Salazar v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED AUGUST 22, 2005
July 29, 2005
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT 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
Before KING, Chief Judge, and DeMOSS and STEWART, Circuit Judges.
KING, Chief Judge:
Petitioner-Appellant Robert Madrid Salazar appeals the
district court’s dismissal of his 28 U.S.C. § 2254 habeas corpus
application. For the following reasons, we AFFIRM the judgment
of the district court.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Trial: Conviction and Sentencing
On April 30, 1997, Salazar was indicted for the capital
murder of his girlfriend’s two-year-old daughter. He pleaded not
guilty, and on January 11, 1999, his trial began. The evidence
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adduced at trial showed that Salazar began dating a woman named
Raylene Blakeburn in the fall of 1996. On April 23, 1997,
Blakeburn went to work in the morning, leaving her two-year-old
daughter Adriana in Salazar’s care as she often did. When
Blakeburn came home from work at around 5:00 p.m., Salazar was
not there. Blakeburn discovered Adriana in her bed, unconscious,
breathing abnormally, and with blood in her mouth. With the
assistance of a neighbor, Blakeburn called for an ambulance.
When the paramedics arrived, they found Blakeburn standing
outside of her house holding Adriana in a blanket. The
paramedics were unable to bring Adriana back to consciousness,
and they therefore placed her on a ventilator. One paramedic
noticed that the back of Adriana’s head had been caved in and
that it felt like “Jello.” The paramedics also observed that one
of Adriana’s arms was twisted and deformed and that she had marks
and bruises covering her neck, ankles, and chest. Suspecting
child abuse, the paramedics contacted the police. Adriana died
at roughly 7:45 p.m.
Roger Torres, one of Salazar’s friends, testified that at
around 4:00 p.m. that day, he was walking home when Salazar drove
up to him and asked if he could take a look at Salazar’s fan
belt. According to Torres, Adriana was not with Salazar at the
time. Shortly thereafter, Torres examined the fan belt, and a
little after 5:00 p.m., the two men drove to a nearby store and
purchased some beer. At around this time, Torres noticed that
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Salazar’s shirt had on it a number of small stains, which
appeared to be blood. When the two men returned from the store,
they saw the ambulance outside of Blakeburn’s residence.
However, they did not stop, but rather drove by and continued on
to Salazar’s mother’s house. Once at his mother’s house, Salazar
changed his shirt and the two men drank some of the beer. At
this time, Blakeburn called Salazar at his mother’s house and
told him that Adriana was injured. Salazar told Blakeburn not to
tell the police that he had been watching Adriana that day. He
also told Torres to be quiet and that the matter was none of his
business.
Salazar later gave a written statement to the police, in
which he admitted that he had been watching Adriana while her
mother was at work on the day in question. He stated that he and
Adriana were taking a shower together and that he became angry
because she would not stop crying.1 Salazar also stated that in
order to stop her crying, he pushed her with the back of his
hand, causing her to fall down in the bathtub and hit her head.
Salazar stated that he became scared because Adriana was
unconscious and bleeding, so he abandoned the child and left the
scene.
The pathologist who performed the autopsy testified that
Adriana’s death was caused by trauma from multiple blunt force
1
Salazar stated that Adriana generally did not like to
take a shower with him when her mother was not there.
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injuries, and he ruled the manner of death a homicide. The
pathologist stated that the injuries sustained by Adriana were
inconsistent with Salazar’s contention that she had fallen down
and hit her head in the tub. Instead, Adriana’s injuries
indicated the infliction of repeated blows of severe force to her
head, chest, and abdomen. The autopsy revealed that the two-
year-old had suffered at least three life-threatening injuries.
All of these injuries were “acute,” meaning they had been
inflicted within forty-eight hours prior to the victim’s death.
One blow to her head resulted in a posterior basal skull
fracture, consistent with her skull having been slammed into a
hard surface. The location of several other smaller skull
fractures was consistent with her being struck multiple times,
and the injuries to her eyes were consistent with being shaken or
struck so hard that she would have been blind had she survived.
A major blow to the chest bruised Adriana’s lungs, diaphragm, and
heart. The pathologist testified that the injuries to the
child’s chest surpassed anything he had seen previously in cases
of automobile accidents. More than one of Adriana’s ribs had
been broken, and her heart was so severely damaged that it would
have ruptured had she lived much longer. The blow to her stomach
had pushed her abdomen against her backbone, crushing the tissues
in between. The injuries to her tongue and mouth were indicative
of a blow to her face, and the injury to her vagina was
consistent with sexual penetration.
-4-
The prosecution also presented evidence at trial that in
January 1997, Adriana suffered either a broken collar bone or a
dislocated shoulder. When asked about the injury by a neighbor,
Adriana replied that Salazar had done it. Lab analysis of a
blood stain on the pants that Salazar was wearing on the day in
question revealed that the stain was consistent with Adriana’s
DNA. On March 9, 1999, the jury found Salazar guilty of capital
murder.
At sentencing, the State and Salazar each presented evidence
with respect to the special issues submitted to the jury pursuant
to TEX. CODE CRIM. PROC. ANN. art. 37.071 (i.e., future
dangerousness and mitigating circumstances). In an attempt to
show mitigating circumstances, Salazar presented evidence that he
had been badly abused and neglected as a child. The State
countered with evidence that Child Protective Services had
intervened on his behalf. Moreover, the prosecution argued in
closing that Salazar’s childhood did not provide sufficient
mitigating circumstances in light of, inter alia: (1) the heinous
and brutal nature of the crime, including the likelihood that
sexual assault had occurred; (2) the vulnerability of the victim
due to her age and his position of trust in relation to her; (3)
his attempt to cover up the crime and his continuing lack of
remorse; and (4) evidence that he had a history of violence
against the child.
In an effort to show a low probability of future
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dangerousness, Salazar presented expert testimony of a clinical
psychologist familiar with the Texas Department of Criminal
Justice Institutional Division. The expert opined that if
Salazar were sentenced to life in prison, he would be a candidate
for administrative segregation, wherein he would pose a lesser
danger to other inmates due to the increased level of
supervision. However, the expert conceded that he could predict
with near certainty that Salazar would commit additional violent
offenses in the future if he were not imprisoned. The State also
presented rebuttal evidence that although only 10-15% of the
prison population is in administrative segregation, roughly 40%
of the felony offenses committed in the prison occur in
administrative segregation. In addition, the State presented
evidence that Salazar had committed at least one minor theft and
that he had been involved in a number of violent assault
offenses, including an incident in which he choked the mother of
his two children (a woman other than Blakeburn).
Salazar requested 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. At the time of Salazar’s
trial, Texas law provided 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(b)
(Vernon 2003) (“An inmate serving a life sentence for a capital
felony is not eligible for release on parole until the actual
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calendar time the inmate has served, without consideration of
good conduct time, equals 40 calendar years.”). However, the
trial court declined to give the instruction.2 After the close
of evidence and argument, the jury deliberated and answered the
two special issues in favor of the death penalty (i.e., that
Salazar presented a continuing threat to society and that there
were insufficient mitigating circumstances to warrant life in
prison rather than death). Consequently, the trial court
sentenced Salazar to death.
B. Motion for New Trial
After sentencing, television reporters interviewed at least
one of the jurors, who revealed that during deliberations the
jury discussed the possibility of parole if Salazar were
sentenced to life in prison rather than death. In light of this
discovery, Salazar filed a motion for a new trial, arguing, inter
alia, that he had been denied a fair and impartial trial because
one of the jurors, who professed to know the law of parole,
asserted as fact a misstatement about parole law, and that
misstatement was relied upon by one of the other jurors, who for
2
Thus, the trial court did not specifically instruct the
jury not to consider the possibility of parole in its
deliberations. However, at the beginning of trial, the trial
court did instruct the jury that “[a]ll evidence must be
presented in open Court, so that each side may question the
witness and make proper objections” and that “[t]his prevents a
trial based upon secret evidence.” Similarly, the jury charge
instructed the jurors “not to refer to or discuss any matter or
issue not in evidence before [them].”
