Barrientes v. Johnson , 221 F.3d 741 ( 2000 )

REVISED - 9/5/00
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-40348
_____________________
ANTONIO BARRIENTES
Petitioner - Appellee-Cross-Appellant
v.
GARY L JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION
Respondent - Appellant-Cross-Appellee
_________________________________________________________________
Appeals from the United States District Court
for the Southern District of Texas
_________________________________________________________________
August 7, 2000
Before KING, Chief Judge, and SMITH and STEWART, Circuit Judges.
KING, Chief Judge:
In this habeas case, the district court granted relief on
six claims related to the penalty phase of Petitioner Antonio
Barrientes’s capital murder trial and vacated Barrientes’s death
sentence. The court denied all other claims and an application
for a certificate of probable cause. Respondent Gary L. Johnson,
Director, Texas Department of Criminal Justice, Institutional
Division, appeals from that portion of the district court’s order
granting relief, and Petitioner applies for a certificate of
probable cause to appeal ten claims upon which relief was denied.
With regard to the Director’s appeal, we reverse the district
court as to one claim, vacate that portion of the district
court’s order granting relief on the remaining five claims, and
remand for an evidentiary hearing. Treating Petitioner’s
application for a certificate of probable cause as an application
for a certificate of appealability, we deny his application.
I. FACTUAL BACKGROUND
In 1985, Petitioner Antonio Barrientes and a co-defendant,
David Gonzales, were convicted of the capital murder of Jose
Arredondo, who, while working as a clerk at the Fina-Jamco
convenience store in Brownsville, Texas, was shot in the head
four times. Arredondo was found in the cooler of the store by a
relative of the store’s owner.
Felix Sanchez, who had known Barrientes for twenty-five
years, testified during the guilt/innocence phase of the trial
that he walked into the store on the afternoon of the murder to
purchase gas. He did not see a clerk, so he banged his hand on
the counter. Barrientes popped up from behind the counter and
Sanchez asked him when he had started working there. Barrientes
responded, “Be quiet. I’m in the middle of a robbery.” Sanchez
told Barrientes that he wanted no part of it, turned, and began
walking toward the door. He heard Barrientes say that he,
2
Barrientes, had to “shoot the son-of-a-bitch.” As Sanchez was
opening the front door, he saw Barrientes pushing a dark-haired
individual from the stockroom into the cooler; he then heard two
shots.
Sanchez got in his car and began to drive away. Remembering
that his gas gauge was on empty, he made a U-turn and drove to
another gas station across the street from the Fina-Jamco store.
While there, he noticed a few people enter and leave the Fina-
Jamco store. He then noticed Barrientes leaving with a cardboard
box and watched him until he disappeared into an alley next to
the store. Sanchez got in his car and began driving home. On
his way, he saw Barrientes get into the passenger seat of
Gonzales’s car. Gonzales was at the wheel.
Sanchez testified that he returned to his mother’s house,
where he was living at the time, and that he saw Gonzales’s car
in the alley behind the house. Barrientes and Gonzales were in a
neighbor’s yard watching Sanchez until the neighbor called them
away. Sanchez then left to take his mother to an appointment at
a hospital in Galveston, an eight or nine hour drive from
Brownsville. Along the way, he told his mother what he had seen,
and she convinced him to tell the police. Later that night, he
flagged down a highway patrolman and gave a videotaped statement
at a police station about five hours from Brownsville. He gave
another statement several weeks later.
3
On cross-examination, Barrientes’s counsel and Gonzales’s
counsel attacked discrepancies between Sanchez’s earlier
statements and his testimony. Sanchez explained that he had been
tired, confused, and nervous during his previous statements.
Gonzales’s counsel also attacked Sanchez’s unwillingness to speak
with the defense prior to the trial.
Two other witnesses testified that they went into the Fina-
Jamco store on the afternoon of the murder and that Barrientes
was working behind the counter, did not know how to operate the
cash register, and appeared under the influence of drugs.
Another State witness, David Meza, testified that while in county
jail on a DWI charge, Barrientes confessed the murder to him on
two separate occasions. The prosecutor elicited testimony that
because of overcrowding Meza was on a floor of the jail reserved
for murderers. On cross-examination, Barrientes’s counsel
inquired how the confession was brought to the attention of
authorities, and Meza responded that he had only repeated the
story to a friend of his, a man whom Barrientes had once shot in
the leg.
The defense presented only two witnesses. The first was an
employee from the county jail who testified that Meza’s booking
card showed that he was assigned to a floor separate from the
floor where suspected murderers were housed. On cross-
examination, the witness admitted that, due to overcrowding, Meza
could have been switched to a different floor from that noted on
4
his booking card, and that his booking card might not have been
changed to reflect the switch.
The second witness was Barrientes. He admitted to being in
the Fina-Jamco store on the day of the murder, but explained that
he had gone there to buy beer and had discovered Felix Sanchez in
the store holding a cardboard box with beer, cigarettes, and a
money bag in it. Sanchez left and Barrientes stayed behind at
Sanchez’s request to open the cash register and steal money from
it. While attempting to do this, two customers came in and he
waited on them.
During the penalty phase of the trial, several police
officers testified in summary fashion that the defendants’
reputations in the community for being peaceful and law-abiding
citizens were bad. Two witnesses, including an investigator for
the district attorney’s office, Joe Garza, testified that during
the trial, Barrientes threatened to “take care” of Felix Sanchez.
Garza further testified that he had arrested Barrientes for
capital murder in 1979, that the case was still pending, and that
a witness in the case had disappeared (the “1979 Unadjudicated
Murder”).1
1
The prosecution also presented evidence that Gonzales had
been convicted of three prior felonies, two of which were for
possession of marijuana. Barrientes’s counsel, Mr. Davidson,
had, while working in the prosecutor’s office many years before,
prosecuted Gonzales on one of the marijuana charges. Davidson
testified on behalf of Gonzales during the penalty phase of this
trial that the marijuana charge would now be considered a
misdemeanor. Other than Davidson, no witness testified for
5
During closing, the prosecutor commented on the 1979
Unadjudicated Murder as follows:
Well, you heard Mr. Garza get up and testify that he
arrested Barrientes back in ‘79 for another capital murder
but that the witness disappeared in that. I’ll leave that
to your thoughts. Another capital murder in 1979.
Here we are again with another capital murder. What’s
next? A witness disappeared. I wonder where the witness
is. I wonder. He knows. He knows where the witness is as
he sits there right now. He knows. He knows.
. . . .
. . . You tell me what justice is. We’ve got one
capital murder in 1979 where the witness disappeared.
God knows where the witness is in that case. He may be
in a cooler somewhere, although not in a store. He may be
somewhere where no one would ever find him.
State Record Vol. IX, at 41. The prosecutor continued during
surrebuttal:
Mr. Davidson talked to you about the only witness [to
the 1979 Unadjudicated Murder], that I’d like you to believe
he’s dead and buried. Since he brought it up he probably is
dead and buried. Probably is.
Innuendo? He was arrested for capital murder and the
witness is gone. I’m not going to yell and scream about
that. You believe what you want to about that. That’s up
to you. You saw what he’s done. You saw what he did to Joe
Arredondo.
What’s he going to do to Felix Sanchez? What’s he
going to do to Felix Sanchez, the one who identified him?
He was so high on heroin that he didn’t know enough to go
ahead and kill Felix Sanchez.
Thank God he was high on heroin, otherwise Sanchez
would probably be dead now. He would be another witness
that would be dead, and then I guess at that point the State
either defendant at the penalty phase.
6
would have some more innuendo, as Mr. Davidson says, because
we’d not have the witness.
Id. at 53. After the penalty phase concluded, Barrientes was
sentenced to death and Gonzales was sentenced to life in prison.
II. PROCEDURAL BACKGROUND
Barrientes appealed from his conviction, and the Texas Court
of Criminal Appeals affirmed. See Barrientes v. State, 752
S.W.2d 524 (Tex. Crim. App. 1987). His subsequent petition for
writ of certiorari was denied by the United States Supreme Court.
See Barrientes v. Texas, 487 U.S. 1241 (1988).
Barrientes filed a state post-conviction petition for a writ
of habeas corpus in August 1988 (the “First State Petition”).
The petition raised a multitude of claims, including
prosecutorial misconduct, ineffective assistance of counsel,
insufficient evidence at the penalty phase of the trial, improper
jury consideration of facts not presented at trial, and various
attacks on the Texas capital sentencing statute. The Court of
Criminal Appeals stayed his execution and ordered an evidentiary
hearing on the ineffective assistance of counsel claims. The
evidentiary hearing was held before the same state district judge
who had presided at Barrientes’s capital murder trial. After
entering findings of fact and conclusions of law, the state
district court recommended denial of relief. In early 1989, the
Texas Court of Criminal Appeals denied relief on all grounds,
7
with two judges dissenting. See Ex parte Barrientes, No. 19,007-
01, order at 2 (Tex. Ct. Crim. App. Feb. 1, 1989).
On March 8, 1989, Barrientes filed his first federal
petition for habeas corpus in the United States District Court
for the Southern District of Texas. The claims raised in this
petition were substantially the same as the claims raised in his
First State Petition. The petition was amended in April 1992
(the “Amended First Federal Petition”), based upon evidence
obtained by Barrientes’s habeas counsel. The Amended First
Federal Petition contained additional factual allegations
regarding the 1979 Unadjudicated Murder, allegations that Meza’s
testimony was coerced, and allegations that Sanchez’s mother and
wife would have, if called to testify, contradicted his
testimony. Attached to the petition were an affidavit from
Sanchez’s mother and copies of the contents of the Cameron County
Sheriff’s Office’s file on the 1979 Unadjudicated Murder (the
“Sheriff’s File” or the “File”).
Because the Sheriff’s File sits at the center of the
principal dispute in this case, a description of its salient
inculpatory and exculpatory contents is warranted.2 The File
2
We provide that description, however, with several
caveats. First, Barrientes provides no affidavit authenticating
the photocopied documents appended to his petition. We therefore
have no assurance that these documents are what Barrientes claims
them to be or that they represent the entire contents of the
File. For purposes of this opinion, however, we nonetheless
refer to this collection of documents as the File. Second, there
are numerous documents in the File that are either wholly or
8
contains evidence that on April 6, 1979, just outside the city of
Brownsville, Ronnie Vance was found dead in the backseat of a
purple Honda Civic belonging to Jack Fields. He was found with
one gunshot wound and one shotgun wound to the face and head.
Jack Fields rented part of his residence to a man named Castro
Bob. Castro Bob had been allowing Vance to stay there for free.
Fields reported that a significant sum of cash and a .357 Magnum
Smith and Wesson handgun were missing from his property.
The File contains an affidavit of Investigator George
Gavito, who reported that on April 11 he received a call from and
then met with a man named Larry Rowin. Rowin told Gavito that he
was picked up by Vance and a man named Emilio Gonzales (“Big-E”)
on April 5 and that Vance explained to Rowin that he, Vance, was
going to purchase forty pounds of marijuana. Vance showed Rowin
a large wad of cash and a handgun. Big-E was carrying a shotgun,
which he explained was a prop to convince police or the border
patrol that the men were hunting should they be pulled over. The
three men drove to a river levee, and Vance told Rowin to wait
there. Rowin waited, and about ten minutes later he heard a
shotgun blast and then a car driving off. He got scared and ran.
Rowin believed that Big-E murdered Vance and that the murder was
set up in advance. Gavito’s affidavit also states that Rowin
partially illegible. These include handwritten notes and what
appear to be photocopied photographs. The description we provide
is simply our best read of what’s before us. We do not intend
this description to be treated as controlling on remand.
9
“left town in a hurry after the news of the arrest of Emilio
Gonzales [Big-E], Jesus Flores and Tony Barrientes came out.” A
lookout bulletin was run for law enforcement agencies describing
Rowin as a material witness in a capital murder, and a grand jury
subpoena was sworn out for Rowin. A copy of both the lookout
bulletin and the grand jury subpoena are included in the File.3
The File also contains an affidavit of Investigator Garza
dated April 12. The affidavit indicates that a reliable,
confidential informant reported that Barrientes told the
informant that Vance met with Barrientes, Flores, and Big-E that
night at the levee to purchase a controlled substance, and that
in the course of the sale one of the three shot Vance with a
small handgun and then with a shotgun.
Also included in the File is the affidavit of Barrientes
himself dated April 14, 1979. Barrientes avers that Vance spent
several days looking for forty pounds of marijuana to purchase.
Vance was to ship the marijuana to a dealer in Houston, but he
was looking for a good price so that he could mark the marijuana
up before moving it along. A number of people, including
Barrientes, Big-E, and Vance spent most of the day for several
days hanging out at the home of Jesus Flores (“Chucho”). During
that time, Big-E picked a fight with several people, including
Vance. During the arguments, Big-E made it clear that he was
3
Barrientes argues that Rowin is the witness the prosecutor
in the Arredondo murder trial claimed was murdered by Barrientes.
10
carrying a firearm. On April 5, the day Vance was murdered,
Vance spent most of the day at Chucho’s house but left about 5:00
PM with Castro Bob. Vance showed back up at Chucho’s house alone
at about 7:00 PM driving a purple Honda. Vance showed Barrientes
over $2,000 in cash and a .357 Magnum. Barrientes told Vance
that Barrientes’s dealer could not deliver the forty pounds of
marijuana until 11:00 PM. Vance was worried that he could not
get the marijuana on the last bus bound for Houston, so he asked
Big-E if he could get forty pounds immediately. Big-E responded
that he could, and he and Vance left. Barrientes never saw Vance
again, and he learned from reading the Sunday paper that Vance
had been murdered.
The File also contains records indicating that Barrientes,
Big-E, and Flores were arrested and held without bond.
Additionally, a copy of the Cameron County Prisoner’s Jail Record
on Barrientes is included. In his petition, Barrientes alleges
that this record indicates that he was eventually released
without any bond having to be posted. The quality of the copy
before us is too poor to confirm his allegation. The File also
contains a warrant issued on April 13 to search Big-E’s home for
a .357 Magnum. Also included in the File is a polygraph report
indicating that on April 25, Barrientes passed a polygraph
examination and that he “emphatically denie[d] any knowledge
of/and or participation in the shooting of Ronald Roger Vance.”
The report also states, “[f]or Case Details, see Polygraph
11
Subject #1, Emilio Gonzalez.” No other polygraph reports are
included in the File.
Finally, appended to the Amended First Federal Petition was
an affidavit of Anthony P. Calisi, the prosecutor in Barrientes’s
capital murder trial, stating that, at the time of Barrientes’s
trial, he was unaware of the existence of any information
regarding the 1979 Unadjudicated Murder that was exculpatory in
nature. The affidavit further states that if Barrientes was not
involved in the 1979 Unadjudicated Murder, and if the State, at
the time of Barrientes’s capital murder trial, was aware of
Barrientes’s lack of involvement, “then [Calisi’s] inclusion and
reference [in closing argument] to the culpability of Mr.
Barrientes for the 1979 murder was improper.” Affidavit of
Anthony P. Calisi, subscribed and sworn on Feb. 14, 1992, at 2.
Calisi stated that, “[a]lthough [he could not] state with any
certainty whether omitting such argument would have changed the
jury verdict, [he felt] confident the inclusion of such argument
seriously impacted the jury and it’s [sic] decision.” Id.
Because the Amended First Federal Petition contained
additional information that had never been presented to the state
courts, Respondent Gary L. Johnson, Director, Texas Department of
Criminal Justice, Institutional Division (the “State”), moved to
dismiss the petition for failure to exhaust state remedies.
Based on the evidence presented in the petition, and without the
benefit of an evidentiary hearing, the district court was “of the
12
opinion that no writ of habeas corpus for release from
confinement should [have] issue[d] for Mr. Barrientes but that
his sentence of death should [have] be[en] vacated.” Barrientes
v. Collins, No. B-89-044, order at 1 (S.D. Tex. Aug. 23, 1995)
[hereinafter “1995 Order”]. Nonetheless, the district court
granted the State’s motion and dismissed the petition without
prejudice for failure to exhaust state remedies. It also entered
findings of fact and conclusions of law in support of its
opinion, for the state courts’ benefit and its own, “should this
matter not be disposed of at the State level.” Id. In November
of 1995, the district court denied Barrientes’s Application for
Certificate of Probable Cause, as did we in an unpublished
opinion. See Barrientes v. Johnson, No. 95-40880 (5th Cir. Aug.
