relating to petitioner.
The state habeas trial court made the following findings and conclusions regarding
In his second state habeas corpus proceeding, petitioner re-presented all of the allegations, affidavits, and other documents he had presented to the state habeas court during his first state habeas corpus proceeding.
The Texas Court of Criminal Appeals summarily dismissed petitioner's second state habeas corpus application pursuant to state writ-abuse principles. Ex parte Manuel Garza, WR 70-797-02, 2011 WL 4826968, at *1.
Despite the voluminous additional documentation and new affidavits petitioner furnished to the state habeas court in support of this aspect of his multi-faceted ineffective assistance claim during petitioner's second state habeas corpus proceeding
As the foregoing summary demonstrates, this Court has carefully reviewed the voluminous new material petitioner presented to the state habeas court during petitioner's second state habeas corpus proceeding and concludes that, with the exception of evidence showing petitioner's mother drank alcohol and may have ingested narcotics during her pregnancy with petitioner (and Dr. Murphey's opinion that further investigation into whether petitioner may suffer from Fetal Alcohol Syndrome is warranted), petitioner's "new" purported mitigating evidence offers very little more than the same information about (1) the abusive, criminal, misconduct of the petitioner's father, (2) the rampant criminal and drug-related behavior of petitioner's family, and (3) the abused, neglected, and chaotic nature of the petitioner's childhood detailed in either State Exhibit no. 188 (i.e., petitioner's TYC file) or in the testimony of petitioner's mother and sister during the punishment phase of petitioner's capital murder trial.
Because no state court has ever addressed the merits of an ineffective assistance claim arguing the failure of petitioner's trial counsel to investigate whether petitioner suffers from Fetal Alcohol Syndrome rose to the level of ineffective assistance, this Court must address the latest version of petitioner's Wiggins claim de novo. See Porter v. McCollum, 558 U.S. at 38-39, 130 S.Ct. at 452 (holding de novo review of the allegedly deficient performance of petitioner's trial counsel was necessary because the state courts had failed to address this prong of Strickland analysis); Rompilla v. Beard, 545 U.S. at 390, 125 S.Ct. at 2467 (holding de novo review of the prejudice prong of Strickland required where the state courts rested their rejection of an ineffective assistance claim on the deficient performance prong and never addressed the issue of prejudice); Wiggins v. Smith, 539 U.S. at 534, 123 S.Ct. at 2542 (holding the same).
Petitioner has presented this Court with a Wiggins claim that petitioner presented to the state courts in two, entirely separate, state habeas corpus proceedings. In the first of those state habeas proceedings, the state habeas court rejected petitioner's claim on the merits. Petitioner then supplemented his original Wiggins claim in his
With regard to the arguments and evidence petitioner presented to the state habeas court during his first state habeas corpus proceeding, the Texas Court of Criminal Appeals' rejection on the merits of this aspect of petitioner's multi-faceted ineffective assistance claim was eminently reasonable. As was explained above, during petitioner's first state habeas corpus proceeding, petitioner presented the state habeas court with generic arguments that petitioner's trial counsel had failed to adequately investigate petitioner's background for mitigating evidence.
The initial problem with this complaint is that the affidavits in question and the testimony petitioner offered during the evidentiary hearing in his first state habeas corpus proceeding furnished no new "facts" about petitioner's background that had not already been presented to the petitioner's capital sentencing jury through either the admission into evidence of State Exhibit no. 188 (i.e., petitioner's 350-page TYC file) or the punishment phase trial testimony of petitioner's uncle, mother, and sister. See Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir.1994) (holding absent a specific, affirmative showing of precisely what evidence or testimony was rendered unavailable due to a trial counsel's failure to investigate, develop, and present same, i.e., a showing of exactly what the missing evidence or testimony would have been, a court cannot even begin to apply the Strickland analysis because it is very difficult to determine whether the defendant was prejudiced by any such deficiencies in counsel's performance).
More specifically, when called upon to present actual evidence and testimony showing what additional mitigating evidence or testimony could have been presented (had petitioner's trial counsel undertaken a more thorough investigation of petitioner's background), petitioner offered only (1) the testimony of his paternal uncle, Raul Gonzales, which the state habeas trial court accurately described as cumulative of the trial testimony of petitioner's
Perhaps because neither of them had reviewed the actual testimony from petitioner's trial, the efficacy of the expert opinions offered by Dr. Allen and Dr. Ferrell during petitioner's first state habeas corpus proceeding (i.e., that petitioner was essentially a non-violent offender who posed little risk of future violence) quickly dissipated when both were subjected to cross-examination. For instance, Dr. Allen repeatedly insisted that, because of petitioner's non-violent criminal history prior to the murder of officer Riojas, petitioner was not likely to engage in violence when confronted.
In his latest wave of affidavits, petitioner and his new experts criticize petitioner's trial counsel for not presenting expert testimony establishing petitioner's chaotic, abused, and neglected childhood. However, petitioner's lead trial counsel testified during petitioner's first state habeas corpus proceeding that he preferred to present such evidence through petitioner's family members.
Thus, there was more than ample evidence before the state habeas court upon which to base that court's conclusions (either implicit or explicit) that (1) the petitioner's trial counsel managed to present petitioner's capital sentencing jury with all of the factual information regarding petitioner's abused childhood and deprived background petitioner offered the state habeas court during petitioner's first state habeas corpus proceeding and (2) it was objectively reasonable for petitioner's trial counsel to choose to present its mitigating evidence through petitioner's family members (and State Exhibit no. 188) than by presenting expert witnesses. Moreover, having independently reviewed the entirety of the records from petitioner's trial, direct appeal, and first state habeas corpus proceedings, this Court agrees with the state habeas court that the performance of petitioner's trial counsel in presenting petitioner's capital sentencing jury with then-available mitigating evidence did not fall below an objective level of reasonableness.
For similar reasons, the state habeas court reasonably concluded petitioner was not "prejudiced" within the meaning of Strickland by the failure of petitioner's trial counsel to call either petitioner's paternal uncle Raul Gonzales, Dr. Ferrell, or Dr. Allen to testify during the punishment phase of petitioner's capital murder trial in the same manner that they testified during petitioner's first state habeas corpus proceeding.
To satisfy the "prejudice" prong of Strickland, a convicted defendant must establish a reasonable probability that, but for the objectively unreasonable misconduct of his counsel, the result of the proceeding would have been different. Wiggins
The state habeas court reasonably concluded that, during his testimony before the state habeas court, Raul Gonzales, Jr. offered no "new" mitigating evidence not already presented to the petitioner's capital sentencing jury by either State Exhibit no. 188 or the punishment phase trial testimony of petitioner's mother, sister, and uncle Louis Garza. Jr. Having independently reviewed the records from the petitioner's trial, direct appeal, and first state habeas corpus proceeding, this Court finds that neither Dr. Ferrell nor Dr. Allen offered any "new" facts concerning petitioner's background which were not otherwise presented to petitioner's capital sentencing jury.
Insofar as Dr. Ferrell and Dr. Allen offered the state habeas court expert opinions suggesting petitioner would not pose a risk of future violent criminal acts, those opinions were substantially undermined, if not completely refuted, by the detailed records of petitioner's lengthy criminal history contained in State Exhibit no. 188 and by the almost sixty witnesses the prosecution presented during the punishment phase of petitioner's capital murder trial. It is readily apparent to this Court from their testimony during petitioner's first state habeas corpus proceeding that both Dr. Ferrell and Dr. Allen were unfamiliar at the time they gave their testimony in that proceeding with the petitioner's written statements or the eyewitness testimony at the guilt-innocence phase of petitioner's trial describing the fatal shooting of officer Riojas. It is also readily apparent to this Court that, when they testified in petitioner's first state habeas corpus proceeding, neither Dr. Ferrell nor Dr. Allen were familiar with the extensive testimony regarding petitioner's criminal history given by a small army of prosecution witnesses who testified during the punishment phase of petitioner's capital murder trial. The reason for this Court's conclusions on these points is that both Dr. Ferrell and Dr. Allen presented the state habeas court with affidavits and testimony in which they relied apparently exclusively on information which was either refuted by the evidence introduced during petitioner's trial or by the contents of petitioner's TYC file admitted into evidence as State Exhibit no. 188.
More specifically, Dr. Ferrell testified he had found nothing in petitioner's records to suggest petitioner had ever been aggressive or violent.
Dr. Allen expressed opinions during petitioner's state habeas hearing that her review of petitioner's record and interviews of petitioner and petitioner's family
The prosecution presented extensive evidence at trial showing petitioner's lengthy history of criminal misconduct, including eyewitness testimony from law enforcement officers who observed petitioner leading police officers on multiple high speed chases, driving without lights and in a very dangerous manner, crashing stolen vehicles into other vehicles and stationary objects such as a back stop and stone fence, and violently resisting arrest following those chases. That same evidence made clear Rocky Riojas was not the first police officer who had faced violent resistance while attempting to arrest petitioner. Several of petitioner's burglary and auto theft victims testified regarding the extensive damage petitioner had done to their vehicles and homes. Petitioner's TYC file documented (1) petitioner's gang membership, sexual activity, and drug and alcohol abuse from an early age, (2) petitioner's unstable, abused, and deprived, childhood, (3) petitioner's lengthy list of criminal misconduct, including truancy, running away from home, and escaping from a juvenile halfway house, (4) petitioner's frequent possession of weapons, including guns and knives, and (5) the criminal, drug-abusing, subculture in which petitioner grew up. Several law enforcement officers testified regarding the threatening gestures and comments petitioner made to them following petitioner's arrest for capital murder. Finally, petitioner offered his capital sentencing jury very little evidence showing sincere expression of remorse or contrition
Under such circumstances, this Court independently concludes there was no reasonable probability that, but for the failure of petitioner's trial counsel to present any of the testimony of Raul Gonzales, Jr., Dr. Ferrell, or Dr. Allen given during petitioner's first state habeas corpus proceeding, the outcome of the punishment phase of petitioner's capital murder trial would have been any different. The state habeas court's conclusion on this same point was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor based upon an unreasonable determination of the facts in light of the evidence presented in the petitioner's trial, direct appeal, and first state habeas corpus proceedings.
The Wiggins claim petitioner presented to the state habeas court in his first state habeas corpus proceeding fails to satisfy either prong of Strickland analysis. The Texas Court of Criminal Appeals' rejection on the merits of petitioner's Wiggins claim during the course of petitioner's first state habeas corpus proceeding was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor based upon an unreasonable determination of the facts in light of the evidence presented in the petitioner's trial, direct appeal, and first state habeas corpus proceedings.
Absent some showing that a counsel's subjective decision-making was objectively unreasonable in view of the information and evidence then available to counsel, it is almost impossible for a habeas corpus petitioner to overcome the presumption of reasonableness afforded his counsel's strategic and tactical decisions under Strickland. See Neal v. Puckett, 286 F.3d 230, 237 (5th Cir.2002) (recognizing that, in
In his second state habeas corpus proceeding, and in his Amended Petition herein, petitioner presents the same allegations and evidence he presented in support of his Wiggins claim in his first state habeas corpus proceeding but supplements that evidence with numerous new affidavits and documents.
While the new affidavits furnished by petitioner's family members and experts offer additional details concerning the abused and neglected circumstances in which petitioner grew up, petitioner neither alleges any facts nor furnishes this Court with any evidence showing that his trial counsel were unaware of these additional details at the time of petitioner's trial. Petitioner's co-counsel at trial, attorney Ed Camara, testified without contradiction during petitioner's first state habeas corpus proceeding that (1) he interviewed petitioner and found petitioner's account of the fatal shooting of officer Riojas consistent with petitioner's statements to police, (2) the defense's mitigation specialist, Ann Matthews, interviewed four or five members of petitioner's family, including petitioner's mother, sister, and uncle, (3) he and Ann Matthews met with Dr. Ferrell prior to trial, (4) he personally spoke with both petitioner's mother and sister, (5) he had access to petitioner's juvenile and extensive criminal records, and (6) nothing the prosecution developed during the punishment phase of trial came as a surprise to him.
Turning to the one truly "new" factual allegation presented in support of petitioner's "supplemented" Wiggins claim, i.e., the allegation petitioner's mother abused alcohol and drugs during her pregnancy with petitioner, the fundamental problem with this supplemented Wiggins claim is that petitioner has not provided this Court with any fact-specific allegations, much less any evidence, establishing that petitioner's trial counsel was ever made aware of this "new" allegation prior to petitioner's trial.
Furthermore, these eleventh hour accusations of alleged alcohol and drug abuse by petitioner's mother while she was pregnant with petitioner must be viewed in the context of the other information which was available to petitioner's trial counsel prior to and at the time of petitioner's trial. Petitioner's Texas Youth Commission case file, which was available to petitioner's trial counsel, included (1) psychological evaluations by Dr. Ben Ferguson and Dr. Roger Sherman, and a separate evaluation by a master's level psychologist, none of which mentioned any alleged alcohol or drug abuse by petitioner's mother (during her pregnancy with petitioner or otherwise)
Thus, other than a single line in one of Ann Matthews' interview notes apparently transmitted to petitioner's co-counsel on or about October 16, 2002 (i.e., after the commencement of the guilt-innocence phase of petitioner's capital murder trial),
Moreover, as this Court has recently noted in another capital habeas case, as of the date of petitioner's capital murder trial, i.e., 2002, "fetal alcohol syndrome" and "fetal alcohol effects" were terms only just beginning to find acceptance among the mainstream within the mental health community. Sells v. Thaler, 2012 WL 2562666, *59 (W.D.Tex. June 28, 2012). Neither term appears in the 2000 edition of the DSM-IV-TR.