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that reason changed her vote to a harsher sentence.3 In a
separately numbered paragraph, Salazar’s motion advanced a
similar claim, without citing any authority, that he was deprived
of a fair and impartial trial because the jury “improperly
discussed the effect the Parole Laws would have on the release of
Defendant if assessed a life sentence by the jury.”
On May 19, 1999, the state trial court conducted a hearing
on Salazar’s motion for a new trial. At the hearing, Salazar
sought to present live testimony from four of the jurors at
Salazar’s trial. Before this evidence was introduced, however,
the State informed the trial court that if any of the jurors were
to testify as to discussions that occurred during the
deliberations, it would object under TEX. R. EVID. 606(b).4
3
To support his claim, Salazar cited Sneed v. State, 670
S.W.2d 262, 266 (Tex. Crim. App. 1984) (en banc), in which the
Texas Court of Criminal Appeals stated:
To show that a jury’s discussion of the parole law
constitutes reversible error, it must be shown that there
was[:] (1) a misstatement of the 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.
(internal quotation marks omitted).
4
TEX. R. EVID. 606(b) provides:
(b) Inquiry Into Validity of Verdict or Indictment. Upon
an inquiry into the validity of a verdict or indictment,
a juror may not testify as to any matter or statement
occurring during the jury’s deliberations, or to the
effect of anything on any juror’s mind or emotions or
mental processes, as influencing any juror’s assent to or
dissent from the verdict or indictment. Nor may a
juror’s affidavit or any statement by a juror concerning
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Defense counsel requested that he be allowed to present the
evidence under a bill of exception in the event that the court
sustained the State’s objection. The trial court sustained the
prosecution’s objection, concluding that Rule 606(b) rendered
inadmissible the jurors’ testimony as to their statements and
discussions during deliberations and as to the effect of those
discussions on their thought processes and decisions.5 However,
any matter about which the juror would be precluded from
testifying be admitted in evidence for any of these
purposes. However, a juror may testify: (1) whether any
outside influence was improperly brought to bear upon any
juror; or (2) to rebut a claim that the juror was not
qualified to serve.
FED. R. EVID. 606(b) is similar, but not identical, to TEX. R. EVID.
606(b). The federal rule provides:
(b) Inquiry into validity of verdict or indictment. Upon
an inquiry into the validity of a verdict or indictment,
a juror may not testify as to any matter or statement
occurring during the course of the jury’s deliberations
or to the effect of anything upon that or any other
juror’s mind or emotions as influencing the juror to
assent to or dissent from the verdict or indictment or
concerning the juror’s mental processes in connection
therewith, except that a juror may testify on the
question whether extraneous prejudicial information was
improperly brought to the jury’s attention or whether any
outside influence was improperly brought to bear upon any
juror. Nor may a juror’s affidavit or evidence of any
statement by the juror concerning a matter about which
the juror would be precluded from testifying be received
for these purposes.
5
We note that a number of Texas courts of appeals have
concluded that the 1998 amendment of TEX. R. EVID. 606(b)
abrogated the test for jury misconduct articulated in Sneed
because the rule now bars the introduction of evidence necessary
to satisfy the five-factor test. See Hart v. State, 15 S.W.3d
117, 123-24 (Tex.App.--Texarkana 2000, pet. ref’d) (explaining
that the new rule limits jurors to “testifying only about outside
influences that affected their decision or testimony rebutting a
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as defense counsel requested, the court allowed the jurors’
testimony to be presented under a bill of exception.6 As
discussed in detail by the Texas Criminal Court of Appeals (the
“TCCA”), these jurors presented conflicting accounts as to what
occurred during deliberations regarding their discussion of
parole law. See Salazar v. State, 38 S.W.3d 141, 146-47 (Tex.
Crim. App. 2001), cert. denied, 534 U.S. 855 (2001).
Defense counsel first called Juror Voyles to testify.
Voyles stated on direct examination that it became known to him
at some point during the trial or deliberations that another
juror, Juror Kelly, was a police officer. Voyles stated that his
knowledge that Kelly was a police officer led him to believe that
claim that a juror was not qualified” and therefore prevents a
defendant from meeting the Sneed factors, which were developed
under a previous version of the rule that allowed jurors to
testify more broadly about the validity of the verdict) (quoting
TEX. R. EVID. 606(b)); see also Moore v. State, No.
12-01-00089-CR, 2002 WL 253818, *1-2 (Tex. App.--Tyler 2002, no
pet. h.) (per curiam) (not designated for publication); Hines v.
State, 3 S.W.3d 618, 620-23 (Tex. App.--Texarkana 1999, pet.
ref’d). Indeed, the Texas Criminal Court of Appeals on Salazar’s
direct appeal noted the apparent conflict between Texas Rule
606(b) and Sneed, but it declined to resolve the issue. Salazar,
38 S.W.3d at 148 n.3.
6
The trial court stated:
Well, I have read 606(b). If the testimony is going to
be as to any matter or statement occurring during the
course of the jury’s deliberation or to the effect of
anything upon a juror’s mind or emotions that is
influencing the juror or concerning the mental processes
in connection with it, then I will sustain the objection
to that kind of testimony. I will permit you to put on
the evidence that you are offering as a bill of
exception.
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Kelly had some special knowledge of the law. In response to
defense counsel’s question whether Kelly had professed to know
the law of parole, Voyles indicated that during deliberations the
jury discussed when Salazar would become eligible for parole, and
that during this discussion, Kelly seemed very sure that Salazar
would be eligible in twenty years if he were sentenced to life in
prison. Voyles stated that he relied upon Kelly’s statement but
that he did not change his vote because of it. However, he then
stated that if he had known that Salazar would not have been
eligible for parole for forty years, he more likely would have
leaned toward life, although he could not say whether that would
have been his final decision.
Second, Juror Hamlin testified that he vaguely recalled the
jury discussing the length of time that Salazar would spend in
prison if he were sentenced to life, although he could not
remember who initiated the discussion. Hamlin remembered hearing
two different figures: twenty years and twenty-five years.
Hamlin said he did not rely upon those figures, nor did they
affect his vote.
Third, Juror Kelly testified that the other jurors learned
that he was a police officer during the course of the trial. He
also stated that the jurors discussed parole law during
deliberations, and that he expressed his opinion as to the law.
Kelly indicated that he could not remember with which of the
jurors he discussed the matter. He recalled saying something to
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the effect of “life doesn’t mean life, that [a prisoner] can get
out on parole,” but he could not recall how many years he said a
life-sentenced defendant must serve before becoming eligible for
parole. On cross-examination, Kelly stated that some of the
other jurors also expressed opinions as to the number of years
that a life-sentenced prisoner must serve, and he testified that
while the jurors discussed parole, he did not lead the
conversation but rather “wanted to take a back seat.” He further
testified that he did not tell the other jurors that he had
special expertise in parole law, nor did he hold himself out to
be a legal expert.
