IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-20218
RAMON MATA, JR.,
Petitioner-Appellant,
versus
GARY JOHNSON, Director,
TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
For the Southern District of Texas
October 31, 1996
Before WIENER, PARKER, and DENNIS, Circuit Judges.
WIENER, Circuit Judge:
Petitioner-Appellant Ramon Mata, Jr., a Texas death row
inmate, appeals the district court’s grant of summary judgment in
favor of Respondent-Appellee Gary Johnson, Director of the Texas
Department of Criminal Justice (the Director), denying and
dismissing with prejudice Mata’s petition for a writ of habeas
corpus. For the reasons set forth below, we affirm the judgment of
the district court.
I
FACTS AND PROCEEDINGS
In February 1986, Mata was convicted of capital murder and
sentenced to death for the murder of Minnie Rene Houston, a black
female prison guard in the Ellis Unit of the Texas Department of
Corrections in Walker County, Texas. At the time of the killing,
Mata was already serving a prison sentence at the Ellis Unit for a
previous murder. Mata and six other trustee inmates worked under
Officer Houston’s supervision at the corrections officers’ dining
hall. Evidence in the trial record suggests that Mata and Houston
may have been romantically involved.
On the night of the killing, Officer Houston issued filet
knives to the inmates so that they could clean fish. About 9:30
that evening, Mata used his knife to stab Houston to death. He
then ran from the kitchen, took Houston’s car, drove across a field
to the main picket tower, got out of the car, and told an officer
that he had killed Houston. The knife, with Mata’s fingerprints on
it, was found on the floor of Houston’s car between the seat and
the door on the driver’s side. Blood of Houston’s type was found
on Mata’s clothes, Houston’s clothes, and the knife.
Mata, who is Hispanic, was charged with capital murder under
Texas Penal Code § 19.03(a)(5). Under that provision, it is a
capital offense for a person, while incarcerated in a penal
institution, to murder another who is employed in the operation of
the penal institution.
The case commanded widespread attention in Walker County,
2
where over twenty percent of the adult residents were affiliated
with the prison. The trial judge conducted a poll and determined
that nearly everyone in the county was familiar with the case, and
that more than half had already formed an opinion about Mata. On
the basis of that information and pursuant to his own motion, the
trial judge changed the venue of the case to neighboring Madison
County. Although approximately seventeen percent of the adult
residents of Madison County also were affiliated with the prison,
Mata did not request another change of venue.
Seventy-six persons answered the summons for jury duty in
Mata’s trial, and eight members of the venire were black. During
jury selection, however, the prosecution and Mata’s defense counsel
agreed to exclude all eight black venirepersons from the jury. The
trial court permitted this to happen without requesting a non-
discriminatory explanation or even requiring the parties to expend
a single peremptory challenge.
Courtroom security was enhanced for Mata’s trial. Heavily
armed, specialized security forces were stationed throughout the
courtroom, and video cameras and metal detectors were installed in
the entryway. In addition, between thirty and forty fully
uniformed prison guards were in regular attendance as spectators
throughout the proceedings.
In the separate punishment phase of the trial that followed
Mata’s conviction, the jury answered “yes” to the three questions
posed to them pursuant to Texas Code of Criminal Procedure art.
37.071(b), and the trial court sentenced Mata to death. The Texas
3
Court of Criminal Appeals affirmed the conviction and sentence1 and
subsequently denied Mata’s motion for rehearing. Mata did not
petition the Supreme Court for a writ of certiorari. Thus, Mata’s
conviction became final on November 4, 1992.
Mata filed a state habeas corpus petition in 1993, which he
supplemented in 1994. On January 6, 1995, the trial court adopted
the appointed Master’s Final Report which concluded that Mata’s
claims did not entitle him to relief, and the Texas Court of
Criminal Appeals denied habeas relief on January 27.2 The U.S.
Supreme Court denied writs on October 10, 1995.3
Mata filed his federal habeas petition on September 18, 1995.
The next day, the trial court scheduled Mata’s execution for March
14, 1996. On March 5, the district court denied Mata’s habeas
petition and Application for Certificate of Probable Cause.4 Mata
promptly filed a Notice of Appeal to this court. Noting that the
district court had waited to deny Mata’s petition until less than
10 days before his scheduled execution, we stayed Mata’s execution
and carried his Application for Certificate of Probable Cause (CPC)
with this appeal.