More significantly, while Dr. Ferrell's latest affidavit
Even more significantly, mitigating evidence showing petitioner actually suffers from Fetal Alcohol Syndrome or Fetal Alcohol Effects would necessarily have been double-edged in nature and might well have helped convince petitioner's capital sentencing jury to answer the future dangerousness special issue affirmatively. See Sells v. Thaler, 2012 WL 2562666, at *58 (discussing expert opinions associating prenatal alcohol exposure to damaged executive functioning with attendant socially inappropriate behavior, inability to apply consequences from past actions (i.e., an inability to learn from one's mistakes), lack of impulse control, rage reactions, physical aggression, high risk behaviors, and the inability to experience or display remorse). Presenting a Fetal Alcohol Syndrome or Fetal Alcohol Effects defense at the punishment phase of petitioner's capital murder trial would, in all reasonable likelihood, have reinforced the prosecution's arguments that petitioner was likely to pose a risk of future dangerousness for the rest of his life. Sells v. Thaler, 2012 WL 2562666, at *59-*60.
Under these circumstances, this Court independently concludes after de novo review that petitioner's complaints about his trial counsel's failure to investigate whether petitioner suffers from Fetal Alcohol Syndrome and to present evidence establishing same did not cause the performance of said counsel to fall below an objective level of reasonableness. See Wiggins v. Smith, 539 U.S. at 523, 123 S.Ct. at 2536 (holding the proper analysis under the first prong of Strickland is an objective review of the reasonableness of
In evaluating prejudice in the context of the punishment phase of a capital trial, a federal habeas court must re-weigh all the evidence in aggravation against the totality of available mitigating evidence (had the petitioner's trial counsel chosen a different course). Wong v. Belmontes, 558 U.S. at 19-20, 130 S.Ct. at 386; Wiggins v. Smith, 539 U.S. at 534, 123 S.Ct. at 2542. Strickland does not require the State to "rule out" or negate a sentence of life in prison to prevail; rather, it places the burden on the defendant to show a "reasonable probability" that the result of the punishment phase of a capital murder trial would have been different. Wong v. Belmontes, 558 U.S. at 26-29, 130 S.Ct. at 390-91. A habeas petitioner has the burden to prove both prongs of the Strickland ineffective assistance standard by a preponderance of the evidence. Rogers v. Quarterman, 555 F.3d at 489; Blanton v. Quarterman, 543 F.3d at 235; Montoya v. Johnson, 226 F.3d at 408.
As was explained above in Section IV. F.4., the expert opinions which petitioner argued in his first state habeas corpus proceeding should have been presented at the punishment phase of petitioner's capital murder trial were premised upon views of the petitioner's capital offense and criminal record which were refuted by the prosecution's evidence actually introduced at petitioner's trial. The same can be said for the new opinions expressed by Dr. Ferrell in his latest affidavit and by Dr. Murphey in her lengthy affidavit and report.
Finally, as was explained above in Section IV.F.4.b., the evidence presented at trial showed petitioner (1) had a lengthy history of criminal conduct that included numerous episodes in which he possessed weapons while committing crimes, (2) led police on multiple high speed chases resulting in crashes of stolen vehicles, (3) learned from his father how to commit crimes such as auto theft, (4) displayed little remorse or sincere contrition for officer Riojas' murder,
Petitioner's complaint about his trial counsel's failure to more thoroughly investigate petitioner's background and to present the "new" mitigating evidence accompanying petitioner's Amended Petition herein fails to satisfy either prong of Strickland analysis.
Petitioner argues his trial counsel should have called defense investigator Jeff Mitchel to impeach or contradict the trial testimony of prosecution witness Erica Henderson.
During her direct examination on October 15, 2002, prosecution witness Erica
The following date, i.e., on October 16, 2002, Ms. Henderson returned to the witness stand and testified on redirect that (1) she was only ten feet away from the two men she watched struggling for the gun, (2) the suspect appeared to be trying to get away, (3) it appeared the suspect did not want to allow the officer to have the gun, and (4) the suspect raised the gun, ducked, and then fired.
Petitioner presented this same ineffective assistance complaint as his third ground for relief in his first state habeas corpus proceeding.
Petitioner re-presented the same complaint as his third assertion of ineffective assistance in his third claim for relief in his second state habeas corpus application.
The Texas Court of Criminal Appeals' conclusion that Jeff Mitchel's testimony contradicting (or arguably impeaching) Ms. Henderson's trial testimony would have been inadmissible under applicable Texas rules of evidence is binding upon this Court in this federal habeas corpus proceeding. See Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 604, 163 L.Ed.2d 407 (2005) ("We have repeatedly held that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus."); Paredes v. Quarterman, 574 F.3d at 291 (a state court's interpretation of state law binds a federal court sitting in habeas corpus); Amador v. Quarterman, 458 F.3d at 412 (holding a federal habeas court must defer to a state court's interpretation of state law); Fuhrman v. Dretke, 442 F.3d 893, 901 (5th Cir.2006) (holding the same); Young v. Dretke, 356 F.3d 616, 628 (5th Cir.2004) ("In our role as a federal habeas court, we cannot review the correctness of the state habeas court's interpretation of state law."); Johnson v. Cain, 215 F.3d 489, 494 (5th Cir.2000) (holding a federal habeas court may not review a state court's interpretation of its own law); Gibbs v. Johnson, 154 F.3d 253, 259 (5th Cir.1998) (holding the same), cert. denied, 526 U.S. 1089, 119 S.Ct. 1501, 143 L.Ed.2d 654 (1999).
Because the state habeas court determined the testimony of Jeff Mitchel proffered through an affidavit during petitioner's first state habeas corpus proceeding was inadmissible under applicable state law rules of evidence, the failure of petitioner's trial counsel to attempt to present such testimony did not cause the performance of said counsel to fall below an objective level of reasonableness. Counsel cannot be faulted for their failure to offer testimony which, under applicable state evidentiary rules, was inadmissible. See Paredes v. Quarterman, 574 F.3d at 291 n. 13 (failure to raise a meritless argument cannot form the basis for a successful ineffective assistance claim because the result of the proceeding would not have been different had the attorney raised the issue); Wood v. Quarterman, 503 F.3d 408, 413 (5th Cir.2007) (failure to raise futile or meritless objections is not ineffective lawyering), cert. denied, 552 U.S. 1314, 128 S.Ct. 1874, 170 L.Ed.2d 752 (2008); Johnson v. Cockrell, 306 F.3d 249, 255 (5th Cir.2002) (holding there was nothing deficient in counsel's failure to object to the admission of psychiatric testimony that was admissible under then-existing precedent), cert. denied, 538 U.S. 926, 123 S.Ct. 1573, 155 L.Ed.2d 319 (2003). "[T]he Sixth Amendment does not require that counsel do what is impossible or unethical." United States v. Cronic, 466 U.S. at 656 n. 19, 104 S.Ct. at 2045 n. 19.
Likewise, the failure of petitioner's trial counsel to attempt to present the
Petitioner's complaint about the failure of his trial counsel to attempt to introduce the testimony of court-appointed investigator Jeff Mitchel at the guilt-innocence phase of petitioner's capital murder trial satisfies neither prong of Strickland analysis. The Texas Court of Criminal Appeals' rejection on the merits of this ineffective assistance complaint in the course of petitioner's first state habeas corpus proceeding was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor based upon an unreasonable determination of the facts in light of the evidence presented in the petitioner's trial, direct appeal, and first state habeas corpus proceedings.
In his final assertion of ineffective assistance, petitioner argues his trial counsel should have sought to admit petitioner's hospital records, which petitioner argues would have shown petitioner was beaten during his confrontation with officer Riojas and would have supported petitioner's self-defense claim.
Petitioner presented this same complaint as his fourth claim for relief in his first state habeas corpus application.
Petitioner re-presented the same complaint as his third assertion of ineffective assistance in his third claim for relief in his second state habeas corpus application.
As was explained above, the Texas Court of Criminal Appeals' conclusion that the medical records in question were not admissible under applicable state evidentiary rules binds this Court in this federal habeas corpus proceeding. See Bradshaw v. Richey, 546 U.S. at 76, 126 S.Ct. at 604 ("We have repeatedly held that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus."); Paredes v. Quarterman, 574 F.3d at 291 (a state court's interpretation of state law binds a federal court sitting in habeas corpus); Amador v. Quarterman, 458 F.3d at 412 (holding a federal habeas court must defer to a state court's interpretation of state law).
Because the state habeas court held that petitioner's hospital records were inadmissible under Texas evidentiary rules, the failure of petitioner's trial counsel to seek admission of those same records at the guilt-innocence phase of petitioner's trial did not cause the performance of said counsel to fall below an objective level of reasonableness. Counsel cannot be faulted for their failure to offer testimony or other evidence which, under applicable state evidentiary rules, was inadmissible. See Paredes v. Quarterman, 574 F.3d at 291 n. 13 (failure to raise a meritless argument cannot form the basis for a successful ineffective assistance claim because the result of the proceeding would not have been different had the attorney raised the issue); Wood v. Quarterman, 503 F.3d at 413 (failure to raise futile or meritless objections is not ineffective lawyering); Johnson v. Cockrell, 306 F.3d at 255 (holding there was nothing deficient in counsel's failure to object to the admission of psychiatric testimony that was admissible under then-existing precedent).
Moreover, any documentary evidence addressing alleged physical injuries petitioner sustained during his August 2, 2001 confrontation with officer Riojas would have been cumulative of the extensive testimony already before the petitioner's jury showing petitioner had sustained at least some facial and neck injuries during that confrontation. There was no genuine dispute at the guilt innocence phase of petitioner's capital murder trial that, in the hours immediately after the petitioner's fatal confrontation with officer Riojas, petitioner appeared to several of his friends and relatives to have been in an altercation of some kind and showed obvious signs of injury.
Petitioner presented the state habeas court with no new "hospital" records supporting this aspect of his ineffective assistance claims which petitioner complained should have been admitted during the guilt-innocence phase of his capital murder trial. Instead, petitioner pointed to only those medical records admitted into evidence during the punishment phase of petitioner's trial, i.e., Defendant's Exhibit no. 10.
The state habeas court correctly found the inadmissible records in question did not link any of petitioner's physical injuries to his altercation with officer Riojas. Moreover, petitioner's jury already had before it the testimony of three prosecution witnesses describing petitioner's facial and neck injuries in the hours immediately after petitioner's fatal confrontation with officer Riojas. Even without the inadmissible medical records in question, petitioner's jury was already well aware of the petitioner's physical condition in the hours immediately after his fatal confrontation with officer Riojas.
Under such circumstances, there is no reasonable probability that, but for the failure of petitioner's trial counsel to seek admission of petitioner's inadmissible BCADC medical records during the guilt-innocence phase of petitioner's capital murder trial, the outcome of either phase of petitioner's trial would have been any different.
Petitioner's complaint about the failure of his trial counsel to seek admission at the guilt-innocence phase of trial of petitioner's BCADC medical records fails to satisfy either prong of Strickland analysis. The Texas Court of Criminal Appeals' rejection on the merits of this same ineffective assistance complaint in the course of petitioner's first state habeas corpus proceeding was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor based upon an unreasonable
In his second claim herein, petitioner complains that his Sixth Amendment right to confront adverse witnesses was violated when the state trial court refused to permit petitioner to cross-examine prosecution witness Erica Henderson regarding her opinion as to whether the fatal shooting of officer Riojas could have been accidental.
As was explained above in Section IV. G.2., the state trial court initially refused to permit petitioner to cross-examine prosecution witness Erica Henderson concerning her opinion as to whether the fatal shooting of officer Riojas might have been accidental but, the following day, permitted petitioner's trial counsel to elicit as admission from Ms. Henderson that she had told petitioner's trial counsel she believed the shooting might have been accidental.
Petitioner presented the same complaint as his second point of error on direct appeal, albeit as a purely state-law claim, arguing only that the trial court's ruling was an erroneous application of state evidentiary rules.
Petitioner re-urged the same complaint, this time as a Sixth Amendment Confrontation Clause claim, as his second claim for relief in petitioner's first state habeas corpus application.
Petitioner re-urged the same Confrontation Clause argument as his second ground for relief in his second state habeas corpus application.
Davis v. Alaska, 415 U.S. 308, 315-316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974).
"Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 294, 88 L.Ed.2d 15 (1985). Violations of the Confrontation Clause are subject to harmless error analysis. Coy v. Iowa, 487 U.S. 1012, 1021-22, 108 S.Ct. 2798, 2803, 101 L.Ed.2d 857 (1988); United States v. El-Mezain, 664 F.3d 467, 491 (5th Cir.2011), cert. denied, ___ U.S. ___, 133 S.Ct. 525, ___ L.Ed.2d ___, 2012 WL 1835124 (2012).
Insofar as petitioner asks this Court to re-evaluate the Texas Court of Criminal Appeals' analysis and application of Rule 701 of the Texas Rules of Evidence in the course of petitioner's direct appeal and state habeas corpus proceedings, that request is non sequitur. As this Court explained above, the state court's interpretation of state procedural and evidentiary rules is binding on this Court. See Bradshaw v. Richey, 546 U.S. at 76, 126 S.Ct. at 604 ("We have repeatedly held that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus."); Paredes v. Quarterman, 574 F.3d at 291 (a state court's interpretation of state law binds a federal court sitting in habeas corpus); Amador v. Quarterman, 458 F.3d at 412 (holding a federal habeas court must defer to a state court's interpretation of state law).
Determining whether the exclusion of impeachment evidence is of constitutional concern depends upon the reasons for and effect of the exclusion, which typically includes an inquiry into the admissibility of the evidence under the applicable rules of evidence. United States v. Hale, 685 F.3d 522, 538 (5th Cir.2012), cert. denied, ___ U.S. ___, 133 S.Ct. 559, 184 L.Ed.2d 343, 2012 WL 4438817 (2012). As was explained above, while petitioner's trial counsel were precluded from asking Ms. Henderson what her opinions were regarding whether petitioner's fatal shooting of officer Riojas was accidental, they were permitted to elicit on cross-examination that Ms. Henderson had previously told petitioner's trial counsel she believed the
The jury had before it both of petitioner's written statements describing his fatal shooting of officer Riojas, neither of which genuinely contradicted Ms. Henderson's eyewitness testimony regarding the same subject. Moreover, given the fact petitioner's trial counsel were permitted to elicit Ms. Henderson's previously stated opinion regarding the possibly accidental nature of the shooting, any error in preventing her from testifying more directly about her opinions on that subject was harmless, at best. The state trial court's initial rulings limiting the cross-examination of Ms. Henderson did not prevent petitioner's trial counsel from soliciting impeachment testimony from Ms. Henderson on this same subject. See Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993) (holding the test for harmless error in a federal habeas corpus action brought by a state prisoner is "whether the error had substantial and injurious effect or influence in determining the jury's verdict"). Thus, the state trial court's initial restriction on the cross-examination of Ms. Henderson did not have a substantial or injurious effect or influence on the outcome of the jury's verdict at the guilt-innocence phase of petitioner's capital murder trial.