Fourth, defense counsel called Juror Ashley to testify. On
direct examination, Ashley stated that during deliberations she
knew that Kelly was a police officer and that Kelly stated that
he had a lot of experience in dealing with parole law. Ashley
remembered Kelly asserting as fact that Salazar could be released
on parole in as little as twenty years, and she stated that she
relied upon Kelly’s assertion. Finally, she said that her
reliance affected her vote in as much as she was “holding out for
life” up “into the fifth hour” until she heard Kelly’s statements
about parole.7 Later on direct examination, Ashley addressed
7
The exchange between defense counsel and Ashley in this
regard went as follows:
Q. How did that reliance affect your vote?
A. Well, up into the fifth hour, I had decided
life, but, as we were deliberating, and
[Kelly] made the statements [about parole]
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comments that she had made in a television interview, in which
she stated that during deliberations, she was concerned that
Salazar might be out in thirty or forty years. She explained
that Kelly had told her and other jurors that Salazar could be
paroled at some time between twenty and forty years. The
prosecution cross-examined Ashley, pointing out that earlier she
had testified that Kelly said that Salazar would be eligible for
parole in twenty years. Ashley restated that Kelly had actually
told them between twenty and forty years, and she agreed that
during deliberations she really had no idea when Salazar would
get out of prison. The State also questioned Ashley about a
statement in her affidavit in which she stated that Kelly told
them that Salazar would only go to administrative segregation if
there was an opening. Ashley reaffirmed that statement and
further stated that she changed her vote from life to death based
on a combination of her concerns about parole and the uncertainty
that Salazar would be placed in administrative segregation.8
that he did, it helped cause me to change my
mind from life to death.
Q. So were you, I guess for lack of a better
word, holding out for life up until you heard
that?
A. Uh-huh, yes.
8
On re-cross-examination, Ashley agreed that both
administrative segregation and parole concerns motivated her to
change her vote:
Q. It was a combination of all of those things that
you put in your affidavit; the thought that in 30
to 40 years, he was going to get out, and he would
be a more dangerous criminal, ad[ministrative]
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In rebuttal, the State offered the affidavits of four other
jurors. Juror Holdridge’s affidavit stated that Kelly never
“held himself out as an expert in the area of Parole laws.” He
further stated that any consideration of parole laws by the
jurors focused on possibilities of what would happen on parole
and how many years Salazar would serve before being released, but
that no actual number of years was ever asserted as fact by any
of the jurors.
Juror Stanford’s affidavit also stated that Kelly “never
held himself out as someone who knew” the parole law and that
although Kelly participated in the discussions, he did not state
his opinions as fact. The affidavit indicated that any
discussion of parole centered around the fact that a life
sentence left open the possibility that Salazar would be released
at some time, regardless of exactly how many years it would take,
and that the jury did not want him to get out of prison at any
time.
The affidavits of Jurors Tinney and Perez were consistent
with those of Holdridge and Stanford. Tinney’s affidavit
indicated that all of the jurors were concerned with whether
Salazar would ever get out of prison, not with how many years it
would be before he was paroled. Tinney’s affidavit also stated
seg[regation], and parole. All of those things--
A. Yes.
Q. --influenced your verdict?
A. Yes.
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that Kelly “never said anything that because he was a police
officer he knew what the law was or anything of that nature.”
Perez’s affidavit similarly stated that Kelly never held himself
out as an expert in the area of parole nor did Kelly claim to
have special knowledge of parole law because he was a police
officer. Perez’s affidavit further asserted that Kelly did not
overtly attempt to influence other jurors and that Kelly was one
of the last jurors to vote in favor of death.
When the State offered the affidavits into evidence, defense
counsel raised its own objection under TEX. R. EVID. 606(b). In
response, the prosecution informed the court that it had decided
to withdraw its Rule 606(b) objection to the defense’s evidence,
and it asked the court to make a ruling on the motion for new
trial based on the evidence presented at the hearing. Defense
counsel subsequently agreed to withdraw its Rule 606(b)
objection, leaving the court free to consider the above-described
testimony and affidavits of the jurors.9 Based on this evidence,
the state trial court ruled from the bench and denied Salazar’s
motion for a new trial.10
9
Before resting at the hearing, the prosecution
requested the trial court to take judicial notice of the fact
that there was not a specific instruction given to the jury
regarding parole, which the court did.
10
Specifically, the trial court stated: “[T]he rule says
that the Court has to rule without summarizing the evidence or
making any comment. So the Court is going to overrule the motion
for new trial, with the one statement that the Court has taken
into consideration the test in the Sneed case.” Thus, contrary
to the view of the district court below, the trial court did not
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C. Direct Appeal
Salazar appealed to the TCCA, arguing, inter alia, that “the
trial court erred in denying him a new trial because the jury’s
extrinsic-to-the-record discussion of inaccurate parole
information during punishment deliberations constituted jury
misconduct under state law” and deprived him of: (1) a fair trial
by an impartial jury under the Sixth Amendment; (2) due process
under the Fourteenth Amendment; and (3) his rights under the
Texas Constitution. Salazar, 38 S.W.3d at 146-47. The TCCA
rejected these contentions and affirmed Salazar’s conviction and
death sentence. The TCCA dismissed Salazar’s federal and state
constitutional claims based on the jury’s discussion of parole
because Salazar’s “brief present[ed] no authority in support of
his argument . . . .” Salazar, 38 S.W.3d at 147. In addressing
Salazar’s state law claim of jury misconduct, the TCCA noted that
it deferentially reviewed the trial court’s ruling for an abuse
of discretion.11 After discussing in detail the testimony and
articulate any specific fact findings with respect to any of the
particular Sneed factors.
11
The TCCA explained:
A trial court’s ruling denying a defendant’s motion for
new trial is reviewed under an abuse of discretion
standard. We do not substitute our judgment for that of
the trial court, but simply determine whether the trial
court’s Sneed analysis was arbitrary or unreasonable.
The trial court is the sole judge of the credibility of
the testifying jurors. Where there is conflicting
evidence on an issue of fact as to jury misconduct, the
trial judge determines the issue and there is no abuse of
discretion in overruling the motion for new trial.
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affidavits presented at the hearing on the motion for a new
trial, the TCCA determined that the evidence was conflicting on a
number of the Sneed factors.12 Accordingly, it concluded that
the district court did not abuse its discretion in finding that
Salazar had failed to satisfy the elements of a state-law jury
misconduct claim under Sneed.
D. State and Federal Habeas
On October 13, 2000, while his direct appeal to the TCCA was
Salazar, 38 S.W.3d at 148 (internal citation omitted).
12
Specifically, the TCCA stated:
There are a number of discrepancies between the various
jurors’ testimony and affidavits as to what went on
during deliberations. There is no consensus regarding
whether Kelly actually held himself out as an expert on
parole law and represented to the other jurors, as a
fact, that appellant would be released on parole in 20
years if he were to receive a life sentence. A number of
the affidavits state that Kelly only provided an opinion
on the general issue of parole during discussion with the
other jurors. This is “conflicting evidence on an issue
of fact,” and any decision as to credibility of the
jurors’ testimony is left to the trial judge.
In addition to disagreement between the jurors as to
what went on during deliberations, Ashley’s own testimony
is inconsistent concerning how her vote was affected by
Kelly’s discussion of parole laws. On direct
examination, she stated that she voted for the death
penalty over life imprisonment because of Kelly’s
statements that appellant could be released on parole in
20 years, but on cross examination, she admitted that a
number of factors contributed to her decision, including
testimony concerning administrative segregation and the
belief that the defendant might be released in 20 to 40
years. This is conflicting evidence on an issue of fact,
which, again, is decided by the trial judge.
Salazar, 38 S.W.3d at 149 (internal citation omitted).
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still pending, Salazar filed a petition for a writ of habeas
corpus in state court, arguing, inter alia, that the jury’s
discussion of parole denied him his right to due process of law
because the information had not been adduced at trial.13 On
April 23, 2001, the trial court (the same court that had presided
over Salazar’s trial, sentencing, and motion for a new trial)
adopted the State’s proposed findings of fact and conclusions of
law, and it recommended to the TCCA that relief be denied.14 The
TCCA, in turn, adopted the trial court’s findings and conclusions
and denied Salazar’s habeas petition on June 6, 2001. Ex Parte
Salazar, No. 49,210-01 (Tex. Crim. App. 2001) (unpublished).
