Rodriguez v. Quarterman

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 16, 2008
No. 06-41780
Summary Calendar Charles R. Fulbruge III
Clerk
ISMAEL RODRIGUEZ, also known as Officer Smiley
Petitioner-Appellant
v.
NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION
Respondent-Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:06-CV-5
Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Ismael Rodriguez, Texas prisoner # 1187177, is serving a 70-year prison
sentence for murder. He appeals the district court’s denial of relief under 28
U.S.C. § 2254. This court granted a certificate of appealability (COA) after
Rodriguez raised issues as to the retroactivity of Crawford v. Washington, 541
U.S. 36 (2004), and whether his Crawford claim is procedurally barred. The
*
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should not be published and is not precedent except under the limited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. 06-41780
State has since conceded that Crawford’s retroactivity is not at issue because
Rodriguez’s conviction was not final when Crawford was decided.
Rodriguez contends that the admission of his accomplices’ guilty plea
documents violated his Confrontation Clause rights as recognized by Crawford
because those pleas were admissions not only against the accomplices’ penal
interest but against his own. This Crawford claim was rejected by the state
appellate court as procedurally barred because Rodriguez did not make a
Confrontation Clause or hearsay objection at trial. Our review of this claim is
therefore barred by an independent and adequate state rule of procedural
default. See Parr v. Quarterman, 472 F.3d 245, 253 (5th Cir. 2006), cert. denied,
127 S. Ct. 2974 (2007).
Rodriguez’s argument that, prior to Crawford, he could not have raised a
non-futile objection to his accomplices’ evidence is meritless. Such objections
were recognized long before Crawford. See Lilly v. Virginia, 527 U.S. 116, 134
(1999); Williamson v. United States, 512 U.S. 594, 599 (1994); Lee v. Illinois, 476
U.S. 530, 541, 543 (1986); see also Bunton v. State, 136 S.W.3d 355, 369 (Tex. Ct.
App. 2004); Cofield v. State, 891 S.W.2d 952, 955 (Tex. Crim. App. 1994).
Rodriguez also contends that the State’s closing rebuttal argument
improperly linked the accomplices’ pleas to Rodriguez’s guilt. Rodriguez did not
raise the issue of an improper closing argument in his COA application or
anywhere else prior to the instant appeal. Because our review is limited to
claims on which a COA was granted, we do not consider this claim. See Larry
v. Dretke, 361 F.3d 890, 896 (5th Cir. 2004).
Rodriguez has shown no basis for relief under § 2254. The judgment of the
district court is AFFIRMED.
2