IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-40880
_____________________
ANTONIO BARRIENTES,
Petitioner-Appellant,
versus
GARY L. JOHNSON, Director
Texas Department of Criminal Justice,
Institutional Division
Respondent-Appellee.
_________________________________________________________________
On Application for a Certificate of Probable Cause
Appeal from the United States District Court
for the Southern District of Texas
(B-89-044)
_________________________________________________________________
August 20, 1996
Before KING, GARWOOD, and SMITH, Circuit Judges.
PER CURIAM:*
Antonio Barrientes applies for a certificate of probable
cause to appeal the district court’s dismissal without prejudice
of his petition for habeas corpus for failure to exhaust his
state remedies. We deny his application.1
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
1
Because this appeal was fully briefed and taken under
submission before April 24, 1996, the effective date of the
I. BACKGROUND
Antonio Barrientes was convicted of capital murder by a
Texas jury on April 24, 1985 and is currently incarcerated under
a sentence of death. The Texas Court of Criminal Appeals
affirmed Barrientes’s conviction on direct appeal, Barrientes v.
State, 752 S.W.2d 524 (Tex. Crim. App. 1987), and the United
States Supreme Court denied certiorari. Barrientes v. Texas, 487
U.S. 1241 (1988).
On August 17, 1988, Barrientes filed a petition for a writ
of habeas corpus with the Texas Court of Criminal Appeals and the
state district court. The Texas Court of Criminal Appeals
granted a stay of execution and ordered the state district court
to conduct an evidentiary hearing on the issue of whether
Barrientes received effective assistance of counsel. The
evidentiary hearing was held on November 3, 1988, and the state
district court entered findings of fact and conclusions of law
recommending the denial of relief. On February 1, 1989, the
Texas Court of Criminal Appeals denied habeas relief on all
grounds, with two judges dissenting.
On March 8, 1989, Barrientes filed his first federal
petition for habeas corpus in the United States District Court
for the Southern District of Texas and amended that petition on
“Antiterrorism and Effective Death Penalty Act of 1996,” we shall
assume without deciding that the prior habeas corpus law applies
to this appeal.
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April 30, 1992. On April 27, 1992, anticipating Barrientes’s
amended petition, the respondent filed a motion to dismiss for
failure to exhaust state remedies. On August 22, 1995, the
district court entered findings of fact and conclusions of law
providing that Barrientes’s death sentence should be vacated
because it was obtained in violation of the Constitution and that
Barrientes should be resentenced or his sentence commuted to life
imprisonment.2 However, the district court did not enter
judgment based on these findings and conclusions. Instead, it
dismissed Barrientes’s petition without prejudice for failure to
exhaust state remedies. The district court denied Barrientes’s
application for a certificate of probable cause, and Barrientes
filed a timely notice of appeal.
II. DISCUSSION
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Specifically, the district court found that, at the
penalty phase, the prosecutor improperly presented evidence of
Barrientes 1979 capital murder arrest and improperly argued that
Barrientes had committed the 1979 murder and improperly implied
that he had murdered a witness to the 1979 murder, preventing the
state from trying him. The district court concluded that this
evidence and argument violated Barrientes’s constitutional rights
because the police file on Barrientes’s 1979 arrest strongly
indicated that Barrientes neither committed the 1979 murder nor
murdered the missing witness: the charges against Barrientes were
dropped after the police focused their investigation on another
suspect, Barrientes took and passed two polygraphic exams
indicated that he was not involved in the murder, and the missing
witness was believed to have fled out of town during the time
Barrientes was in jail.
3
We have no jurisdiction over Barrientes’s appeal absent a
certificate of probable cause (“CPC”). Harris v. Johnson, 81
F.2d 535, 538 (5th Cir. 1996). To qualify for a CPC, Barrientes
must make a “substantial showing of the denial of a federal
right.” White v. Johnson, 79 F.3d 432, 437 (5th Cir.
1996)(quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).
“This requires that [Barrientes] demonstrate that the issues are
debatable among jurists of reason; that a court could resolve the
issues in a different manner, or that the questions are adequate
to deserve encouragement to proceed further.” Id. (internal
quotations and alterations omitted).
Despite its opinion that Barrientes’s death sentence was
unconstitutionally obtained, the district court dismissed without
prejudice Barrientes’s petition for failure to exhaust his state
remedies. The district court found, as the respondent argued,
that although Barrientes raised the same legal claims in his
state habeas petition as in his amended federal habeas petition,
he supported his federal petition with additional factual
allegations and evidence that were not presented to the state
courts.
In its motion to dismiss, respondent argued that Barrientes
supported three of his claims in his amended federal habeas
petition with significantly stronger evidence than he did in his
state habeas petition. Specifically, respondent contended the
following:
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(1) Although Barrientes had presented his claim that
the state improperly admitted evidence of his
unadjudicated 1979 capital murder arrest at the penalty
phase and improperly argued concerning this arrest to
the state habeas court, Barrientes presented
significantly stronger evidentiary support for this
argument in his amended federal habeas petition.