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 jury’s
13
Salazar’s state habeas application recounted Salazar’s
claim that Kelly had misinformed the other jurors about the
number of years a life-sentenced prisoner must serve before
becoming eligible for parole. The application stated that this
misinformation “deprived [Salazar] of his protection under due
process of law.” Salazar’s application continued:
A jury may base[] its decision only upon evidence placed
before it by counsel for either side. When a decision is
made upon information not adduced as evidence, the jury
defies due process of law.
It is clear that the Texas Rules of Evidence render
a juror’s statements about what occurred during
deliberations incompetent evidence. To the extent,
however, that the rules prevent the vindication of a due
process right, the rules themselves violate due process
of law.
14
The state habeas trial court’s findings and conclusions
are discussed in detail below.
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discussion of inaccurate information about Texas parole law
during its deliberations.15 On August 27, 2003, without holding
an evidentiary hearing,16 the district court denied Salazar’s
habeas petition. The district court reasoned that Salazar
“failed to rebut the presumption of correctness that attached to
the state court finding that even if there was jury misconduct,
there was insufficient evidence that it affected juror
impartiality . . . .” Therefore, the court concluded that
Salazar “failed to show that the state court’s adjudication of
the jury misconduct claim was contrary to or an unreasonable
application of clearly established federal law.”
On September 11, 2003, Salazar filed a motion under FED. R.
CIV. P. 59, requesting that the district court reconsider its
judgment. On October 27, 2003, the district court denied
15
Salazar’s federal habeas petition repeated his jury
misconduct argument verbatim from his state habeas application,
with the exception that his federal petition did not include the
last two sentences from the state application, which read: “It is
clear that the Texas Rules of Evidence render a juror’s
statements about what occurred during deliberations incompetent
evidence. To the extent, however, that the rules prevent the
vindication of a due process right, the rules themselves violate
due process of law.”
16
Salazar has not argued in any of his briefing to this
court that the district court erred by not conducting an
evidentiary hearing, nor did he argue that he was prevented from
introducing any evidence at the state court hearing that would
have supported his federal claim beyond the testimony that he was
allowed to introduce under the bill of exception. Therefore, any
such argument, to the extent that defense counsel may have raised
it at oral argument, has been forfeited. See, e.g., Tenny v.
Dretke, No. 04-50468, 2005 WL 1581077, *3 & n.20 (5th Cir. July
7, 2005).
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Salazar’s motion.
Salazar filed a notice of appeal and a motion for a
certificate of appealability (“COA”) under 28 U.S.C.
§ 2253(c)(1), which the district court denied. This court,
however, granted Salazar’s request for a COA on his claim
regarding statements about parole law made by certain jurors
during deliberations. See Salazar v. Dretke, No. 03-11244, 116
Fed. Appx. 532 (5th Cir. Nov. 30, 2004) (per curiam)
(unpublished).
II. DISCUSSION
A. Standard of Review
This habeas proceeding is governed by the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA) 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). This court has jurisdiction
to resolve the merits of Salazar’s habeas petition because, as
stated above, we previously granted him a COA. See Salazar, 116
Fed. Appx. at 537; see also 28 U.S.C. § 2253(c)(1); Miller-El v.
Cockrell, 537 U.S. 322, 336 (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”).
We review de novo the district court’s grant of summary
judgment denying a state petitioner’s request for habeas relief.
-20-
Ogan v. Cockrell, 297 F.3d 349, 355-56 (5th Cir. 2002); Fisher v.
Texas, 169 F.3d 295, 299 (5th Cir. 1999). We may affirm a grant
of summary judgment on any ground supported by the record, even
if it is different from that relied upon by the district court.
Holtzclaw v. DSC Communications Corp., 255 F.3d 254, 258 (5th
Cir. 2001). We review the district court’s conclusions of law de
novo and its findings of fact, if any, for clear error. Collier
v. Cockrell, 300 F.3d 577, 582 (5th Cir. 2002).
Under AEDPA, a federal court may not grant a writ of habeas
corpus “with respect to any claim that was adjudicated on the
merits in State court proceedings” unless the petitioner shows
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.”17 28 U.S.C. § 2254(d)(1) (emphasis
added);18 Williams v. Taylor, 529 U.S. 362, 402-13 (2000). Thus,
17
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). Salazar, however, does not argue that he is
entitled to relief under § 2254(d)(2).
18
28 U.S.C. § 2254(d) provides in full:
(d) An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a
State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim--
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
-21-
a threshold question regarding whether to apply the deferential
standard of review set forth in § 2254(d)(1) is whether Salazar’s
federal constitutional claim relating to the jury’s discussion of
parole was “adjudicated on the merits in State court proceedings”
as contemplated by AEDPA. Fisher, 169 F.3d at 299. “In this
circuit, the question of whether a state court’s decision is an
adjudication on the merits turns on ‘the court’s disposition of
the case--whether substantive or procedural.’” Mercadel v. Cain,
179 F.3d 271, 274 (5th Cir. 1999) (per curiam) (quoting Green v.
Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997)); accord Neal v.
Puckett, 286 F.3d 230, 235 (5th Cir. 2002) (per curiam) (en banc)
(“In the context of federal habeas proceedings, adjudication ‘on
the merits’ is a term of art that refers to whether a court’s
disposition of the case was substantive as opposed to
procedural.”).
Salazar argues that the deferential scheme of § 2254(d)(1)
is inapplicable because his constitutional claim was not
“adjudicated on the merits” by any state court.19 The State
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court
proceeding.
19
As Salazar correctly notes, if the federal claim was
not adjudicated on the merits in the state courts, we would
review the claim de novo rather than under the deferential
standard set forth in § 2254(d)(1). See, e.g., Miller v.
Johnson, 200 F.3d 274, 281 n.4 (5th Cir. 2000).
-22-
concedes that the TCCA did not address the merits of his federal
constitutional claim on direct appeal. Rather, the TCCA on
direct appeal expressly refused to consider the substance of the
constitutional claim, disposing of it on the procedural ground
that it had been inadequately briefed.20 See Salazar, 38 S.W.3d
at 147. The pertinent question, therefore, is whether the state
habeas courts adjudicated Salazar’s federal constitutional claim
on the merits. The last court to address Salazar’s state habeas
application was the TCCA. In its order denying habeas relief,
the TCCA adopted the state habeas trial court’s findings of fact
and conclusions of law, and it stated that based on those
findings and conclusions, as well as its own review, Salazar’s
application was denied. Hence, to determine whether Salazar’s
federal due process claim was adjudicated on the merits, we look
through to the state habeas trial court’s resolution of Salazar’s
application. See Jackson v. Johnson, 194 F.3d 641, 651 (5th Cir.
1999) (noting that the federal habeas court should “look through”
20
Despite the TCCA’s procedural disposition, the State
did not invoke the procedural bar doctrine in the state habeas
proceeding. Furthermore, in response to Salazar’s federal habeas
petition in the district court, the State did not argue
procedural bar in its motion for summary judgment. Nor did it
argue that an adequate and independent state law ground supported
the habeas court’s ruling. Subsequently, the State attempted to
raise a procedural bar argument in the district court at the
hearing on the motion for summary judgment. The district court,
however, concluded that the State had already waived the
argument, and the court therefore reached the merits of Salazar’s
constitutional claim. The State has abandoned its procedural bar
argument on appeal to this court, and we decline to raise the
issue sua sponte. See Fisher, 169 F.3d at 300-02.
-23-
to the last clear state decision on the matter).