20, 1996) (unpublished).
Barrientes returned to state court and filed a second state
post-conviction writ (the “Second State Petition”), which was, in
all relevant respects, identical to his Amended First Federal
Petition. His Second State Petition was dismissed as an abuse of
the writ. Then, in November 1997, Barrientes filed a second
federal petition (the “Second Federal Petition”), which was, in
all relevant respects, identical to his Amended First Federal
Petition and his Second State Petition. The State answered and
moved for summary judgment alleging, inter alia, that claims
asserted by Barrientes relying on evidence and factual
allegations not presented in his First State Petition were
13
procedurally barred. The district court entered a brief order on
February 27, 1998 (the “1998 Order”) that adopted the findings of
fact and conclusions of law detailed in its 1995 Order and stated
an additional ground for relief. The court consequently vacated
Barrientes’s death sentence and denied a writ of habeas corpus
for release from confinement.
The State filed a motion to reconsider the 1998 Order, and
Barrientes filed a motion to alter or amend the judgment under
Rule 59(e) of the Federal Rules of Civil Procedure. Both motions
were denied. The State timely appeals the court’s 1998 Order and
its denial of the motion to reconsider. Barrientes applied for a
certificate of probable cause (“CPC”) in the district court to
appeal certain claims on which habeas relief was denied, which
application the district court treated as an application for a
certificate of appealability (“COA”) under the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA” or the “Act”) and
denied. He now applies for a CPC in this court.
III. THE STATE’S APPEAL
A. Standard of Review
In reviewing a grant of habeas relief, we examine factual
findings for clear error and issues of law de novo. See Bledsue
v. Johnson, 188 F.3d 250, 254 (5th Cir. 1999). When examining
mixed questions of law and fact, we also utilize a de novo
14
standard by independently applying the law to the facts found by
the district court, as long as the district court’s factual
determinations are not clearly erroneous. See id.
B. Does AEDPA Apply?
The first question we must address is whether AEDPA applies
to Barrientes’s Second Federal Petition. Barrientes argues that
AEDPA does not apply to his petition and attempts to distinguish
this case from Graham v. Johnson, 168 F.3d 762 (5th Cir. 1999),
cert. denied, 120 S. Ct. 1830 (2000).
In Graham, the petitioner’s third federal habeas petition,
which was filed before the effective date of AEDPA, was dismissed
for failure to exhaust state remedies. The petitioner’s fourth
federal habeas petition, which was filed after the effective date
of AEDPA, was, we decided, governed by AEDPA. See id. at 788.
Because Graham’s first federal habeas petition was adjudicated on
the merits, his fourth petition was “second or successive” within
the meaning of the Act, 28 U.S.C. § 2244(b). See id. at 773-74.
Barrientes argues that his case is distinguishable from
Graham. One purpose of AEDPA, Barrientes asserts, was to curb
abuse of the federal writ, and such abuse does not exist in his
case where the petition at issue does not follow another federal
petition that was adjudicated on the merits. The petition at
issue in Graham was potentially abusive. Therefore, his argument
15
concludes, the rule adopted in Graham should not apply to this
case, and Barrientes’s Second Federal Petition should be treated
as a continuation of his dismissed Amended First Federal
Petition, making it subject to pre-AEDPA rules.
This argument is unpersuasive. We read Graham as holding
that a federal habeas corpus petition filed after the effective
date of AEDPA is governed by the Act where the petitioner’s
previous federal petition was filed before the effective date of
AEDPA and was dismissed without prejudice for failure to exhaust
state remedies. See id. at 788. Whether the petition at issue
will be considered “second or successive” within the meaning of
the Act is immaterial to the analysis. Barrientes’s Second
Federal Petition is subject to AEDPA; however, it is not a
“second or successive” petition within the meaning of the Act.
See Slack v. McDaniel, 120 S. Ct. 1595, 1605 (2000) (holding that
under pre-AEDPA law “[a] petition filed after a mixed petition
has been dismissed . . . before the district court adjudicated
any claims is . . . not a second or successive petition” and
declining to “suggest the definition of second or successive
would be different under AEDPA”); In re Gasery, 116 F.3d 1051,
1052 (5th Cir. 1997) (“[A] habeas petition refiled after
dismissal without prejudice . . . is merely a continuation of
[petitioner’s] first collateral attack, not a ‘second or
successive’ petition within the meaning of § 2244(b).”).
16
C. Claims Upon Which Relief Was Granted
Barrientes raises numerous claims in his Second Federal
Petition. His petition, however, does not clearly stake out the
precise constitutional violations he claims warrant the grant of
a writ of habeas corpus, and we have further difficulty
discerning the exact claims on which the district court granted
relief in its 1998 Order and 1995 Order. As we read Barrientes’s
various petitions and the two orders of the district court,
relief was granted upon six claims. For clarity, we detail these
claims and the district court’s rulings on those claims, as we
understand them. As discussed more fully later in this Part, the
State argues that the claims upon which relief was granted are
procedurally barred, that one of these claims is barred by the
doctrine of Teague v. Lane, 489 U.S. 288 (1989), and,
alternatively, that the district court abused its discretion by
failing to conduct an evidentiary hearing. The State does not
address the merits of the claims upon which the district court
granted relief. We are not called upon and do not express any
opinion on the merits of these claims.4
4
Finally, it appears the district court read none of the
claims in Barrientes’s various habeas petitions as being
predicated upon some variation of an assertion that evidence of
an arrest, without more, is insufficiently probative of guilt of
an unadjudicated crime to be introduced at the penalty phase of a
capital murder trial. His claims related to the admission of
evidence of unadjudicated crimes seem to assume that evidence of
17
1. Prosecutorial misconduct claims
Barrientes alleges a number of constitutional violations
under the heading of “Prosecutorial Misconduct.” Second Fed.
Petition at 27. The district court granted relief on the
following three claims:
a. Failure of the prosecution to turn over exculpatory evidence
(the “Brady Claim”)
Barrientes claims that the prosecutor failed to turn
over the information contained in the Sheriff’s File in violation
of Brady v. Maryland, 373 U.S. 83 (1963), and its progeny,
information that could have been used to impeach Garza’s
testimony at the sentencing hearing. Among other things, he
avers that evidence in the File indicates that only one person
committed the 1979 Unadjudicated Murder, that the investigation
of the 1979 Unadjudicated Murder focused on a different
individual, that the missing witness was believed to have fled to
another city, that no evidence in the File indicates that
investigators thought the missing witness had been murdered, and
an arrest can be probative evidence of an unadjudicated crime.
Indeed, when the evidence of his arrest for the 1979
Unadjudicated Murder was introduced at trial, his counsel
objected only on the basis of unfair surprise, not on the basis
that the evidence was either not probative or unfairly
prejudicial. In any event, the district court did not grant
relief based on such an assertion, and Barrientes does not raise
this assertion in his application for a COA. The issue is,
therefore, not before us.
18
that Barrientes passed at least one polygraph examination after
his arrest. See Second Fed. Petition at 20-21.
In Strickler v. Greene, 119 S. Ct. 1936 (1999), the Supreme
Court recently summarized its Brady jurisprudence. The Court
stated:
In Brady this Court held that the suppression by the
prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either
to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution. We have since held that the
duty to disclose such evidence is applicable even though
there has been no request by the accused, and that the duty
encompasses impeachment evidence as well as exculpatory
evidence. Such evidence is material if there is a
reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been
different. Moreover, the rule encompasses evidence known
only to police investigators and not to the prosecutor. In
order to comply with Brady, therefore, the individual
prosecutor has a duty to learn of any favorable evidence
known to the others acting on the government’s behalf in
this case, including the police.
Id. at 1948 (internal citations and quotation marks omitted); see
also id. at 1948 n.21.
In ruling on this claim, the district court stated:
It is the responsibility of the prosecution to disclose
material evidence privy only to the prosecution [sic] to
defense in order to allow the opportunity to prepare a
defense. Giglio v. United States, 405 U.S. 150, 153 (1972).
In this case, only the prosecution was aware of its
intention to introduce evidence of the 1979 unadjudicated
offense and the failure to give proper notice made it
unlikely that the defense would be able to lodge the proper
objections to its admission or to properly cross-examine Mr.
Garza once it was admitted. Thus, since the immediate goal
for our purposes is to examine the effect such misconduct
had, in the larger context of the entire trial, or in this
case, the entire penalty phase of trial, upon Petitioner’s
right to due process, omitting such notice was indeed
prosecutorial misconduct.
19
1995 Order at 20. We read this portion of the district court’s
order as a ruling that a Brady violation occurred.
b. Solicitation of false or misleading testimony (the “Giglio
Claim”)
Barrientes argues that Garza’s testimony regarding the 1979
Unadjudicated Murder was false. The known solicitation of false
testimony by the State may constitute a violation of due process.
See Giglio v. United States, 405 U.S. 150, 153-154 (1972). We
have previously explained regarding the use of misleading
evidence:
To establish a due process violation based on the
State’s knowing use of false or misleading evidence, [a
habeas petitioner] must show (1) the evidence was false, (2)
the evidence was material, and (3) the prosecution knew that
the evidence was false. Evidence is false if, inter alia,
it is specific misleading evidence important to the
prosecution’s case in chief. False evidence is material
only if there is any reasonable likelihood that [it] could
have affected the jury’s verdict.
Nobles v. Johnson, 127 F.3d 409, 415 (5th Cir. 1997) (internal
citations and quotation marks omitted, second alteration in
original).
The district court found that while the testimony given by
Garza was not actually false--that Barrientes had been arrested
for capital murder in 1979 and that a witness had disappeared--
“the context in which the testimony was invoked, and the argument
made by the prosecutor, gave the clear implication that Mr.
20
Barrientes had committed the 1979 murder and that he also did
away with the witness.” 1995 Order at 21-22. Citing Giglio, 405
U.S. at 153, and United States v. Antone, 603 F.2d 566, 569 (5th
Cir. 1979), the district court further found that these
implications were false and that the prosecutor should be imputed
with knowledge of their falsity. Relying in part on Giglio, 405
U.S. at 154, and Kirkpatrick v. Blackburn, 777 F.2d 272, 281 (5th
Cir. 1985), the district court concluded that improper
introduction of Garza’s testimony and the prosecutor’s
corresponding argument rendered “the penalty phase of trial . . .
fundamentally unfair, in derogation of Petitioner’s
constitutional rights.” 1995 Order at 23. We read the district
court’s order as granting relief on the Giglio Claim.
c. Improper comments during closing argument of the penalty
phase (the “Donnelly Claim”)
Barrientes claims that, during closing argument at the
penalty phase of his trial, the prosecutor asserted that
Barrientes had committed the 1979 Unadjudicated Murder and had
additionally murdered a witness in that case, despite knowledge
that neither allegation was true. “During the penalty phase of
[the] trial, the prosecuting attorney repeatedly argued that Mr.
Barrientes had committed the 1979 unadjudicated murder and that
Mr. Barrientes . . . also murdered [the] witness. . . . This
21
entire discourse and the prosecuting attorney’s conduct amount to
the use of false and prejudicial evidence . . . .” Second Fed.
Petition at 32.
“In habeas corpus proceedings, we review allegedly improper
prosecutorial statements made during a state trial to determine
whether they ‘so infected the [penalty phase of the] trial with
unfairness as to make the resulting [sentence] a denial of due
process.’” Ables v. Scott, 73 F.3d 591, 592 n.2 (5th Cir. 1996)
(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).
The statements must render the trial fundamentally unfair. “A
trial is fundamentally unfair if ‘there is a reasonable
probability that the verdict might have been different had the
trial been properly conducted.’” Foy v. Donnelly, 959 F.2d 1307,
1317 (5th Cir. 1992) (internal quotation marks omitted); see also
Little v. Johnson, 162 F.3d 855, 861 n.7 (5th Cir. 1998); Nichols
v. Scott, 69 F.3d 1255, 1278 (5th Cir. 1995). “[I]t is not
enough that the prosecutors’ remarks were undesirable or even
universally condemned. . . . Moreover, the appropriate standard
of review for such a claim on writ of habeas corpus is the narrow
one of due process, and not the broad exercise of supervisory
power.” Darden v. Wainwright, 477 U.S. 168, 181 (1986)
(quotation marks and internal citations omitted).
In its 1995 Order, the district court stated that “the
argument made by the prosecutor . . . gave the clear implication
that Mr. Barrientes committed the 1979 murder and that he also
22
did away with the witness. If [the prosecutor] knew or should
have known that this implication was false, the introduction of
the evidence and argument is prosecutorial misconduct.” 1995
Order at 22-23. We understand the district court’s order as
concluding that the prosecutor should be imputed with knowledge
of the falsity of his statements and further concluding that the
argument rendered the penalty phase of the trial unfair. See id.
at 23-24.
2. Ineffective assistance of counsel (the “Strickland Claims”)
Barrientes further alleges that he was denied the effective
assistance of counsel. The district court granted relief on the
following two claims: that Barrientes’s trial counsel was
ineffective for failing to request a recess after evidence of the
1979 Unadjudicated Murder was introduced and that his appellate
counsel, who was the same person who represented Barrientes at
trial, was ineffective for failing to raise as error on direct
appeal the fact that evidence of the 1979 Unadjudicated Murder
was admitted over the objection of surprise.
Claims of ineffective assistance of counsel are evaluated
under the familiar standard first enunciated by the Supreme Court
in Strickland v. Washington, 466 U.S. 668 (1984). Under that
standard, a habeas petitioner must “demonstrate both that
counsel’s performance was deficient and that the deficiency
23
prejudiced the defense.” Crane v. Johnson, 178 F.3d 309, 312
(5th Cir. 1999).
To establish the first prong of deficient performance,
[a habeas petitioner] must show that his trial counsel made
errors so serious that counsel was not functioning as the
counsel guaranteed ... by the Sixth Amendment. However,
this Court must be highly deferential of counsel’s
performance and must make every effort to eliminate the
distorting effects of hindsight. Therefore, we must indulge
a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance. We will
not find ineffective assistance of counsel merely because we
disagree with counsel’s trial strategy.
For the second prong, [the petitioner] must show a
reasonable probability that the result of the proceedings
would have been different but for counsel’s unprofessional
errors. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.
Id. (internal citations and quotation marks omitted). “[I]n
cases involving mere ‘attorney error,’ we require the defendant
to demonstrate that the errors ‘actually had an adverse effect on
the defense.’” Roe v. Flores-Ortega, 120 S. Ct. 1029, 1037
(2000) (quoting Strickland, 466 U.S. at 693).
The district court stated in regard to the first of
Barrientes’s two claims that:
Petitioner alleges that [trial counsel] failed to
effectively block the admission of Mr. Barrientes [sic] 1979
arrest for capital murder. As a result of the prosecution’s
failure to notice defense counsel of his intent to offer
these facts into evidence, defense counsel was surprised by
the attempt to introduce such evidence and, consequently,
unprepared to make the proper objections. [Defense counsel]
did properly object to the admission of the evidence on the
basis of surprise but upon, having been overruled,
thereafter failed to move for a recess in order to
investigate the 1979 arrest. It appears from the record
that this failure was indeed prejudicial. Since this
allegation is related to the admission of evidence of the
24
1979 unadjudicated capital murder the effect of this failure
in counsel performance will be discussed inclusively in the
section below.
1995 Order at 14-15. Later in its order, the court concluded
that “[t]he added failure of defense counsel to move for a recess
in order to investigate the proposed introduction, despite Mr.
