Salazar v. Dretke ( 2004 )


Menu:
  •                                                        United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                November 30, 2004
    Charles R. Fulbruge III
    Clerk
    No. 03-11244
    ROBERT MADRID SALAZAR
    Petitioner - Appellant
    v.
    DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
    CORRECTIONAL INSTITUTIONS DIVISION
    Respondent - Appellee
    Appeal from the United States District Court
    for the Northern District of Texas
    No. 5:02-CV-224-C
    Before KING, Chief Judge, and DeMOSS and STEWART, Circuit Judges.
    PER CURIAM:*
    Petitioner-Appellant Robert Madrid Salazar seeks a
    certificate of appealability (COA) to appeal the district court’s
    dismissal of his 28 U.S.C. § 2254 habeas corpus application.         For
    the following reasons, we DENY Salazar’s request for a COA with
    respect to his claim that the state trial court failed to
    instruct the jury on parole eligibility, but we GRANT Salazar’s
    request for a COA on his claim that the jury impermissibly
    *
    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    that this opinion should not be published and is not precedent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.
    No. 03-11244
    -2-
    considered inaccurate, extrinsic evidence regarding parole.
    I.   Background
    On March 9, 1999, Robert Salazar was convicted by a Texas
    jury of capital murder.   During the sentencing phase of his
    trial, Salazar asked the trial court to instruct the jury that he
    would be eligible for parole after forty years if he received
    life in prison rather than death.1   The trial court declined to
    give the instruction but did instruct the jury that it should not
    consider the possibility of parole during deliberation.
    The jury found that Salazar presented a future threat to
    society and that there was insufficient mitigating evidence to
    warrant life in prison rather than death.     Consequently, the
    trial court sentenced Salazar to death.     It was subsequently
    revealed through an interview by television reporters that,
    contrary to the trial court’s instruction, the jury had discussed
    the possibility that Salazar could be released on parole if he
    were sentenced to life in prison.
    In light of this discovery, Salazar moved for a new trial,
    arguing that the jury’s parole discussion violated state law and
    1
    Texas state law provides that a criminal convict who is
    sentenced to life in prison will not be eligible for parole until
    he has served forty years. TEX. GOV’T CODE ANN. § 508.145 (Vernon
    2003) (“An inmate serving a life sentence for a capital felony is
    not eligible for release on parole until the actual calendar time
    the inmate has served, without consideration of good conduct
    time, equals 40 calendar years.”).
    No. 03-11244
    -3-
    his federal and state constitutional rights.   The trial court
    conducted a hearing to consider Salazar’s motion.   At the
    hearing, Salazar presented testimony from four jurors: Voyles,
    Ashley, Kelly, and Hamlin.2   Voyles explained that during
    deliberations, the jurors learned that Kelly was a police
    officer.   According to Voyles and Ashley, Kelly professed to know
    the applicable parole law and incorrectly asserted as fact that
    Salazar would be eligible for parole in twenty years.    Both
    Voyles and Ashley testified that they relied on Kelly’s statement
    in considering Salazar’s punishment.   Ashley asserted that
    Kelly’s comments contributed to her decision to change her vote
    from life to death.   Kelly admitted that he had given his opinion
    on the parole laws to the other jurors, but he maintained that he
    had not held himself out as an expert on parole law.    Finally,
    Hamlin testified that he vaguely remembered someone mentioning
    that Salazar could be eligible for parole in twenty to twenty-
    five years.
    In rebuttal, the State presented affidavits from four jurors
    (Holdridge, Sanford, Tinney, and Perez), stating that although
    2
    The Texas Rules of Evidence normally would bar this
    testimony. See TEX. R. EVID. 606(b)(prohibiting jurors from
    testifying about their deliberations except for the purposes of
    showing that an outside influence was brought to bear upon a
    juror or to rebut a claim that the juror was not qualified to
    serve). However, Salazar and the State both withdrew their
    initial evidentiary objections to the jurors’ testimony and
    affidavits.
    No. 03-11244
    -4-
    Kelly may have offered his opinion on parole law, Kelly never
    held himself out as an expert or professed to have specific
    knowledge about parole law.   Based on this evidence, the state
    trial court ruled from the bench and denied Salazar’s motion for
    a new trial.