Specifically, Barrientes included with his amended
federal habeas petition the Cameron County sheriff’s
office’s file on the 1979 arrest, indicating that the
charges against Barrientes were dropped, as well as an
affidavit by the prosecutor that, had he known the
exculpatory information contained in the police file,
he would not have argued or presented evidence
regarding the 1979 arrest at the penalty phase of
Barrientes’s trial.
(2) Although Barrientes had argued to the state habeas
court that David Meza’s testimony was fabricated, he
had not alleged before the state habeas court that Meza
lied because the district attorney’s office threatened
him. In his federal petition, Barrientes argued that
Meza testified falsely because the district attorney’s
office threatened him, and offered Meza’s testimony to
that effect.
(3) Before the state habeas court, Barrientes had
broadly asserted that his counsel was ineffective for
failing to interview witnesses to obtain information
with which to impeach the government’s principal
witness, Felix Sanchez. However, in his federal habeas
petition, Barrientes specifically alleged and offered
evidence that Sanchez’s wife and mother would have
testified in a way that would have undermined Sanchez’s
credibility.
In response to the motion to dismiss and on application for
CPC, Barrientes argued that his state habeas petition contained
in substance the same legal claims and factual allegations as his
amended first federal habeas petition. He contended that remand
to the state habeas court would be futile because the state court
has indicated that it would not consider the additional
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evidentiary support by denying his motions for discovery and
limiting his questioning at the state evidentiary hearing on
ineffective assistance of counsel. Finally, Barrientes contended
that no adequate state law remedy is available to him because
Texas law prohibits subsequent habeas petitions.
We conclude that Barrientes has not made a substantial
showing that courts could resolve the exhaustion issue
differently than did the district court; therefore, we deny
Barrientes application for CPC. First, the record demonstrates
that Barrientes’s amended federal habeas petition presents new
factual allegations and significantly stronger evidentiary
support for his legal claims than he had presented to the state
habeas court. We have held that a habeas petitioner fails to
exhaust state remedies when he presents additional factual
allegations and evidentiary support to the federal court that was
not presented to the state court. See Joyner v. King, 786 F.2d
1317, 1320 (5th Cir.)(holding that “the policies of comity and
federalism underlying the exhaustion doctrine” require that “new
factual allegations in support of a previously asserted legal
theory” be first presented to the state court), cert. denied, 479
U.S. 1010 (1986); Brown v. Estelle, 701 F.2d 494, 495-96 (5th
Cir. 1983)(holding that when a claim is filed in federal court in
a significantly stronger evidentiary posture than it was before
the state court, it must be dismissed for failure to exhaust
state remedies and remanded to the state court).
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Second, Barrientes has not made a substantial showing that
remand to the state court would be futile. Barrientes argues
that the state habeas court has indicated, by denying his motions
for discovery and limiting his questions at the November 3, 1988
evidentiary hearing, that it will not consider the additional
factual allegations and evidentiary support. We note that the
November 3, 1988 evidentiary hearing was limited to the subject
of ineffective assistance of counsel. Barrientes’s repeatedly
attempted to elicit testimony that, following his 1979 arrest, he
had taken and passed two polygraphic exams which indicated that
he had not committed the 1979 murder. The state court disallowed
this testimony because it considered it unrelated to the
ineffective assistance of counsel claim and possibly because of
state evidentiary rules regarding the admissibility of
polygraphic exams. These actions do not indicate that the state
habeas court will not consider Barrientes’s additional factual
allegations and evidentiary support on remand.
Finally, Barrientes has not made a substantial showing that
remand is inappropriate because he has no adequate state remedy.
While it is true that Texas habeas corpus law ordinarily
prohibits the filing of a subsequent habeas corpus application,
TEX. CODE CRIM. PROC. art. 11.071 § 5(a), Barrientes’s petition may
fall within an exception to that prohibition allowing subsequent
petitions to be considered in some circumstances. See id. §
5(a)(1)(A) (allowing a subsequent application for habeas corpus
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if the application contains specific facts establishing that the
current claims and issues have not been and could not have been
presented in the earlier application because the factual or legal
basis of these claims was unavailable); id. § 5(a)(3) (allowing a
subsequent application to be considered if it contains specific
facts establishing by clear and convincing evidence, “but for a
violation of the United States Constitution no rational juror
would have answered in the state’s favor one or more of the
special issues submitted to the jury” during the penalty phase).
We conclude that Barrientes has failed to make a substantial
showing that a court could have resolved the exhaustion issue in
a different manner. Accordingly we deny Barrientes’s application
for a certificate of probable cause to appeal.
III. CONCLUSION
Barrientes’s application for a certificate of probable cause
is DENIED.
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