The state habeas trial court’s findings and conclusions
indicate that the court recommended that the TCCA dismiss or deny
relief for four reasons. First, the state habeas trial court
found that all of the evidence upon which Salazar relied to
support his claim of jury misconduct was barred from the state
court’s consideration by TEX. R. EVID. 606(b). Furthermore,
although Salazar contended that TEX. R. EVID. 606(b) violated his
right to due process, the court found that the constitutionality
of the state rule of evidence, as well as its federal
counterpart, had been upheld by a number of other courts.21
Second, the state habeas trial court found that Salazar had not
shown that “the jury’s discussion of parole was so detrimental as
to deprive Applicant of a fair and impartial trial.” In coming
to this conclusion, the court relied entirely upon the state-law
Sneed factors for assessing jury misconduct, without mentioning
21
Specifically, the state habeas court concluded:
Applicant claims that his due process rights were
violated due to misinformation given to the jury by a
jury member regarding parole eligibility. The State has
invoked [TEX. R. EVID.] 606(b). Applicant concedes that
[Rule] 606(b) prohibits a juror from testifying regarding
juror deliberations. Yet, Applicant contends that [Rule]
606(b) violates due process of law. However, several
appellate courts have upheld the constitutionality of
[TEX. R. EVID.] 606(b) and its federal counterpart.
See[,] e.g.[,] Tanner v. United States, 483 U.S. 107,
125-27 (1987) . . . . Therefore, this Court recommends
that Applicant’s claim of jury misconduct be dismissed or
denied.
-24-
federal law.22 Third, the court stated that Salazar’s claim of
jury misconduct had already been fully litigated and that the law
of the case therefore barred re-litigation of the issue. Fourth,
and finally, the court stated that Salazar’s “claim of jury
misconduct does not establish a constitutional violation that is
cognizable in a writ of habeas corpus proceeding.”
Salazar argues that none of these four reasons provided by
the state habeas court for denying his claim constituted an
adjudication of his federal constitutional claim on the merits.
He argues that, of the four above-described reasons, only the
second reason can be construed as a merits determination--
according to Salazar, the other three are procedural
dispositions. Moreover, Salazar contends that the second reason,
22
In this regard, the state habeas court stated:
Furthermore, Applicant has not established that the
jury’s discussion of parole was so detrimental as to
deprive Applicant of a fair and impartial trial. In
order to show reversible error based on improper jury
discussion of parole, Applicant must prove to the trial
court the existence of the following factors: 1) a
misstatement of the law; 2) asserted as fact; 3) by one
professing to know the law; 4) which is relied upon by
other jurors; and 5) who for that reason changed their
vote to a harsher punishment. Sneed v. State, 670 S.W.2d
262, 266 (Tex. Crim. App. 1984) . . . .
At the hearing o[n] his motion for new trial,
Applicant attempted to satisfy the Sneed factors through
the testimony of jurors concerning their discussions
during deliberation. In a credibility determination, the
trial court found that Applicant was unsuccessful in
satisfying these factors. Thus, Applicant has failed to
establish detrimental jury misconduct. Therefore, this
Court recommends that Applicant’s claim of jury
misconduct be dismissed or denied.
-25-
even if a merits determination, is insufficient to trigger the
deferential standard of review set forth in § 2254(d) because it
did not address his federal constitutional claim that his due
process rights were violated, but rather only his state-law claim
under Sneed.
At oral argument, the State seemingly conceded that the
state habeas court’s second, third, and fourth conclusions
addressed only the state-law Sneed claim and not the federal
constitutional claim.23 However, the State argued that the state
habeas court’s second reason fairly could be construed as an
adjudication of the federal constitutional claim. In that aspect
of its conclusions, the state court reasoned that, in light of
the evidence presented at the hearing on the motion for a new
trial, Salazar had not shown that the jury’s discussion of parole
deprived Salazar of a fair and impartial trial. According to the
23
The state habeas court’s conclusions in this regard,
are especially puzzling because Salazar’s state habeas petition
did not raise a state-law Sneed claim; it raised only a “due
process” claim. Nevertheless, the State’s concession appears to
be an accurate characterization of the state habeas trial court’s
conclusions. The state court’s second reason for recommending
the denial of Salazar’s jury misconduct claim (i.e., that Salazar
had not been denied a fair and impartial trial) explicitly
analyzed the jury’s discussion of parole under the Sneed factors.
The third reason, that the issue had been fully litigated on
direct appeal and that the law of the case controlled, clearly
spoke to the state-law claim--the Sneed claim was fully litigated
on direct appeal, but the constitutional claims were dismissed on
procedural grounds. The fourth reason, that the claim was not a
constitutional violation cognizable on habeas, most likely
addressed only the Sneed claim under the principle that non-
constitutional claims are generally not cognizable on state
habeas. See Taylor v. State, 10 S.W.3d 673, 681 (Tex. Crim. App.
2000).
-26-
State, although the state court analyzed the issue purely in
terms of state law, the substance of the state law and federal
constitutional claims, which both related to the effect of the
parole-related statements on Salazar’s right to a fair and
impartial trial, were sufficiently similar such that this
determination substantively resolved the merits of the federal
claim as well as the state-law claim.24 Salazar counters that
the two claims were not sufficiently similar because the Texas
law Sneed test is grounded entirely in state statutory concerns
and not constitutional due process concerns. Therefore,
according to Salazar, the state habeas court’s adjudication of
the Sneed claim cannot be characterized as an adjudication of his
federal constitutional claim on the merits.
However, we need not reach the question whether the state
court’s disposition of Salazar’s state-law Sneed claim
sufficiently adjudicated his federal due process claim such that
§ 2254(d) applies. Instead, we conclude that the state habeas
24
Although the question has not been addressed in this
circuit, we note that some support exists for the State’s
position that a state habeas court’s adjudication of a state law
claim that is similar to a federal constitutional claim may
constitute an adjudication on the merits under § 2254(d). See
Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam) (stating that
the federal court of appeals correctly determined that the
relevant claim had been rejected on the merits by the state
habeas court and that § 2254(d)(1) therefore applied, despite the
fact that the state court relied exclusively on state law in
addressing the claim); Cox v. Burger, 398 F.3d 1025, 1029-30 (8th
Cir. 2005) (concluding that the state habeas court “effectively
adjudicated” the petitioner’s federal constitutional claim on the
merits through its analysis of state law (citing Early, 537 U.S.
at 8)).
-27-
trial court effectively adjudicated Salazar’s federal claim on
the merits when it concluded that the State’s invocation of TEX.
R. EVID. 606(b) left Salazar with no admissible evidence to
support his due process claim and that the application of Texas
Rule 606(b) in this context was constitutional under, inter alia,
Supreme Court precedent. Salazar concedes that the state habeas
court’s conclusion with respect to Texas Rule 606(b) did in fact
address his federal constitutional claim as opposed to his state-
law Sneed claim.25 Nevertheless, Salazar asserts a conclusory
argument that this was a procedural disposition and not an
adjudication on the merits. We disagree. In addressing the due
process claim, the state habeas court applied Texas Rule 606(b)
and determined that Salazar had presented no admissible evidence
to support his claim.26 It further held that the application of
Texas Rule 606(b) did not violate Salazar’s due process rights
under, inter alia, the Supreme Court’s decision in Tanner v.
United States, 483 U.S. 107, 125-27 (1987). The state habeas
court’s ruling, therefore, was not a procedural ruling in which
25
Indeed, Salazar strenuously argues that Sneed and its
progeny are wholly unrelated to due process considerations and
are instead based entirely on state statutory grounds. Thus,
according to his own position, the state habeas court’s
application of Texas Rule 606(b) to his “due process” claim must
have addressed his federal claim, not his Sneed claim.
26
We note that Salazar has never contended that it was
improper for the state habeas court to apply Rule 606(b) in light
of the State’s waiver of its objection at the hearing on the
motion for a new trial. We therefore do not address any such
argument.
-28-
the court dismissed Salazar’s claim as improperly before the
court. Rather, the state court’s decision was a substantive
determination that Salazar’s claim was unsupported by any
evidence and that Salazar’s due process rights had not been
violated.