In view of that same court's subsequent allowance of almost identical cross-examination the following day, the state trial court's initial ruling limiting the scope of petitioner's cross-examination of Ms. Henderson did not violate the Sixth Amendment's Confrontation Clause. Any error committed by the state trial court in initially limiting or restricting the scope of petitioner's cross-examination of prosecution witness Erica Henderson was rendered harmless by virtue of the cross-examination of Ms. Henderson which the state trial court permitted the following day.
The Texas Court of Criminal Appeals' rejection on the merits of petitioner's state law and Confrontation Clause complaints about the state trial court's rulings limiting the scope of cross-examination of prosecution witness Erica Henderson during the course of petitioner's direct appeal and first state habeas corpus proceeding were neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor based upon an unreasonable determination of the facts in light of the evidence presented in the petitioner's trial, direct appeal, and first state habeas corpus proceedings.
In his fourth claim herein, petitioner argues the state trial court erred in refusing to permit petitioner to introduce evidence during the guilt-innocence phase of trial showing officer Riojas' character for violence.
At trial, petitioner proffered the testimony of some nine witnesses regarding their
Petitioner's fourth point of error on direct appeal raised a purely state-law argument that the trial court had erred when excluding proffered testimony showing officer Riojas had been aggressive or even violent while arresting or attempting to arrest other individuals.
Petitioner re-urged this same complaint as his sixth claim for relief in his first state habeas corpus application, vaguely alluding to the Sixth and Fourteenth Amendments but once more citing only state-law legal authorities in support of his arguments.
Petitioner presented the same state-law claim (including only a single sentence vaguely alluding to the Sixth and Fourteenth Amendments and no citations to any federal legal authorities) as his fourth ground for relief in his second state habeas corpus application.
Federal habeas corpus relief will not issue to correct errors of state constitutional, statutory, or procedural law, unless a federal issue is also presented. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991) (holding complaints regarding the admission of evidence under California law did not present grounds for federal habeas relief absent a showing that admission of the evidence in question violated due process); Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 3102, 111 L.Ed.2d 606 (1990) (recognizing that federal habeas relief will not issue for errors of state law); Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 874, 79 L.Ed.2d 29 (1984) (holding a federal court may not issue the writ on the
In the course of reviewing state criminal convictions in federal habeas corpus proceedings, a federal court does not sit as a super-state appellate court. Estelle v. McGuire, 502 U.S. at 67-68, 112 S.Ct. at 480; Lewis v. Jeffers, 497 U.S. at 780, 110 S.Ct. at 3102; Pulley v. Harris, 465 U.S. at 41, 104 S.Ct. at 874.
Coleman v. Thompson, 501 U.S. 722, 730, 111 S.Ct. 2546, 2554, 115 L.Ed.2d 640 (1991).
A federal court may grant habeas relief based on an erroneous state court evidentiary ruling only if the ruling violates a specific federal constitutional right or is so egregious it renders the petitioner's trial fundamentally unfair. Payne v. Tennessee, 501 U.S. 808, 825, 111 S.Ct. 2597, 2608, 115 L.Ed.2d 720 (1991); Darden v. Wainwright, All U.S. 168, 179-83, 106 S.Ct. 2464, 2470-72, 91 L.Ed.2d 144 (1986); Goodrum v. Quarterman, 547 F.3d at 261; Wood v. Quarterman, 503 F.3d 408, 414 (5th Cir.2007), cert. denied, 552 U.S. 1314, 128 S.Ct. 1874, 170 L.Ed.2d 752 (2008); Brown v. Dretke, 419 F.3d 365, 376 (5th Cir.2005), cert. denied, 546 U.S. 1217, 126 S.Ct. 1434, 164 L.Ed.2d 137 (2006).
The question before this Court is not whether the state trial court properly applied state evidentiary rules but, rather, whether petitioner's federal constitutional rights were violated by the state trial court's rulings on evidentiary matters. See Bigby v. Dretke, 402 F.3d 551, 563 (5th Cir.2005) (holding federal habeas review of a state court's evidentiary ruling focuses exclusively on whether the ruling violated the federal Constitution), cert. denied, 546 U.S. 900, 126 S.Ct. 239, 163 L.Ed.2d 221 (2005).
Gonzales v. Thaler, 643 F.3d 425, 430-31 (5th Cir.2011) (Footnotes omitted).
Insofar as petitioner complains about the manner the state appellate and state habeas courts applied Texas law during his direct appeal and first state habeas corpus proceeding, those complaints do not furnish a basis for federal habeas corpus relief.
The issue remaining for this Court is whether the state trial court's exclusion of petitioner's proffered testimony rendered petitioner's capital murder trial fundamentally unfair. At the guilt-innocence phase of petitioner's capital murder trial, the jury had before it both of petitioner's written statements describing his fatal shooting of officer Riojas, both of which made clear petitioner vigorously resisted officer Riojas' efforts to arrest petitioner before officer Riojas allegedly employed any excessive force toward petitioner. In addition, petitioner's friend Jamie Martinez testified (1) she saw officer Riojas grab petitioner, attempt to push petitioner up against a car, and attempt to place petitioner in handcuffs, (2) petitioner turned around and resisted the efforts of officer Riojas to apply handcuffs, (3) petitioner jerked away from officer Riojas, and (4) she later saw petitioner running and officer Riojas chasing petitioner.
The evidence before the jury at the guilt-innocence phase of trial tended to show (1) petitioner was well aware that he was lawfully subject to arrest on August 2, 2001 because of outstanding warrants, (2) he recognized officer Riojas as a law enforcement officer, (3) he was determined not to be arrested, (4) he not only gave officer Riojas a false name when asked but actively resisted the efforts of officer Riojas to place him in handcuffs, (5) he fled from officer Riojas, ignored a cry from officer Riojas to halt, and only stopped when he became fatigued, (6) he assumed a stance Detective Matjeka described as a fighting stance, and (7) when officer Riojas reached him, petitioner engaged in a physical confrontation which culminated in petitioner grabbing officer Riojas handgun and fatally shooting officer Riojas.
Since the affirmative defense of self-defense was not raised by the evidence presented or proffered during the guilt-innocence phase of petitioner's trial, the only purported justification presented by petitioner in his Amended petition for introducing evidence showing officer Riojas' alleged character for violence has no basis in reality.
The exclusion of petitioner's proffered character evidence did not render petitioner's capital murder trial fundamentally unfair. The other evidence before the jury at the guilt-innocence phase of petitioner's capital murder trial did not raise the defense of self-defense under applicable Texas law. The Texas Court of Criminal Appeals' rejections on the merits of petitioner's complaints about the exclusion of petitioner's proffered character evidence during petitioner's direct appeal and first state habeas corpus proceedings were neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor based upon an unreasonable determination of the facts in light of the evidence presented in the petitioner's trial, direct appeal, and first state habeas corpus proceedings.
In his fifth through ninth claims herein, petitioner argues (1) several terms included in the Texas capital sentencing special issues are unconstitutionally vague,
Until fairly recently, the Supreme Court's opinions addressing capital punishment offered a wide array of rather ambiguous analytical approaches to resolving Eighth Amendment claims, none of which claimed adherence from a clear majority of the Supreme Court. For instance, in Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958), the Supreme Court addressed the issue of a former soldier sanctioned for desertion with loss of his citizenship. In the course of an opinion that reflected little more than his own views on the subject, Chief Justice Earl Warren wrote as follows:
Trop v. Dulles, 356 U.S. at 99-101, 78 S.Ct. at 597-98 (Footnotes omitted).
Though often cited in subsequent Supreme Court opinions, Chief Judge Warren's "evolving standards of decency" Eighth Amendment test proved to be as difficult to apply consistently as Justice Stewart's classic definition of obscenity ("I know it when I see it") from his famous concurring opinion in Jacobellis v. State of Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 1683, 12 L.Ed.2d 793 (1964). For example, in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), a bare majority of the Supreme Court struck down capital sentencing schemes in several southern States but failed to reach any degree of consensus in terms of an analytical approach to the Eighth Amendment. The result was nine separate opinions issued from the Supreme Court in Furman, each reflecting a different analytical approach to the Eighth Amendment claims presented therein.
The situation changed little when, four years later, a less than cohesive majority of the Supreme Court upheld the new capital scheme adopted by the Texas Legislature in response to Furman. See Jurek v. Texas, 428 U.S. 262, 268, 96 S.Ct. 2950, 2954, 49 L.Ed.2d 929 (1976) (holding imposition of the death penalty does not per se violate the Eighth Amendment's proscription of "cruel and unusual punishment" in an opinion issued by Justice Stevens writing for himself and Justices Powell and Stewart with Chief Justice Burger and Justices White and Rehnquist concurring separately). During the same term, the Court was equally divided when it upheld Georgia's effort to re-institute capital punishment in that jurisdiction following Furman. See Gregg v. Georgia, 428 U.S. 153, 175, 96 S.Ct. 2909, 2926, 49 L.Ed.2d 859 (1976) (distinguishing the role of judicial review of capital punishment from that of legislative prerogative in an opinion issued by Justice Stewart for himself and Justices Powell and Stevens with Chief Justice Burger and Justices White and Rehnquist concurring separately).
The lack of Supreme Court consensus on an analytical approach to the Eighth Amendment continued for more than a decade thereafter, including a case rejecting an "as applied" challenge to the Texas capital sentencing scheme. See Franklin v. Lynaugh, 487 U.S. 164, 172-73, 108 S.Ct. 2320, 2327, 101 L.Ed.2d 155 (1988) (holding there is no constitutional right to have a capital sentencing jury consider "residual doubts" as to the defendant's guilt in an opinion by Justice White for
A degree of consensus did begin to appear within the Supreme Court early the following decade when five Justices finally agreed on a single standard for reviewing the adequacy of jury instructions in a capital sentencing proceeding:
Boyde v. California, 494 U.S. 370, 380-381, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990) (Footnotes omitted).
True consensus on an overarching analytical approach to Eighth Amendment claims did not appear, however, until eight Supreme Court Justices agreed in Tuilaepa v. California, 512 U.S. 967, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994), on the principle that the Eighth Amendment addresses two different but related aspects of capital sentencing: the eligibility decision and the selection decision. Tuilaepa, 512 U.S. at 971, 114 S.Ct. at 2634 (Justice Kennedy writing for himself, Chief Justice Rehnquist, and Justices O'Connor, Scalia, Souter, and Thomas, with Justices Stevens and Ginsburg concurring separately but not rejecting the analytical approach offered by Justice Kennedy). The Supreme Court's analysis of those two aspects of capital sentencing provided the first comprehensive system for analyzing Eighth Amendment claims a clear majority of the Supreme Court had ever offered:
Tuilaepa, 512 U.S. at 971-73, 114 S.Ct. at 2634-35 (citations omitted).
In Tuilaepa, the Supreme Court clearly declared its view that States may adopt capital sentencing procedures which rely upon the jury, in its sound judgment, to exercise wide discretion. Tuilaepa, 512 U.S. at 974, 114 S.Ct. at 2636. The Supreme Court also concluded, at the selection stage, States are not confined to submitting to the jury specific propositional questions but, rather, may direct the jury to consider a wide range of broadly-defined factors, such as "the circumstances of the crime," "the defendant's prior criminal record" and "all facts and circumstances presented in extenuation, mitigation, and aggravation of punishment." Tuilaepa, 512 U.S. at 978, 114 S.Ct. at 2638.
In Loving v. United States, 517 U.S. 748, 116 S.Ct. 1737, 135 L.Ed.2d 36 (1996), the Supreme Court described the first part of the Tuilaepa analysis, i.e., the eligibility decision, as follows:
Loving, 517 U.S. at 755, 116 S.Ct. at 1742 (citations omitted).
The Supreme Court subsequently elaborated on the distinction between the narrowing function or "eligibility decision" and the "selection phase" of a capital sentencing proceeding in Buchanan v. Angelone, 522 U.S. 269, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998):
Buchanan v. Angelone, 522 U.S. at 275-277, 118 S.Ct. at 761-62.
Petitioner argues in his fifth claim herein that the Texas capital sentencing scheme is constitutionally defective because several key terms employed in the Texas capital sentencing special issue are unconstitutionally vague, i.e., undefined.
Petitioner presented these same arguments in his sixth point of error on direct appeal.
Petitioner re-urged the same arguments as his seventh ground for relief in his first state habeas corpus application. The state habeas trial court concluded (1) this claim was foreclosed from state habeas review because the Texas Court of Criminal Appeals had already rejected same on the merits in petitioner's direct appeal and (2) petitioner had procedurally defaulted on any new aspects to this same claim by failing to present same on direct appeal.
Petitioner presented the same arguments a third time as his fifth ground for relief in his second state habeas corpus application.