Mata asserts three claims in his habeas petition: (1) that
1
Mata v. State, No. 69,632 (Tex. Crim. App. Nov. 4,
1992)(unpublished).
2
Ex parte Mata, Writ No. 8,937-02 (Tex. Crim. App. Jan. 27,
1995)(unpublished).
3
Mata v. Texas, 116 S.Ct. 297, 133 L.Ed.2d 204 (1995).
4
Mata v. Scott, No. H-95-4545 (S.D. Tex. March 5, 1996)
(unpublished).
4
the agreement between his own defense counsel and the prosecution
to exclude all blacks from the jury violated the Equal Protection
Clause of the Fourteenth Amendment, (2) that this agreement
deprived him of his Sixth Amendment right to a jury chosen from a
fair cross-section of the community, and (3) that his Sixth and
Fourteenth Amendment rights to a fair trial were denied through a
combination of harmful circumstances surrounding the trial,
including the presence of armed guards throughout the courtroom,
the addition of special video cameras and metal detectors for the
duration of the trial, prejudicial pretrial publicity, and the
constant and overbearing presence of uniformed correctional
officers in the spectator portion of the courtroom.
We construe Mata’s request for a CPC as a request for the
newly required Certificate of Appealability (COA), grant Mata’s
request for a COA, and proceed to the merits of his appeal.
II
ANALYSIS
A. ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT OF 1996
Our jurisdiction to employ the writ of habeas corpus to review
the constitutionality of Mata’s state court conviction and sentence
is derived from 28 U.S.C. §§ 2241-2255. The Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), signed into law on
April 24, 1996, revised that statutory scheme in two ways relevant
to Mata’s case: (1) The Amended Standard Procedures (AEDPA §§ 101-
106, codified at 28 U.S.C. §§ 2241-2255) are applicable to all
federal habeas petitions; and (2) the Expedited Procedures (AEDPA
5
§ 107, codified at 28 U.S.C. §§ 2261-2266) are applicable only to
capital cases. As an initial matter, we must determine whether
either or both of these new AEDPA provisions govern the case now
before us.
1. The Amended Standard Procedures
Although the AEDPA specifically provides that the expedited
procedures in § 2264 are immediately applicable when a state
fulfills the “opt-in” requirements, the Act is silent concerning
the effective date of the amended standard procedures in § 2254.5
Recently, in Drinkard v. Johnson,6 another panel of this court held
that the amendment to § 2254(d)(1) concerning the appropriate
standard of review applicable to federal courts considering habeas
corpus proceedings arising out of state convictions is procedural
in nature and therefore immediately applicable under the Landgraf
v. USI Film Products7 analytic framework. We see no basis for
divorcing the remainder of the § 2254 amendments -- all of which
involve standards of review -- from the Drinkard application of
Landgraf. We hold that the entire amended § 2254 applies to the
issues raised by Mata in this case.
5
The expedited procedures in § 2264 expressly require
application of § 2254(a),(d)&(e). Therefore, if the state
qualifies as an opt-in state, the immediate applicability of § 2264
includes the amended standard provisions. However, because we
determine that Texas is not an opt in state, the immediate
applicability of § 2264 does not inform this question.
6
Drinkard v. Johnson, --F.3d--, 1996 WL 571122 (5th Cir.
October 7, 1996).
7
511 U.S. 244, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994).
6
2. The Expedited Procedures
Section 107 of AEDPA, entitled “Death Penalty Litigation
Procedures,” expressly provides that the Expedited Procedures
codified in 28 U.S.C. § 2262-2266 are immediately applicable to
pending petitions brought by death row prisoners held in state
custody.8 Application of these new procedures, however, is
conditioned on the State establishing:
[by] statute, rule of its court of last resort or by
another agency authorized by State law, a mechanism for
the appointment, compensation and payment of reasonable
litigation expenses of competent counsel in state post-
convictions proceedings by indigent prisoners. . . .