Given our ability to reach this conclusion from the reasons
set forth by the state habeas court, we need not analyze the
question under the three-factor Green test that we have often
employed to determine whether a state court’s perfunctory
disposition of a habeas application constituted an adjudication
on the merits. See Neal, 286 F.3d at 235 (concluding that the
state courts adjudicated the federal claim on the merits without
resorting to the Green test); Trevino v. Johnson, 168 F.3d 173,
181 (5th Cir. 1999); see also Green, 116 F.3d at 1121 (setting
forth the three-factor test to determine whether a state court’s
perfunctory disposition of a state habeas petition was a
“resolution on the merits,” which was the pre-AEDPA equivalent of
an “adjudication on the merits”).27 However, we note that our
27
In Green, 116 F.3d at 1121, this court set forth a
three-factor test, asking:
(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 of the merits.
See also Mercadel, 179 F.3d at 274 (applying three-factor test
from Green to determine whether state court’s one-word
disposition of a state habeas petition was an adjudication on the
-29-
conclusion is supported by the fact that the TCCA denied, rather
than dismissed, Salazar’s state habeas application. Under Texas
law, a denial of a habeas petition, as opposed to a dismissal,
suggests that the state court adjudicated the claim on the
merits. See, e.g., Ex Parte Grigsby, 137 S.W.3d 673, 674 (Tex.
Crim. App. 2004); Ex Parte Torres, 943 S.W.2d 469, 472 (Tex.
Crim. App. 1997) (“In our writ jurisprudence, a ‘denial’
signifies that we addressed and rejected the merits of a
particular claim while a ‘dismissal’ means that we declined to
consider the claim for reasons unrelated to the claim’s
merits.”); see also Henderson v. Cockrell, 333 F.3d 592, 598 (5th
Cir. 2003). Thus, we are satisfied that Salazar’s federal
constitutional claim was adjudicated on the merits such that our
review is controlled by § 2254(d)(1).
B. Analysis
Section 2254(d)(1) precludes habeas relief on a “claim that
was adjudicated on the merits in State court proceedings” unless
the petitioner shows that the adjudication of the 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 . . . .” 28 U.S.C.
§ 2254. “For purposes of 28 U.S.C. § 2254(d)(1), clearly
established law as determined by [the Supreme] Court ‘refers to
merits under AEDPA); Jackson, 194 F.3d at 650-51.
-30-
the holdings, as opposed to the dicta, of th[e] Court’s decisions
as of the time of the relevant state-court decision.’”
Yarborough v. Alvarado, 541 U.S. 652, 660-61 (2004) (quoting
Williams, 529 U.S. at 412). “We look for ‘the governing legal
principle or principles set forth by the Supreme Court at the
time the state court renders its decision.’” Id. at 661 (quoting
Lockyer v. Andrade, 538 U.S. 63, 71 (2003)). Moreover, a
decision by this court or one of our sister circuits, even if
compelling and well-reasoned, cannot satisfy the clearly
established federal law requirement under § 2254(d)(1). Burgess
v. Dretke, 350 F.3d 461, 469 (5th Cir. 2003).
A state-court decision is contrary to clearly established
Supreme Court precedent if the state court applies a rule that
contradicts the governing law set forth in the Supreme Court’s
cases or confronts a set of facts that are materially
indistinguishable from a decision of the Court and nevertheless
arrives at a different result. Williams, 529 U.S. at 405-06,
413. A state-court decision involves an unreasonable application
of clearly established Supreme Court law if the state court
unreasonably applies the correct governing legal principle from
the Supreme Court’s decisions to the facts of the case. Id. at
413. It is not enough for the state court’s application of
federal law to be incorrect or erroneous; rather, “[t]he state
court’s application of clearly established law must be
objectively unreasonable.” Andrade, 538 U.S. at 75; accord
-31-
Yarborough, 541 U.S. at 665; Woodford v. Visciotti, 537 U.S. 19,
24-25 (2002) (per curiam); Williams, 529 U.S. at 409-10.
Applying the standard set forth in § 2254(d), we find that
Salazar is not entitled to habeas relief. The state habeas
court’s adjudication of his due process claim was not contrary
to, or an unreasonable application of, clearly established
federal law as determined by the Supreme Court. No clearly
established Supreme Court authority holds that a defendant is
entitled to a new trial when one juror misstates the law of
parole to other jurors during deliberations, nor does any Supreme
Court precedent obligate a state court to admit testimony from
jurors concerning their internal discussions about parole law
during deliberations.28 In fact, the existing clearly
28
As noted above, Salazar conceded in his state habeas
petition that TEX. R. EVID. 606(b) precluded relief on his due
process claim by rendering incompetent all of the evidence he
presented in support of his claim. He also argued that, by
preventing the vindication of his due process right, the
application of Texas Rule 606(b) itself violated his due process
rights. As also noted above, Salazar’s federal habeas petition,
although virtually identical to his state habeas application, did
not repeat his assertion that the state court’s application of
Texas Rule 606(b) violated his due process rights. Regardless,
we must consider the effect of the state court’s conclusion that
Salazar’s claim failed on the merits because he presented no
admissible evidence under TEX. R. EVID. 606(b) to support his
claim.
Moreover, although we recognize that FED. R. EVID. 1101(e)
provides that the Federal Rules of Evidence apply to § 2254
habeas corpus proceedings, we focus on TEX. R. EVID. 606(b) in our
disposition of Salazar’s claim because the state court decision
that we review under § 2254 relied upon that rule in its
adjudication of Salazar’s claim, and because the district court
neither held an evidentiary hearing nor received affidavits not
in the state court record. See Doan v. Brigano, 237 F.3d 722,
734 n.8 (6th Cir. 2001), abrogation on other grounds recognized
-32-
established Supreme Court case law suggests the opposite.
As the Supreme Court explained in Tanner:
By the beginning of [the twentieth] century, if not
earlier, the near-universal and firmly established
common-law rule in the United States flatly prohibited
the admission of juror testimony to impeach a jury
verdict. . . . Exceptions to the common-law rule were
recognized only in situations in which an “extraneous
influence” was alleged to have affected the jury.
483 U.S. at 117 (quoting Mattox v. United States, 146 U.S. 140,
149 (1892)) (internal citations omitted). Examples of Supreme
Court cases applying the common law exception for extraneous
influences include Mattox, in which the Supreme Court held
admissible the testimony of jurors that during deliberations one
of the bailiffs in charge of the jury told them that the
defendant had murdered other victims before and testimony that
the jurors had read a newspaper article during deliberations
characterizing the evidence against the defendant as
exceptionally strong. See Mattox, 146 U.S. at 142-43, 149. The
Mattox Court stated that “a juryman may testify to any facts
bearing upon the question of the existence of any extraneous
influence, although not as to how far that influence operated
by Maples v. Stegall, 340 F.3d 433, 437 (6th Cir. 2003) (“In
light of the deference to state proceedings called for by AEDPA,
it seems strange indeed that a federal habeas court would apply
its own rules of evidence despite a conflicting state rule when
it is simply reviewing the state court record in making its
determination, rather than holding an evidentiary hearing in
federal court.”); see also Loliscio v. Goord, 263 F.3d 178, 186-
88 (2d Cir. 2001) (noting the apparent tension between the
deference afforded to state courts under AEDPA and the
application of FED. R. EVID. 606(b) in reviewing a state court
record).
-33-
upon his mind.” Id. at 149. Similarly, in Parker v. Gladden,
385 U.S. 363 (1966) (per curiam), the Supreme Court considered
testimony that some of the jurors overheard a bailiff’s comments
that the defendant was a wicked, guilty man and that if there was
anything wrong with convicting the defendant, the Supreme Court
would correct it. Although the Court did not directly address
the admissibility of the juror testimony, it noted that the
bailiff’s “expressions were private talk, tending to reach the
jury by outside influence.” Parker, 385 U.S. at 364 (internal
quotation marks omitted); see also Remmer v. United States, 347
U.S. 227, 228-30 (1954) (considering testimony from a juror that
he was offered a bribe by an unnamed third party).