Barrientes’s repeated insistence on his having been exonerated of
this offense, removed any final relief for Mr. Barrientes.” Id.
at 21. The district court stated with regard to Barrientes’s
second claim that “Petitioner is correct that the admission of
[evidence of the 1979 Unadjudicated Murder] over the objection of
surprise gave defense counsel a basis for appeal. . . . Defense
counsel’s assistance was ineffective for failing to allege this
error on appeal.” Id. at 22. We read the district court’s
statements as granting relief on the ineffective assistance
claims discussed.
3. The admission of evidence of unadjudicated crimes
(“Preliminary Showing Claim”)
Barrientes makes several claims regarding the admission of
evidence of unadjudicated crimes. The district court granted
relief on one of these claims. In his petition, Barrientes
argued that “[t]he admission of evidence of unadjudicated crimes,
without evidence that a crime had been committed[,] . . . was
25
admitted during the penalty phase of Mr. Barrientes’ capital
trial and, accordingly, [his] sentence of death violates the
Eighth and Fourteenth Amendments to the United States
Constitution.” Second Fed. Petition at 54.
The district court read this statement as a claim that,
before evidence of an unadjudicated crime can be admitted in the
sentencing phase of a trial, the prosecution must make a
preliminary showing to the court that a reasonable jury could
find the defendant committed the unadjudicated crime by a certain
standard of proof. In its 1998 Order, the district court stated:
The issue before this Court is whether a certain
standard of proof is required before any evidence of an
unadjudicated offense should be admitted at the sentencing
phase of a capital murder trial in order to prove that a
person might be a future danger to society. In Turner v.
Johnson, 106 F.3d 1178, 1189 (5th Cir. 1997), the Fifth
Circuit recognizes that a jury may here [sic] evidence of an
unadjudicated offense if the trial court concludes that a
reasonable jury could find that the accused committed the
offense by a preponderance of the evidence. Huddleston v.
United States, 485 U.S. 681 (1988). In the Petitioner’s
case, such a preliminary showing was not made and the
evidence was admitted even though Defense Counsel objected
to its introduction. This Court remains of the opinion that
the admissibility of such evidence contributed to the
Petitioner’s death sentence and the proceedings at the
penalty phase of the trial did not meet the required
procedural protections guaranteed by the U.S. Constitution.
Barrientes v. Johnson, No. B-89-044, order at 4 (S.D. Tex. Feb.
27, 1998) [hereinafter “1998 Order”]. While we have serious
reservations whether this legal conclusion addresses a claim
raised by Barrientes, we assume arguendo that it addresses the
claim quoted above.
26
4. Materiality, error, and prejudice
In Chapman v. California, the Supreme Court held that “there
may be some constitutional errors which in the setting of a
particular case are so unimportant and insignificant that they
may, consistent with the Federal Constitution, be deemed
harmless, not requiring the automatic reversal of the
conviction.” 386 U.S. 18, 22 (1967). In Brecht v. Abrahamson,
507 U.S. 619 (1993), the Court addressed the issue of harmless
error in the context of collateral review. The Court explained
that “the writ of habeas corpus has historically been regarded as
an extraordinary remedy, a bulwark against convictions that
violate fundamental fairness. Those few who are ultimately
successful [in obtaining habeas relief] are persons whom society
has grievously wronged and for whom belated liberation is little
enough compensation.” Id. at 633-34 (internal citations and
quotation marks omitted) (alteration in original). Accordingly,
the Court determined that “habeas petitioners may obtain plenary
review of their constitutional claims, but they are not entitled
to habeas relief based on trial error unless they can establish
that it resulted in ‘actual prejudice.’” Id. at 637. This
standard requires a court to determine “whether the error had
substantial and injurious effect or influence in determining the
jury’s verdict.” Id. (quotation marks omitted).
27
Of course, harmless error analysis applies to errors
commonly referred to as “trial errors.” In Brecht, the Supreme
Court distinguished between errors of this type and “structural
defects.”
Trial error occur[s] during the presentation of the case to
the jury, and is amenable to harmless-error analysis because
it may . . . be quantitatively assessed in the context of
other evidence presented in order to determine [the effect
it had on the trial]. At the other end of the spectrum of
constitutional errors lie structural defects in the
constitution of the trial mechanism, which defy analysis by
harmless-error standards. The existence of such
defects--deprivation of the right to counsel, for
example--requires automatic reversal of the conviction
because they infect the entire trial process.
Id. at 629-30 (internal citations and quotation marks omitted)
(alterations in original).
In Kyles v. Whitley, 514 U.S. 419 (1995), the Supreme Court
explained that Brecht harmless error analysis is unnecessary when
the inquiry for a particular habeas claim requires application of
the more demanding “reasonable probability” standard. See id. at
435-36. This standard requires the petitioner to demonstrate a
reasonable probability that, but for the error, “the result of
the proceeding would have been different”. Strickler, 119 S. Ct.
at 1948. Both Brady claims and Strickland claims utilize the
more demanding “reasonable probability” standard. See id. (Brady
claim); Crane, 178 F.3d at 312 (Strickland claim). Moreover, in
this circuit, the “reasonable probability” standard is built into
the determination of whether improper prosecutor comments
28
rendered the trial fundamentally unfair. See Foy, 959 F.2d at
1317.
In adjudicating a claim involving the use of false
testimony, the “any reasonable likelihood” standard has been
applied to determine materiality. See Giglio, 405 U.S. at 153-
54. Under that standard, “[a] new trial is required if ‘the
false testimony could . . . in any reasonable likelihood have
affected the judgment of the jury . . .’” Id. at 154 (quoting
Napue v. Illinois, 360 U.S. 264, 271 (1959)). This standard is
considered less demanding on a defendant than either the
“reasonable probability” or Brecht harmless-error standards. See
generally Strickler, 119 S. Ct. at 1956-58 (Souter, J.,
concurring) (discussing the standards).
We have never specifically addressed whether, when
addressing a claim utilizing the “any reasonable likelihood”
standard of materiality in the habeas context, we must
additionally apply the more-demanding Brecht harmless-error
standard if we find the petitioner presents a valid claim. After
considering the interests of finality and state sovereignty
supporting the Supreme Court’s decision in Brecht, see 507 U.S.
at 635-37, and weighing those interests against the Court’s
recognition that “a deliberate and especially egregious error of
the trial type, or one that is combined with a pattern of
prosecutorial misconduct, might so infect the integrity of the
proceeding as to warrant the grant of habeas relief, even if it
29
did not substantially influence the jury’s verdict,” id. at 638
n.9, we assume, without deciding, that it is appropriate to
conduct a Brecht harmless-error analysis in such a circumstance.
See Gilday v. Callahan, 59 F.3d 257, 268 (1st Cir. 1995)
(applying Brecht harmless-error to a claim of knowing use of
perjured testimony).
Finally, with regard to the Preliminary Showing Claim, the
district court did not specifically apply a harmless error
analysis. It simply stated that “the admissibility of [the
unadjudicated crime] evidence contributed to the Petitioner’s
death sentence and the proceedings at the penalty phase of the
trial did not meet the required procedural protections guaranteed
by the U.S. Constitution.” 1998 Order at 4. Because the
district court chose not to apply the Brecht harmless-error
analysis to this claim, we assume for purposes of this opinion
that it concluded that the error was of the “structural defect”
type that does not require harmless-error analysis.5
Consequently, every claim upon which the district court
granted relief, save for the Preliminary Showing Claim, required
some sort of showing of materiality, prejudice, or harmful error.
At the root of each of these determinations was the Sheriff’s
File and its contents. For the Brady Claim, there was an
implicit conclusion that, based upon the contents of the File,
5
We take no position on whether such a conclusion was
warranted.
30
there was a reasonable probability that, had the File been
disclosed to the defense, the result of the proceeding would have
been different. For the Giglio Claim, the district court
concluded, based upon the contents of the File, that Garza’s
testimony was false or misleading and there was a reasonable
likelihood that his testimony could have affected the jury’s
verdict.6 For the Donnelly Claim, the district court concluded,
based upon the contents of the File, that the prosecutor’s
comments were improper, and the comments rendered the penalty
phase of the trial fundamentally unfair. Finally, regarding the
Strickland Claims, there was an implicit conclusion that, based
upon the contents of the File, there is a reasonable probability
that the outcome of the penalty phase would have been different
had counsel not performed deficiently. The resolution of all
five of these claims was therefore dependent upon the contents of
the Sheriff’s File.
D. The State’s Arguments
The State makes three arguments on appeal. First, it argues
that the district court erred by granting relief on procedurally
barred claims. Second, it argues that the district court’s
ruling in its 1998 Order granting relief on the Preliminary
Showing Claim relied on a rule of law that was not presented to
6
We assume that the district court additionally determined
that the error was not harmless under Brecht.
31
the state courts and whose retroactive application is barred by
Teague v. Lane, 489 U.S. 288 (1989). Finally, it argues
alternatively that the district court erred by failing to grant
an evidentiary hearing.
In the sections that follow, we determine, first, that the
Texas Court of Criminal Appeals’s dismissal of Barrientes’s
Second State Petition constituted an independent and adequate
state ground barring consideration of affected claims absent a
showing of cause and actual prejudice. Next, we decide that of
the claims upon which relief was granted, all but the Preliminary
Showing Claim are affected by the issue of procedural bar.
Because the Preliminary Showing Claim is not affected by the
potential procedural bar, we need not determine whether
Barrientes has established cause and prejudice to overcome his
default if the Preliminary Showing Claim independently supports
the relief granted by the district court. We determine, however,
that the rule announced by the district court in granting relief
on the Preliminary Showing Claim is Teague-barred, and that that
relief therefore cannot independently support the district
court’s ruling.
Consequently, we must ascertain whether Barrientes has
established cause and actual prejudice to overcome his default.
We conclude that a hearing in the district court is necessary to
determine whether Barrientes has established cause and actual
prejudice.
32
Accordingly, we reverse that portion of the district court’s
1998 Order granting relief on the Preliminary Showing Claim and
vacate those portions of the district court’s 1998 and 1995
Orders granting relief on the other five claims, and we remand
the case for a determination of cause and prejudice. Finally, we
determine that the district court should have granted an
evidentiary hearing on the merits of the claims affected by the
Sheriff’s File and that such a hearing is not barred by 28 U.S.C.
§ 2254(e)(2). We therefore instruct the district court to
conduct an evidentiary hearing on the merits of the affected
claims, should it find that Barrientes has established cause and
prejudice to overcome his procedural default.
We turn now to the specifics.
1. Procedural Bar
A federal court cannot consider a petitioner’s
constitutional claim in a habeas proceeding if the state court
rejected that claim on an adequate and independent state ground,
“unless the prisoner can demonstrate cause for the default and
actual prejudice as a result of the alleged violation of federal
law, or demonstrate that failure to consider the claims will
result in a fundamental miscarriage of justice,” Coleman v.
Thompson, 501 U.S. 722, 750 (1991); see also Martin v. Maxey, 98
F.3d 844, 847 (5th Cir. 1996). The state must “clearly and
33
expressly” rely on the adequate and independent state ground.
Coleman, 501 U.S. at 735. We now turn our attention to the
question of adequacy7 and address the State’s argument that the
dismissal of Barrientes’s Second State Petition as an abuse of
the writ is an adequate and independent state ground that
procedurally bars consideration of certain claims in a federal
habeas proceeding.8
a. Texas’s abuse-of-the-writ doctrine
Barrientes’s Second State Petition was dismissed as an abuse
of the writ under Texas Code of Criminal Procedure article 11.071
§ 5.9 We have previously held that Texas’s abuse-of-the-writ
7
It is undisputed by the parties that the Texas Court of
Criminal Appeals, in dismissing Barrientes’s Second State
Petition, clearly and expressly relied on a rationale independent
of federal law.
8
As we read the State’s brief and certain of its filings in
the district court, it also argues that certain of Barrientes’s
claims remain unexhausted because the Texas Court of Criminal
Appeals dismissed his Second State Petition rather than
addressing it on the merits. This argument has no merit. It has
long been accepted that when a state court disposes of
unexhausted claims on purely procedural grounds, those claims
become exhausted. See Gray v. Netherland, 518 U.S. 152, 161
(1996) (“[The exhaustion requirement] is satisfied if it is clear
that [the habeas petitioner’s] claims are now procedurally barred
under [state] law.” (internal quotation marks omitted, citation
omitted, and last two alterations in original)); Coleman, 501
U.S. at 732 (“A habeas petitioner who has defaulted on his
federal claims in state court meets the technical requirements
for exhaustion . . . .”); Engle v. Isaac, 456 U.S. 107, 125-26
n.28 (1982) (same).
9
The statute provides, in pertinent part:
34
Notwithstanding any other provision of this chapter,
this article establishes the procedures for an application
for a writ of habeas corpus in which the applicant seeks
relief from a judgment imposing a penalty of death.
. . . .
Sec. 5.
(a) If a subsequent application for a writ of habeas corpus
is filed after filing an initial application, a court
may not consider the merits of or grant relief based on
the subsequent application unless the application
contains sufficient specific facts establishing that:
(1) the current claims and issues have not been and
could not have been presented previously in a
timely initial application or in a previously
considered application filed under this article or
Article 11.07 because the factual or legal basis
for the claim was unavailable on the date the
applicant filed the previous application;
(2) by a preponderance of the evidence, but for a
violation of the United States Constitution no
rational juror could have found the applicant
guilty beyond a reasonable doubt; or
(3) by clear and convincing evidence, but for a
violation of the United States Constitution no
rational juror would have answered in the state’s
favor one or more of the special issues that were
submitted to the jury in the applicant’s trial
under Article 37.071 or 37.0711.
. . . .
(d) For purposes of Subsection (a)(1), a legal basis of a
claim is unavailable on or before a date described by
Subsection (a)(1) if the legal basis was not recognized
by or could not have been reasonably formulated from a
final decision of the United States Supreme Court, a
court of appeals of the United States, or a court of
appellate jurisdiction of this state on or before that
date.
(e) For purposes of Subsection (a)(1), a factual basis of a
claim is unavailable on or before a date described by
Subsection (a)(1) if the factual basis was not
ascertainable through the exercise of reasonable
diligence on or before that date.
35
doctrine has, since 1994, provided an adequate state ground for
the purpose of imposing a procedural bar.10 See Emery v.
Johnson, 139 F.3d 191, 195-96 (5th Cir. 1997). In Emery, we
stated:
An abuse of the writ can qualify as a procedural bar.
A procedural bar is not adequate, however, unless it is
applied strictly or regularly to the vast majority of
similar claims. Historically, Texas courts have failed to
apply the abuse-of-the-writ doctrine in a strict or regular
manner, and, therefore, we have refused to honor it.
TEX. CODE CRIM. P. ANN. art. 11.071 (West Supp. 2000).
10
We discuss our precedent dealing with Texas’s judicially
created abuse-of-the-writ doctrine, even though the Texas Court
of Criminal Appeals dismissed Barrientes’s Second State Petition
under article 11.071. In Nobles v. Johnson, we declined to
decide whether article 11.071 is a codification of the abuse-of-
the-writ doctrine. See 127 F.3d 409, 423 n. 32 (5th Cir. 1997).
We stated:
We note that in his concurring opinion in Davis, Judge
McCormick, joined by Judges White, Meyers, and Keller,
expressed the opinion that “[t]he successive writ provisions
of Article 11.071, Section 5(a), for the most part are
merely a legislative codification of the judicially created
‘abuse of the writ’ doctrine.” Ex parte Davis, 947 S.W.2d
at 226 (McCormick, J., concurring). In view of the dearth
of judicial interpretation of Article 11.071 § 5(a),
however, we cannot definitively say, and therefore do not
venture to guess, whether that section was intended to
codify the preexisting abuse-of-writ doctrine. We provide
an alternate basis for finding procedural default, then,
assuming that the abuse-of-writ doctrine is still viable in
light of Article 11.071 § 5(a).
Id. Since our opinion in Nobles, the Texas Court of Criminal
Appeals has clarified that, “[a]lthough Presiding Judge
McCormick’s opinion [in Davis] is labeled a concurring opinion,
it was joined by a majority of the Court and may be regarded as
an opinion for the Court.” Ex parte Smith, 977 S.W.2d 610, 611
n.4 (Tex. Ct. Crim. App. 1998). We treat article 11.071 as a
codification of the Texas abuse-of-the-writ doctrine.