The fundamental problem with petitioner's fifth claim herein is that various terms the Texas capital special issues which petitioner identifies as unconstitutionally vague "aggravating terms" are not, in fact "aggravating terms" at all. Texas is not a "weighing jurisdiction" where capital sentencing jurors must balance "aggravating" versus "mitigating" factors before rendering a verdict at the punishment phase of a capital trial. See Hughes v. Johnson, 191 F.3d 607, 621-23 (5th Cir.1999) (holding no Eighth Amendment violation resulted from Texas Court of Criminal Appeals' refusal to engage in proportionality review of capital sentencing jury's answer to mitigation special issue because Texas is a non-weighing jurisdiction), cert. denied, 528 U.S. 1145, 120 S.Ct. 1003, 145 L.Ed.2d 945 (2000). Rather, the Texas capital sentencing scheme performs the constitutionally-mandated narrowing function, i.e., the process of making the "eligibility decision," at the guilt-innocence phase of a capital trial by virtue of the manner with which Texas defines the offense of capital murder in Section 19.03 of the Texas Penal Code. See Johnson v. Texas, 509 U.S. 350, 362, 113 S.Ct. 2658, 2666, 125 L.Ed.2d 290 (1993) (holding its previous opinions upholding the Texas capital sentencing scheme found no constitutional deficiency in the means used to narrow the group of
Both this Court and the Fifth Circuit have repeatedly rejected the exact same arguments raised by petitioner in his fifth claim herein regarding the purported necessity for definitions of the terms in question as utterly lacking in any arguable merit. See, e.g., Paredes v. Quarterman, 574 F.3d at 294 (holding the terms "probability," "criminal acts of violence," and "continuing threat to society" "have a plain meaning of sufficient content that the discretion left to the jury is no more than that inherent in the jury system itself"); Turner v. Quarterman, 481 F.3d 292, 299-300 (5th Cir.) (rejecting claims the terms "probability," "criminal acts of violence," and "continuing threat to society" were so vague as to preclude a capital sentencing jury's consideration of mitigating evidence), cert. denied, 551 U.S. 1193, 128 S.Ct. 34, 168 L.Ed.2d 810 (2007); Leal v. Dretke, 428 F.3d 543, 552-53 (5th Cir.2005) (listing numerous Fifth Circuit opinions rejecting complaints about the failure of Texas courts to define the terms "probability," "criminal acts of violence," and "continuing threat to society"), cert. denied, 547 U.S. 1073, 126 S.Ct. 1771, 164 L.Ed.2d 522 (2006); Jasper v. Thaler, 765 F.Supp.2d 783, 835 (W.D.Tex.2011) (holding none of the terms included in the Texas capital sentencing special issues identified by petitioner herein required definitions), affirmed, 466 Fed.Appx. 429 (5th Cir.2012), cert. denied, ___ U.S. ___, 133 S.Ct. 788, 184 L.Ed.2d 584 (2012); Bartee v. Quarterman, 574 F.Supp.2d at 694-94 (citing numerous Fifth Circuit opinions and opinions of this Court rejecting the same arguments contained in petitioner's fifth claim herein); Moore v. Quarterman, 526 F.Supp.2d 654, 720-21 (W.D.Tex. 2007) (discussing the long line of Fifth Circuit opinions, as well as numerous opinions from this Court, rejecting the same arguments raised by petitioner's fifth claim herein), CoA denied, 534 F.3d 454 (5th Cir.2008).
Petitioner's arguments supporting his fifth claim herein have repeatedly been rejected by both the Fifth Circuit and this Court. The Supreme Court's opinion in Kansas v. Marsh, supra, implicitly rejected these same arguments as well.
The Texas Court of Criminal Appeals' rejections in the course of petitioner's direct appeal and first state habeas corpus proceedings of petitioner's Eighth Amendment complaints about the lack of definitions of key terms in the Texas capital sentencing special issues were neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor based upon an unreasonable determination of the facts in light of the evidence presented in the petitioner's trial, direct appeal, and first state habeas corpus proceedings. Petitioner's fifth claim herein does not warrant federal habeas corpus relief.
In his sixth claim herein, petitioner argues the Texas Constitution and the Due Process Clause of the Fourteenth Amendment mandate judicial proportionality review of all capital sentences.
Petitioner presented the same arguments as his eighth ground for relief in his first state habeas corpus application.
Petitioner re-urged the same arguments as his sixth claim for relief in his second state habeas corpus application.
No federal court has ever held the Constitution mandates judicial proportionality review of a Texas capital sentence. Thus, adopting the rule advocated by petitioner in his sixth claim herein would constitute adoption of a new rule of constitutional criminal procedure.
The non-retroactivity doctrine of Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 1075, 103 L.Ed.2d 334 (1989), forecloses adoption of the new principles advocated by petitioner in his sixth claim herein. Under the holding in Teague, federal courts are generally barred from applying new constitutional rules of criminal procedure retroactively on collateral review. Caspari v. Bohlen, 510 U.S. 383, 389-90, 114 S.Ct. 948, 953, 127 L.Ed.2d 236 (1994). A "new rule" for Teague purposes is one which was not dictated by precedent existing at the time the defendant's conviction became final. See O'Dell v. Netherland, 521 U.S. 151, 156, 117 S.Ct. 1969, 1973, 138 L.Ed.2d 351 (1997) (holding a "new rule" either "breaks new ground," "imposes a new obligation on the States or the Federal Government," or was not "dictated by precedent existing at the time the defendant's conviction became final"). Under this doctrine, unless reasonable jurists hearing the defendant's claim at the time his conviction became final would have felt compelled by existing precedent to rule in his favor, a federal habeas court is barred from doing so on collateral review. Id.
The holding in Teague is applied in three steps: first, the court must determine when the petitioner's conviction became final; second, the court must survey the legal landscape as it then existed and determine whether a state court considering the petitioner's claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule he seeks was required by the Constitution; and third, if the rule advocated by the petitioner is a new rule, the court must determine whether the rule falls within one of the two narrow exceptions to the non-retroactivity principle. Caspari v. Bohlen, 510 U.S. at 390, 114 S.Ct. at 953.
The only two exceptions to the Teague non-retroactivity doctrine are reserved for (1) new rules forbidding criminal punishment of certain primary conduct and rules prohibiting a certain category of punishment for a class of defendants because of their status or offense and (2) "watershed" rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding, i.e., a small core of rules requiring observance of those procedures that are implicit in the concept of ordered liberty. O'Dell v. Netherland, 521 U.S. at 157, 117 S.Ct. at 1973. A conviction becomes final for Teague purposes when either the United States Supreme Court denies a certiorari petition on the defendant's direct appeal or the time period for filing a certiorari petition expires. Caspari v. Bohlen, 510 U.S. at 390, 114 S.Ct. at 953.
Petitioner's conviction became final for Teague purposes no later than May 18, 2005, i.e., the ninety-first day after the Texas Court of Criminal Appeals affirmed petitioner's conviction and sentence on direct appeal and the date the deadline for
Teague remains applicable after the passage of the AEDPA. See Horn v. Banks, 536 U.S. 266, 268-72, 122 S.Ct. 2147, 2148-51, 153 L.Ed.2d 301 (2002) (applying Teague in an AEDPA context); Robertson v. Cockrell, 325 F.3d 243, 255 (5th Cir.2003) (recognizing the continued vitality of the Teague non-retroactivity doctrine under the AEDPA), cert. denied, 539 U.S. 979, 124 S.Ct. 28, 156 L.Ed.2d 691 (2003).
As of the date petitioner's conviction and sentence became final for Teague purposes no federal court had ever held a Texas criminal defendant was entitled to have his capital sentence judicially reviewed for proportionality. The Supreme Court has never mandated such review of capital sentences. Nor was such a constitutional requirement arguably discernable based on any then-existing Supreme Court precedent. Thus, petitioner's sixth claim herein is foreclosed by the non-retroactivity doctrine of Teague. The new rule proposed by petitioner in his sixth claim herein falls within neither of the recognized exceptions to the Teague doctrine. Even assuming the Supreme Court might one day rule a constitutional duty exists on state appellate judges to review all capital sentences for proportionality, that day has not yet arrived.
The Fourteenth and Eighth Amendment arguments asserted by petitioner in his sixth claim herein constitutes a proposed "new rules of criminal procedure" which the non-retroactivity rule of Teague v. Lane precludes this Court from recognizing or applying in a federal habeas context. See Martinez v. Dretke, 426 F.Supp.2d 403, 532 (W.D.Tex.2006) (holding Teague foreclosure applicable to these same complaints), CoA denied, 270 Fed.Appx. 277 (5th Cir.2008); Cordova v. Johnson, 993 F.Supp. 473, 509 (W.D.Tex.1998) (holding Teague foreclosed claims that the Constitution mandated proportionality review of the jury's answers to the Texas capital sentencing scheme's special issues), appeal denied, 157 F.3d 380 (5th Cir.1998), cert. denied, 525 U.S. 1131, 119 S.Ct. 922, 142 L.Ed.2d 971 (1999).
This Court has repeatedly rejected the same arguments presented by petitioner in his sixth claim herein. See, e.g., Jasper v. Thaler, 765 F.Supp.2d at 837-38:
There is no clearly established federal law mandating judicial proportionality review of capital sentences. The Fifth Circuit has specifically rejected the same Eighth and Fourteenth Amendment arguments premised upon Honda Motor v. Oberg underlying petitioner's sixth claim herein. See Hughes v. Johnson, 191 F.3d at 622-23 (emphasizing Texas is not a weighing jurisdiction which requires an appellate court or jury to "weigh" aggravating factors against mitigating ones).
Insofar as petitioner attempts to rely upon provisions of the Texas Constitution to support his sixth claim herein, that effort has no arguable merit. Federal habeas corpus relief will not issue to correct errors of state constitutional, statutory, or procedural law, unless a federal issue is also presented. See Estelle v. McGuire, 502 U.S. at 67-68, 112 S.Ct. at 480 (holding complaints regarding the admission of evidence under California law did not present grounds for federal habeas relief absent a showing that admission of the evidence in question violated due process); Lewis v. Jeffers, 497 U.S. at 780, 110 S.Ct. at 3102 (recognizing that federal habeas relief will not issue for errors of state law); Pulley v. Harris, 465 U.S. at 41, 104 S.Ct. at 874 (holding a federal court may not issue the writ on the basis of a perceived error of state law).
Petitioner's sixth claim herein advocates adoption of a new rule of constitutional criminal procedure, a rule foreclosed by the non-retroactivity principle announced in Teague. There is no clearly established federal legal authority mandating the type of judicial proportionality review requested by petitioner in his sixth claim herein.
The Texas Court of Criminal Appeals' rejection on the merits in the course of petitioner's first state habeas corpus proceeding of petitioner's request for judicial proportionality review of his capital sentence was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor based upon an unreasonable determination of the facts in light of the evidence presented in the petitioner's trial, direct appeal, and first state habeas corpus proceedings. Petitioner's sixth claim herein does not warrant federal habeas corpus relief.
In his seventh claim herein, petitioner argues the Supreme court's holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), mandates imposition of a burden of proof on the prosecution in connection with the Texas capital sentencing scheme's Penry or mitigation special issue.
Petitioner raised this complaint for the first time as his ninth ground for relief in his first state habeas corpus application.
Petitioner re-urged the same arguments as his seventh claim for relief in his second state habeas corpus application.
In Apprendi v. New Jersey, supra, the Supreme Court struck down on due process grounds a state scheme that permitted a trial judge to make a factual finding based on a preponderance of the evidence regarding the defendant's motive or intent underlying a criminal offense and, based on such a finding, increase the maximum end of the applicable sentencing range for the offense by a factor of one hundred percent. Apprendi, 530 U.S. at 497, 120 S.Ct. at 2366. The Supreme Court's opinion in Apprendi emphasized it was merely extending to the state courts the same principles discussed in Justice Stevens' and Justice Scalia's concurring opinions in Jones v. United States, 526 U.S. 227, 252-53, 119 S.Ct. 1215, 1228-29, 143 L.Ed.2d 311 (1999): other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63. Put more simply, the Supreme Court held in Apprendi (1) it was unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal is exposed and (2) all such findings must be established beyond a reasonable doubt. Apprendi, 530 U.S. at 490, 120 S.Ct. at 2363.
Two years later, in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), the Supreme Court applied the holding and its reasoning in Apprendi to strike down a death sentence in a case in which the jury had declined to find the defendant guilty of pre-meditated murder during the guilt-innocence phase of a capital trial (instead finding the defendant guilty only of felony murder) but a trial judge subsequently concluded the defendant should be sentenced to death based upon factual determinations that (1) the offense was committed in expectation of receiving something of pecuniary value (i.e., the fatal shooting of an armored van guard during a robbery) and (2) the foregoing aggravating factor out-weighed the lone mitigating factor favoring a life sentence (i.e., the defendant's minimal criminal record).
The essential elements of the offense of capital murder, as defined by Texas law, are set forth in Sections 19.02(b) and 19.03 of the Texas Penal Code.
In Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the Supreme Court struck down as a violation of the Sixth Amendment's right to jury trial a judge-imposed sentence of imprisonment that exceeded by more than three years the state statutory maximum of 53 months. Blakely v. Washington, 542 U.S. at 303-04, 124 S.Ct. at 2537. In so ruling, the Supreme Court relied upon its prior holding in Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63 ("Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."). In Blakely, the Supreme Court also relied upon its prior opinion in Ring v. Arizona, supra, for the principle "the `statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely v. Washington, 542 U.S. at 303, 124 S.Ct. at 2537. None of the foregoing legal principles were violated when petitioner's jury rendered its verdict during the punishment phase of petitioner's capital murder trial.
Petitioner's capital sentencing jury made a key factual determination at the punishment phase of petitioner's trial beyond a reasonable doubt; more specifically, finding a probability petitioner would
Moreover, the Arizona capital sentencing scheme the Supreme Court addressed in Ring relied upon a trial judge's factual findings of "aggravating" factors and directed the trial judge to weigh those aggravating factors against any mitigating factors found to apply to the defendant. Thus the Arizona trial judge's factual findings in Ring were part of the constitutionally-mandated eligibility determination, i.e., the narrowing function. In contrast, the Texas capital sentencing scheme under which petitioner was tried, convicted, and sentenced performed the constitutionally-required narrowing function discussed in Tuilaepa and Loving at the guilt-innocence phase of petitioner's trial and further narrowed the category of those eligible for the death penalty by requiring a jury finding, beyond a reasonable doubt, of future dangerousness. See Sonnier v. Quarterman, 476 F.3d 349, 365-67 (5th Cir.2007) (recognizing the Texas capital sentencing scheme, like the one upheld by the Supreme Court in Kansas v. Marsh, 548 U.S. 163, 126 S.Ct. 2516, 165 L.Ed.2d 429 (2006), performs the constitutionally-required narrowing function through its statutory definition of capital murder and further narrows the category of those eligible for the death penalty by requiring an additional fact finding, beyond a reasonable doubt, that there is a probability the defendant will commit criminal acts of violence that would constitute a continuing threat to society), cert. denied, 552 U.S. 948, 128 S.Ct. 431, 169 L.Ed.2d 259 (2007).