The Tanner Court further explained that in situations not
falling within the exception for external influences, the Supreme
Court has “adhered to the common-law rule against admitting juror
testimony to impeach a verdict.” Tanner, 483 U.S. at 117. For
example, in Hyde v. United States, 225 U.S. 347, 384 (1912),
the Supreme Court decided that the applicable legal rule
prevented the consideration of juror testimony that a bargain had
been struck between the jurors during deliberations to convict
one defendant in exchange for acquitting another. Similarly, in
McDonald v. Pless, 238 U.S. 264, 267 (1915), the Court concluded
that juror testimony that the jury had rendered a quotient
verdict was inadmissible for the purpose of impeaching that
-34-
verdict.29 The McDonald Court recognized that two competing
interests were at stake--the defendant’s interest in a fair trial
and the public’s interest in maintaining a working jury trial
system. McDonald, 238 U.S. at 267. The Court concluded that, in
the case of juror testimony about internal jury deliberations,
the interest in protecting the jury system was overriding:
[L]et it once be established that verdicts solemnly made
and publicly returned into court can be attacked and set
aside on the testimony of those who took part in their
publication and all verdicts could be, and many would be,
followed by an inquiry in the hope of discovering
something which might invalidate the finding. Jurors
would be harassed and beset by the defeated party in an
effort to secure from them evidence of facts which might
establish misconduct sufficient to set aside a verdict.
If evidence thus secured could be thus used, the result
would be to make what was intended to be a private
deliberation, the constant subject of public
investigation; to the destruction of all frankness and
freedom of discussion and conference.
Id.
In Tanner, the Supreme Court concluded that FED. R. EVID.
606(b) rendered inadmissible jurors’ testimony that other jurors
had consumed alcohol and illegal drugs during the trial, and it
noted that the rule “is grounded in the common-law rule against
the admission of jury testimony to impeach a verdict and the
exception for juror testimony relating to extraneous influences.”
483 U.S. at 121-26. The Tanner Court reaffirmed the legal
29
The verdict in McDonald was a quotient verdict in that
the jurors, unable to agree on the amount of damages, decided to
have each juror submit his desired amount, the amounts were added
together, and the sum was divided by the number of jurors,
resulting in the amount of damages awarded to the plaintiff. 238
U.S. at 265-66.
-35-
principle from McDonald in defense of the exclusion of the juror
testimony:
There is little doubt that postverdict investigation into
juror misconduct would in some instances lead to the
invalidation of verdicts reached after irresponsible or
improper juror behavior. It is not at all clear,
however, that the jury system could survive such efforts
to perfect it. Allegations of juror misconduct,
incompetency, or inattentiveness, raised for the first
time days, weeks, or months after the verdict, seriously
disrupt the finality of the process. Moreover, full and
frank discussion in the jury room, jurors’ willingness to
return an unpopular verdict, and the community’s trust in
a system that relies on the decisions of laypeople would
all be undermined by a barrage of postverdict scrutiny of
juror conduct.
Id. at 120 (internal citation omitted). The Court concluded that
the exclusion of the juror testimony did not violate the
defendant’s right to a fair and impartial trial in light of the
“long-recognized and very substantial concerns support[ing] the
protection of jury deliberations from intrusive inquiry.” Id. at
127. Moreover, the Court reasoned that defendants’ rights are
sufficiently protected by a number of other safeguards in the
trial process, including examination of the jurors during voir
dire, the ability of jurors to report misconduct prior to
rendering a verdict, and the evidence other than juror testimony.
Id. at 127. Thus, the Court held that the application of FED. R.
EVID. 606(b) to bar the jurors’ testimony did not violate
constitutional principles.
At oral argument in the present case, defense counsel
contended that Tanner is not dispositive of Salazar’s due process
-36-
claim because Tanner relied upon the distinction between juror
testimony of objective jury misconduct and testimony concerning
the subjective thought processes of the jurors. Counsel stated
that testimony relating to objective jury misconduct is always
admissible under federal law to impeach a verdict, whereas
testimony about the jurors’ subjective thought processes is
inadmissible under the federal rule. Defense counsel further
contended that Tanner is inapposite because, unlike federal law,
Texas law does not recognize this distinction between objective
misconduct and subjective mental processes but rather excludes
all juror testimony, whether it pertains to objective facts or
subjective thought processes. Defense counsel’s contention,
however, is incorrect for a number of reasons. First, and most
important, Tanner clearly did not turn on a distinction between
objective misconduct and subjective juror thought processes. In
fact, Tanner dealt specifically with, and upheld the exclusion
of, juror testimony concerning objective misconduct (i.e., the
consumption of alcohol and illicit substances); it simply did not
involve testimony concerning the jurors’ subjective thought
processes or the effect of anything on their decision in reaching
their verdict. See id. at 118-20. Contrary to defense counsel’s
argument, the Court made clear in Tanner that not all evidence of
objective misconduct occurring during juror deliberations is
admissible under FED. R. EVID. 606(b), and it held that the
exclusion of juror testimony about the jury’s internal
-37-
deliberations is not only constitutionally permissible but is
also likely necessary to preserve the vitality of our jury
system. Id. at 120, 126-27; see also Anderson v. Miller, 346
F.3d 315, 325-26 (2d Cir. 2003) (discussing the centrality of the
jury to our justice system). Second, defense counsel
misconstrued the difference between the federal rule and the
Texas rule by stating that Texas law does not recognize the
distinction made in federal law between juror testimony
concerning objective misconduct and testimony concerning jurors’
subjective thought processes. In fact, the Texas rule includes
language virtually identical to the federal rule, providing that:
“a juror may not testify as to . . . the effect of anything on
any juror’s mind or emotions or mental processes, as influencing
any juror’s assent to or dissent from the verdict or indictment.”
TEX. R. EVID. 606(b). Thus, both FED. R. EVID. 606(b) and TEX. R.
EVID. 606(b) bar all juror testimony concerning the jurors’
subjective thought processes.30 Accordingly, Salazar’s attempt
30
Of course, the difference between the federal rule and
the Texas rule relates to the admissibility of juror testimony
about objective misconduct. Both rules generally prohibit juror
testimony about any matter or statement occurring during the
jury’s deliberations, but each rule provides an exception to that
rule. The Texas rule allows jurors to testify only about
“whether any outside influence was improperly brought to bear
upon any juror,” whereas the federal rule allows a juror to
testify “on the question whether extraneous prejudicial
information was improperly brought to the jury’s attention or
whether any outside influence was improperly brought to bear upon
any juror.” The practical effect of this difference is not
altogether pellucid. See, e.g., United States v. Martinez-
Moncivais, 14 F.3d 1030, 1036 n.3 (5th Cir. 1994); 27 CHARLES ALAN
WRIGHT & VICTOR JAMES GOLD, FEDERAL PRACTICE & PROCEDURE § 6075 (1990).
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to distinguish Tanner fails, and we cannot say that the state
habeas court’s application of Texas Rule 606(b) to bar testimony
by the jurors concerning their internal discussion of parole law
during deliberations was contrary to, or an unreasonable
application of, clearly established federal law as determined by
the Supreme Court.
The case most heavily relied upon by Salazar, Turner v.
Louisiana, 379 U.S. 466 (1965), is of no avail to him. In
Turner, the Supreme Court determined that the defendant’s right
to a fair trial by an impartial jury had been violated because
two county deputy sheriffs, who were also key prosecution
witnesses, were placed in charge of the jury. Throughout the
trial, these deputies “freely mingled and conversed with the
jurors in and out of the courthouse . . . .” Turner, 379 U.S. at
468. The Court concluded that this continuous contact violated
the defendant’s right to a fair trial by an impartial jury
because the credibility of key prosecution witnesses had been
improperly enhanced by their official association with the jurors
during the trial. Id. at 473-74. Importantly, the admissibility
of post-verdict juror testimony used to impeach a verdict was not
an issue in Turner. The testimony supporting the claim of
impropriety in that case came not from the jurors but from the
Regardless, Salazar has pointed to no clearly established Supreme
Court law that would render TEX. R. EVID. 606(b) constitutionally
infirm due to this difference. Rather, Tanner suggests that the
Texas rule, at least as it was applied in this particular case,
is constitutionally valid.