The rule of court or statute must provide standards of
competency for the appointment of such counsel.9
A state may opt in to the expedited procedures by fulfilling
these requirements. Even prior to the enactment of AEDPA, Texas
had established a statewide mechanism for the appointment of
counsel to represent its burgeoning death row population in post-
conviction proceedings.10
a. Attorney’s fees and costs
The AEDPA requires a qualifying state to have established “a
mechanism for the . . . compensation and payment of reasonable
litigation expenses of competent counsel.”11 The Texas Court of
Criminal Appeals has adopted strict guidelines limiting
8
28 U.S.C. § 2266(c).
9
28 U.S.C. § 2261(b).
10
Act of May 24, 1995, Ch. 319, § 1, 1995 Tex. Sess. Law
Serv. 2764 (Vernon) (effective Sept. 1, 1995) (codified as Tex.
Code Crim. Proc. Ann. art. 11.071).
11
28 U.S.C. § 2261(b).
7
compensation to $7,500 and reimbursement of expenses to $2,500 for
each appointment made under art. 11.071. Mata contends that these
rates are inadequate to ensure the ability of death row inmates to
obtain competent counsel to represent them in state habeas
proceedings, urging that Texas is therefore disqualified as an opt-
in state. In other words, Mata contends that $7,500/$2,500 will
not pay the “compensation and reasonable litigation expenses of
competent counsel.”
We do not find the limits facially inadequate, and Mata has
not established any circumstances that would prove the limits
inadequate in his case.
b. Standards for ensuring competency of counsel
Mata next argues that Texas has not satisfied the requirement
set out in 28 U.S.C. § 2261(b) that, to qualify as an opt-in state,
the mechanism for appointment of counsel must include “standards of
competency” for such counsel. Art. 11.071 does not provide
standards of competency in the statute itself. Although art.
11.071, § 2(d) states that standards of competency will be adopted
by the Texas Court of Criminal Appeals,12 to date no such standards
have been adopted.
The State argues that the Texas Court of Criminal Appeals has
implemented a flexible mechanism for evaluating the qualifications
12
Art. 11.071 § 2(d) provides, in pertinent part:
Unless an applicant elects to proceed pro se or is
represented by retained counsel, the court of criminal
appeals shall, under rules and standards adopted by the
court, appoint competent counsel at the earliest
practicable time.
8
of prospective counsel: Each counsel seeking appointment in a
capital case must complete and submit a questionnaire, which the
Court of Criminal Appeals evaluates on a case-by-case basis to
ensure competence. But we interpret § 2261(b) to require explicit
standards of competency. The Texas statute, on its face, delegates
the task of developing competency standards to Texas’s highest
criminal court. Under § 2265(a), such delegation is appropriate;
so far, however, the Texas Court of Criminal Appeals has failed to
fulfill its delegated task. Moreover, Texas has failed to comply
fully with § 2265’s requirements, as it has not “establishe[d] by
statute, rule of court of last resort, or by another agency
authorized by State law” specific, mandatory standards for capital
habeas counsel. Therefore, we conclude that Texas is not yet
eligible to take advantage of the provisions afforded opt-in states
under the AEDPA.13
B. STANDARD OF REVIEW
Having determined that the amended standards of review in §
2254 apply to Mata’s case, we must next decide what those new
standards require of us. We begin by examining the amended
language of the statute.
(d) A [§ 2254 writ] shall not be granted . . . unless the
adjudication of the claim
13
See Ashmus v. Calderon, 935 F.Supp. 1048 (N.D.Cal.
1996)(California’s statute does not include adequate competency
standards to qualify as an opt-in state); Austin v. Bell, 927
F.Supp. 1058 (M.D.Tenn. 1996) (Tennessee’s statute does not include
adequate competency standards to qualify as an opt-in state); Hill
v. Butterworth, 1996 WL 447194 (N.D.Fla. August 9, 1996)(Florida’s
statute does not include adequate competency standards to qualify
as an opt-in state).
9
(1) 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; 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.
The Drinkard majority interprets the second clause of (d)(1), which
sets out the standard of review for mixed questions of fact and
law, thus:
[W]e hold that an application of law to facts is
unreasonable only when it can be said that reasonable
jurists considering the question would be of one view
that the state court ruling was incorrect. In other
words, we can grant habeas relief only if a state court
decision is so clearly incorrect that it would not be
debatable among reasonable jurists.14
The Drinkard dissent, while agreeing that (d)(1) is immediately
applicable, characterizes the standard of review as de novo.15 We
understand the Drinkard majority to articulate a somewhat hybrid
standard of review that is probably most closely akin to the
traditional “clearly erroneous” standard than to any other
established standard of review.