36
This changed in 1994, when the Texas Court of Criminal
Appeals announced the adoption of a strict abuse-of-the-writ
doctrine, tempered only by an exception for cause. See Ex
parte Barber, 879 S.W.2d 889, 891 n.1 (Tex. Crim. App. 1994)
(en banc) (plurality opinion). Barber represents an
adequate procedural bar for purposes of federal habeas
review.
Id. (most citations and all internal quotation marks omitted).
b. Controlling date
Barrientes argues that the Texas abuse-of-the-writ doctrine
should not bar his claims despite the fact that his Second State
Petition was dismissed as an abuse of the writ after 1994. He
argues that in determining the adequacy of the abuse-of-the-writ
doctrine in this case, we should look to the date on which his
First State Petition was filed (in 1988) because that is the
point at which he defaulted. He relies on Fields v. Calderon,
125 F.3d 757 (9th Cir. 1997), in which the Court of Appeals for
the Ninth Circuit adopted a rule that adequacy should be
determined at the point “when the defaulted claims should have
been raised.” Id. at 760. In that case, much like the instant
case, the court was faced with a state procedural rule that
existed throughout the proceedings at issue but was not, at the
time the petitioner failed to raise the claims in question,
applied “strictly or regularly to the vast majority of similar
37
claims.” The rule, however, was so applied at the time the state
court decided that the claims at issue were defaulted.11
Barrientes’s reliance on Fields is misplaced because the
cases in this circuit have reached the opposite conclusion,
foreclosing his argument. Barrientes argues that our holding in
Lowe v. Scott, 48 F.3d 873 (5th Cir. 1995), is in accord with the
Fields rule and that it must be adhered to despite the opposite
result reached in subsequent cases. See In the Matter of Dyke,
943 F.2d 1435, 1442 (5th Cir. 1991). Barrientes stretches Lowe
beyond its natural reading. It is true, as Barrientes points
out, that the final state habeas petition in Lowe was filed in
1990 before Texas’s Barber decision, but it was also dismissed as
an abuse of the writ before Barber was decided. See Lowe, 48
F.3d at 874-75. Our decision that the Texas abuse-of-the-writ
doctrine was inadequate in Lowe’s case, therefore, does not
necessitate the conclusion that we determined adequacy as of the
date Lowe took action creating the default, that is, as of the
date he filed his first state petition that failed to include all
of the claims raised in his federal petition.
11
The Court of Appeals for the Tenth Circuit, relying on
Fields, has recently adopted the same rule. See Walker v.
Attorney General, 167 F.3d 1339, 1344-45 (10th Cir. 1999).
Unlike the situation in the instant case or in Fields, however,
the Tenth Circuit gave some indication in Walker that the rule at
issue did not exist at the time the defendant failed to comply
with it. See id. at 1345.
38
Cases decided after Lowe, however, necessitate the
conclusion that we determine adequacy as of the date that the
Texas court dismissed, or would dismiss, the claims at issue as
an abuse of the writ. In Fearance v. Scott, we found ourselves
barred from considering a claim raised for the first time in a
state habeas petition filed in 1995, which the state rejected as
an abuse of the writ because it had not been included in
petitioner’s previous state habeas petition filed in 1992. See
56 F.3d 633, 642 (5th Cir. 1995). We determined adequacy as of
the date his claims were dismissed, noting that at the time “the
state district court dismissed an issue raised in Fearance’s
third petition that was not raised in his earlier petition it was
no longer acting with any discretion.” Id.
In Nobles v. Johnson, Nobles filed his first state habeas
petition in 1993. See 127 F.3d 409, 412 (5th Cir. 1997). We
affirmed the district court’s ruling that a claim first presented
in Nobles’s federal habeas petition was procedurally barred
because it would be dismissed as an abuse of the writ if included
in a future state habeas petition. See id. at 423. Muniz v.
Johnson, 132 F.3d 214 (5th Cir. 1998), and Little v. Johnson, 162
F.3d 855 (5th Cir. 1998), are also in accord with the Fearance
rule.12 Our precedent requires us, at least in the case of the
12
Additionally, we read Supreme Court precedent informing
this rule differently from how the Ninth Circuit does. The Ninth
Circuit placed substantial reliance on notice. But in the
Supreme Court cases cited in Fields, NAACP v. Alabama ex rel.
39
Texas abuse-of-the-writ doctrine, to determine adequacy as of the
date the Texas court determines that a claim is procedurally
defaulted.
The Texas Court of Criminal Appeals dismissed Barrientes’s
Second State Petition in 1997, several years after Barber was
decided and Texas Code of Criminal Procedure article 11.071 § 5
was passed. The dismissal constituted an independent and
adequate state ground. Our task, then, is to determine whether
the claims upon which the district court granted relief are
procedurally barred by this dismissal.
c. Barred claims
In our 1996 unpublished opinion denying Barrientes’s
application for a CPC to review the district court’s dismissal of
Patterson, 357 U.S. 449 (1958), and Ford v. Georgia, 498 U.S. 411
(1991), unlike the instant case and Fields, the state procedural
rule at issue was non-existent at the time the petitioner took
the action that resulted in default. Indeed, in both cases, the
rule was arguably non-existent until announced and applied to the
petitioner in that case. While adequacy is concerned with notice
and fairness, it is also concerned with ensuring that state
courts cannot prevent federal adjudication of federal rights by
applying one-time rules to particular litigants.
The Texas abuse-of-the-writ doctrine was not “unannounced”
at the time Barrientes filed his First Federal Petition; it was
in “existence.” As we have noted, it was not strictly or
regularly applied, but it did exist. See Ex parte Dora, 548
S.W.2d 392, 393-94 (Tex. Crim. App. 1977). Barrientes was on
notice that future petitions might be subject to default. At the
time the Texas Court of Criminal Appeals dismissed Barrientes’s
Second State Petition, however, the rule was strictly and
regularly applied. There is therefore no concern that a one-time
procedural rule is being applied in Barrientes’s case.
40
his Amended First Federal Petition for failure to exhaust state
remedies, we noted three areas in which the State argued that
Barrientes presented new factual allegations or significantly
stronger evidentiary support for certain of his claims:
(1) Although Barrientes had presented his claim that the
State improperly admitted evidence of his unadjudicated 1979
capital murder arrest at the penalty phase and improperly
argued concerning this arrest to the state habeas court,
Barrientes presented significantly stronger evidentiary
support for this argument in his amended federal habeas
petition. Specifically, Barrientes included with his
amended federal habeas petition the Cameron County sheriff’s
office’s file on the 1979 arrest, indicating that the
charges against Barrientes were dropped, as well as an
affidavit by the prosecutor that, had he known the
exculpatory information contained in the police file, he
would not have argued or presented evidence regarding the
1979 arrest at the penalty phase of Barrientes’s trial.
(2) Although Barrientes had argued to the state habeas court
that David Meza’s testimony was fabricated, he had not
alleged before the state habeas court that Meza lied because
the district attorney’s office threatened him. In his
federal petition, Barrientes argued that Meza testified
falsely because the district attorney’s office threatened
him, and offered Meza’s testimony to that effect.
(3) Before the state habeas court, Barrientes had broadly
asserted that his counsel was ineffective for failing to
interview witnesses to obtain information with which to
impeach the government’s principal witness, Felix Sanchez.
However, in his federal habeas petition, Barrientes
specifically alleged and offered evidence that Sanchez’s
wife and mother would have testified in a way that would
have undermined Sanchez’s credibility.
Barrientes v. Johnson, No. 95-40880, at 4-5 (5th Cir. Aug. 20,
1996) (unpublished) (quoting the State’s Motion to Dismiss).
We held that claims relying on the new factual allegations
or significantly stronger evidentiary support were unexhausted.
We explained:
41
The record demonstrates that Barrientes’s amended federal
habeas petition presents new factual allegations and
significantly stronger evidentiary support for his legal
claims than he had presented to the state habeas court. We
have held that a habeas petitioner fails to exhaust state
remedies when he presents additional factual allegations and
evidentiary support to the federal court that was not
presented to the state court. See Joyner v. King, 786 F.2d
1317, 1320 (5th Cir.) (holding that “the policies of comity
and federalism underlying the exhaustion doctrine” require
that “new factual allegations in support of previously
asserted legal theory” be first presented to the state
court), cert. denied, 479 U.S. 1010 (1986); Brown v.
Estelle, 701 F.2d 494, 495-96 (5th Cir. 1983) (holding that
when a claim is filed in federal court in a significantly
stronger evidentiary posture than it was before the state
court, it must be dismissed for failure to exhaust state
remedies and remanded to the state court).
Id. at 5-6. We denied Barrientes’s CPC application, and he
returned to state court to exhaust the claims that relied on the
new factual allegations and significantly stronger evidentiary
support. Of the claims upon which relief was granted, all but
the Preliminary Showing Claim rely on the significantly stronger
evidentiary support Barrientes claims is provided by the
Sheriff’s File. The Texas Court of Criminal Appeals denied his
Second State Petition as an abuse of the writ, and these claims
are therefore barred, unless Barrientes can show cause and
prejudice for defaulting on these claims.13
2. The non-barred Preliminary Showing Claim
13
Barrientes does not rely on the “manifest injustice”
exception to procedural bar.
42
Before proceeding to determine whether Barrientes has
established cause and prejudice for his procedural default, we
pause to address an issue that could pretermit that
determination. We need not address the issues of cause and
prejudice if the Preliminary Showing Claim, which we assumed in
Part III-C-4, supra, did not rely on the contents of the
Sheriff’s File, is sufficient to support the relief granted by
the district court. The State argues first that this ground for
relief was never claimed by Barrientes, that if he claimed it now
before the state court it would be dismissed as an abuse of the
writ, and therefore that it is procedurally barred. See Coleman,
501 U.S. at 735 n.* (“[I]f the petitioner failed to exhaust state
remedies and the court to which the petitioner would be required
to present his claims in order to meet the exhaustion requirement
would now find the claims procedurally barred[, then] . . . there
is a procedural default for purposes of federal habeas regardless
of the decision of the last state court to which the petitioner
actually presented his claims.”). Alternatively, the State
argues that the rule announced by the district court is Teague-
barred. As we stated in Part III-C-3, supra, we assume, despite
serious reservations, that the district court’s relief addressed
a claim actually raised in Barrientes’s petition. We therefore
address the State’s alternative argument and determine whether
the district court’s relief is Teague-barred.
43
We begin by noting that the district court misstated Fifth
Circuit law. In Turner, we simply held that evidence of
unadjudicated crimes presented at the sentencing phase of a
capital murder trial need not be proved beyond a reasonable
doubt. See Turner, 106 F.3d at 1189 (“Although the due process
clause requires the state to prove each element of the offense
charged beyond a reasonable doubt to secure a conviction, neither
this court nor the Supreme Court has ever held that a similar
burden exists regarding the proof of facts adduced during the
sentencing phase.” (footnote omitted)). Moreover, we can find no
other precedent from this court or the Supreme Court that
supports the proposition on which the district court’s grant of
relief relies. We need not determine whether the rule announced
by the district court is of constitutional significance, however,
because we conclude that, even if it is, its application in this
case is barred by the nonretroactivity rule of Teague v. Lane,
489 U.S. 288 (1989).
In determining whether a state prisoner is entitled to
habeas relief, a federal court should apply Teague by
proceeding in three steps. First, we must determine when
[the defendant’s] conviction and sentence became final for
Teague purposes. Second, we must survey the legal landscape
as it then existed and determine whether a state court
considering the defendant’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. Third, if we determine that [the defendant]
seeks the benefit of a new rule, we must consider whether
that rule falls within one of the two narrow exceptions to
the nonretroactivity principle.
44
Fisher v. Texas, 169 F.3d 295, 305 (5th Cir. 1999) (citations and
internal quotation marks omitted). An exception exists if the
rule “places certain kinds of primary, private individual conduct
beyond the power of the criminal law-making authority to
proscribe” or if it is a rule of procedure that is “implicit in
the concept of ordered liberty.” Teague, 489 U.S. at 307
(internal quotation marks omitted). This second exception is
“reserved for watershed rules of criminal procedure.” Id. at
311.
“A state conviction and sentence become final for purposes
of retroactivity analysis when the availability of direct appeal
to the state courts has been exhausted and the time for filing a
petition for a writ of certiorari has elapsed or a timely filed
petition has been finally denied.” Caspari v. Bohlen, 510 U.S.
383, 390 (1994). Barrientes’s petition for certiorari was denied
in 1988. We easily conclude that, at that time, “reasonable
jurists hearing petitioner’s claim . . . ‘would [not] have felt
compelled by existing precedent’ to rule in his favor.” Graham
v. Collins, 506 U.S. 461, 467 (1993) (quoting Saffle v. Parks,
494 U.S. 484, 488 (1990)). Finally, the rule does not fall
within one of the two narrow exceptions. The new rule announced
by the district court is therefore Teague-barred.
3. Cause and prejudice
45
Having determined that the Preliminary Showing Claim is
Teague-barred, we turn our attention to the question of whether
cause and prejudice exist to excuse Barrientes’s procedural
default on the five remaining claims as to which the district
court granted relief.
“[T]he resolution of ‘when and how defaults in compliance
with state procedural rules can preclude [federal court]
consideration of a federal question is itself a federal
question.’” Fairman v. Anderson, 188 F.3d 635, 641 (5th Cir.
1999) (alteration in original) (quoting Johnson v. Mississippi,
486 U.S. 578, 587 (1988)). To the extent, therefore, that the
Texas Court of Criminal Appeals decided issues of cause and
prejudice in dismissing Barrientes’s Second State Petition, we
are not bound by its decision. In considering cause and
prejudice in this case, we are mindful that “[w]here a district
court fails to make necessary findings, a remand for entry of
such findings is the usual recourse for an appellate court;
however, where all of the issues on appeal may be fairly resolved
from the record presented, a remand may not be required.” In the
Matter of Legel, Braswell Gov’t Securities Corp., 648 F.2d 321,
326 n.8 (5th Cir. Unit B 1981).
Here, the district court has never explicitly addressed the
issues of cause and prejudice. In its 1998 Order, it simply
stated, “[t]he court has reviewed the file of the 1979 murder
case which apparently was not available at the punishment phase
46
of the trial.” 1998 Order at 3. Likewise, in its 1995 Order, it
stated, “[i]n addition, since the filing of his First Federal
Petition, as reflected in the Amended Petition, Petitioner has
recovered the Cameron County police file related to the 1979
capital murder.” 1995 Order at 21. Finally, in its Order
denying Petitioner’s Rule 59(e) Motion, the court stated,
“[f]urthermore, this Court denied the Respondent’s Motion to
Reconsider the 1998 Order, and obviously disagrees with the
Respondent’s argument that the Petitioner’s claims should be
‘procedurally barred . . . .’” Barrientes v. Johnson, No. B-89-
044 (S.D. Tex Aug. 26, 1998) (order at 1). Our task, then, is to
determine whether the issues of cause and prejudice “may be
fairly resolved from the record presented” or whether remand is
necessary.
a. Cause
With regard to the issue of cause, the Supreme Court has
stated that:
the existence of cause for a procedural default must
ordinarily turn on whether the prisoner can show that some
objective factor external to the defense impeded counsel’s
efforts to comply with the State’s procedural rule. . . .
[A] showing that the factual or legal basis for a claim was
not reasonably available to counsel, or that some
interference by officials made compliance impracticable,
would constitute cause under this standard.
Murray v. Carrier, 477 U.S. 478, 488 (1986) (internal citations
and quotation marks omitted.
47
Barrientes asserts that cause exists in this case because 1)
despite diligent pursuit, habeas counsel had only four months to
secure the file, which proved insufficient; 2) counsel’s
discovery motions were denied and attempts to elicit testimony at
the state evidentiary hearing on ineffective assistance of
counsel were thwarted by the state judge; and 3) counsel’s
efforts were frustrated by State officers and the exception to
the Texas Open Records Act, Texas Government Code § 552.101, et
seq., that applies to investigative records.14
14
The Texas Open Records Act provides, in pertinent part:
(1) . . . [I]t is the policy of this state that each person
is entitled, unless otherwise expressly provided by
law, at all times to complete information about the
affairs of government and the official acts of public
officials and employees. . . . The provisions of this
chapter shall be liberally construed to implement this
policy.