    Salazar appealed to the Texas Court of Criminal Appeals
    (TCCA), arguing, inter alia, that the trial court’s failure to
    instruct the jury regarding his parole eligibility violated his
    federal constitutional rights and that the jury’s discussion of
    parole violated state law and his federal and state
    constitutional rights.   Salazar v. State, 
    38 S.W.3d 141
    , 146-47
    (Tex. Crim. App. 2001), cert. denied, 
    534 U.S. 855
    (2001).      The
    TCCA affirmed.   First, the court rejected Salazar’s contention
    that the failure to give an instruction regarding parole
    eligibility violated his federal constitutional rights.      Second,
    the court dismissed Salazar’s federal and state constitutional
    claims based on jury misconduct because Salazar’s “brief
    present[ed] no authority in support of his argument . . . .”
    
    Salazar, 38 S.W.3d at 147
    .3   In addressing Salazar’s non-
    3
    The State did not invoke the procedural bar doctrine in
    the state habeas proceeding, and the state habeas court therefore
    reached the merits of Salazar’s claim. The State subsequently
    attempted to argue procedural bar in the federal district court,
    but the district court concluded that the State had waived the
    argument and that it was appropriate to reach the merits of
    Salazar’s constitutional claim. The State has abandoned its
    procedural bar argument on appeal to this court.
    No. 03-11244
    -5-
    constitutional state-law claim for jury misconduct, the court
    determined that the evidence presented to the trial court
    supported the conclusion that Salazar had failed to satisfy the
    elements of a state-law claim for jury misconduct under Sneed v.
    State, 
    670 S.W.2d 262
    , 266 (Tex. Crim. App. 1984).4   The court
    reached this conclusion because there was conflicting evidence
    regarding whether Kelly held himself out as an expert, whether he
    asserted his opinion as fact, and whether Ashley changed her vote
    as a result of Kelly’s misstatement.
    On October 13, 2000, while his direct criminal appeal was
    pending, Salazar filed a petition for a writ of habeas corpus in
    state court.   The trial court (the same judge that had presided
    over Salazar’s trial and sentencing) adopted the State’s proposed
    findings of fact and conclusions of law and recommended that
    relief be denied.   The TCCA, in turn, adopted the trial court’s
    findings and conclusions and denied Salazar’s habeas petition.
    On September 6, 2002, Salazar filed a petition for habeas
    relief in federal district court.   Salazar argued, inter alia,
    that his due process rights were violated by the trial court’s
    refusal to instruct the jury regarding the applicable parole laws
    4
    Under Sneed, “[a] jury’s discussion of parole constitutes
    reversible error when a defendant shows (1) a misstatement of
    law; (2) asserted as a fact (3) by one professing to know the law
    (4) which is relied upon by other jurors (5) who for that reason
    changed their vote to a harsher punishment.” 
    Salazar, 38 S.W.3d at 147
    (footnote omitted) (citing 
    Sneed, 670 S.W.2d at 266
    ).
    No. 03-11244
    -6-
    and by the jury’s discussion of parole during its deliberations.
    After concluding that the state court’s adjudication of these
    claims was not contrary to or an unreasonable application of
    Supreme Court law, the district court denied Salazar’s petition
    on August 27, 2003.   Salazar filed a motion under Rule 59 on
    September 11, 2003, requesting that the district court reconsider
    its judgment.   On October 27, 2003, the district court denied
    Salazar’s motion.
    Salazar filed a notice of appeal and a motion for a COA.
    Shortly thereafter, the district court denied Salazar’s motion
    for a COA.   Salazar now seeks a COA from this court.
    II.    Discussion
    A.   Timeliness of Appeal
    We must first address the State’s argument that Salazar did
    not timely file his notice of appeal.       When a party has filed a
    Rule 59 motion to reconsider, the party need not appeal the
    adverse judgment until thirty days from the entry of the order
    denying the Rule 59 motion.       FED. R. APP. P. 4(a)(4)(A)(iv).   The
    State argues, however, that Salazar’s Rule 59 motion itself was
    not timely and, therefore, that the time limit for filing the
    motion to reconsider was not extended by Rule 4(a)(4)(A)(iv).
    A Rule 59 motion to reconsider must be filed within ten days
    after entry of the judgment.       FED. R. CIV. P. 59(e).   The district
    court entered judgment against Salazar on August 27, 2003.
    No. 03-11244
    -7-
    Salazar filed his Rule 59 motion on September 11, 2003--fifteen
    calendar days after the district court’s judgment.     However, Rule
    6(a) provides that “the day of the act, event, or default from
    which the designated period of time begins to run shall not be
    included” in the computation, and that when “the period of time
    prescribed or allowed is less than 11 days, intermediate
    Saturdays, Sundays, and legal holidays shall be excluded in the
    computation.”   FED. R. CIV. P. 6(a).   Between August 27 and
    September 11, there were two Saturdays, two Sundays, and one
    legal holiday (Labor Day on September 1).     Once we exclude these
    days under Rule 6(a), Salazar’s Rule 59 motion was filed on the
    tenth day after the entry of judgment and therefore was timely.