Unlike Arizona's weighing scheme, the Texas capital sentencing scheme performs the constitutionally-mandated narrowing function, i.e., the process of making the "eligibility decision," at the guilt-innocence phase of a capital trial by virtue of the manner with which Texas defines the offense of capital murder in Section 19.03 of the Texas Penal Code. See Johnson v. Texas, 509 U.S. 350, 362, 113 S.Ct. 2658, 2666, 125 L.Ed.2d 290 (1993) (holding its previous opinions upholding the Texas capital sentencing scheme found no constitutional deficiency in the means used to narrow the group of offenders subject to capital punishment because the statute itself adopted different classifications of murder for that purpose); Lowenfield v. Phelps, 484 U.S. 231, 243-47, 108 S.Ct. 546, 554-55, 98 L.Ed.2d 568 (1988) (comparing the Louisiana and Texas capital murder schemes and noting they each narrow those eligible for the death penalty through narrow statutory definitions of capital murder); Jurek v. Texas, 428 U.S. 262, 268-75, 96 S.Ct. 2950, 2955-57, 49 L.Ed.2d 929 (1976) (plurality opinion recognizing the Texas capital sentencing scheme narrows the category of murders for which a death sentence may be imposed and this serves the same purpose as the requirements of other statutory schemes which require proof of aggravating circumstances to justify the imposition of the death penalty).
The petitioner's first capital sentencing special issue, i.e., the future dangerousness issue, included a "beyond a reasonable doubt" burden of proof squarely placed on the prosecution. Petitioner's jury made that determination. Thus, no violation of the principles set forth in Apprendi, Jones, Ring, or Blakely occurred during petitioner's trial. Insofar as petitioner argues his jury's factual finding on the future dangerousness special issue was an essential part of the procedural process under Texas law for determining whether the petitioner was eligible to receive the death penalty, that argument is foreclosed by the Supreme Court's express recognition the Texas capital sentencing scheme accomplishes the eligibility determination, i.e. the constitutionally mandated "narrowing function," at the guilt-innocence phase of trial. Johnson v. Texas, 509 U.S. at 362, 113 S.Ct. at 2666; Jurek v. Texas, 428 U.S. at 270-71, 96 S.Ct. at 2956.
In contrast, the Penry or "mitigation" special issue employed at the punishment phase of petitioner's capital trial was designed to address the second aspect of capital sentencing discussed in Tuilaepa, i.e., the constitutional requirement that the jury be given an opportunity "to render a reasoned, individualized sentencing determination based on a death-eligible defendant's record, personal characteristics, and the circumstances of his crime." Kansas v. Marsh, 548 U.S. at 174, 126 S.Ct. at 2524-25; Sonnier v. Quarterman, 476 F.3d at 365; Garcia v. Thaler, 2009 WL 4931069, *14 (W.D.Tex. December 14, 2009), CoA denied, 389 Fed.Appx. 396 (5th Cir.2010), cert. denied, ___ U.S. ___, 131 S.Ct. 1604, 179 L.Ed.2d 505 (2011). "The use of mitigation evidence is a product of the requirement of individualized sentencing." Kansas v. Marsh, 548 U.S. at 174, 126 S.Ct. at 2525.
The Supreme Court has distinguished the constitutional requirements of the eligibility decision, i.e., the narrowing function, and the selection decision, i.e., the individualized assessment of mitigating circumstances, holding the latter requires only that the sentencing jury be given broad range to consider all relevant mitigating evidence but leaving to the States wide discretion on how to channel the sentencing jury's balancing of mitigating and aggravating factors. See Kansas v. Marsh, 548 U.S. at 174-75, 126 S.Ct. at 2525 (holding, in connection with the selection phase of a capital sentencing proceeding, the Constitution mandates only that (1) the defendant has a right to present the sentencing authority with information relevant to the sentencing decision and (2) the sentencing authority is obligated to consider that information in determining the appropriate sentence); Tuilaepa, 512 U.S. at 978, 114 S.Ct. at 2638 (holding, at the selection stage, States are not confined to submitting to the jury specific propositional questions but, rather, may direct the jury to consider a wide range of broadly-defined
At the selection phase of a capital trial, the Supreme Court has left to the States the decision whether to channel a sentencing jury's weighing of mitigating evidence or grant the jury unfettered discretion to consider all relevant mitigating evidence and weigh same in any manner the jury deems reasonable. See Kansas v. Marsh, 548 U.S. at 174, 126 S.Ct. at 2525 ("So long as a state system satisfies these requirements, our precedents establish that a State enjoys a range of discretion in imposing the death penalty, including the manner in which aggravating and mitigating circumstances are to be weighed."). Likewise, the Supreme Court has not yet imposed a particular burden of proof requirement with regard to a capital sentencing jury's consideration of mitigating evidence when such consideration occurs exclusively within the selection process.
Tuilaepa, 512 U.S. at 979, 114 S.Ct. at 2639 (citations omitted).
"[T]here is no constitutional requirement of unfettered sentencing discretion in the jury, and States are free to structure and shape consideration of mitigating evidence `in an effort to achieve a more rational and equitable administration of the death penalty.'" Johnson v. Texas, 509 U.S. at 362, 113 S.Ct. at 2666 (quoting Boyde v. California, 494 U.S. at 377, 110 S.Ct. at 1196). "We have never held that a specific method for balancing mitigating and aggravating factors in a capital sentencing proceeding is constitutionally required." Kansas v. Marsh, 548 U.S. at 175, 126 S.Ct. at 2525 (quoting Franklin v. Lynaugh, 487 U.S. at 179, 108 S.Ct. at 2330).
As explained above, the "eligibility" decision required by the Eighth Amendment is satisfied under Texas law by the jury's findings "beyond a reasonable doubt" that (1) the defendant is guilty of capital murder as defined under Section 19.03 of the Texas Penal Code and (2) there is a probability the defendant will commit criminal acts of violence that would constitute a continuing threat to society. Sonnier v. Quarterman, 476 F.3d at 365-67. This is all the Constitution requires to satisfy the concerns discussed by the Supreme Court in Apprendi and Ring.
Consistent with the Supreme Court's holdings in Kansas v. Marsh, Tuilaepa v. California, and Johnson v. Texas, a Texas capital sentencing jury may be granted "unfettered discretion" regarding how it should weigh the mitigating evidence, if any, relevant to a particular defendant's background and character against the aggravating circumstances of the defendant's offense and the defendant's demonstrated propensity for future dangerousness. Thus, the Texas Legislature's decision not to assign a particular burden of proof on either party in connection with the Texas capital sentencing scheme's Penry or mitigation
Neither the Supreme Court's opinion in Apprendi nor any of the Supreme Court's subsequent opinions construing its holding in Apprendi mandate imposition of a burden of proof on the prosecution with regard to the Texas capital sentencing scheme's mitigation special issue.
The Texas Court of Criminal Appeals' rejection on the merits in the course of petitioner's first state habeas corpus proceeding of petitioner's complaint about the absence of a burden of proof in the Texas capital sentencing scheme's mitigation special issue was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor based upon an unreasonable determination of the facts in light of the evidence presented in the petitioner's trial, direct appeal, and first state habeas corpus proceedings. Petitioner's seventh claim herein does not warrant federal habeas corpus relief.
In his eighth claim herein, petitioner argues the Texas capital sentencing scheme violates the Eighth and Fourteenth Amendment because it fails to inform a capital sentencing jury of the effect of a single holdout juror on any of the capital sentencing special issues.
Petitioner presented these arguments for the first time as his tenth ground for relief in his first state habeas corpus application.
Petitioner re-urged the same arguments as his eighth claim for relief in his second state habeas corpus application.
In a multifaceted attack, petitioner argues, in part, that the provisions of Article
The Supreme Court has implicitly rejected petitioner's arguments underlying his eighth claim herein. See Jones v. United States, 527 U.S. 373, 382, 119 S.Ct. 2090, 2099, 144 L.Ed.2d 370 (1999)(holding the Eighth Amendment does not require a capital sentencing jury be instructed as to the effect of a "breakdown in the deliberative process," because (1) the refusal to give such an instruction does not affirmatively mislead the jury regarding the effect of its verdict and (2) such an instruction might well undermine the strong governmental interest in having the jury express the conscience of the community on the ultimate question of life or death).
On numerous occasions, the Fifth Circuit has expressly rejected the legal premise underlying petitioner's eighth claim herein, i.e., the argument a Texas capital murder defendant is constitutionally entitled to have his punishment-phase jury instructed regarding the consequences of a hung jury or a single holdout juror. See, e.g., Hughes v. Dretke, 412 F.3d 582, 593-94 (5th Cir.2005) (holding the same arguments underlying petitioner's eighth claim herein were so legally insubstantial as to be unworthy of a certificate of appealability), cert. denied, 546 U.S. 1177, 126 S.Ct. 1347, 164 L.Ed.2d 60 (2006); Alexander v. Johnson, 211 F.3d 895, 897-98 (5th Cir. 2000) (holding the Teague v. Lane non-retroactivity doctrine precluded applying such a rule in a federal habeas context); Davis v. Scott, 51 F.3d 457, 466-67 (5th Cir.1995) (holding the same), cert. denied, 516 U.S. 992, 116 S.Ct. 525, 133 L.Ed.2d 432 (1995); Jacobs v. Scott, 31 F.3d 1319, 1328-29 (5th Cir.1994) (rejecting application of the Supreme Court's holding in Mills v. Maryland to a Texas capital sentencing proceeding), cert. denied, 513 U.S. 1067, 115 S.Ct. 711, 130 L.Ed.2d 618 (1995).
Petitioner's reliance upon the Supreme Court's holding in Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), is misplaced. In Caldwell, the Supreme Court addressed an instance in which a capital murder prosecutor's jury argument suggested, in an erroneous and misleading manner, the jury was not the final arbiter of the defendant's fate.
Likewise, petitioner reliance upon the Supreme Court's holdings in McKoy and Mills is unpersuasive. Petitioner's argument that the Texas twelve-ten rule violates the due process principles set forth in these opinions has repeatedly been rejected by both the Fifth Circuit and this Court. See Blue v. Thaler, 665 F.3d 647, 669-70 (5th Cir.2011) (rejecting an Eight Amendment challenge to the Texas twelve-ten rule), cert. denied, ___ U.S. ___, 133 S.Ct. 105, 184 L.Ed.2d 49 (2012); Alexander v. Johnson, 211 F.3d 895, 897 (5th Cir.2000) (specifically rejecting both Fourteenth and Eighth Amendment challenges to the Texas twelve-ten rule in the course of affirming this Court's rejection of claims virtually identical to those raised by petitioner herein); Miller v. Johnson, 200 F.3d 274, 288-89 (5th Cir.2000) (holding Mills inapplicable to a Texas capital sentencing proceeding), cert. denied, 531 U.S. 849, 121 S.Ct. 122, 148 L.Ed.2d 77 (2000); Woods v. Johnson, 75 F.3d 1017, 1036 (5th Cir.1996) (holding the same), cert. denied, 519 U.S. 854, 117 S.Ct. 150, 136 L.Ed.2d 96 (1996); Hughes v. Johnson, 191 F.3d 607, 628-29 (5th Cir.1999) (holding both Mills and McKoy inapplicable to the Texas capital sentencing scheme), cert. denied, 528 U.S. 1145, 120 S.Ct. 1003, 145 L.Ed.2d 945 (2000); Jacobs v. Scott, 31 F.3d 1319, 1328-29 (5th Cir.1994) ("Under the Texas system, all jurors can take into account any mitigating circumstance. One juror cannot preclude the entire jury from considering a mitigating circumstance. Thus, Mills is inapplicable."), cert. denied, 513 U.S. 1067, 115 S.Ct. 711, 130 L.Ed.2d 618 (1995); Bartee v. Quarterman, 574 F.Supp.2d at 700-01 (rejecting reliance upon Mills and McKoy as bases for challenging the very different Texas capital sentencing scheme).
Because the Texas capital sentencing scheme is vastly different from those employed on Maryland and North Carolina, petitioner's reliance on the Supreme Court's opinions in McKoy and Mills is misplaced. See Alexander v. Johnson, 211 F.3d 895, 897 (5th Cir.2000) (specifically rejecting both Fourteenth and Eighth Amendment challenges to the Texas twelve-ten rule in the course of affirming this Court's rejection of claims identical to those raised by petitioner herein); Miller v. Johnson, 200 F.3d 274, 288-89 (5th Cir. 2000) (holding Mills inapplicable to a Texas capital sentencing proceeding), cert. denied, 531 U.S. 849, 121 S.Ct. 122, 148 L.Ed.2d 77 (2000); Woods v. Johnson, 75 F.3d 1017, 1036 (5th Cir.1996) (holding the same), cert. denied, 519 U.S. 854, 117 S.Ct. 150, 136 L.Ed.2d 96 (1996); and Jacobs v. Scott, 31 F.3d at 1328-29 (holding the same).
Petitioner's reliance upon a number of Supreme Court opinions from the state of
The Supreme Court's subsequent opinion in Ramdass v. Angelone, 530 U.S. 156, 120 S.Ct. 2113, 147 L.Ed.2d 125 (2000), continued the vitality of this distinction, as the Supreme Court plurality specifically limited the holding in Simmons to "only those instances where, as a legal matter, there is no possibility of parole if the jury decides the appropriate sentence is life in prison." Id., 530 U.S. at 169, 120 S.Ct. at 2121. In her separate, pivotal, concurring, opinion in Ramdass, Justice O'Connor once again emphasized her view of the continued vitality of the rule in Simmons, as enunciated by the plurality in Ramdass, and also pointed out Ramdass came before the Supreme Court in the context of a federal habeas corpus proceeding, in which the Supreme Court's review, like this Court's review in the present cause, is circumscribed by the terms of the AEDPA. Id., 530 U.S. at 179, 120 S.Ct. at 2126 (concurring opinion).