(2) This chapter shall be liberally construed in favor of
granting a request for information.
TEX. GOV’T CODE ANN. § 552.001 (West 1994). The Act further
provides that “[p]ublic information is available to the public
during the normal business hours of the governmental body.” Id.
§ 552.021(b). Public information is defined as “information that
is collected, assembled, or maintained under a law or ordinance
or in connection with the transaction of official business . . .
by a governmental body . . . .” Id. § 552.002 (West Supp. 2000).
Not all information must be made public, however.
“Information is excepted from the requirements of Section 552.021
if it is information considered to be confidential by law, either
constitutional, statutory, or by judicial decision.” Id.
§ 552.101 (West 1994). Some investigatory information is
considered confidential:
(a) Information held by a law enforcement agency or
prosecutor that deals with the detection,
48
We decline to hold that a four-month investigative time-
investigation, or prosecution of crime is excepted from
the requirements of Section 552.021 if:
(1) release of the information would interfere with
the detection, investigation, or prosecution of
crime; [or]
(2) it is information that deals with the detection,
investigation, or prosecution of crime only in
relation to an investigation that did not result
in conviction or deferred adjudication . . . .
. . . .
(b) An internal record or notation of a law enforcement
agency or prosecutor that is maintained for internal
use in matters relating to law enforcement or
prosecution is excepted from the requirements of
Section 552.021 if:
(1) release of the internal record or notation would
interfere with law enforcement or prosecution;
[or]
(2) the internal record or notation relates to law
enforcement only in relation to an investigation
that did not result in conviction or deferred
adjudication . . . .
Id. § 552.108 (West Supp. 2000).
The Act is not intended, it appears, to affect Texas
discovery rules. “This chapter does not affect the scope of
civil discovery under the Texas Rules of Civil Procedure. . . .
Exceptions from disclosure under this chapter do not create new
privileges from discovery.” Id. § 552.005 (West 1994). “A
subpoena duces tecum or a request for discovery that is issued in
compliance with a statute or a rule of civil or criminal
procedure is not considered to be a request for information under
this chapter.” Id. § 552.0055 (West Supp. 2000).
Barrientes also cites to the predecessor of the current Open
Records Act, Texas Revised Civil Statute article 6252-17a
§ 3(a)(8) (repealed 1993). It is questionable what information
could be disclosed under this statute. See, e.g., Opinion of the
Attorney General ORD-177 (Tex. Sept 12, 1977).
49
frame establishes cause as a matter of law. With regard to his
second and third alleged factors constituting cause, the record
on these points is important to our disposition of this case and
warrants discussion.
Barrientes filed his First State Petition on August 16,
1988. On August 19, 1988, he filed a Motion for Discovery in
which he sought to depose District Attorney Ben Euresti and
Garza. The motion further requested:
All reports, memoranda, file notes, docket sheet entries,
diaries or diary entries, calendars, and any other written
documents of any kind whatsoever, whether official or
unofficial, which are in deponent’s possession or under his
control, and which refer or relate to:
. . . .
d. The arrest of Antonio Barrientes, the arraignment, and
all investigation and any legal research relating to Antonio
Barrientes’ arrest for capital murder in April of 1979.
Motion for Discovery, filed Aug. 16, 1988, Ex. B. On September
20, 1988, he filed a Supplemental Motion for Discovery, in which
he requested, inter alia:
2. The Cameron County District Attorney’s legal and
investigative files, including, but not limited to,
correspondence, memoranda, file notes, docket sheet entries,
diaries or diary entries, calendars, exhibits, and any other
written documents of any kind whatsoever, whether official
of unofficial, and which refer or relate to:
(a) the arrest of Antonio Barrientes, the arraignment,
and all investigation and any legal research relating
to Antonio Barrientes’ arrest for capitol [sic] murder
in April, 1979.
. . . .
50
3. All police, highway patrol or sheriff’s files, or
information, relating to the investigation and/or charging
of Antonio Barrientes for each and every action listed in
number 2, above, if in the possession of the Cameron County
District Attorney’s office . . . .
Supplemental Motion for Discovery, filed Sept. 20, 1988 at 1-2.
The limited state court record before us is bereft of any
indication of the disposition of these motions, but we feel safe
in assuming, at this point, that they were denied.15
His First State Petition, which did not include the contents
of the Sheriff’s File, nonetheless detailed what was known at the
time about the 1979 Unadjudicated Murder:
Although not introduced at trial, post-conviction
investigation has shown that when Mr. Barrientes was
arrested and charged for this capital murder, he voluntarily
agreed to submit to a polygraphic examination, that he
submitted to two polygraphic examinations conducted by the
State of Texas and, as a result of those polygraphic
examinations, all charges concerning this alleged prior
unadjudicated murder were dropped against him.
. . . .
Although the State introduced evidence of this alleged
1979 unadjudicated murder (although there was no evidence
that a murder occurred), the State had full knowledge that
Mr. Barrientes had taken and passed a polygraph examination
concerning the alleged 1979 unadjudicated murder. The most
egregious aspect of this is that the State, itself,
administered that polygraph examination and the arresting
15
This assumption is supported by the state trial court’s
Order on Application for Writ of Habeas Corpus, entered August
19, 1988, in which the court found “that there are no
controverted previously unresolved facts which are material to
the legality of petitioner’s confinement.” The Texas Court of
Criminal Appeals disagreed and ordered an evidentiary hearing
regarding Barrientes’s ineffective assistance of counsel claim.
See Ex parte Barrientes, No. 19,007-01 (Tex. Ct. Crim. App. Aug.
24, 1988) (order remanding for evidentiary hearing).
51
officer, Mr. Joe Garza, who testified at the penalty phase
concerning the 1979 arrest for the unadjudicated murder, was
also the officer who released Mr. Barrientes from custody in
1979 when he passed the polygraph examination.
First State Petition at 10, 17-18.
At the evidentiary hearing ordered by the Texas Court of
Criminal Appeals, Barrientes attempted to obtain information
about the Sheriff’s File. Most significant was the following
exchange between Barrientes’s counsel, Mr. Montoya, Garza, the
Court, and counsel for the State, Mr. Cyganiewicz:
Q. BY MR. MONTOYA [to Garza]: Did you have the file with
you at the time you testified [in Barrientes’s 1985
trial]?
MR. CYGANIEWICZ: Your Honor, again, that has
nothing to do with [the ineffective assistance claim].
THE COURT: Sustained. Counsel, get to the
ineffective counsel. This isn’t a fishing expedition.
Q. BY MR. MONTOYA: Did Mr. Davidson discuss with you your
testimony after you had taken the stand in April, 1985?
A. I didn’t talk with Mr. Davidson, no, sir, not that I
can recall. It’s been so long.
Q. Did you have your file with you at the time you
testified in April of 1985?
MR. CYGANIEWICZ: Same objection, your Honor.
Whether he has a file or not with him has nothing to do
with Mr. Davidson.
THE COURT: Objection sustained.
MR. MONTOYA: Your Honor, with all due respect --
THE COURT: The objection was sustained.
State Record, Evidentiary Hearing Vol. I, at 136. These portions
of the record indicate some effort on the part of Barrientes’s
habeas counsel to secure the Sheriff’s File, but the picture of
counsel’s efforts becomes much more remarkable when the
52
affidavits of Bruce A. Montoya and Todd E. Kastetter, two of the
lawyers representing Barrientes, are considered.16
Montoya claims that he attempted to meet with Richard Lara,
an Assistant District Attorney, on May 20, 1988, while on a trip
to Brownsville, but that Lara was unable to meet with him.
Montoya tried to contact Lara again on July 25, 1988, but Lara
would not accept his call. On July 27, Montoya sent Lara a
letter stating that Kastetter would attempt to contact the
District Attorney’s office while in Brownsville on July 28. See
Affidavit of Bruce A. Montoya, Esquire, subscribed and sworn on
September 3, [year missing] at 2-3 [hereinafter “Montoya
Affidavit”].
While in Brownsville on July 28, Kastetter claims to have
met with Luis Saenz, an Assistant District Attorney. Kastetter
requested to see all files regarding Barrientes, including
16
These affidavits were appended to three documents filed
by Barrientes. First, they were appended to Petitioner’s
Combined Motion and Brief in Support of Motion to Amend August
22, 1995 Order Granting Respondent’s “Motion to Dismiss for
Failure to Exhaust State Remedies” filed September 7, 1995 in the
district court. Barrientes then appended them to his
Supplemental Brief in Support of Application for Post-Conviction
Writ of Habeas Corpus (RE: Application of Article 11.071, Sec.
5(a) Exceptions) filed in state court in support of his Second
State Petition. Finally, Barrientes appended them to his
Petitioner’s Rule 59(e) Motion to Alter and Amend This Court’s
February 27, 1998 Order Granting and Denying, in Part,
Petitioner’s Petition for Post-Conviction Writ of Habeas Corpus
(Following Dismissal Without Prejudice for Failure to Exhaust
State Remedies) and Denying Respondent’s Motion for Summary
Judgment, filed on March 13, 1998, after the district court
entered its 1998 Order ruling on his Second Federal Petition.
53
anything pertaining to the 1979 Unadjudicated Murder, and, after
consulting with the District Attorney, Mr. Euresti, Saenz
informed Kastetter that he had no right to review any of the
District Attorney’s files, and he would not be allowed to do so.
See Affidavit of Todd E. Kastetter, Esquire, subscribed and sworn
on Sept. 2, 1997 at 2.
The following day, Kastetter went to the state district
court, still seeking information on the 1979 Unadjudicated
Murder. He had heard that the matter had at one time been set
for trial. The clerk of the court was unable to locate any files
and suggested that Kastetter contact the District Attorney’s
office. See id. at 2-3. From there Kastetter went to meet with
Barrientes’s lawyer for the 1979 case, A.G. Betancourt.
Betancourt remembered little about the case, and the two of them
searched through Betancourt’s storage area for information but
came up empty-handed. See id.
At some point, Montoya and Kastetter tentatively identified
the missing witness as “Castro Bob.” They spent considerable
time searching for him before discovering that Castro Bob was not
the missing witness. See Montoya Affidavit at 4. The two then
located one of the two polygraph reports and discovered the name
of the justice of the peace who had sworn out the arrest warrants
and determined bond issues, Judge Edward Sarabia.
Montoya met with Judge Sarabia, who originally directed
Montoya to the District Attorney’s office but cautioned that the
54
District Attorney would be unlikely to release any information if
the case was still open. After several meetings, Judge Sarabia
gave Montoya a single sheet of the docket book for the 1979
Unadjudicated Murder, indicating that Barrientes’s bond had been
reduced from “no bond” to $5,000 bond. See id. at 5. Judge
Sarabia further suggested that Montoya search through papers in
the attic of the old Cameron County Courthouse, so Montoya and
Kastetter did just that for many hours, but to no avail. See id.
Next, Montoya contacted the Brownsville Police Department
and the Brownsville Sheriff’s Department. Both said that no
records would be released without a subpoena. The Sheriff’s
Department suggested that Montoya contact the District Attorney’s
office. At some point, someone from the Sheriff’s Department
informed Montoya that an investigator named Alex Perez was in
charge of all unsolved capital murders. Montoya tracked Perez
down the next day, October 20, 1989, and Perez produced the file,
but would not allow Montoya to copy it. See id. Finally,
Montoya and Kastetter were allowed to copy the file.17 See id.
17
The State’s argument before this court regarding the
issue of cause warrants comment. In its brief, the State argues:
[There was no] evidence presented in the district court that
Barrientes invoked any lawful process to obtain the file in
question when he had the opportunity to do so. During the
first state evidentiary hearing proceedings, Barrientes was
specifically informed that there “should be” a file
pertaining to the 1979 unadjudicated capital murder.
However, Barrientes did not request a subpoena compelling
the appearance of a custodian of records from the sheriff’s
office, did not seek a court order for the production of the
55
file, and did not request that Detective Joe Garza produce
the file in question. The only allegation that requests
were made comes from his unsupported averments that the
district attorney’s office and sheriff refused to cooperate
with his “informal” requests. Nevertheless, Barrientes
alludes to the fact that, “only by happenstance,” he
obtained the file when he, presumably for the first time,
filed a request under the Texas Open Records Act. In short,
Barrientes could have, but did not, make diligent efforts to
obtain the file in state court. Barrientes was not
prevented from discovering the factual basis for his claims
by some objective factor external to his defense.
Respondent’s Brief at 18-19 (citations and footnote omitted).
The State drops a footnote stating, “In fact, the district court
record is barren of any indication as to whether the file was
obtained before or after the conclusion of the state habeas
proceedings.” Id. at 19 n.9.
First, the State, to our knowledge, has never rebutted,
through affidavits or otherwise, the story as painted by Montoya
and Kastetter. Assuming their affidavits to be accurate, the
State’s attempt to persuade us that Barrientes should have jumped
through some different hoop after being told time and time again
that his only recourse was through the District Attorney’s
office, and after being told by the District Attorney’s office
that he had no legal right to review any files, is, based upon
the incomplete record before us, unpersuasive.
Second, the State’s suggestion that Barrientes should have
requested a court order to secure the File is either at odds with
the record or rather puzzling. It seems obvious to us that
Barrientes did just that when he filed not one, but two very
specific discovery motions. If the State is suggesting that
Barrientes should have gone back to the court after having these
two motions denied, we can only wonder at what point the State
would suggest Barrientes take “no” to mean “no.” If the State
intended to argue that some specific state procedure that should
have been invoked by Barrientes was not, it failed adequately to
develop the argument.
Finally, the State’s assertion that “the district court
record is barren of any indication as to whether the file was
obtained before or after the conclusion of the state habeas
proceeding” is an incorrect statement of the record, of which the
State was, or certainly well should have been, aware. Montoya’s
affidavit states that he first viewed the File on October 20,
56
at 6.
The affidavits provided by Barrientes along with a review of
the record indicate that he may well have cause for failing to
discover the Sheriff’s File before the conclusion of his first
state habeas proceedings. The allegations he makes are the sort
that have led to a finding of cause in previous cases. See
Amadeo v. Zant, 486 U.S. 214, 222 (1988) (finding cause when
county officials concealed evidence); Paradis v. Arave, 130 F.3d
385, 194 (9th Cir. 1997) (finding cause when prosecutor withheld
1989. See Montoya Affidavit at 5. This affidavit was appended
to Petitioner’s Motion to Amend the Court’s Order of August 22,
1995, Dismissing the Petition for Failure to Exhaust State
Remedies. The State even responded to this motion and remarked,
“Barrientes . . . contend[s] . . . that the evidence he now
offered was in the state’s possession at the time of the first
state habeas proceeding and he should not be penalized for the
state’s failure to provide him with it . . . .” Response to
Petitioner’s Motion to Amend the Court’s Order of August 22,
1995, Dismissing the Petition for Failure to Exhaust State
Remedies, filed October 3, 1995 at 2. Assuming the State forgot
about this motion and its response between 1995 and the time it
filed its brief in this court, Barrientes’s Second Federal
Petition provided a reminder, “The Cameron County Sheriff’s
Department’s file for the 1979 unadjudicated murder . . . was
first disclosed to Petitioner’s habeas counsel several months
after the [first] Federal Habeas Petition was filed . . . .”
Second Fed. Petition at 18. We could include further references
to the record but find it unnecessary.
The bottom line is that whether Barrientes had access to
this File during his first state habeas proceedings is a central
issue in this case. For the State to insinuate, for the first
time in the second appeal in this protracted litigation, that
Barrientes not only had access to the Sheriff’s File during his
first state habeas proceedings, but that he may have actually had
the File at that time is reckless, especially considering the
numerous references to when Barrientes actually got hold of the
Sheriff’s File contained in the record and the State’s complete
failure to raise this assertion earlier.