    Because Salazar filed a timely Rule 59 motion, he had thirty
    days after the district court denied his motion within which to
    file a notice of appeal.   The district court denied Salazar’s
    motion on October 27, 2003.   Salazar filed a notice of appeal
    twenty-eight days later, on November 24, 2003.     Thus, his notice
    of appeal was timely, and the State’s argument is without merit.
    B.   Standard of Review
    Under the Antiterrorism and Effective Death Penalty Act
    (AEDPA),5 a state habeas petitioner may appeal a district court’s
    5
    AEDPA applies because Salazar filed his § 2254 habeas
    petition on September 6, 2002, well after AEDPA’s effective date
    of April 24, 1996. See Fisher v. Johnson, 
    174 F.3d 710
    , 711 (5th
    Cir. 1999).
    No. 03-11244
    -8-
    dismissal of his petition only if the district court or the court
    of appeals first issues a COA.   28 U.S.C. § 2253(c)(1) (2004);
    Miller-El v. Cockrell, 
    537 U.S. 322
    , 338 (2003) (explaining that
    a COA is a “jurisdictional prerequisite” without which “federal
    courts of appeals lack jurisdiction to rule on the merits of
    appeals from habeas petitioners”).   “[W]hen a habeas applicant
    seeks permission to initiate appellate review of the dismissal of
    his petition, the court of appeals should limit its examination
    to a threshold inquiry into the underlying merit of his claims.”
    
    Miller-El, 537 U.S. at 327
    (citing Slack v. McDaniel, 
    529 U.S. 473
    , 481 (2000)).   “This threshold inquiry does not require full
    consideration of the factual or legal bases adduced in support of
    the claims.   In fact, the statute forbids it.”     
    Id. at 336.
    A COA will be granted “only if the applicant has made a
    substantial showing of the denial of a constitutional right.”       28
    U.S.C. § 2253(c)(2) (2004).   “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
    (citing 
    Slack, 529 U.S. at 484
    ).      In other words,
    “[t]he petitioner must demonstrate that reasonable jurists would
    find the district court’s assessment of the constitutional claims
    debatable or wrong.”   
    Id. at 338.
      Hence, “[t]he question is the
    No. 03-11244
    -9-
    debatability of the underlying constitutional claim, not the
    resolution of that debate.”    
    Id. at 342.
      “[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.
    Finally, any doubt as to whether a COA should issue in a death-
    penalty case must be resolved in favor of the petitioner.        Newton
    v. Dretke, 
    371 F.3d 250
    , 254 (5th Cir. 2004); Medellin v. Dretke,
    
    371 F.3d 270
    , 275 (5th Cir. 2004).
    In determining whether the district court’s denial of
    Salazar’s petition was debatable, we must keep in mind the
    deferential standard of review that AEDPA requires a district
    court to apply when considering a petition for habeas relief.
    Miniel v. Cockrell, 
    339 F.3d 331
    , 336 (5th Cir. 2003); see also
    
    Miller-El, 537 U.S. at 336-37
    (“We look to the District Court’s
    application of AEDPA to petitioner’s constitutional claims and
    ask whether that resolution was debatable amongst jurists of
    reason.”).   Under AEDPA, a federal court is not to grant a writ
    of habeas corpus “with respect to any claim that was adjudicated
    on the merits in State court proceedings” unless it determines
    that the state court’s adjudication “resulted in a decision that
    was contrary to, or involved an unreasonable application of,
    clearly established Federal law, as determined by the Supreme
    Court of the United States.”    28 U.S.C. § 2254(d)(1); see also
    No. 03-11244
    -10-
    Williams v. Taylor, 
    529 U.S. 362
    , 402-13 (2000) (opinion of
    O’Connor, J.) (interpreting the statutory language “contrary to,
    or involved an unreasonable application of”).
    A writ of habeas corpus may issue also if the state court’s
    adjudication of a claim “resulted in a decision that was based on
    an unreasonable determination of the facts in light of the
    evidence presented in the State court proceeding.”      28 U.S.C.
    § 2254(d)(2).     Furthermore, “a determination of a factual issue
    made by a State court shall be presumed to be correct” unless the
    petitioner rebuts the presumption “by clear and convincing
    evidence.”      28 U.S.C. § 2254(e)(1).   This presumption of
    correctness attaches not only to explicit findings, but also to
    “unarticulated findings which are necessary to the state court’s
    conclusions of mixed law and fact.”       Pondexter v. Dretke, 
    346 F.3d 142
    , 148 (5th Cir. 2003) (quotation marks omitted).
