Edgardo Cubas v. Rick Thaler, Director , 487 F. App'x 128 ( 2012 )


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  •      Case: 11-70027     Document: 00511889058         Page: 1     Date Filed: 06/15/2012
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    June 15, 2012
    No. 11-70027                        Lyle W. Cayce
    Clerk
    EDGARDO RAFAEL CUBAS,
    Petitioner - Appellant
    v.
    RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
    JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
    Respondent - Appellee
    Appeal from the United States District Court
    for the Southern District of Texas
    No: 4:10-CV-604
    Before STEWART, CLEMENT, and PRADO, Circuit Judges.
    EDITH BROWN CLEMENT:*
    Edgardo Rafael Cubas, a Texas death row inmate, was convicted of murder
    committed during a sexual assault. The Texas judge presiding over his trial was
    a former prosecutor and defense attorney who Cubas claims was not impartial.
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
    R. 47.5.4.
    Case: 11-70027       Document: 00511889058          Page: 2     Date Filed: 06/15/2012
    No. 11-70027
    Cubas seeks a Certificate of Appealability (“COA”) due to the alleged
    impartiality. Because Cubas has not shown entitlement to habeas relief, we
    DENY his request for a COA.
    FACTS AND PROCEEDINGS
    Cubas was sentenced to death in 2004 for murdering a fifteen-year-old girl.
    The facts of his crime are not before this court.1 Judge Jan Krocker, presiding
    judge of the 184th District Court for Harris County, Texas, presided over Cubas’
    trial. Judge Krocker was a former assistant district attorney with the Harris
    County District Attorney’s Office. While an assistant district attorney, Judge
    Krocker prosecuted a capital murder case against Martin Allen Draughon in
    1987. It is not alleged that Draughon has any relationship with Cubas, nor that
    their crimes are in any way related. In 1995, Judge Krocker took the bench.
    During Cubas’ trial, Draughon was in the midst of seeking federal habeas corpus
    1
    The United States District Court has previously summarized the underlying facts:
    On January 22, 2002, an individual found the partially nude body of
    fifteen-year-old Esmeralda Alvarado in a secluded area of Harris County. Four
    days earlier, Ms. Alvarado disappeared after leaving her boyfriend’s house to
    use a pay phone. Police investigation showed that Ms. Alvarado died from a
    single gunshot to the head. Her body bore signs of sexual trauma.
    Several months passed without any leads. Finally, Cubas’ co-defendant
    Walter Sorto (“Sorto”) incriminated him in the duo’s nine-month crime spree,
    of which Ms. Alvarado’s murder was only one incident. On August 21, 2002, the
    police arrested Cubas. Cubas gave the police five videotaped statements over a
    two-day period. Cubas’ statements chronicle several robberies, rapes, and
    murders he committed with Sorto. With regard to Ms. Alvarado’s murder,
    Cubas explained that he and Sorto were driving around when they saw her
    talking on a pay phone. Intending to rob her, Sorto forced Ms. [Alvarado] into
    the vehicle. After unsuccessfully searching her for money, Cubas began raping
    Ms. [Alvarado]. The two men drove to various locations and took turns sexually
    assaulting her. Finally after traveling to a secluded area, Sorto told Cubas that
    they would have to kill Ms. [Alvarado] so that she could not identify them.
    Cubas originally told the police that Sorto fired the killing shot. In Cubas’ final
    statement given to Houston Police Department Officer Xavier Avila, he
    admitted that he shot Ms. [Alvarado].
    Cubas v. Thaler, No. H-10-604 
    2011 WL 4373196
     at *1 (S.D. Tex. Sept. 16, 2011).
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    relief. Judge Krocker sought to file an affidavit in Draughon’s case to show that
    she had not committed prosecutorial misconduct before the state trial court.
    Cubas’ trial counsel was unaware of Judge Krocker’s participation in Droughon’s
    federal habeas case.
    On state habeas review, Cubas argued that the alignment of interests in
    the Draughon case made Judge Krocker biased against him. Cubas argued that
    Judge Krocker’s actions made her effectively a member of the prosecutor’s office,
    with her concern for the integrity of Draughon’s conviction and sentence spilling
    over into his case.    He asserted that Judge Krocker’s interest in keeping
    Draughon on death row somehow translated into seeing Cubas receive a similar
    fate.