57
Brady evidence and quashed subpoena in first habeas proceedings);
Kirkpatrick v. Whitley, 992 F.2d 491, 495 (5th Cir. 1993)
(finding cause when evidence was suppressed and falsified coupled
with state and federal laws that deterred discovery of the
evidence); Bliss v. Lockhart, 891 F.2d 1335, 1341 (8th Cir. 1990)
(noting that “prosecutorial interference with disclosure of the
full evidence may indeed constitute cause”); Strickler, 119 S.
Ct. at 1952 (acknowledging that several factors taken together
can constitute cause). Moreover, we note that at each stage of
his post-conviction collateral attack on the penalty phase of his
trial, he presented the evidence available to him, discussed the
evidence he hoped to uncover through discovery, and argued the
claims he felt were appropriate based upon the available evidence
and factual assertions. His counsel, it would appear, diligently
pursued the Sheriff’s File out of court and moved to discover the
File in court, which motions were denied by the state courts.
At the beginning of our examination of cause and prejudice
we noted that the district court has never addressed these
issues. We stated that our task was to determine whether cause
and prejudice “may be fairly resolved from the record presented.”
See supra. We determine that the issue of cause cannot be
adequately resolved on the record before us. The affidavits
supplied by Barrientes, while compelling, have never been
answered by the State. We find it necessary to remand this case
to the district court with instructions to conduct an evidentiary
58
hearing on the issue of cause.18 We, of course, do not instruct
the district court on what decision it should make on the issue
of cause.
b. Prejudice
To overcome a procedural default, a habeas petitioner must
demonstrate “actual prejudice as a result of the alleged
constitutional violations.” Coleman, 501 U.S. at 745. Prejudice
can be examined at both the guilt/innocence and penalty phases of
a capital murder trial. See Strickler, 119 S. Ct. at 1955; id.
at 1956 (Souter, J., concurring in part and dissenting in part)
(“As the Court says, however, the prejudice enquiry does not stop
at the conviction but goes to each step of the sentencing process
. . . .”). The Supreme Court has been reluctant to define the
precise contours of the prejudice requirement. See Amadeo, 486
U.S. at 221. However, the Strickler Court recently explained
that in the context of establishing cause and prejudice for
procedurally defaulting on a Brady claim, a petitioner must
convince the court that:
18
See Jenkins v. Anderson, 447 U.S. 231, 234-35 n.1 (1980)
(“[A]pplication of the ‘cause’-and-‘prejudice’ standard may turn
on factual findings that should be made by a district court.”);
Barnard v. Collins, 13 F.3d 871, 878 (5th Cir. 1994) (“[T]he
district court’s determination that [petitioner’s] claim
constituted an abuse of the writ because he could not show ‘cause
and prejudice’ for his failure to raise this claim in his earlier
petition seems premature in the absence of an evidentiary hearing
or other appropriate proceeding . . . .”).
59
there is a reasonable probability that the result of the
trial would have been different if the suppressed documents
had been disclosed to the defense. . . . The question is
not whether the defendant would more likely than not have
received a different verdict with the evidence, but whether
in its absence he received a fair trial, understood as a
trial resulting in a verdict worthy of confidence.
119 S. Ct. at 1952 (internal citations and quotation marks
omitted). The Court explained that the prejudice inquiry in the
situation presented in Strickler mirrored the materiality prong
of the underlying Brady claim. See id. at 1949 (“In this case,
cause and prejudice parallel two of the three components of the
alleged Brady violation itself.”). In Williams v. Taylor,
however, the Supreme Court stated, when addressing the issue of
prejudice for procedural default, “[q]uestions regarding the
standard for determining the prejudice that petitioner must
establish to obtain relief on these claims can be addressed by
the [lower courts] in the course of further proceedings.” 120 S.
Ct. 1479, 1494 (2000). This statement implies that the
“reasonable probability” standard may not guide the prejudice
inquiry in the case of every defaulted habeas claim. We leave to
the district court the task of establishing for each claim the
proper standard to guide the determination of actual prejudice,
should Barrientes establish cause for his default.
4. A hearing on the merits
60
Finally, we must address two related arguments advanced by
the State. First, the State argues at several points in its
brief that the district court erred in making findings of fact
related to the Sheriff’s File without conducting an evidentiary
hearing. The State then argues that even if Barrientes can
establish cause and prejudice to prevent his claims from being
procedurally barred, the district court still cannot reach the
merits of his claims because, as previously stated, an
evidentiary hearing is required, and Barrientes cannot establish
the so-called “cause and actual innocence” required by 28 U.S.C.
§ 2254(e)(2) before a federal habeas court is permitted to hold
an evidentiary hearing.19 See, e.g., Nobles, 127 F.3d at 423
n.33 (discussing the cause and actual innocence standard). We
19
Section 2254(e)(2) provides:
If the applicant has failed to develop the factual basis of
a claim in State court proceedings, the court shall not hold
an evidentiary hearing on the claim unless the applicant
shows that
(A) the claim relies on
(I) a new rule of constitutional law, made
retroactive to cases on collateral review by
the Supreme Court, that was previously
unavailable; or
(ii) a factual predicate that could not have been
previously discovered through the exercise of
due diligence; and
(B) the facts underlying the claim would be sufficient
to establish by clear and convincing evidence that
but for constitutional error, no reasonable
factfinder would have found the applicant guilty
of the underlying offense.
28 U.S.C. § 2254(e)(2) (1997).
61
begin by deciding whether the district court should have
conducted an evidentiary hearing in this case. Finding that it
should have, we proceed to dispose of the State’s § 2254(e)(2)
argument.
The Rules Governing Section 2254 Cases in the United States
District Courts provide guidance on the appropriateness of an
evidentiary hearing in cases such as this. Rule 8(a) states:
If the petition is not dismissed at a previous stage in the
proceeding, the judge, after the answer and the transcript
and record of state court proceedings are filed, shall, upon
a review of those proceedings and of the expanded record, if
any, determine whether an evidentiary hearing is required.
If it appears that an evidentiary hearing is not required,
the judge shall make such disposition of the petition as
justice shall require.
28 U.S.C. foll. § 2254 Rule 8(a) (1994). The decision whether to
conduct an evidentiary hearing is left to the sound discretion of
the district court, and we review its decision for an abuse of
that discretion. See McDonald v. Johnson, 139 F.3d 1056, 1059
(5th Cir. 1998). We have stated before that when “[t]he district
court ha[s] sufficient facts before it to make an informed
decision on the merits of [the habeas petitioner’s] claim” it
does not abuse its discretion in failing to conduct an
evidentiary hearing. Id. at 1060.
Most often, this situation arises when the district court
denies the petitioner relief without conducting an evidentiary
hearing. But the rule also applies in a situation where the
district court has sufficient facts before it and grants the writ
62
without a hearing. See Hicks v. Wainwright, 633 F.2d 1146, 1150
(5th Cir. Unit B 1981) (“The State argues that the district court
should have held an evidentiary hearing. An evidentiary hearing
is necessary only when facts are at issue. When the only
question is legal rather than factual no evidentiary hearing is
needed.”). If, however, sufficient factual development has not
occurred, and the district court grants the writ, we have in the
past remanded the case for a hearing. See Thomas v. Estelle, 582
F.2d 939 (5th Cir. 1978).
In this case, we agree with the State that the district
court lacked sufficient undisputed facts to make an informed
decision and therefore abused its discretion in failing to
conduct an evidentiary hearing. An evidentiary hearing would
have provided both sides an opportunity to present evidence
regarding, inter alia, whether the copies appended to
Barrientes’s petition are what he claims them to be and whether
they are exculpatory or impeaching in nature. Our normal course
of action would be to remand this case for a hearing. Before
doing so, however, we must determine whether a hearing is
precluded by § 2254(e)(2).
Section 2254(e)(2) provides that when a habeas petitioner
has “failed to develop the factual basis of a claim in State
court proceedings, the [federal] court shall not hold an
evidentiary hearing . . . unless the applicant” establishes so-
63
called “cause and actual innocence.”20 The State argues that
§ 2254(e)(2) precludes the evidentiary hearing that is needed in
this case because Barrientes cannot, at the very least, meet the
actual innocence prong of the standard established by
§2254(e)(2). Barrientes responds that § 2254(e)(2) does not
apply to his case, because he has not “failed to develop the
factual basis of a claim in State court proceedings.”
We have previously addressed the question of whether a
petitioner has “failed to develop” the factual basis of a claim
in McDonald v. Johnson, 139 F.3d 1056 (5th Cir. 1998). In
McDonald, as in this case, the habeas petitioner was denied an
evidentiary hearing in state court. We held that “a petitioner
cannot be said to have ‘failed to develop’ a factual basis for
his claim unless the undeveloped record is a result of his own
decision or omission.” Id. at 1059; see also Clark v. Johnson,
202 F.3d 760, 765 (5th Cir. 2000) (applying the McDonald
standard); Robison v. Johnson, 151 F.3d 256, 268 (5th Cir. 1998)
(same).
Any question regarding the “failed to develop” standard was
put to rest by the Supreme Court in Williams v. Taylor, 120 S.
20
Section 2254(e)(2) prohibits a court from conducting a
hearing, regardless of which side requests it. We therefore
agree with the State, as a general matter, that it can argue that
the merits of a habeas claim cannot be reached because a hearing
is needed to resolve factual issues underlying the claim, but the
district court is precluded by § 2254(e)(2) from conducting the
needed hearing.
64
Ct. 1479 (2000). There, the Court stated that “[u]nder the
opening clause of § 2254(e)(2), a failure to develop the factual
basis of a claim is not established unless there is a lack of
diligence, or some greater fault, attributable to the prisoner or
the prisoner’s counsel.” Id. at 1488. The Supreme Court in
Williams also linked the “failure to develop” inquiry with the
cause inquiry for procedural default. See id. at 1494 (“Our
analysis [of § 2254(e)(2)] should suffice to establish cause for
any procedural default petitioner may have committed in not
presenting these claims to the Virginia courts in the first
instance.”). In this case, if Barrientes establishes cause for
overcoming his procedural default, he has certainly shown that he
did not “fail to develop” the record under § 2254(e)(2).
Accordingly, if the district court determines that Barrientes has
established cause and prejudice for his procedural default, it
should proceed to conduct an evidentiary hearing on any claim for
which cause and prejudice exists. It should then revisit the
merits of any such claim anew.21
IV. BARRIENTES’S APPLICATION
21
We note that if the district court determines that cause
and prejudice exist for Barrientes’s default of any claim, its
findings in that regard may directly address its merits
determination of certain elements of that claim. See, e.g.,
Strickler, 119 S. Ct. at 1949 (“In this case, cause and prejudice
parallel two of the three components of the alleged Brady
violation itself.”).
65
Barrientes wishes to appeal ten claims that were denied by
the district court.22 Because he seeks to initiate an appeal
after the effective date of AEDPA, “the right to appeal is
22
Barrientes’s Second Federal Petition also contained the
following claims that were implicitly denied by the district
court and that are not before us because Barrientes has not
raised them in his COA application. Barrientes alleged that the
prosecutor made improper comments during closing argument at the
penalty phase regarding the character of the victim and that he
made comments during closing argument of the guilt/innocence
phase regarding the failure of the defense to call certain
witnesses. Barrientes also claimed that his trial counsel was
ineffective for failing to make certain objections during the
trial.
Regarding the introduction of evidence of unadjudicated
crimes, Barrientes argued that: the introduction of such
evidence is unreliable, in violation of the Eighth Amendment;
allowing the introduction of such evidence in capital cases while
disallowing the introduction of such evidence in noncapital cases
violates the Equal Protection Clause of the Fourteenth Amendment;
and allowing the introduction of such evidence without prior
notice renders a defendant’s counsel ineffective. Barrientes
claimed that the evidence presented at the penalty phase of his
trial was insufficient to support a finding of future
dangerousness. He also claimed that the judge’s failure to allow
Barrientes’s counsel to ask venire members about their
understanding of what a life sentence means under Texas law
denied Barrientes the right to an impartial jury under the Sixth
Amendment, created the risk that the death sentence might be
imposed based on mistaken notions of parole eligibility in
violation of the Eight Amendment’s guarantee against cruel and
unusual punishment, and violated his right to due process.
Barrientes asserted that neither the judge’s charge to the
jury following the penalty phase of trial nor the special issues
form notified the jury that their answers to the special issues
necessarily determined whether or not the death penalty would be
imposed. Such failure created the unacceptable risk that the
jury would not understand its responsibility and violated the
Sixth, Eighth, and Fourteenth Amendments. Finally, Barrientes
claimed that the Texas Death Penalty statute, on its face and as
applied, violates the Fifth, Sixth, Eighth, and Fourteenth
Amendments.
66
governed by the certificate of appealability (COA) requirements
now found at 28 U.S.C. § 2253(c).” Slack, 120 S. Ct. at 1600.
Barrientes has applied to this court for a CPC. We treat an
application for a CPC as an application for a COA.23 See Lucas
v. Johnson, 101 F.3d 1045, 1046 (5th Cir. 1996). To obtain a
COA, a prisoner must make “a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2). In order to
make such a showing, a prisoner must demonstrate “that reasonable
jurists could debate whether (or, for that matter, agree that)
the petition should have been resolved in a different manner or
that the issues presented were adequate to deserve encouragement
to proceed further.” Slack, 120 S. Ct. 1603-1604 (internal
quotation marks omitted). In a case such as this, where the
prisoner seeks to appeal the district court’s merit-based denial
of certain constitutional claims, the Supreme Court has explained
that “[t]he petitioner must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional
claims debatable or wrong.” Id. at 1604.
As we have previously explained, the determination of
whether a COA should issue must be made by viewing the
petitioner’s arguments through the lens of the deferential scheme
laid out in 28 U.S.C. § 2254(d). See Hill v. Johnson, 210 F.3d
481, 484-85 (5th Cir. 2000). Under § 2254(d), when reviewing a
23
We refer to his CPC application as a COA application
throughout the remainder of this opinion.
67
claim adjudicated by a state court on the merits, we pay
deference to the state court’s decision regarding that claim,
unless the decision “[is] contrary to, or involve[s] an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or . . .
[is] based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d)(1) & (2). A decision is “contrary to . . .
clearly established Federal law, as determined by the Supreme
Court of the United States” “if the state court arrives at a
conclusion opposite to that reached by [the Supreme Court] on a
question of law or if the state court decides a case differently
than [the Supreme Court] has on a set of materially
indistinguishable facts.” Williams v. Taylor, 120 S. Ct. 1495,
1523 (2000). A decision “involve[s] an unreasonable application
of[] clearly established Federal law, as determined by the
Supreme Court of the United States” “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 prisoner’s case.” Id. Factual
findings of the state court have a presumption of correctness,
which presumption the petitioner can only rebut by “clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1).
Barrientes raises four types of issues in his application.
He argues, first, that he was denied effective assistance of
68
counsel; second, that his trial proceedings were plagued by
prosecutorial misconduct; third, that the admission of evidence
of the 1979 Unadjudicated Crime violated his rights under the
Eighth and Fourteenth Amendments to the United States
Constitution; and, finally, that jury deliberations were tainted
by the consideration of facts not in the record. We address each
type of claim in turn.
A. Ineffective Assistance
Barrientes raises three claims of ineffective assistance of
counsel. First, he argues that counsel was ineffective for
failing to investigate or interview witnesses during the guilt
phase of his trial. Second, he asserts that counsel was
ineffective for failing to discover and present mitigating
evidence during the penalty phase of his trial. Finally, he
claims that counsel was ineffective for failing to obtain
complete criminal records on Barrientes and his co-defendant and
request a severance. As we explained in more detail in Part III-
C-2, supra, claims of ineffective assistance of counsel are
evaluated under the familiar standard first enunciated by the
Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984).
Under that standard, a habeas petitioner must “demonstrate both
that counsel’s performance was deficient and that the deficiency
prejudiced the defense.” Crane, 178 F.3d at 312.