The concept of federal habeas courts applying a
“reasonableness” inquiry to state court decisions did not spring
full grown, in all its Athenian beauty, from the AEDPA’s forehead.
During what has been called the heyday of habeas review, the Warren
Court allowed habeas claims based on law not in existence at the
time of the petitioner’s trial, denominating the “adequate state-
14
Drinkard, 1996 WL 571122, *15 (emphasis added).
15
Id. at *27.
10
ground rule a function of appellate review.”16 Less than ten years
later, however, the Supreme Court developed the cause and prejudice
requirement. That is, a petitioner was required to show (1) cause
for his failure to comply with procedural rules and (2) actual
prejudice resulting from the federal violation claimed.17 In 1977,
Wainwright v. Sykes18 extended the “cause and prejudice” test of
Davis and Francis to state contemporaneous objection rules, calling
into question Fay v. Noia’s view of the adequate and independent
state ground doctrine. This trend of narrowing the federal habeas
review culminated in Teague v. Lane,19 which held that new
constitutional rules of criminal procedure will not be applicable
to those cases which have become final before the new rules are
announced. Justice Scalia explained the new view of the role of
federal habeas review in 1989:
[T]he historic role of habeas corpus in our system of law
[] is to provide a deterrence, the threat of which serves
as a necessary additional incentive for trial and
appellate courts throughout the land to conduct their
proceedings in a manner consistent with established
constitutional standards. Deterrence and threat are
meaningless concepts as applied to a situation in which
the law is so uncertain that a judge acting in all good
faith and with the greatest of care could reasonably read
our precedents as permitting the result the habeas
16
Fay v. Noia, 372 U.S. 391, 429, 83 S.Ct. 822, 9 L.Ed.2d 837
(1963)(emphasis in original).
17
Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36
L.Ed.2d 216 (1973); Francis v. Henderson, 425 U.S. 536, 96 S.Ct.
1708, 48 L.Ed.2d 149 (1976).
18
433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).
19
489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).
11
petitioner contends is wrong.20
In effect, a reasonable, good faith application of Supreme Court
precedent will immunize the state court conviction from federal
habeas reversal, even if federal courts later reject that view of
the applicable precedent. The AEDPA essentially codified the
Supreme Court’s current position on the scope of the Great Writ.
We must therefore ask, under § 2254(d)(1), whether a state judge
could reasonably read Supreme Court precedent as permitting the
result of which Mata now complains.
C. THE EQUAL PROTECTION CLAIM
1. The state’s decision was clearly erroneous
We are convinced beyond peradventure that no reasonable state
judge could read Supreme Court precedent as permitting the
agreement that was reached and implemented in this case. The
prosecution and the defense counsel explicitly agreed to exclude
all eight black venire members from the jury, and the trial judge
approved the agreement, at least implicitly, by permitting the
parties to strike each and every black without articulating a
reason or even expending any of their allotted peremptory
challenges. Unquestionably, such collusion among the prosecution,
the defense, and the judge constitutes a flagrant violation of the
Equal Protection clause of the Fourteenth Amendment, as set forth
by the Supreme Court in an unwavering line of cases dating back
more than a century.
20
Penry v. Lynaugh, 492 U.S. 302, 350, 109 S.Ct. 2934, 106
L.Ed.2d 256 (1989)(Scalia, J., concurring in part, dissenting in
part)(quotations and citations omitted).
12
Over one hundred years ago, in a series of cases beginning
with Strauder v. West Virginia,21 the Supreme Court enunciated the
“constitutional imperative of race neutrality in the courtroom.”22
In Strauder, the Supreme Court “recognized that denying a person
participation in jury service on account of his race
unconstitutionally discriminates against the excluded juror.”23
Since that time, the Court has never waivered on the principles
announced in Strauder. “Rather, the Court has been called upon
repeatedly to review the application of those principles to
particular facts.”24
Of course, the state appellate courts should have gleaned
guidance from more recent Supreme Court precedent as well. Mata’s
conviction became final in November 1992, long after the Court
issued its opinions in Batson v. Kentucky25 and Powers v. Ohio,26 and
six months after the Court’s opinion in Georgia v. McCollum.27 In
Batson and its progeny, the Supreme Court focused primarily on
proscribing the use of peremptory challenges to exclude jurors on
21
100 U.S. 303 (1880).
22
Powers v. Ohio, 499 U.S. 400, 402, 111 S.Ct. 1364, 113
L.Ed.2d 411 (1991).