    We review the district court’s findings of fact for clear
    error and its conclusions of law de novo.       Collier v. Cockrell,
    
    300 F.3d 577
    , 582 (5th Cir. 2002).
    C.   Analysis
    1.   Jury Instruction
    Salazar, relying on Simmons v. South Carolina, 
    512 U.S. 154
    (1994), argues that the state trial court violated his Fourteenth
    Amendment due process rights by refusing to instruct the jury
    that he would not be eligible for parole until he had served
    No. 03-11244
    -11-
    forty years in prison.   The TCCA, noting that it has previously
    rejected similar claims, denied relief.   Applying the AEDPA
    standard to Salazar’s habeas petition, the district court found
    that the state court’s adjudication was not contrary to, or an
    unreasonable application of, clearly established Supreme Court
    law and therefore rejected Salazar’s petition.
    Jurists of reason would not find the district court’s
    assessment of Salazar’s constitutional claim debatable or wrong.
    The Supreme Court has explained that, under Simmons, a jury
    instruction is required only if the defendant would be ineligible
    for parole if he were to receive a life sentence.   See Kelly v.
    South Carolina, 
    534 U.S. 246
    , 248 (2002) (“[W]hen a capital
    defendant’s future dangerousness is at issue, and the only
    sentencing alternative to death available to the jury is life
    imprisonment without possibility of parole, due process entitles
    the defendant to inform the jury of [his] parole ineligibility,
    either by a jury instruction or in arguments by counsel.”)
    (internal quotation marks omitted) (second alteration in
    original); Ramdass v. Angelone, 
    530 U.S. 156
    , 166 (2000)
    (plurality opinion) (“The parole-ineligibility instruction is
    required only when, assuming the jury fixes the sentence at life,
    the defendant is ineligible for parole under state law.”); see
    also 
    Simmons, 512 U.S. at 171
    .   Salazar concedes, however, that
    had he been sentenced to life, he would have been eligible for
    No. 03-11244
    -12-
    parole after forty years.    Thus, under Simmons and its progeny,
    Salazar was not entitled to an instruction on parole.     See Jones
    v. Dretke, 
    375 F.3d 352
    , 357 (5th Cir. 2004);     Tigner v.
    Cockrell, 
    264 F.3d 521
    , 525 (5th Cir. 2001).    Therefore, Salazar
    has failed to make a substantial showing of a denial of his due
    process rights and his request for a COA with respect to this
    claim is denied.
    2.   Jury Misconduct
    With respect to Salazar’s claim of jury misconduct, however,
    we find the district court’s denial of habeas relief debatable
    among jurists of reason.     We therefore grant Salazar a COA on the
    question whether juror Kelly’s alleged conveyance to the other
    jurors of inaccurate information regarding parole during
    deliberations violated Salazar’s right to due process of law.
    In order to assist this court in its adjudication, but
    without any intention of limiting the parties from briefing the
    issues as they see fit, we request that the parties submit
    supplemental briefing on the following questions:
    (1)   What is “the clearly established Federal law, as determined
    by the Supreme Court of the United States” on which
    Salazar’s federal constitutional claim is based?   Be
    specific.
    (2)   Did any of the state courts specifically address Salazar’s
    federal constitutional claim (as distinguished from his
    No. 03-11244
    -13-
    state-law claim under Sneed), and if so, what specifically
    did each such court that addressed the federal
    constitutional claim find with respect to that claim?
    (3)   What was the rationale supporting each state court finding
    on the federal constitutional claim?
    (a) Was the rationale based on findings of fact or was it
    purely a legal conclusion?
    (b) Did the application of the Sneed test arguably inform
    the state court’s adjudication of Salazar’s federal
    constitutional claim and, if so, how?
    (4)   Did the federal district court correctly identify each state
    court finding on Salazar’s federal constitutional claim?
    Did the court correctly apply AEDPA by determining whether
    each state court finding on Salazar’s federal constitutional
    claim “resulted in a decision that was contrary to, or
    involved an unreasonable application of, clearly established
    Federal law, as determined by the Supreme Court of the
    United States?”
    We hope that the parties’ briefs will shed more light upon these
    issues than has previously been the case.
    III.   Conclusion
    For the foregoing reasons, we DENY Salazar’s request for a
    COA on his claim that the state trial court failed to instruct
    the jury that he would not be eligible for parole for forty
    No. 03-11244
    -14-
    years, but we GRANT Salazar a COA on his claim that the jury
    impermissibly considered inaccurate extrinsic evidence concerning
    his parole eligibility.   It is further ORDERED that the Clerk
    will specify a briefing schedule for supplemental briefs.