69
1. Failing to investigate at the guilt phase of the trial
Barrientes argues that his trial counsel, Mr. Davidson, was
ineffective for failing to investigate or interview witnesses
during the guilt phase of the trial. He asserts, first, that
Davidson failed to investigate Felix Sanchez. Had he done so, he
would have discovered evidence to impeach Sanchez’s testimony.
Barrientes provides an affidavit from Sanchez’s mother that
contradicts certain portions of Sanchez’s testimony. He also
asserts that Sanchez’s wife maintains that Sanchez was threatened
by the police in order to make him testify. Second, Barrientes
asserts that Meza, the jailhouse informant, was also threatened
to secure his testimony.24
The State responds that this claim is procedurally barred.
As we discussed in Part III-D-1-c, supra, Barrientes, in his
First State Petition, presented no evidence concerning the
threats allegedly made to secure the testimony of Sanchez and
Meza and the statements made by Sanchez’s mother. This claim was
therefore considered unexhausted when Barrientes filed his
Amended First Federal Petition. Barrientes’s Second State
Petition, which contained the same evidence and factual
allegations he offers us, was rejected by the Texas Court of
24
Barrientes provides no affidavits to support the
statements he alleges Meza and Sanchez’s wife made to habeas
counsel, and we take no position on the reliability or
sufficiency of this evidence.
70
Criminal Appeals as an abuse of the writ. In order for us to
consider this claim, therefore, Barrientes must establish cause
and prejudice for his procedural default. Barrientes asserts
neither cause for his procedural default nor that failure to
address this issue will result in manifest injustice, but simply
argues that he has not defaulted because the Texas abuse-of-the-
writ doctrine did not provide an adequate and independent state
ground. Having previously resolved that issue against
Barrientes, see Part III-D-1-b, supra, we will not consider this
ineffective assistance of counsel issue. Cf. Clark v. Collins,
19 F.3d 959, 966 (5th Cir. 1994) (“As [petitioner] alleges no
cause for his procedural default and inasmuch as failure to
consider it will not result in manifest injustice, this
assignment of error fails.”); Meanes v. Johnson, 138 F.3d 1007,
1011 (5th Cir. 1998) (“If a petitioner fails to show cause for
his procedural default, the court need not address the prejudice
prong of the test.”).
2. Failing to discover or present mitigating evidence at the
penalty phase of the trial
Barrientes’s second claim of ineffective assistance centers
on the failure of Davidson to discover or present mitigating
71
evidence at the guilt phase of the trial.25 In his first state
habeas proceedings, Barrientes was granted an evidentiary hearing
on his claim of ineffective assistance. The state trial court
made findings of fact and conclusions of law, for which
conclusions it relied on the two-part Strickland inquiry, and
those findings and conclusions were adopted by the Texas Court of
Criminal Appeals.26 This constitutes an adjudication on the
merits for purposes of § 2254(d). See Hill, 210 F.3d at 485.
The Texas Court of Criminal Appeals denied Barrientes relief on
this ineffective assistance claim, as did the district court.
Barrientes asserts that had Davidson properly investigated,
he would have discovered mitigating evidence to present at the
penalty phase of the trial. This evidence, which was revealed in
large part by testimony from Barrientes’s mother and former
priest at the state hearing, includes the fact that Barrientes
was married and had two children, had at one time been an altar
25
In this same section of his brief, Barrientes asserts
that Davidson failed to object to the prosecutor’s comments
concerning the virtuousness of the victim and testified on behalf
of Barrientes’s co-defendant. He fails to develop any argument
that either of these actions constituted ineffective assistance
of counsel under Strickland. We, therefore, do not consider
these claims. See Trevino v. Johnson, 168 F.3d 173, 181 n.3 (5th
Cir. 1999).
26
The state court judge that presided over Barrientes’s
evidentiary hearing on this issue was the same judge that
presided over his capital murder trial. The presumption of
correctness afforded the state court’s determination of factual
issues is, therefore, especially strong. See Clark v. Johnson,
202 F.3d at 764.
72
boy, had served in the military and had been honorably
discharged, and had trouble with substance abuse and had sought
professional help shortly before the murder.
The state habeas court found that Davidson would not have
called Barrientes’s wife or mother to testify, even had he known
of the evidence listed above, because of his concern that the
value of any mitigating evidence would be outweighed by the risk
of damaging evidence being brought out during cross-examination
of these witnesses.27 Moreover, the state habeas court pointed
out that Barrientes’s mother avoided discussing any aspect of
Barrientes’s life in the ten years prior to the murder. In
response to the state habeas court’s findings, Barrientes simply
asserts that the findings of the state habeas court are not
entitled to deference because “[t]he record is clear that Mr.
Davidson did not make a fully-informed strategic decision with
regard to his failure to conduct any investigation in preparation
of his defense of the . . . penalty phase.” Barrientes’s COA
Brief at 38. The record reveals that Davidson conferred with
Barrientes on numerous occasions and met with Barrientes’s mother
at least three times before the trial began. Barrientes has
failed to present clear and convincing evidence that the findings
of the state habeas court are not entitled to a presumption of
27
Barrientes’s common-law wife did not testify at the state
habeas hearing. It is therefore impossible to ascertain what the
content of her testimony would have been.
73
correctness. See Hernandez v. Johnson, No. 99-10446, 2000 WL
691603, at *5 (5th Cir. May 30, 2000) (applying § 2254(e)(1)
deference in the context of a COA application).
We conclude that Barrientes has not made a substantial
showing of the denial of a constitutional right. We have
previously held that a tactical decision not to present character
evidence during the penalty phase of a capital murder trial
because it would open the door for incidents of prior misconduct
was not unsound and therefore did not constitute deficient
performance. See Ward v. Whitley, 21 F.3d 1355, 1361 (5th Cir.
1994). As long as Davidson’s performance was not deficient, we
need not examine, under the second prong of Strickland, whether
his decision prejudiced the defense. See Lincecum v. Collins,
958 F.2d 1271, 1278 (5th Cir. 1992). Barrientes has failed to
demonstrate that, given the findings of the state habeas court
and our precedent, “reasonable jurists could debate whether . . .
the petition should have been resolved in a different manner
[with regard to this claim] or that the issue[] presented w[as]
adequate to deserve encouragement to proceed further.” Slack,
120 S. Ct. 1603-1604.
3. Failure to request criminal records and request a severance
In his final claim of ineffective assistance of counsel,
Barrientes argues that “[t]rial Counsel failed to determine the
74
criminal records of Mr. Barrientes and his co-defendant prior to
and during the trial and sentencing hearing. Had Mr. Davidson
investigated Mr. Barrientes’ prior criminal record, he would have
discovered a statutory basis for severance of the trial from Mr.
Barrientes’ co-defendant.” Barrientes’s COA Brief at 25.
Davidson originally filed a motion for severance, but when it
came up for consideration, he stated that he knew of no statutory
reason for the severance. Under Texas law, however, Barrientes
claims that he was statutorily entitled to severance because his
co-defendant, Gonzales, had a felony conviction, and Barrientes
did not. Barrientes argues that Davidson’s failure to discover
Gonzales’s record and follow through with his motion for
severance constituted objectively unreasonable assistance, and
that he was prejudiced thereby. At the state evidentiary
hearing, however, it became evident that Davidson’s failure to
discover Gonzales’s record was a result of his strategic decision
not to pursue a severance. The following exchange took place
between Davidson and counsel for the State:
Q. You mentioned also that even if I knew about those
convictions of David Gonzales, I would not have asked
for a severance because of my trial strategy and tactic
to do that; is that correct?
A. Yes.
Q. Can you just briefly explain what your thinking was
that you wanted them to be tried together as your
tactic?
A. Well, during that -- Between the time those motions
were filed and the hearings were had on those motions,
75
Mr. Gilman [trial counsel for Gonzales] advised me that
his client had told me that --
MR. KARR: Your Honor, I’m going to object to
what Mr. Gilman is telling Mr.
Davidson.
THE COURT: Overruled.
THE WITNESS: I wished [sic] I didn’t have to
testify to this, Your Honor.
Q. BY MR. CYGANIEWICZ: Okay. Well, --
A. That after Tony robbed the store, he came back to where
Gonzales rode with the car and told David, “I had to
kill the son of a bitch.”
Q. But for some reason you decided this was a strategic
move on your part? You wanted them tried together?
A. Well, at that time, David Gonzales’ parents, I knew,
were putting pressure on Pete Gilman in regards to Mr.
Gonzales because he had tried to commit suicide a
couple of times in the jail. And from what my client
was telling me, that he was going to take the stand and
exonerate–he didn’t use that word–exonerate David
Gonzales. In my own mind, my strategy was: The best
way to keep him from taking the stand was to try them
together.
State Record, Evidentiary Hearing Vol. I, at 86-88. The state
habeas court found:
After filing the motion for severance, Davidson soon
became convinced that it would not be in his client’s best
interest to have his case severed from that of Gonzales. If
the Court had ever indicated that the severance would be
granted, he would have withdrawn the motion. Davidson knew
Barrientes would testify that Gonzales “had nothing to do
with the entire transaction”; Barrientes “insisted on it.”
From Gonzales’s attorney Davidson learned that if Gonzales
should testify, he would testify that after Barrientes
robbed the store he came back to the car and told Gonzales
“I had to kill the son of a bitch.” Davidson concluded that
the best way to keep Gonzales off the stand was to try the
Defendants together with Barrientes exonerating Gonzales.
Davidson’s trial strategy was based upon his conclusion that
76
Barrientes [sic] “only chance was to keep Gonzales off the
stand and to convince the jury Sanchez was the trigger man.”
Indeed Davidson’s strategy partly succeeded; Gonzales did
not testify.
Findings of Fact and Conclusions of Law entered November 10,
1988, at 2. Like Barrientes’s second ineffective assistance of
counsel claim, this claim was adjudicated on the merits for
purposes of § 2254. It is clear from the record that Davidson
made a tactical decision to avoid severance, and the state habeas
court so found. Barrientes is unable to rebut the presumption of
correctness afforded the finding of the state habeas court. See
28 U.S.C. § 2254(e)(1).
As the Supreme Court explained in Strickland:
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. Any such set of rules would interfere
with the constitutionally protected independence of counsel
and restrict the wide latitude counsel must have in making
tactical decisions.
466 U.S. 688-89. Barrientes makes no convincing argument that
the tactical decision of his trial counsel should not be given
deference. Because Davidson’s decision to avoid severance falls
so clearly within the range of objective reasonableness, we need
not examine whether the decision prejudiced the defense within
the meaning of Strickland. See Lincecum, 958 F.2d at 1278.
Barrientes has consequently failed to make a substantial showing
of the denial of a constitutional right. He has neither
convinced us that reasonable jurists could debate whether the
77
performance of his trial counsel was objectively unreasonable in
this regard nor that reasonable jurists could debate whether the
state court made an objectively unreasonable application of the
Strickland standard to the facts of this case.
B. Prosecutorial Misconduct
Barrientes raises several claims under the heading of
prosecutorial misconduct. We address each claim in turn.
1. Threats made to secure the testimony of Sanchez and Meza
Barrientes first claims that the prosecutor failed to reveal
that threats and coercion were used to secure the testimony of
both Sanchez and Meza. He claims that this conduct violated both
Brady and Giglio. We need not reach the merits of this claim
because it has been procedurally defaulted. The claim relies on
the statements allegedly made to habeas counsel by Sanchez’s wife
and Meza. We previously determined in Part IV-A-1, supra, that
claims dependant upon these factual allegations are procedurally
barred, and Barrientes does not assert cause or manifest
injustice to overcome the procedural bar.
2. Improper suggestion that the jury would not have to accept
responsibility for the imposition of the death sentence
78
Barrientes’s second claim centers around certain comments
that he asserts “intimate[d] that the jury would not have to
accept responsibility for imposition of the death sentence.”
Barrientes’s COA Brief at 43. While Barrientes does not cite to
any case in support of his claim, we assume that he alleges a
violation of Caldwell v. Mississippi, 472 U.S. 320 (1985), in
which the Supreme Court held “that it is constitutionally
impermissible to rest a death sentence on a determination made by
a sentencer who has been led to believe that the responsibility
for determining the appropriateness of the defendant’s death
rests elsewhere.” Id. at 328-29.
Barrientes points to comments made by the prosecutor during
voir dire. The prosecution asked one eventual juror, “Do you
understand, sir, that you as an individual, or the jurors,
collectively, you do not assess the death penalty. If anyone
does that it is the judge. You understand that?”28 State Record
Vol. IV, at 132. To another eventual juror, the prosecutor
stated, “You never assess the death penalty. That’s up to the
28
We note that the following exchange also took place
between this eventual juror and the prosecutor:
Q. Did you have any questions of me, anything at all about
the death penalty or anything?
A. No, sir. The Judge did a good job of getting his point
across this morning.
79
Judge.”29 State Record Vol. VI, at 778. Barrientes argues that
this conduct was aggravated by the trial court’s refusal to allow
the defense to discuss with members of the venire their
understanding of a life sentence under Texas law.
Barrientes fails to make a substantial showing of the denial
of a constitutional right. In Montoya v. Scott, we explained
that:
[i]n Dugger v. Adams, 489 U.S. 401 (1989), the Supreme Court
clarified its holding in Caldwell and held that to
“establish a Caldwell violation, a defendant necessarily
must show that the remarks to the jury improperly described
the role assigned to the jury by local law.” Id. at 407.
In evaluating a Caldwell claim, we look to the “total trial
scene,” including jury selection, the guilt phase of the
trial, and the sentencing hearing, examining both the
court’s instructions and counsel’s arguments to the jury.
65 F.3d 405, 420 (5th Cir. 1995) (some citations omitted). At
the time of Barrientes’s conviction, the applicable Texas statute
provided, in pertinent part that “[i]f the jury returns an
affirmative finding on each issue submitted under this article,
the court shall sentence the defendant to death.” TEX. CODE CRIM.
29
We note that the following exchange occurred between the
prosecutor and the eventual juror shortly after the above quoted
statement:
Q. Okay. Now, if you answer both of these [special
questions during the penalty phase] yes then you leave
the courtroom with the other jurors. You go home.
A. Okay.
Q. Then the judge is obligated under the law to assess the
death penalty.
A. Oh, I see.
80
P. ANN. art. 37.071(e) (West 1981). In Montoya, the judge
instructed the jury that “[i]n capital murder cases the jury does
not assess punishment. . . . Now, if you answer the two questions
yes, then the Court, the judge, is required to assess the
punishment of death to the accused.” 65 F.3d at 420 n.31. We
determined that, in making that comment, “the trial court did not
misinform the jury of its role under local law and therefore did
not violate Caldwell.” Id. at 421. Likewise, here, the comments
by the prosecutor were accurate under local law.
Moreover, looking at the total trial scene, it is clear that
the jury was not misinformed. Indeed, prior to jury selection
the judge informed all the venire members that:
In an ordinary case after hearing that evidence you as
a jury would go out and decide his punishment. That is
whether he’s going to get ten years or twenty years or life
in the penitentiary, depending on how you feel about the
seriousness of the offense and the character of the
defendant.
In a capital murder case the jury does not decide the
punishment, and I’ll say that again: In a capital murder
case at the end of the punishment stage the jury does not
decide the punishment, rather, I, as the Judge, ask you two
fact questions and you, as a jury, will either answer those
questions yes or no.
. . . .
However, our law provides that you must know that if
you answer yes to both of those questions the Judge must
impose the death penalty upon the defendant.
If you answer the two questions, both of them yes, then
the Judge must assess the punishment of death. If you
answer either or both of the questions no then the Judge
must assess the penalty of life in prison.
81
So while you do not assess punishment our law says you
must know and understand that you answers as given will
determine whether the Judge gives death or life . . . .
State Record Vol. IV, at 19-21. Barrientes has failed to
demonstrate “that reasonable jurists could debate whether . . .
the petition should have been resolved in a different manner or
that the issue[] presented [is] adequate to deserve encouragement
to proceed further.” Slack, 120 S. Ct. 1603-1604.