More recently, the Supreme Court's opinion in Shafer v. South Carolina, 532 U.S. 36, 121 S.Ct. 1263, 149 L.Ed.2d 178 (2001), at least implicitly acknowledged the continued vitality of the distinction first noted in Simmons by holding South Carolina's new capital sentencing scheme was guilty of the same constitutional defect identified in Simmons because, at least under some circumstances, the sentencing jury would be faced with a choice between a sentence of death and a sentence of life without the possibility of parole. See Shafer v. South Carolina, 532 U.S. at 51, 121 S.Ct. at 1273 ("We therefore hold that whenever future dangerousness is at issue in a capital sentencing proceeding under South Carolina's new scheme, due process requires that the jury be informed that a life sentence carries no possibility of parole.").
In Kelly v. South Carolina, 534 U.S. 246, 122 S.Ct. 726, 151 L.Ed.2d 670 (2002), the Supreme Court reiterated its holding in Shafer, emphasizing once again South Carolina capital sentencing juries which unanimously found the presence of an aggravating circumstances were left to select between one of only two possible sentences: death or life imprisonment without the possibility of parole. Kelly v. South Carolina, 534 U.S. at 252 & n. 2, 122 S.Ct. at 730 & n. 2.
While Texas has recently joined South Carolina and other jurisdictions which provide capital sentencing juries the option of sentencing a convicted capital murderer to a term of life without parole, at the time of petitioner's offense and trial, Texas law did not provide for a sentence of life imprisonment without the possibility of parole. The Supreme Court's Fourteenth Amendment jurisprudence, including Simmons, Ramdass, Shafer, and Kelly, makes an express distinction between the rule applied in Simmons and Shafer and the due
On the contrary, the Supreme Court has established the constitutional standard for evaluating the propriety of a jury instruction at the punishment phase of a capital murder trial is "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990). The Supreme Court has consistently applied this standard to evaluate challenges to punishment-phase jury instructions. See Weeks v. Angelone, 528 U.S. 225, 226, 120 S.Ct. 727, 729, 145 L.Ed.2d 727 (2000) (emphasizing the Boyde test requires a showing of a reasonable likelihood, as opposed to a mere possibility, the jury construed the jury instructions to preclude its consideration of relevant mitigating evidence); Jones v. United States, 527 U.S. 373, 390 & n. 9, 119 S.Ct. 2090, 2102-03 & n. 9, 144 L.Ed.2d 370 (1999) (holding the same); Calderon v. Coleman, 525 U.S. 141, 146, 119 S.Ct. 500, 503, 142 L.Ed.2d 521 (1998) (holding the same); Buchanan v. Angelone, 522 U.S. 269, 276, 118 S.Ct. 757, 761, 139 L.Ed.2d 702 (1998) (holding the same); Johnson v. Texas, 509 U.S. 350, 367, 113 S.Ct. 2658, 2669, 125 L.Ed.2d 290 (1993) (holding Boyde requires a showing of a reasonable likelihood the jury interpreted the jury instructions so as to preclude it from considering relevant mitigating evidence).
This "reasonable likelihood" standard does not require the petitioner to prove the jury "more likely than not" interpreted the challenged instruction in an impermissible way; however, the petitioner must demonstrate more than "only a possibility" of an impermissible interpretation. Johnson v. Texas, 509 U.S. at 367, 113 S.Ct. at 2669; Boyde v. California, 494 U.S. at 380, 110 S.Ct. at 1198. This Court must analyze the challenged language included in the jury charge within the context of the overall jury charge. Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). "In evaluating the instructions, we do not engage in a technical parsing of this language of the instructions, but instead approach the instructions in the same way that the jury would — with a `commonsense understanding of the instructions in the light of all that has taken place at the trial.'" Johnson v. Texas, 509 U.S. at 368, 113 S.Ct. at 2669; Boyde v. California, 494 U.S. at 381, 110 S.Ct. at 1198.
Nothing in petitioner's punishment-phase jury charge can reasonable be construed as foreclosing the consideration by petitioner's jury of any of the potentially mitigating evidence actually presented during petitioner's capital murder trial. None of petitioner's jurors could rationally have been led to believe by petitioner's punishment-phase jury charge that either (1) they lacked the authority to answer either of the Texas capital special issues in a manner consistent with their conscience and the evidence regardless of the votes of other jurors or (2) their determination to
Likewise, nothing in petitioner's punishment-phase jury charge misled petitioner's capital sentencing jury regarding its role as the ultimate arbiter of petitioner's fate. Insofar as petitioner complains that his jury was not specifically instructed that a failure by the jury to answer either of Texas capital sentencing issue (based upon the jury's inability to reach unanimity in favor of answers favorable to the prosecution or to marshal at least ten votes for answers favorable to the defense), that argument is foreclosed by both Supreme Court and Fifth Circuit precedent recognizing there is no constitutional right to jury instructions instructing individual jurors how they can achieve a "hung jury." See Jones v. United States, 527 U.S. at 382, 119 S.Ct. at 2099 (the Eighth Amendment does not require a capital sentencing be instructed as the effect of a "breakdown in the deliberative process," because (1) the refusal to give such an instruction does not affirmatively mislead the jury regarding the effect of its verdict and (2) such an instruction might well undermine the strong governmental interest in having the jury express the conscience of the community on the ultimate question of life or death); Druery v. Thaler, 647 F.3d 535, 544 (5th Cir.2011)(holding an argument that a Texas capital defendant had a constitutional right to an instruction informing the jury of the impact of a hung jury barred under the non-retroactivity doctrine of Teague v. Lane), cert. denied, ___ U.S. ___, 132 S.Ct. 1550, 182 L.Ed.2d 180 (2012); Turner v. Quarterman, 481 F.3d 292, 300 (5th Cir.) (recognizing Fifth Circuit precedent foreclosed arguments the Eighth Amendment and Due Process Clause of the Fourteenth Amendment mandated jury instructions regarding the effect of a capital sentencing jury's failure to reach a unanimous verdict), cert. denied, 551 U.S. 1193, 128 S.Ct. 34, 168 L.Ed.2d 810 (2007); Barrientes v. Johnson, 221 F.3d 741, 776-78 (5th Cir.2000) (holding trial court's voir dire instructions informing jury the court would impose sentence, not the jury, but specifically explaining how the jury's answers to the capital sentencing special issues would require the court to impose either a sentence of life or death did not result in a Caldwell violation), cert. denied, 531 U.S. 1134, 121 S.Ct. 902, 148 L.Ed.2d 948 (2001); Hughes v. Johnson, 191 F.3d 607, 618 (5th Cir.1999) (holding voir dire explanations to potential jurors of the impact of affirmative answers to the Texas capital sentencing special issues were sufficient to avoid any possibility the jurors misunderstood their role or the effect of their punishment-phase verdict), cert. denied, 528 U.S. 1145, 120 S.Ct. 1003, 145 L.Ed.2d 945 (2000); Alexander v. Johnson, 211 F.3d 895, 897 n. 5 (5th Cir. 2000) (holding the same).
This Court has likewise repeatedly rejected the constitutional arguments underlying petitioner's eighth claim herein. See Jasper v. Thaler, 765 F.Supp.2d at 838-39 (there is no constitutional right to a jury instruction informing the jurors of the effect of a hung jury or a single hold-out juror); Bartee v. Quarterman, 574 F.Supp.2d at 702-03 (holding there is no constitutional right to have a capital sentencing jury informed of the effect of a hung jury); Moore v. Quarterman, 526 F.Supp.2d 654, 729-30 (W.D.Tex.2007) (holding there is no constitutional requirement that a capital sentencing jury be informed of the consequences of a hung jury or of a single holdout juror), CoA
There is no arguable legal merit to any of the petitioner's constitutional arguments in support of his eighth claim in this cause. The petitioner's punishment-phase jury charge accurately informed petitioner's capital sentencing jury of their responsibility under Texas law to reach a verdict favorable to the prosecution only if they agreed unanimously on both of the Texas capital sentencing special issue and to return a verdict favorable to the defense on either of those special issue only if ten or more jurors agreed to do so. The Constitution's Eighth and Fourteenth Amendments required nothing more. Insofar as petitioner argues otherwise, his arguments herein amount to advocacy of a "new rule" of federal constitutional criminal procedure and are foreclosed by the Teague non-retroactivity doctrine.
Petitioner's eighth claim advocates adoption of a new rule of constitutional criminal procedure and is foreclosed by the principle announced in Teague v. Lane. There is no clearly established federal legal rule mandating jury instructions advising the jury of the effect of a hung jury or a single holdout juror at the punishment phase of a Texas capital trial prior to the adoption by the State of Texas of a "life without parole" sentencing option.
The Texas Court of Criminal Appeals' rejection on the merits during the course of petitioner's first state habeas corpus proceeding of the constitutional arguments underlying petitioner's eighth claim herein was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor based upon an unreasonable determination of the facts in light of the evidence presented in the petitioner's trial, direct appeal, and first state habeas corpus proceedings. Petitioner's eighth claim herein does not warrant federal habeas corpus relief.
In his ninth and final claim herein, petitioner argues the inherent unreliability of predictions of a criminal defendant's propensity for future violent misconduct renders the Texas capital sentencing scheme's first special issue unconstitutional.
Petitioner raised this same argument for the first time as his eleventh ground for relief in his first state habeas corpus application.
The Supreme Court implicitly rejected the petitioner's ninth claim herein when it held as follows in Jurek v. Texas:
Jurek v. Texas, 428 U.S. at 274-76, 96 S.Ct. at 2957-58 (Footnotes omitted).
The Fifth Circuit has likewise at least implicitly rejected the underpinnings of the petitioner's ninth claim herein. See Lincecum v. Collins, 958 F.2d 1271, 1281 (5th Cir.1992): "The Supreme Court has never intimated that the factual correctness of the jury's prediction on the issue of future dangerousness, either in a particular case or over time, bears upon the constitutionality of the Texas capital sentencing statute."
This Court's independent research has disclosed no legal authority declaring the practical difficulty with predicting future violence by a criminal defendant, i.e., accurately answering the first capital sentencing special issue, renders capital sentencing as practiced in Texas inherently unconstitutional. On the contrary, given the broad scope of the Texas capital sentencing scheme's mitigation special issue, the Supreme Court's opinions discussing the nature of the Texas capital sentencing scheme suggest the Texas capital sentencing scheme's future dangerousness special issue may be constitutionally superfluous. See Johnson v. Texas, 509 U.S. at 362, 113 S.Ct. at 2666 (the Texas capital sentencing scheme accomplishes the eligibility determination, i.e., the constitutionally mandated "narrowing function," at the guilt-innocence phase of trial); Jurek v. Texas, 428 U.S. at 270-71, 96 S.Ct. at 2956 (holding the same). "[T]here is no constitutional requirement of unfettered sentencing discretion in the jury, and States are free to structure and shape consideration of mitigating evidence `in an effort to achieve a
Because no federal court has ever declared the Texas capital sentencing scheme's future dangerousness special issue inherently unconstitutionally unreliable, adoption of the rule advocated by petitioner in his final claim herein is a "new rule" of constitutional criminal procedure which is foreclosed by the principle announced in Teague v. Lane, supra.
Adoption of the new rule advocated by petitioner in his ninth claim herein is foreclosed by the non-retroactivity principle of Teague v. Lane. There is no clearly established federal legal authority precluding Texas capital sentencing juries from answering the future dangerousness special as currently configured within the Texas capital sentencing statute.
The Texas Court of Criminal Appeals' rejection on the merits during the course of petitioner's first state habeas corpus proceeding of the arguments underlying petitioner's ninth claim herein was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor based upon an unreasonable determination of the facts in light of the evidence presented in the petitioner's trial, direct appeal, and first state habeas corpus proceedings. Petitioner's ninth claim herein does not warrant federal habeas corpus relief.
Petitioner has requested an evidentiary hearing to develop new facts and new evidence relevant to petitioner's claims herein. Petitioner is not entitled to an evidentiary hearing to develop new facts and new evidence in support of those of his claims which the state habeas court rejected on the merits. See Cullen v. Pinholster, ___ U.S. ___, ___, 131 S.Ct. 1388, 1398-1400, 179 L.Ed.2d 557 (2011) (holding an evidentiary hearing is unnecessary when a state court has rejected a claim on the merits and federal habeas review of that rejection is governed by § 2254(d)(1)); Pape v. Thaler, 645 F.3d 281, 288 (5th Cir.2011) (holding the same), cert. denied, ___ U.S. ___, 132 S.Ct. 1100, 181 L.Ed.2d 987 (2012). Thus, petitioner is not entitled to a federal evidentiary hearing on his first, second, and fourth through ninth claims herein.
In addition, this Court has independently reviewed petitioner's ineffective assistance complaints contained in his third claim herein and finds petitioner has failed to allege sufficient specific facts to satisfy either prong of Strickland analysis on any of those claims. Petitioner is not entitled to an evidentiary hearing on his Wiggins claim, i.e., his complaint that his trial counsel rendered ineffective assistance by failing to adequately investigate petitioner's background and present additional mitigating evidence establishing the extremely abused and deprived circumstances of petitioner's childhood. After having reviewed the entirety of petitioner's purportedly "new" mitigating evidence, this Court has concluded petitioner has alleged no facts in support of this claim which, if proved, would satisfy the either prong of Strickland. The remainder of petitioner's claims herein are those which, by their very nature,
The AEDPA converted the "certificate of probable cause" previously required as a prerequisite to an appeal from the denial of a petition for federal habeas corpus relief into a "Certificate of Appealability" ("CoA"). See Hill v. Johnson, 114 F.3d 78, 80 (5th Cir.1997) (recognizing the "substantial showing" requirement for a CoA under the AEDPA is merely a change in nomenclature from the CPC standard); Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir.1997) (holding the standard for obtaining a CoA is the same as for a CPC). The CoA requirement supersedes the previous requirement for a certificate of probable cause to appeal for federal habeas corpus petitions filed after the effective date of the AEDPA. Robison v. Johnson, 151 F.3d 256, 259 n. 2 (5th Cir.1998), cert. denied, 526 U.S. 1100, 119 S.Ct. 1578, 143 L.Ed.2d 673 (1999); Hallmark v. Johnson, 118 F.3d 1073, 1076 (5th Cir.1997), cert. denied sub nom. Monroe v. Johnson, 523 U.S. 1041, 118 S.Ct. 1342, 140 L.Ed.2d 502 (1998). Effective December 1, 2009, Rule 11(a) of the Rules Governing Section 2254 Cases in United States District Courts requires this Court to issue or deny a CoA when it enters an order adverse to a federal habeas corpus petitioner.