23
Georgia v. McCollum, 505 U.S. 42, 48, 112 S.Ct. 2348, 2353,
120 L.Ed.2d 33 (1992).
24
Batson v. Kentucky, 476 U.S. 79, 90, 106 S.Ct. 1712, 90
L.Ed.2d 69 (1986).
25
476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
26
499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991).
27
505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992).
13
the basis of race. Batson was designed not only to protect
individual defendants from discrimination in the selection of
jurors, but also to protect the rights of potential jurors and to
ensure continued public confidence in the judicial system. In
Powers and McCollum, the Court noticeably shifted the focus further
away from the injury to the litigants and toward the more expansive
harm done to the excluded jurors and the community at large.
Neither the prosecution nor the defense is permitted to use
peremptories to exclude potential jurors on the basis of race,28 and
a litigant need not be of the same race as the excluded jurors to
have standing to champion their rights.29 That the judge, the
prosecution, and the defense are all state actors in the context of
jury selection was settled law before Mata’s conviction became
final.30 Thus, it would be ludicrous to believe that state actors
could avoid the constitutional infirmity of race-based peremptory
strikes by mutual agreement. Moreover, the constitutional
violation in this case was more clear-cut than in the typical
Batson-type situation because both the prosecution and the defense
participated, as did the trial court, albeit on a slightly more
passive level.
We conclude that any reasonable jurist — nay, every reasonable
jurist — would have held that, whether it be at the hands of one,
all, or some combination of, the three relevant state actors,
28
McCollum, 505 U.S. at 55, 112 S.Ct. at 2357.
29
Powers, 499 U.S. at 415.
30
McCollum, 505 U.S. at 54, 112 S.Ct. at 2356.
14
discrimination in the selection of jurors constitutes a violation
of the jurors’ right to equal protection under the law. “[R]ace
neutrality in jury selection [is] a visible, and inevitable,
measure of the judicial system’s own commitment to the commands of
the Constitution. The courts are under an affirmative duty to
enforce the strong statutory and constitutional policies embodied
in that prohibition.”31 We are duty bound to uphold the dignity of
excluded jurors and to do all we can to sustain the respect and
confidence of the people in the integrity and impartiality of our
judicial system.
Our recent decision in United States v. Huey32 bears
significantly on Mata’s petition, as our holding in that case is
consistent with Supreme Court precedent. In Huey, we overturned
the convictions of two co-defendants because one of them, over
objections from the prosecution and the other co-defendant, used
all of his peremptory challenges to strike black jurors. Holding
that we were obligated to vacate the convictions of both co-
defendants, we stated:
We are not unaware that there is some irony in
reversing Huey’s conviction given that it was his counsel
who made the discriminatory strikes. We are convinced,
however, that this result is consistent with the
teachings of Batson and its progeny. In addition to
harming individual defendants and prospective jurors,
racial discrimination in the selection of jurors impugns
the integrity of the judicial system and the community at
large. ‘Be it at the hands of the State or the defense,
if a court allows jurors to be excluded because of a
group bias, it is a willing participant in a scheme that
31
Powers, 499 U.S. at 416.
32
76 F.3d 638 (5th Cir. 1996).
15
could only undermine the very foundation of our system of
justice--our citizens’ confidence in it.’33
The Supreme Court has held repeatedly that the Constitution
prohibits purposeful discrimination on the ground of race in the
selection of jurors. Therefore, the state court’s determination
that the exclusion of black veniremembers from Mata’s jury, by
mutual agreement between the prosecution and the defense, passed
constitutional muster was contrary to clearly established Supreme
Court precedent.