3. Elicitation of unsubstantiated hearsay and unsubstantiated
testimony regarding threats
Because Barrientes’s third and fourth claims under the
heading of Prosecutorial Misconduct are related and deserve
little comment, we dispose of them together. He claims that the
prosecutor improperly elicited testimony from Mr. Sanchez that he
was threatened if he testified. He also claims that the
testimony of Daniel Agado, the court security officer, indicating
that Barrientes had threatened Sanchez while in Agado’s custody,
was unreliable because Agado had testified similarly in another
case.
As to the elicitation of unsubstantiated hearsay, Barrientes
points to no constitutional right that was violated. Counsel for
Barrientes’s co-defendant brought up threats during his cross-
examination of Sanchez. The prosecutor returned to the topic
during redirect. Counsel for the co-defendant objected, and the
82
judge overruled his objection. Barrientes’s counsel objected;
the judge brought the line of questioning to an end, and the
trial moved on. We are not even convinced that the prosecutor
erred, let alone that he committed misconduct of constitutional
magnitude. We assume that the claim regarding Agado is a Giglio
claim. As we see it, no reasonable jurists could debate whether
Barrientes has proved that Agado’s statement was actually false.
Any Giglio claim would, therefore, necessarily fail. See Nobles,
127 F.3d at 415. Barrientes has made no showing of a denial of a
constitutional right regarding these claims.
4. Improper comment on Barrientes’s failure to testify
Barrientes’s fifth and final claim under the heading of
prosecutorial misconduct is that the prosecutor, during closing
argument of the penalty phase, improperly commented on
Barrientes’s failure to testify. The prosecutor stated:
Let’s go to the second [question]. Whether or not
there’s a probability that the defendant, Barrientes and/or
Gonzales, would commit criminal acts of violence that would
constitute a continuing threat to society.
Whether or not it’s probable that Barrientes and/or
Gonzales would commit criminal acts of violence that would
constitute a continuing threat to society.
Well, you heard Mr. Garza get up and testify that he
arrested Barrientes back in ‘79 for another capital murder
but that witness disappeared in that. I’ll leave that to
your thoughts. Another capital murder back in 1979.
Here we are again with another capital murder. What’s
next? A witness disappeared. I wonder where the witness
83
is. I wonder. He knows. He knows where the witness is as
he sits there right now. He knows. He knows.
State Record Vol. IX at 40-41 (emphasis added). Barrientes
claims that the emphasized statements constituted an
impermissible comment on his failure to testify. We have
included the immediately preceding comments of the prosecutor to
place the complained-of comments in perspective. Barrientes’s
counsel did not object to the comments, and immediately following
these comments, the prosecutor moved on to an unrelated topic.
We must first decide whether this claim was adjudicated on
the merits in state court for purposes of § 2254. Barrientes did
not raise this claim in his direct appeal, but he did raise it in
every habeas petition he filed. He also raised it in his brief
in support of his application for COA in the district court. No
court has ever addressed the claim specifically. After
Barrientes filed his First Habeas Petition, the state trial court
found “that there [were] no controverted previously unresolved
facts which are material to the legality of petitioner’s
confinement,” and consequently forwarded the application to the
Texas Court of Criminal Appeals. Ex parte Barrientes, No.
19,007-01 (Tex. Dist. Ct. Aug. 19, 1998) (order on application
for writ of habeas corpus). The Texas Court of Criminal Appeals,
after ordering an evidentiary hearing to address Barrientes’s
claims of ineffective assistance of counsel, concluded that “none
of applicant’s fourteen allegations have merit. Accordingly,
84
[the Texas Court of Criminal Appeals decided] that the
application should be in all things DENIED.” See Ex parte
Barrientes, No. 19,007-01, order at 2 (Tex. Ct. Crim. App. Feb.
1, 1989). The district court did not explicitly address this
claim in either its 1995 Order or its 1998 Order.
We have established a three-part inquiry to determine
whether a claim has been adjudicated on the merits for purposes
of § 2254. When the last state adjudication of the claim is
silent or ambiguous, “the federal court should ‘look through’ to
the last clear state decision on the matter.” Jackson v.
Johnson, 194 F.3d 641, 651 (5th Cir. 1999). Where, as is the
case here, the claim was not raised on direct appeal, we must
determine whether the last state adjudication was on the merits.
See id. To do so, “we consider ‘(1) what the state courts have
done in similar cases; (2) whether the history of the case
suggests that the state court was aware of any ground for not
adjudicating the case on the merits; and (3) whether the state
courts’ opinions suggest reliance upon procedural grounds rather
than a determination on the merits.’” Id. (quoting Green v.
Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997)).
We begin with the first prong, which requires us to look at
what state courts have done in similar cases. The well-settled
rule in Texas appears to be that, “[u]nless the arguments of the
prosecutor are so prejudicial that no instruction could cure the
harm, the failure to timely object waives any error.” McGee v.
85
State, 774 S.W.2d 229, 240 (Tex. Crim. App. 1989) (en banc); see
also Harris v. State, 784 S.W.2d 5, 12 (Tex. Crim. App. 1989) (en
banc); Van Zandt v. State, 932 S.W.2d 88, 92-93 (Tex. App. 1996).
An argument is “so prejudicial that no instruction could cure the
harm” if it “is clearly calculated to inflame the minds of the
jurors and is of such character as to suggest the impossibility
of withdrawing the impression produced.” Van Zandt, 932 S.W.2d
at 93 n.1. We are unpersuaded that the statements made by the
prosecutor in this case fall under this exception, and conclude
that in cases similar to this the error complained of is waived
for failure to make a contemporaneous objection. Because no
objection was made by Barrientes’s counsel, and such failure
constitutes waiver, our inquiry under the first prong supports
concluding that this claim was not adjudicated on the merits.
We now move on to the second prong, “whether the history of
the case suggests that the state court was aware of any ground
for not adjudicating the case on the merits.” The state habeas
record in this case is limited, but it appears that no brief was
filed by the State in response to Barrientes’s First State
Petition. Moreover, the State’s Answer, Motion for Summary
Judgment, and Supporting Brief filed in the district court in
response to Barrientes’s Second Federal Petition attacks this
claim on the merits rather than arguing that it was waived for
failure to make a contemporaneous objection. We surmise from
this history that the Texas Court of Criminal Appeals was not put
86
on notice by the State that this claim was waived. Our inquiry
under this factor weighs in favor of concluding that the claim
was adjudicated on the merits.
We now proceed to the final prong of our inquiry, “whether
the state courts’ opinions suggest reliance upon procedural
grounds rather than a determination on the merits.” The Texas
Court of Criminal Appeals denied Barrientes’s First State
Petition. Relying on Ex parte Torres, 943 S.W.2d 469, 472 (Tex.
Crim. App. 1997) (en banc), we have before explained that
“[u]nder Texas law a denial of relief by the Court of Criminal
Appeals serves as a denial of relief on the merits of the claim.”
Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000); see also
Bledsue v. Johnson, 188 F.3d 250, 257 n.13 (5th Cir 1999);
Singleton v. Johnson, 178 F.3d 381, 384 (5th Cir. 1999); Jackson
v. Johnson, 150 F.3d 520, 524 (5th Cir. 1998). Considering our
precedent, the denial by the Texas Court of Criminal Appeals does
not suggest reliance on procedural grounds.
After considering the results of each of our inquiries, we
conclude that this claim was adjudicated on the merits by the
Texas Court of Criminal Appeals. See Miller, 200 F.3d at 281
(relying in part on Torres to determine that an adjudication was
on the merits). But see Jackson, 194 F.3d at 651 (concluding
that an adjudication was not on the merits without considering
87
Torres).30 Having determined that the issue was adjudicated on
the merits in the state courts, we owe deference to their
disposition of the claim under § 2254.
We now proceed to determine whether Barrientes has made a
substantial showing of the denial of a constitutional right. The
comment made by the prosecutor must be considered in the context
of his entire argument.
For there to have been a denial of one’s fifth amendment
right to remain silent, the prosecutor’s manifest intent in
making the remark must have been to comment on the
defendant’s silence, or the character of the remark must
have been such that the jury would naturally and necessarily
construe it as a comment on the defendant’s silence. To
expound on the first inquiry, the prosecutor’s intent is not
manifestly impermissible if there is some other, equally
plausible explanation for the remark. For the second
inquiry, the question is not whether the jury might or
probably would view the challenged remark in this manner,
but whether it necessarily would have done so.
Id. (footnote omitted). Of course, if either the “manifest
intent” or “natural and necessary construction” prong is met, we
must further consider whether the error was harmless under the
standard of Brecht, 507 U.S. at 638. See Lucas v. Johnson, 132
F.3d 1069, 1079 (5th Cir. 1998). In Jackson, we addressed the
30
The determination in Jackson v. Johnson, 194 F.3d 641
(5th Cir. 1999), that adjudication was not on the merits arguably
conflicts with cases cited in the text that analyze the question
of adjudication on the merits with an eye towards the Torres
decision. Some of these cases predate Jackson, and, under our
jurisprudence, if two panel decisions conflict, the earlier one
controls. Texaco, Inc. v. Louisiana Land and Exploration Co.,
995 F.2d 43, 44 (5th Cir. 1993). One panel of this court may not
overrule another panel. See Broussard v. Southern Pac. Transp.
Co., 665 F.2d 1387, 1389 (5th Cir. 1982) (en banc).
88
following comment: “Look at him; he hasn’t shown any remorse.
After he and Clary killed this girl, they went into the beer
joint and drank beer and shot pool.” 194 F.3d at 652. We
concluded that this comment did not constitute an impermissible
comment on the defendant’s right to remain silent because it met
neither prong of the disjunctive inquiry. See id. at 652-53.
Likewise, in Lucas, we concluded that the following comment was
“neither a direct nor an indirect comment on [the defendant’s]
failure to testify:”
The handwriting comparison on the matches with Henry Lee
Lucas was inconclusive. We don’t know that those are his
matches; they might have been the girl’s matches. She
might have written in the matchbook; we don’t know that.
Only one person does know that, and that’s Henry Lee Lucas.
132 F.3d at 1079 & n.6. There, we looked at “the overall point
of the prosecutor’s statements.” In Madden v. Collins, 18 F.3d
304 (5th Cir. 1994), however, we examined the following statement
made by the prosecutor during the closing of the guilt/innocence
phase of Madden’s trial and concluded that it constituted an
impermissible comment on his failure to testify:
Then, also, the defense will argue that why in the world
would someone who killed, murdered two people and stole this
credit card sign their own name to the Texaco card? I don’t
know that; you don’t know why. There’s only one person
here that knows why, and there’s only one person here that
knows the answer to all of these questions.
Id. at 309. Ultimately, we concluded that the error was
harmless. See id.
89
It is against this backdrop that we examine the comment made
here. Barrientes argues that the prosecutor impermissibly
commented on his failure to testify at the penalty phase of his
trial by stating, “He knows. He knows where the witness is as he
sits there right now. He knows. He knows.” State Record Vol.
IX at 41. Our task is to determine whether “reasonable jurists
could debate whether . . . the petition should have been resolved
in a different manner or that the issues presented were adequate
to deserve encouragement to proceed further.” Slack, 120 S. Ct.
at 1604 (internal quotation marks omitted). The district court
denied the petition with respect to this claim, and because we
treat the disposition of this claim by the Texas Court of
Criminal Appeals as a disposition on the merits, the district
court was bound to deny the claim, as it did, unless the state
court disposition was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).
While we agree that reasonable jurists could debate whether
a constitutional violation occurred, we conclude that reasonable
jurists could not debate whether the state court disposition was
contrary to or involved an unreasonable application of “governing
legal principles from [the Supreme Court’s] decisions.”
Williams, 120 S. Ct. at 1523. Consequently, reasonable jurists
90
could not “debate whether . . . the petition should have been
resolved in a different manner.”31 Slack, 120 S. Ct. at 1604.
C. Admission of Evidence of Unadjudicated Crimes
The next claim for which Barrientes seeks a COA is that the
failure of the state court to instruct the jury on the proper use
that could be made of evidence of unadjudicated crimes
constituted a violation of his rights under the Eighth Amendment.
He asserts that due process requires particularized instructions
if evidence of unadjudicated crimes is admitted in the penalty
phase of a capital murder trial. Barrientes argues that the jury
be instructed, perhaps at a minimum, on the burden of proof to
apply in reviewing evidence of unadjudicated crimes and the use
that can be made of the evidence. He cites only one case,
Williams v. Lynaugh, 814 F.2d 205 (5th Cir. 1987), for the
proposition that “‘properly applied standards of relevance and
31
Even were we to grant Barrientes a COA on this claim, it
would fail on the merits. It was not the prosecutor’s “manifest
intent” in making the remark to comment on Barrientes’s silence,
nor was the remark of such a character that “the jury would
naturally and necessarily construe it as a comment on
[Barrientes’s] silence.” Viewed in the context of the
prosecutor’s entire argument, the remark is most naturally taken
as an implication that Barrientes killed the missing witness.
Indeed, it is this inference that Barrientes used in support of
the argument that convinced the district court to vacate his
sentence of death. We recognize that the statement could be
taken as a comment on his failure to testify at the penalty
phase, and it is even possible that the prosecutor intended, in
part, to comment on his failure to testify. Under our
jurisprudence, however, that is not enough.
91
sufficiency of proof’ are necessary to ensure that constitutional
safeguards are observed when allegations of unadjudicated
offenses are presented by the State at sentencing.” Barrientes’s
COA Brief at 51 (quoting Williams, 814 F.2d at 208).
The State responds that this is one of the claims on which
the district court granted relief. We disagree. The claim to
which the State refers was that, prior to evidence of
unadjudicated crimes being admissible, the State must make a
preliminary showing to the trial court that a reasonable jury
could find, by a preponderance of the evidence, that the
defendant committed the crime. Nonetheless, Barrientes has
failed to make a substantial showing of the denial of a
constitutional right.
In United States v. Hall, 152 F.3d 381 (5th Cir. 1998),
abrogated on other grounds, United States v. Martinez-Salazar,
120 S. Ct. 774 (2000), we addressed a similar claim. We stated:
As we understand it, Hall’s argument appears to be that,
when the government offers evidence of an unadjudicated
offense in support of an aggravating factor, the jury must
be instructed that it cannot consider this evidence in
determining whether the government has carried its burden of
proving the aggravating factor beyond a reasonable doubt
unless it has first determined that the evidence establishes
by some quantum of evidence that the unadjudicated offense
occurred. Hall has offered no legal support for this
proposition, and the only precedent that we have found
militates against it.
Id. at 404 (footnote omitted). Barrientes fares no better with
his reliance upon Williams. The claim at issue in Williams was
the very different proposition that the very introduction of
92
evidence of unadjudicated offenses violates constitutional
guarantees. See 814 F.2d at 207-08. In any event, even were we
inclined to recognize that the constitutional right for which
Barrientes argues, his claim would nonetheless be Teague-barred.
See White v. Johnson, 79 F.3d 432, 437 (5th Cir. 1996) (refusing
to address a claim in an application for a CPC because the claim
was Teague-barred).
D. Jury Consideration of Evidence Outside the Record
A diagram of the Fina-Jamco store provided by the
prosecution was not drawn to scale. Based on how the drawing was
rendered, Barrientes claims that jurors questioned whether
Sanchez could have seen Barrientes pushing someone into the
cooler from his vantage point at the front door. Barrientes
avers that one juror claimed experience in constructing
convenience stores and explained to his fellow jurors what the
proper scale should be and that Sanchez could see Barrientes from
his vantage point.
Neither in state court nor in the district court has
Barrientes produced evidentiary support for this claim. He fails
to make a substantial showing of the denial of a constitutional
right.
V. Conclusion
93
For the foregoing reasons we REVERSE the district court’s
order with respect to the Preliminary Showing Claim, VACATE the
district court’s order insofar as it granted habeas relief on
five other claims, and REMAND the case for further proceeding
consistent with this opinion. The district court’s judgment
disposing of this application for habeas relief should be entered
within 150 days of the issuance of our mandate. We DENY
Barrientes’s application for a certificate of appealability.
94