Under the AEDPA, before a petitioner may appeal the denial of a habeas corpus petition filed under Section 2254, the petitioner must obtain a CoA. Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003); 28 U.S.C. § 2253(c)(2). Likewise, under the AEDPA, appellate review of a habeas petition is limited to the issues on which a CoA is granted. See Crutcher v. Cockrell, 301 F.3d 656, 658 n. 10 (5th Cir.2002) (holding a CoA is granted on an issue-by-issue basis, thereby limiting appellate review to those issues); Jones v. Cain, 227 F.3d 228, 230 n. 2 (5th Cir.2000) (holding the same); Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir.1997) (holding the scope of appellate review of denial of a habeas petition limited to the issues on which CoA has been granted). In other words, a CoA is granted or denied on an issue-by-issue basis, thereby limiting appellate review to those issues on which CoA is granted alone. Crutcher v. Cockrell, 301 F.3d at 658 n. 10; Lackey v. Johnson, 116 F.3d at 151; Hill v. Johnson, 114 F.3d at 80; Muniz v. Johnson, 114 F.3d at 45; Murphy v. Johnson, 110 F.3d 10, 11 n. 1 (5th Cir.1997); 28 U.S.C. § 2253(c)(3).
A CoA will not be granted unless the petitioner makes a substantial showing of the denial of a constitutional right. Tennard v. Dretke, 542 U.S. 274, 282, 124 S.Ct. 2562, 2569, 159 L.Ed.2d 384 (2004); Miller-El v. Cockrell, 537 U.S. at 336, 123 S.Ct. at 1039; Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 1603, 146 L.Ed.2d 542 (2000); Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983).
To make such a showing, the petitioner need not show he will prevail on the merits but, rather, must demonstrate that reasonable jurists could debate whether (or, for that matter, agree) the petition should have been resolved in a different manner or that the issues presented are adequate to deserve encouragement to proceed further. Tennard v. Dretke, 542 U.S. at 282,
The showing necessary to obtain a CoA on a particular claim is dependent upon the manner in which the District Court has disposed of a claim. If this Court rejects a prisoner's constitutional claim on the merits, the petitioner must demonstrate reasonable jurists could find the court's assessment of the constitutional claim to be debatable or wrong. "[W]here a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Miller-El v. Cockrell, 537 U.S. at 338, 123 S.Ct. at 1040 (quoting Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604). Accord Tennard v. Dretke, 542 U.S. at 282, 124 S.Ct. at 2569. In a case in which the petitioner wishes to challenge on appeal this Court's dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, the petitioner must show jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether this Court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604 (holding when a district court denies a habeas claim on procedural grounds, without reaching the underlying constitutional claim, a CoA may issue only when the petitioner shows that reasonable jurists would find it debatable whether (1) the claim is a valid assertion of the denial of a constitutional right and (2) the district court's procedural ruling was correct).
In death penalty cases, any doubt as to whether a CoA should issue must be resolved in the petitioner's favor. Avila v. Quarterman, 560 F.3d 299, 304 (5th Cir.), cert. denied, 558 U.S. 993, 130 S.Ct. 536, 175 L.Ed.2d 350 (2009); Moore v. Quarterman, 534 F.3d 454, 460 (5th Cir.2008); Foster v. Quarterman, 466 F.3d 359, 364 (5th Cir.2006); Dickson v. Quarterman, 462 F.3d 470, 476 (5th Cir.2006); Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir.2005); Bridgers v. Dretke, 431 F.3d 853, 861 (5th Cir.2005), cert. denied, 548 U.S. 909, 126 S.Ct. 2961, 165 L.Ed.2d 959 (2006).
Nonetheless, a CoA is not automatically granted in every death penalty habeas case. See Miller-El v. Cockrell, 537 U.S. at 337, 123 S.Ct. at 1040 ("It follows that issuance of a COA must not be pro forma or a matter of course."); Sonnier v. Quarterman, 476 F.3d at 364-69 (denying CoA on a wide variety of challenges to the Texas capital sentencing scheme).
Reasonable minds could not disagree over this Court's conclusions as to petitioner's first, second, and fourth claims herein. Petitioner failed to allege any facts showing he was harmed by the substitution of his lead trial counsel almost two months prior to the commencement of voir dire. Petitioner's second and fourth claims herein are foreclosed by state appellate and state habeas court conclusions on matters of state procedural or evidentiary law, matters committed to the province of the state courts.
This Court independently reviewed the entire record from petitioner's trial, direct appeal, and multiple state habeas corpus proceedings and concluded petitioner's ineffective assistance complaints all fail to satisfy either prong of the Strickland
There can be no disagreement among reasonable persons with this Court's conclusion that petitioner's last two ineffective assistance claims are foreclosed by state appellate or state habeas court decisions construing applicable state procedural or evidentiary rules as forbidding the very actions petitioner complains his trial counsel failed to accomplish at trial. Petitioner's trial counsel cannot be faulted for failing to do the impossible. United States v. Cronic, 466 U.S. at 656 n. 19, 104 S.Ct. at 2045 n. 19.
Petitioner's fifth through ninth claims herein are all challenges to the Texas capital sentencing scheme which have repeatedly been either (1) implicitly rejected by the Supreme Court (through repeated denials of certiorari review following denials of CoA by the Fifth Circuit), (2) expressly rejected by both the Fifth Circuit and this Court in published opinions, or (3) both. None of these claims deserve encouragement to proceed further. For the foregoing reasons, this Court concludes petitioner is not entitled to a Certificate of Appealability with regard to any of his claims herein. See Blue v. Thaler, 665 F.3d at 662-70 (rejecting a CoA for many of the same constitutional challenges petitioner presents herein to the Texas capital sentencing scheme).
Accordingly, it is hereby
1. All relief requested in petitioner's amended federal habeas corpus petition, filed January 26, 2012, docket entry no. 29, is
2. Petitioner is
3. Petitioner's request for an evidentiary hearing is
4. All other pending motions are
5. The Clerk shall prepare and enter a Judgment in conformity with this Memorandum Opinion and Order.
In pertinent part, petitioner's first written statement provides as follows:
Several San Antonio Police Officers and a civilian whom officer Riojas had stopped shortly before the fatal shooting testified that officer Riojas was driving a marked San Antonio Police vehicle and dressed in a San Antonio Police uniform and bulletproof vest at the time of the fatal shooting. S.F. Trial, Volume 23, testimony of George Augustus Jahant, at pp. 50, 82; Volume 23, testimony of Jose Luis Gallardo, at pp. 113-15; Volume 24, testimony of Thelma G. Self, at pp. 64-65; Volume 24, testimony of Jerry Fuller, at pp. 73-76; Volume 25, testimony of Alexander Devora, Jr., at pp. 166-80. Officer Riojas' police Glock was not recovered at the crime scene. S.F. Trial, Volume 24, testimony of Thelma G. Self, at p. 66; Volume 25, testimony of Alexander Devora, Jr., at p. 173; Volume 25, testimony of Kelly Bender, at p. 183.
Several San Antonio Police officers and employees testified extensively regarding their efforts to diagram, photograph, and videotape the crime scene, as well as collect evidence at the crime scene. S.F. Trial, Volume 24, testimony of Marcus Wilhelm Booth, at pp. 80-98 (describing the close proximity of a stand of mail boxes to the location where officer Riojas' body was found); Volume 24, testimony of Treise Shen, at pp. 99-137 (describing various items, including necklaces, a shell casing, a green-handled screwdriver, blood samples, officer Riojas' name plate, and parts of officer Riojas' uniform belt found at the crime scene); Volume 24, testimony of Angela Salvatierra, at pp. 138-57 (describing the recovery of Riojas' uniform and clothing from the hospital following the declaration of Riojas' death); Volume 24, testimony of Tiffany Dillon Lozano, at pp. 162-73 (describing the recovery of blood samples from the crime scene); Volume 25, testimony of Kelly Bender, at pp. 181-187 (describing the recovery of Riojas' holster, radio, flashlight, and magazines).
In addition, the police also recovered petitioner's jacket, a knit cap, and numerous blood stains from an apartment near the crime scene which petitioner visited immediately after the shooting. S.F. Trial, Volume 25, testimony of Treise Shen, at pp. 147-66. A friend of the petitioner's and her boyfriend both identified the jacket and knit cap in question as petitioner's. S.F. Trial, Volume 25, testimony of Tanya Dominguez, at pp. 50, 66-68, 99; testimony of Nosario Alvarez, Jr., at pp. 123, 133-34, 137. Ms. Dominguez also identified a silver necklace found at the crime scene at belonging to petitioner. S.F. Trial, Volume 25, testimony of Tanya Dominguez, at pp. 70-71.
Erica Henderson testified, in pertinent part, that (1) she observed officer Riojas' marked vehicle as she drove into the apartment complex, (2) the police vehicle was parked at an angle with the driver's door open, (3) as she drove around the complex, she observed a San Antonio Police Officer and a suspect both on their knees struggling side by side, (4) the officer was attempting to get the suspect in a headlock, (5) the suspect had a gun in his left hand, (6) both men appeared to be struggling for the gun — with the officer attempting to get it away from the suspect, (7) the suspect appeared to be attempting to keep the gun away from the officer, (8) the suspect raised the gun up over his right shoulder and ducked his head, (9) she then heard and saw the shot, (10) the officer's hands were nowhere near the gun when the shot was fired, (11) after the shot, she saw the officer fall and the suspect got up, (12) the suspect briefly looked at the officer, put the gun in his pants, and then ran off, and (13) she called 9-1-1 after backing up her car to see which way the suspect ran. S.F. Trial, Volume 23, testimony of Erica Henderson, at pp. 198-215, 221-36, 238-40. Like Henges, Ms. Henderson saw neither of the two men throw any punches. Id., at p. 233.
Nosario Alvarez, Jr., testified, in pertinent part, that (1) he had seen petitioner pacing outside the apartment when he arrived at Tanya Dominguez's apartment complex that evening, (2) when petitioner entered Ms. Dominguez's apartment later, petitioner was breathing hard and appeared to have been in a struggle, (3) petitioner was briefly in the restroom, (4) petitioner said he had been in a fight and had scratch marks or wounds on his face and neck, (5) petitioner appeared very nervous and talked very fast, (6) petitioner asked for a ride home, and (7) as they drove away they saw a squad car in front of the apartment complex and petitioner crouched down. S.F. Trial, Volume 25, testimony of Nosario Alvarez, Jr., at pp. 117-27.
Petitioner's sister testified (1) she was asleep when petitioner arrived late at her apartment on February 2, 2001, (2) petitioner knocked and rang the doorbell, (3) all she heard was that petitioner had been jumped at a party on the west side and had been in a fight, (4) petitioner was upset, used the bathroom, got a change of clothes, and left, (5) she did not hear any discussion regarding a gun, (6) while petitioner was in the bathroom, she heard a news story about the shooting of Riojas, (7) when she told petitioner about the story, petitioner said nothing, (8) petitioner appeared to be acting normal when he left, (9) she did not see petitioner when she awoke the next morning (Saturday), (10) when she returned home from running errands Saturday, Parovel told her about the gun, (11) she saw a news story on Saturday night about Riojas' shooting and recognized a jacket and a silver necklace shown in the televised story as belonging to petitioner, (12) when petitioner returned to her apartment Saturday night, petitioner asked Parovel about the gun, (13) when Parovel said he had gotten rid of the gun, petitioner said "good, good," (14) petitioner left shortly thereafter but returned shortly before police arrived, (15) the police arrested petitioner, and (16) petitioner told her he had gone to a party on the west side and a group of guys tried to jump him. S.F. Trial, Volume 26, testimony of Corinna Garza, at pp. 56-96.
A pair of San Antonio Police Officers testified regarding the recovery of officer Riojas' Glock pistol from a dumpster at the apartment complex where petitioner's sister Corinna lived with Ben Parovel. S.F. Trial, Volume 26, testimony of Barney Darrell Whitson, at pp. 97-104; Volume 26, testimony of Michelle Morock, at pp. 121-28.
Another officer testified petitioner stared at him in an apparent attempt to intimidate the officer and then announced "you're lucky I didn't kill your bitch ass." S.F. Trial, Volume 27, testimony of Nathan Preston, at pp. 206-08.
On cross-examination, Ms. Martinez admitted she had given police a statement in which she (1) failed to mention she ever saw Riojas push petitioner, (2) failed to mention she had been a passenger in a vehicle stopped by officer Riojas, (3) admitted she recognized Riojas as a police officer on February 2, 2001 by his uniform, and (4) told police she saw Riojas talking with petitioner for a minute before the two men began their confrontation. Id., at pp. 49-61. Ms. Martinez also admitted she saw petitioner the day after the fatal shooting and the petitioner was acting normally. Id., at pp. 86-87.