That does not end our inquiry, however. The constitutional
violation is clear, but Mata’s petition states a unique claim in
two central respects. First, we cannot apply the traditional
Batson framework to Mata’s claim because no objection was made at
trial. Indeed, differing from the typical Batson situation, the
instant discrimination was accomplished without either party
expending a single peremptory strike. Second, and more
importantly, Mata is demanding a new trial to remedy the effect of
his own constitutional violation. This factor more than any other
sets Mata’s claim apart from those that we have encountered
previously. Thus, as a threshhold inquiry, we must first determine
whether Mata even has standing to raise this constitutional
challenge on behalf of the excluded jurors, and, if so, whether the
grant of a new trial is the only appropriate remedy, assuming that
remedy is appropriate at all.
Standing here is a close issue. If we should conclude that
33
Huey, 76 F.3d at 641 (quoting McCollum, 505 U.S. at 49-50,
112 S.Ct. at 2354).
16
the instant violation cannot be remedied through a grant of a new
trial, then the issue of standing would become moot. Therefore, we
assume arguendo that Mata has the requisite standing and proceed to
answer the question whether this constitutional violation warrants
the granting of a new trial.
2. Competing Harms to the System
As earlier noted, Mata asserts that the unconstitutionality of
the race-based agreement to exclude black veniremembers from the
jury requires us to vacate his conviction and order a new trial.
We do not find such a result to be so clear. First, we must
constantly bear in mind precisely whose harm we are attempting to
remedy. Mata does not suggest that we should concern ourselves
with any injury, perceived or real, that might have befallen him as
a result of the agreement. With that we agree: If the agreement
violated Mata’s constitutional rights, he waived those rights by
colluding in the violation. Instead, we are concerned with the
toll that the agreement took on the dignity of the excluded jurors
and on the integrity of the judicial system. Regrettably, there is
nothing we can do at this late date to remedy the injury to the
particular veniremembers who a decade ago were excluded from Mata’s
jury. Our current concern, then, must be principally for the
reputation and integrity of the system in general.
Viewed from that perspective, it does not necessarily follow
that we should grant a new trial. The parties to this agreement,
Mata included, have placed us in a “Catch 22" situation:
Regardless of whether we do or do not grant a new trial, we will
17
risk doing violence to public confidence in the judicial system
either way. On the one hand, if we should refuse to vacate Mata’s
conviction, we risk sending an unpalatable and unintended signal
that we decline to do absolutely everything in our power to deter
future acts of racial discrimination in the selection of jurors.
On the other hand, if we should grant Mata a new trial, we may do
even greater damage to the integrity of our judicial system; Mata
would receive a benefit because of an error which he or his counsel
invited, although Mata has never contended that he is innocent of
the crime. Consequently, the core value of the image of justice
would be impaired. By the phrase image of justice we do not mean
that any judicial decision ought to be made on the basis of its
likely impact upon the court’s public relations in the Madison
Avenue sense, but that it is important not only that courts
dispense justice but that, insofar as possible, courts also appear
to do so. We therefore resist the invitation to establish a per se
rule that would have us throw out the verdict and try the case
again whenever veniremembers have been excluded from a jury on the
basis of race. Instead, any time that a defendant requests a new
trial on the basis of his own constitutional violation, we shall
consider the facts peculiar to that case, balance the competing
harms to the system, and choose that course of action that we
believe will do the least damage to the system and to the peoples’
perception of it.
Our holding in Huey does not compel the granting of a new
trial in this case. The factors in Huey that counseled against
18
granting a new trial were outweighed by our obligation to deter
discriminatory jury selection practices. In Huey, though, there
was no question but that the case had to be retried with respect to
the co-defendant who had not acted in a discriminatory fashion.
Thus, our decision to order a new trial for both co-defendants did
not significantly increase the financial or emotional burden on the
community. In contrast, the factors weighing against the
imposition of a new trial for Mata are more pronounced. Mata was
convicted in 1986 shortly before the Supreme Court issued its
seminal Batson decision. In the ten years that have passed since
Mata’s conviction, Batson has been fleshed out and explained. We
are convinced that the agreement in this case was unique at the
time and is certainly an anachronism now. We are equally convinced
that such jury selection collusion among litigants and judges is
virtually certain never to be repeated.