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bailiffs, and the testimony was given during a mid-trial hearing
on the defendant’s motion for a mistrial, not after the verdict
was rendered. Id. at 468-70. Moreover, Turner clearly did not
involve internal jury deliberations but rather dealt with an
external influence, i.e., the bailiffs’ contact with the jurors
during the trial, about which juror testimony would be admissible
under the common-law exception discussed in Tanner. Thus, the
holding in Turner, which has never been applied by the Supreme
Court to instances of the jury’s internal discussions during
deliberations, does not demonstrate that the state habeas court’s
decision was contrary to, or involved an unreasonable application
of, clearly established Supreme Court precedent.31
Salazar also relies heavily on the Sixth Circuit’s decision
in Doan v. Brigano, 237 F.3d 722 (6th Cir. 2001), abrogation on
other grounds recognized by Maples v. Stegall, 340 F.3d 433, 437
31
More specifically, there is no indication from the
Supreme Court that Turner applies to instances of a juror’s
statements to other jurors about parole law during deliberations,
or that a jury’s discussion of parole law runs counter to any
constitutional principle. If anything, what little the Supreme
Court has said on the issue (or related issues) leans in the
other direction. Cf. Simmons v. South Carolina, 512 U.S. 154,
176 (1994) (O’Connor, J., concurring) (“In a State in which
parole is available, the Constitution does not require (or
preclude) jury consideration of that fact.”); California v.
Ramos, 463 U.S. 992, 997-1010 (1983) (indicating that a state
court constitutionally may instruct, and a jury may consider
during death-penalty sentencing, that the executive has the power
to pardon a defendant sentenced to life in prison); see also
Monroe, 951 F.2d at 52 (“The Supreme Court has indicated that a
jury’s consideration of executive clemency powers does not render
a defendant’s trial fundamentally unfair under the federal
constitution.” (citing Ramos, 463 U.S. 992)).
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(6th Cir. 2003). In Doan, a juror conducted an experiment in her
own home during the trial to see if the defendant was telling the
truth when he said he did not see a child’s bruises on the
evening of her death because of poor lighting. Id. at 726-27.
The juror related her findings, which she concluded had proved
that the defendant was lying, to the other jurors. Id. The jury
subsequently convicted the defendant of murder. Id. at 726. The
state court denied relief on the defendant’s claim that the
juror’s out-of-court experiment denied him his right to a fair
and impartial trial on the ground that OHIO R. EVID. 606(b)32
rendered the petitioner’s evidence of jury misconduct
inadmissible. Id. at 727. The federal district court denied his
petition for habeas relief. Id. The Sixth Circuit, relying on
Turner and Parker, held that the state court’s adjudication of
the defendant’s constitutional claim was contrary to clearly
established federal law because “[i]n the constitutional sense,
trial by jury in a criminal case necessarily implies . . . that
the evidence developed against a defendant shall come from the
witness stand in a public courtroom where there is full judicial
protection of the defendant’s right of confrontation, of
32
The Ohio version of Rule 606(b) that was at issue in
Doan differs from both FED. R. EVID. 606(b) and TEX. R. EVID.
606(b) in that, inter alia, it provides that “[a] juror may
testify on the question whether extraneous prejudicial
information was improperly brought to the jury’s attention or
whether any outside influence was improperly brought to bear on
any juror, only after some outside evidence of that act or event
has been presented.” OHIO R. EVID. 606(b) (emphasis added).
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cross-examination, and of counsel.” Id. at 730-34. The court
concluded that “Ohio Rule 606(B), by refusing to allow
consideration of evidence of the improper juror experiment in
this case, fails to protect adequately Doan’s constitutional
right to a fair trial” and that, therefore, “[t]he state court’s
use of this rule to decide Doan’s constitutional claim is
‘contrary to’ clearly established Supreme Court precedent
recognizing the fundamental importance of this right.” Id. at
733. The Sixth Circuit, however, ultimately denied habeas relief
because it found this constitutional violation to be harmless
under Brecht v. Abrahamson, 507 U.S. 619 (1993). Id. at 736-38.
To state the obvious, Doan is not binding precedent on this
court because it is an opinion of one of our sister circuits.
For the same reason, but perhaps more important, Doan does not
constitute clearly established federal law as determined by the
Supreme Court, and, as such, it cannot provide the basis for
habeas relief under § 2254. See, e.g., Williams, 529 U.S. at
412; Burgess, 350 F.3d at 469. Nevertheless, we note that the
Sixth Circuit’s conclusion in Doan is not inconsistent with our
disposition of Salazar’s habeas petition because Doan involved an
out-of-court experiment conducted by a juror, not statements
about parole law made internally by jurors during deliberations.
In fact, the Doan court itself noted this critical distinction:
It is important to stress that we are not calling Doan’s
verdict into question by reviewing the private, internal
deliberations of the jury. As the Supreme Court has
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noted, “substantial policy considerations,” including the
finality of verdicts and the avoidance of post-verdict
juror harassment, weigh in favor of limiting the extent
to which we delve into that thicket. Instead, what makes
this case different, and what triggers concerns of a
constitutional dimension, is the fact that Juror A
conducted an out-of-court experiment and reported her
findings to the jury in the manner of an expert witness.
Unlike an expert witness, however, Juror A’s testimony
was not presented on the witness stand, nor was it
subject to confrontation and cross-examination by Doan’s
attorneys. Juror A’s testimony was not on the record,
nor was it governed by the same evidence rules as all the
other evidence presented at trial. In short, Juror A’s
experiment and her subsequent report of its results,
results which indicated that Doan may not have been
truthful in his testimony on the witness stand, injected
extraneous and potentially prejudicial evidence into the
jury’s deliberations, evidence which Doan and his
attorneys had no chance to refute.
Id. at 733 (internal citation omitted). Thus, Doan actually
supports our conclusion that the state habeas court’s
adjudication of Salazar’s claim was neither contrary to, nor an
unreasonable application of, clearly established Supreme Court
precedent.33
III. CONCLUSION
Given the relevant Supreme Court precedents discussed above,
we conclude the state habeas court’s adjudication of Salazar’s
due process claim did not result in a decision that was contrary
to, or involved an unreasonable application of, clearly
established federal law as determined by the Supreme Court.
“[T]he Constitution entitles a criminal defendant to a fair
33
For similar reasons, Pyles v. Johnson, 136 F.3d 986
(5th Cir. 1998), a pre-AEDPA case addressing a juror’s out-of-
court experiment, does not support Salazar’s claim.
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trial, not a perfect one.” Delaware v. Van Arsdall, 475 U.S.
673, 681 (1986). The state court in this particular case
conducted a full hearing on the question, and it concluded that,
in light of the conflicting evidence, Salazar failed to establish
that he had been denied a fair and impartial trial. Regardless,
the only evidence that Salazar presented in support of his claim
of jury misconduct was the conflicting testimony of certain
jurors that during deliberations one or more jurors may have made
factually inaccurate statements about parole law. The state
court’s conclusion that this evidence was inadmissible under TEX.
R. EVID. 606(b) was entirely consistent with the Supreme Court’s
holding in Tanner, which recognized the need to balance the
defendant’s interest in a post-verdict inquiry with the
substantial interest in protecting the finality of judicial
proceedings, full and frank discussions in the jury room, jurors’
willingness to return an unpopular verdict, and the community’s
trust in the jury system. Accordingly, Salazar has not satisfied
the standard set forth in § 2254, and we therefore AFFIRM the
judgment of the district court denying his habeas petition.
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