Petitioner's Texas Youth Commission file was admitted into evidence as State Exhibit no. 188 and is found in S.F. Trial, Volume 36. Among the significant documents in this voluminous trial exhibit are (1) a report prepared in December, 1997 by the program administrator at the Truman House suggesting petitioner remains a significant threat to public safety, (2) a June, 1996 report noting petitioner's history of abuse by his father, petitioner's gang involvement, and petitioner's estrangement from his mother, (3) a June, 1996 report by a Bexar County juvenile probation officer which includes a detailed educational and family history for petitioner, a lengthy list of petitioner's juvenile criminal behavior, and concludes petitioner can be adequately handled within the juvenile justice system, (4) a July, 1996 individual case plan assessment which reports that petitioner has had authority problems with teachers, "was often in trouble for fighting with peers," has been involved with street gangs, and reported that "money and prestige motivated him to engage in criminal activity," (5) documents from a November, 1997 TYC hearing at which petitioner was adjudged guilty of two counts of possession of a weapon, (6) a report detailing petitioner's October, 1997 arrest for possession of three knives and a screwdriver while on a high school campus, (7) a December, 1997 psychological evaluation prepared by a Dr. Ben Furgeson which (a) describes petitioner's father as physically abusive toward both petitioner and his mother, (b) describes petitioner's family environment as "abusive, non-supporting, and rejecting," (c) describes petitioner as negative toward authority, having difficulty internalizing society's norms and values, impulsive, unfriendly, antisocial, and not very industrious, and (d) attributes petitioner's antisocial behavior to petitioner's gang involvement and conduct disorder, adolescent onset, and (8) a June, 1996 psychological evaluation performed by Dr. Roger Sherman which states, in part, that (a) petitioner reported his father abused petitioner when petitioner's father was on drugs, (b) petitioner's intellectual functioning is in the high end of the low average range, (c) petitioner's psychological profile was consistent with that of a person who "is likely to have ongoing, serious problems with norm violations," (d) suggests petitioner would benefit from gaining an increased sense of responsibility for his behavior, (d) petitioner exhibits little interest in others, may lack coping skills, may have difficulty meeting the demands of daily life, and may have problems with control and in interpersonal relationships, and (e) once again gives a diagnosis of conduct disorder, adolescent onset. S.F. Trial, Volume 36, State Exhibit no. 188, at pp. 5, 45-57, 60-65, 163-64, 193-95, 208, 296-99, 304-11.
Petitioner attached to his first state habeas corpus application copies of (1) the final judgment from his state criminal proceeding, (2) an affidavit from Jeffrey S. Mitchel (former court-appointed investigator), (3) a psychological evaluation performed on petitioner around age fifteen dated June 19, 1996, (4) a series of probation reports on petitioner dated June 20, 1996, July 11, 1994, September 20, 1995, and September 3, 1997, (5) an affidavit from a clinical psychologist, Dr. Jack Ferrell, dated October 21, 2004, (6) an affidavit by another clinical psychologist (Dr. Susana A. Rosin) dated October 19, 2004, (7) a report from Dr. Katherine Allen, a sociologist, dated October 19, 2004, (8) an affidavit and accompanying correspondence from petitioner's trial counsel's mitigation expert (Ann Matthews), (9) an affidavit from one of petitioner's paternal uncles (Raul Gonzales, Jr.), and (10) affidavit from a retired TDCJ official (Larry Fitzgerald). First State Habeas Transcript, at pp. 111-198.
Attorney Suzanne Kramer signed petitioner's first state habeas corpus application.
Petitioner attached to his second state habeas corpus application a voluminous set of exhibits, including a new affidavit from clinical psychologist Dr. Jack Ferrell, a new affidavit from mitigation specialist Gerald Byington, and a host of new affidavits from various members of petitioner's family which had not previously been presented to any state court. Second State Habeas Transcript, at pp. 782-1811.
Petitioner's trial counsel also challenged venire member Manuel Pacheco's ability to answer the future dangerousness special issue impartially based upon Mr. Pacheco's answers to the state trial court's questionnaire (which petitioner failed to provide to this Court), despite not questioning Mr. Pacheco on that point but the prosecution pointed out Mr. Pacheco had identified himself as only a "five" on a scale of one to ten regarding whether he would always impose the death penalty for a capital murder conviction and the trial court denied the challenge for cause. S.F. Trial, Volume 21, voir dire examination of Manuel Pacheco, at pp. 138-41. When Mr. Pacheco returned to the courtroom, the trial judge informed him that both parties had accepted him as a juror. Id., at p. 141.
Petitioner also faults the performance of his trial counsel for failing to ask Mr. Pacheco questions regarding said venire member's views as to whether a conviction for capital murder, standing alone, would justify an affirmative finding as to future dangerousness. Yet, every time petitioner's trial counsel attempted to ask similar questions to other members of the petitioner's jury venire, the venire members' answers convinced the trial court they possessed no disqualifying bias. See note 98, infra. Petitioner does not allege any specific facts showing what answers Mr. Pacheco might have given had he been questioned further on this subject (beyond the information contained in his juror questionnaire answers). Furthermore, absent identification of exactly what information was actually contained in Mr. Pacheco's juror questionnaire answers which suggested Mr. Pacheco was biased in connection with the future dangerousness special issue, petitioner's complaint about his trial counsel's failure to further question Mr. Pacheco on this subject does not satisfy the first prong of Strickland analysis. The state trial judge, who unlike this Court had access to Mr. Pacheco's juror questionnaire answers, was convinced by the prosecution's argument and denied petitioner's challenge for cause to Mr. Pacheco.
Petitioner's trial counsel asked venire member, and later juror, Worsham about questionnaire answers he gave regarding his willingness to serve as jury foreperson and his understanding of the Texas Penal Code's provisions regarding self-defense. S.F. Trial, Volume 8, voir dire examination of Waring Lewis Worsham, at p. 93.
Petitioner's trial counsel conducted a discussion with juror Garza regarding his understanding of the Texas capital sentencing special issues. S.F. Trial, Volume 9, voir dire examination of George Diaz Garza, at pp. 106-12.
Petitioner's trial counsel questioned another juror regarding the venire member's answers to juror questionnaire questions about his ability to be a fair and impartial juror, that juror's arrest on a charge of carrying a sword in his vehicle, and the juror's views on capital punishment. S.F. Trial, Volume 10, voir dire examination of Charles Martin, at pp. 120-25, 129-30, 140.
Petitioner's trial counsel questioned other venire members who ultimately served as petit jurors as well regarding their feelings about the death penalty. S.F. Trial, Volume 11, voir dire examination of Juliette Frederick, at pp. 35-36; Volume 13, voir dire examination of Jimmy Phelps, at pp. 132-33; Volume 15, voir dire examination of Terry White, at pp. 113-14; Volume 18, voir dire examination of Joel C. Link, at pp. 116-17, 119.
Mr. Gonzales also discussed (1) his own criminal history, which he admitted included seven or eight convictions for theft and drug offenses, (2) his conversations about petitioner with petitioner's mitigation specialist, and (3) his knowledge of petitioner's history of multiple auto thefts. Id., at pp. 31-33, 36, 42.
Dr. Ferrell admitted on cross-examination that he was unaware of petitioner's 1998 conviction for unlawfully carrying a weapon and petitioner's conviction for burglary of a habitation in which petitioner employed a screwdriver. Id., at pp. 54-56.
On cross-examination, attorney Camara also testified (1) he had only one capital murder trial prior to being appointed to help handle petitioner's case, (2) petitioner's comments to him about the fatal shooting of officer Riojas were consistent with petitioner's written statements to police, (3) Ann Matthews interview four or five members of petitioner's family, (4) Ms. Matthews reported what these witnesses said but he did not recall her making any recommendations, (5) he was unaware of any additional punishment phase witnesses, (6) Jeff Mitchel did not do any punishment phase investigation, (7) Ann Matthews did tender reports but he could not get additional information from her because she was not getting paid, (8) he spoke with petitioner's mother and sister but not about mitigation subjects, and (9) he had access to petitioner's extensive juvenile and criminal records. Id., at pp. 83-99.
On cross-examination, Dr. Allen testified (1) she had not read any of the police reports concerning petitioner's capital offense, (2) petitioner was, in her opinion, a "fleer" not a fighter, (3) she believed it was unlikely petitioner would again engage in violence, (4) she disagreed with the diagnosis of petitioner with a conduct disorder, (5) it is common for students with conduct disorders to develop antisocial personality disorder as adults, (6) many adolescents with conduct disorder later outgrow it, (7) she did not consider the screwdriver with which petitioner was arrested on one occasion to be a weapon, (8) she disagreed somewhat with the diagnosis of Dr. Sherman of conduct disorder because she does not consider the fights identified by Dr. Sherman as serious because they were juvenile fights and she places little value on petitioner's early onset drug and alcohol abuse, (9) she does not believe petitioner has a history of threatening or assaultive behavior, (10) petitioner has not been aggressive toward people or animals in her opinion, (11) she disregards petitioner's gang affiliation because petitioner has no gang tattoos and joined at age thirteen, (12) petitioner gets a rush like a runner's high from engaging in risky behavior, and (13) petitioner is not mentally retarded. Id., at pp. 38-76.
Whoever typed the affidavit in question apparently misspelled Mr. Gonzales' name with a "z." The signature on this affidavit appears to show his last name ends with an "s." Id., at p. 845.
Having reviewed the entirety of the record from petitioner's trial and first state habeas corpus proceeding, this Court concludes the state habeas trial court's conclusion in this regard was eminently reasonable. Dr. Allen was forced to admit that her expert opinion regarding petitioner's non-violence was based on an extremely circumscribed view of the nature of petitioner's criminal conduct and disregarded several significant, undisputed, facts, including petitioner's gang membership, youthful sexual activity, participation in fights while a juvenile, running away from home, and escaping from a juvenile halfway house. Id., at pp. 231-32.
This point is brought home by Dr. Ferrell's admissions during his testimony that he was unfamiliar with the circumstances of petitioner's 1998 conviction for unlawfully carrying a weapon and with the circumstances of the burglary of a habitation for which petitioner was convicted and in which petitioner was found to be carrying a weapon (i.e., a screw-driver). Id., at pp. 54-56. As if to drive the same point home even further, Dr. Ferrell's affidavit dated December 15, 2009 currently before this Court complains that he was not furnished with copies of many documents he considered relevant to a proper evaluation of petitioner's psychological condition (including many documents included in petitioner's Texas Youth Commission file which was admitted into evidence at trial as State Exhibit no. 188 and is found at S.F. Trial, Volume 36) until long after petitioner's 2002 capital murder trial. Second State Habeas Transcript, at pp. 795-98. Thus, in his latest affidavit, Dr. Ferrell has admitted he was unprepared at the time of petitioner's capital murder trial to testify or render an expert opinion upon petitioner's psychological condition based upon all of the evidence that was presented to the jury at the punishment phase of petitioner's trial.
Petitioner's capital sentencing jury also had before it a complete copy of petitioner's Texas Youth Commission file, including multiple psychological evaluations, which was admitted into evidence as State Exhibit no. 188. S.F. Trial, Volume 32, testimony of Juan Antonio DeLeon, at pp. 150-51. A copy of State Exhibit no. 188 appears in S.F. Trial, Volume 36.
A reasonable jury could easily have concluded the level of violence inflicted upon the residences and vehicles petitioner burglarized went well beyond the level necessary to steal the vehicles or to gain entrance to the residences in question.
Petitioner spends considerable energy pointing out the discrepancy between attorney Callahan's state habeas testimony, in which attorney Callahan testified he chose not to call Dr. Ferrell to testify at trial because he believed Dr. Ferrell would testify petitioner posed a danger of future violence (Id., at pp. 9-10, 22-24) and with Dr. Ferrell's testimony during the same state habeas corpus proceeding that he was prepared to testify at trial that petitioner would not pose a risk of future violence (S.F. State Habeas Hearing, Volume 2 of 5, testimony of Jack Ferrell, at p. 51). It is unnecessary to resolve this apparent conflicting testimony because, for the reasons set forth at length in Section IV.F.4.a. above, there were valid, rational, objectively reasonable reasons why attorney Callahan's decision not to call Dr. Ferrell to testify during the punishment phase of petitioner's capital murder trial was itself objectively reasonable. More specifically, as was explained at length above, the opinions regarding petitioner's future dangerousness Dr. Ferrell was prepared to express at trial would have been subject to a potentially devastating cross-examination based upon the information contained in petitioner's TYC case file and the extensive testimonial evidence the prosecution presented during the punishment phase of petitioner's trial. Thus, even if attorney Callahan misunderstood the opinions regarding petitioner's future dangerousness expressed by Dr. Ferrell during their meeting on October 24, 2002, that mistake on attorney Callahan's part did not render his subsequent decision not to call Dr. Ferrell to testify during the punishment phase of petitioner's trial objectively unreasonable.
The October 19, 2004 report of Dr. Katherine Allen which was presented to the state habeas court during petitioner's first state habeas corpus proceeding does include a mention of petitioner and his sister having witnessed "consistent drug use by their parents and friends of their parents in the home." First State Habeas Transcript, at p. 171. However, nothing in Dr. Allen's lengthy report suggests petitioner's mother abused alcohol or drugs while pregnant with petitioner. Id., at pp. 169-81.
Another copy of the same report appears herein at First State Habeas Transcript, at pp. 123-28.
Petitioner's sister testified at petitioner's trial that (1) their mother was a good mother, (2) in contrast to most of her relatives, their mother had never been to prison, and (3) their mother taught her and petitioner right from wrong. S.F. Trial, Volume 33, testimony of Corinna Garza, at pp. 41, 47-48.
Petitioner's mother testified during the punishment phase of petitioner's capital murder trial, in pertinent part, that (1) petitioner was a happy child who had done very well in school until his father died, (2) she was unaware petitioner had ever used drugs, and (3) petitioner began acting out after his father died. S.F. Trial, Volume 33, testimony of Maria Gonzalez, at pp. 57-60,
Ben Parovel testified, in pertinent part, that, when petitioner arrived at petitioner's sister's apartment later that same night (1) petitioner's face appeared a little bloody, (2) there were scratches and bruises on petitioner's face, (3) petitioner had a busted lip and cuts on his face, and (4) petitioner had a lump on his head, a bruised arm, and a cut on his neck. S.F. Trial, Volume 26, testimony of Den David Parovel, at pp. 8-10, 40, 50.
Thus, no less than three prosecution witnesses described petitioner as displaying obvious injuries to his face and neck shortly after the fatal confrontation with officer Riojas.
Caldwell v. Mississippi, 472 U.S. at 325 & 329, 105 S.Ct. at 2637 & 2639.