    The state habeas court denied relief on procedural and
    substantive grounds. As a procedural matter, the state habeas court
    applied Texas’ contemporaneous objection rule because trial counsel
    had not complained about bias at trial. Substantively, the state
    habeas court provided several reasons for finding that Judge
    Krocker was not biased against Cubas. The state habeas court first
    emphasized that the two proceedings were unrelated: “no aspect of
    the [Cubas’] case had any relation to the trial or subsequent
    appeals, including habeas appeals, of defendant Martin Allen
    Draughon.” Importantly, “Judge Krocker had no role in the
    preparation, investigation, or prosecution of the instant capital
    murder case.” The state court observed that any alleged bias could
    not have been pervasive; trial counsel did not know about her
    actions in Draughon and were not sure they would have objected
    had they known. Also, the state habeas court found that Judge
    Krocker’s rulings did not hint of any prejudice against him. In
    conclusion, the state habeas court found that Cubas “was provided
    an impartial and disinterested tribunal with respect to the instant
    capital murder trial and [his] allegations of bias regarding Judge
    Krocker are speculative, unpersuasive, and not supported by the
    record.”
    Cubas, 
    2011 WL 4373196
     at *7 (internal citations omitted).
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    The state habeas court found that Texas’ contemporaneous objection rule
    which requires “a party to preserve an issue for appellate review” by making “a
    timely objection with specific grounds for the desired ruling,” Livingston v.
    Johnson, 
    107 F.3d 297
    , 311 (5th Cir. 1997), prevented habeas review of Cubas’
    claims of bias. Cubas appealed this ruling and raised thirty-five grounds for
    habeas corpus relief before the district court. The district court examined each
    ground and found that Cubas did not show an entitlement to habeas relief either
    on procedural grounds or on the merits. Cubas seeks a COA on his claim the
    trial judge was not impartial.
    STANDARD OF REVIEW
    A COA is a jurisdictional requirement for our consideration of an appeal
    on the merits. “[U]ntil a COA has been issued federal courts of appeals lack
    jurisdiction to rule on the merits of appeals from habeas petitioners.” Miller-El
    v. Cockrell, 
    537 U.S. 322
    , 336 (2003). A COA will be granted only if the
    petitioner makes “a substantial showing of the denial of a constitutional right.”
    
    28 U.S.C. § 2253
    (c)(2). “A petitioner satisfies this standard by demonstrating
    that jurists of reason could disagree with the district court’s resolution of his
    constitutional claims or that jurists could conclude the issues presented are
    adequate to deserve encouragement to proceed further.” Miller-El, 
    537 U.S. at 327
     (citation omitted). “The question is the debatability of the underlying
    constitutional claim, not the resolution of that debate.” 
    Id. at 342
    . “Indeed, a
    claim can be debatable even though every jurist of reason might agree, after the
    COA has been granted and the case has received full consideration, that
    petitioner will not prevail.” 
    Id. at 338
    . “While the nature of a capital case is not
    of itself sufficient to warrant the issuance of a COA, in a death penalty case any
    doubts as to whether a COA should issue must be resolved in the petitioner’s
    favor.” Johnson v. Quarterman, 
    483 F.3d 278
    , 285 (5th Cir. 2007) (quoting
    Ramirez v. Dretke, 
    398 F.3d 691
    , 694 (5th Cir. 2005)).
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    DISCUSSION
    Cubas alleges that Judge Krocker was both actually and presumptively
    biased against him due to her involvement in Draughon.            See Buntion v.
    Quarterman, 
    524 F.3d 664
    , 672 (5th Cir. 2008). Courts “presume that public
    officials have ‘properly discharged their official duties,’” Bracy v. Gramley, 
    520 U.S. 899
    , 909 (1997) (quoting United States v. Armstrong, 
    517 U.S. 456
    , 464
    (1996)), therefore “bias by an adjudicator is not lightly established.” Valley v.
