Salazar v. Dretke

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that this opinion should not be published and is not precedent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.
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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.”).
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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.