    Rapides Parish Sch. Bd., 
    118 F.3d 1047
    , 1052 (5th Cir. 1997). The question
    before us is whether Cubas can overcome this high bar and demonstrate a valid
    constitutional claim of either actual or presumptive judicial bias. Because Cubas
    cannot make a substantial showing of a denial of a constitutional right, we deny
    his application for a COA.
    A.    Actual Bias
    Cubas alleges actual bias by citing eight actions which he claims
    demonstrated animus against him, such as Judge Krocker giving prospective
    jurors an incorrect definition of “intentional” when discussing the legal
    requirements for murder prior to seating the jury. The specific examples were
    rejected by the district court as both independent bases for relief and as proof of
    bias. None of these alleged errors demonstrate prejudice. While they might
    have served as grounds for objection at trial, Cubas cites no case indicating such
    objectionable actions have ever been found to show substantial bias. As the
    district court noted, “taken cumulatively, [the specific allegations of error
    demonstrating bias] do not display a pervasively obvious actual bias against
    Cubas.” Cubas, 
    2011 WL 4373196
     at *10. These alleged errors at trial are
    insufficient to demonstrate a denial of a constitutional right. Because Cubas can
    point to no compelling evidence of actual bias by Judge Krocker at trial, we deny
    his request for a COA based on actual bias.
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    B.    Presumptive Bias
    Cubas next alleges that Judge Krocker’s involvement in the completely
    unrelated federal habeas proceedings for Draughon gave the appearance of bias
    and thus the presumption of bias overshadows this case. Cubas claims that
    Judge Krocker’s intervention in Draughon caused her to be biased against him
    because she was acting simultaneously as judge and prosecutor.
    “[T]he United States Supreme Court has consistently enforced the
    basic right to due process and found that decision makers are
    constitutionally unacceptable when: (1) the decision maker has a
    direct personal, substantial, and pecuniary interest in the outcome
    of the case; (2) an adjudicator has been the target of personal abuse
    or criticism from the party before him; and (3) a judicial or quasi
    judicial decision maker has the dual role of investigating and
    adjudicating disputes and complaints.
    Bigby v. Dretke, 
    402 F.3d 551
    , 558-59 (5th Cir. 2005). To show a constitutional
    violation, Cubas must show that Judge Krocker’s intervention in Draughon ran
    afoul of one of these three categories.
    The facts of this case are not even close to those cases in which the
    Supreme Court has found presumptive bias.          Judge Krocker’s affidavit in
    Draughon was completely unrelated to the proceedings in Cubas’ trial. Cubas
    cites no portion of her affidavit or any other evidence to indicate a relationship
    between his prosecution and Draughon’s and there is no evidence to show Judge
    Krocker had any personal interest in the outcome of Cubas’ trial. Cubas does
    not allege he abused or criticized Judge Krocker prior to the trial. Cubas does
    not show bias under the first two prongs to form the basis for us to find
    substantial evidence of a constitutional violation.
    We have never held that the third prong is violated when the two parties
    in question are unrelated and decline to do so here. Judge Krocker’s activity in
    Draughon was in no way related to Cubas’ case. She filed an affidavit which
    6
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    does not make any mention of Cubas or discuss the Cubas case. Regardless of
    Judge Krocker’s motivation for involving herself in Draughon, and regardless of
    the prudence in doing so, she was not simultaneously sitting in judgment over
    Cubas and prosecuting Cubas or anyone related to Cubas. As the district court
    found “Whatever actions she may have taken in Draughon, Judge Krocker’s
    temperament, comportment, and rulings in Cubas’ trial do not hint of
    impermissible bias or prejudgment.” Cubas, 
    2011 WL 4373196
     at *11. While
    Cubas argues Judge Krocker was certainly not unbiased in Draughon, he fails
    to make the necessary link between her desire to maintain the outcome she had
    previously obtained while prosecuting Draughon with her desire for a particular
    outcome in the Cubas trial. Barring this link, we do not find presumptive bias
    and therefore hold that Cubas has failed to make a substantial showing of a
    denial of his constitutional rights.
    CONCLUSION
    For the foregoing reasons, we DENY Cubas’ application for a COA.
    7