D. The Fair Cross-Section Claim
Mata argues that the agreement to exclude each black
veniremember from the jury violated his sixth amendment right to a
jury chosen from a fair cross-section of the community. Mata
reasons that the practical effect of excluding eight black
veniremembers by agreement, without the use of peremptories, is
indistinguishable from the effect of having had an all-white venire
from the outset. We see no merit in Mata’s Sixth Amendment claim.
Regardless of the practical effect, no prior case has held that
exclusion of minority veniremembers by the parties during jury
selection somehow relates back, so that the original venire can be
19
characterized as all-white. Thus, even if we were inclined to be
the first to create such a legal fiction — which we are not — our
authority to do so in the context of federal habeas review would be
circumscribed by 28 U.S.C. § 2254(d)(1).
E. The Fair Trial Claim
Mata also argues that the totality of the circumstances
surrounding his trial created an inherently prejudicial atmosphere,
violating his due process right to a fair trial. Specifically,
Mata claims that his trial was tainted to the point of reversible
prejudice by the combined effects of excessive pretrial publicity,
conspicuous presence of heavily armed security personnel in and
around the courtroom, installation of surveillance cameras and
metal detectors for the duration of the trial, and the intimidating
presence of 30-40 uniformed prison guards as spectators in the
courtroom throughout his trial. We note with some consternation,
as did the state habeas court, that Mata does describe a factual
situation that could provide the basis of a cognizable
constitutional claim.34 Nevertheless, our addressing the merits of
this claim by Mata is proscribed.
34
See Woods v. Dugger, 923 F.2d 1454 (11th Cir.), cert.
denied sub nom., Singletary v. Woods, 502 U.S. 953, 112 S.Ct. 407,
116 L.Ed.2d 355 (1991). In Woods, the Eleventh Circuit dealt with
facts that were virtually indistinguishable from the facts Mata
alleges in his petition. The defendant was convicted of murdering
his prison guard. He was tried in a small town, where nearly 30%
of the adult population worked for the prison, and the case was the
subject of heavy pretrial publicity. On direct appeal, the
Eleventh Circuit determined that the presence of a large number
uniformed officers in the courtroom was inherently prejudicial and
vacated the defendant’s sentence. Unlike Mata, however, the
defendant in that case objected to presence of the officers and
raised the issue on direct appeal.
20
Federal habeas review is barred in all cases in which a state
prisoner has defaulted his federal claims in state court pursuant
to an independent and adequate state procedural rule,35 unless the
petitioner can satisfy the new “cause and actual innocence”
standard imposed by amended 28 U.S.C. § 2254(e)(2).36 The state
habeas court disposed of Mata’s claim on procedural grounds. The
Master’s report, which the Texas Court of Criminal Appeals adopted
in denying Mata’s state habeas petition, determined that Mata
failed to meet his pleading burden under Texas law. Citing the
Texas Court of Criminal Appeals’ decision in Ex parte Empey,37 the
Master stated that Texas law requires a petitioner to offer, along
with his habeas petition, at least some proof to support his
factual allegations. The Master concluded that, as Mata failed to
35
Coleman v. Thompson, 501 U.S. 722, 751, 111 S.Ct. 2546,
2565-66, 115 L.Ed.2d 640 (1991).
36
Section 2254(e)(2) states:
(2) If the applicant has failed to develop the factual
basis of a claim in State court proceedings, the court
shall not hold an evidentiary hearing on the claim unless
the applicant shows that--
(A) the claim relies on--
(i) a new rule of constitutional law, made
retroactive to cases on collateral review by
the Supreme Court, that was previously
unavailable; or
(ii) a factual predicate that could not have
been previously discovered through the
exercise of due diligence;
and
(B) the facts underlying the claim would be
sufficient to establish by clear and convincing
evidence that but for constitutional error, no
reasonable factfinder would have found the
applicant guilty of the underlying offense.
37
757 S.W.2d 771, 775 (Tex. Cr. App. 1988).
21
attach any affidavits, exhibits, newspaper clippings, letters from
participants, or any other documents that might demonstrate or
reflect the events that Mata described in his petition, Mata failed
to establish a prima facie case and therefore was not entitled to
an evidentiary hearing.
Mata has not offered any argument that the procedural ground
relied on by the Master was unconstitutional, arbitrary, or
pretextual. Thus, we conclude that the state habeas court’s
decision rested on adequate state procedural grounds. Moreover,
even if we could press onward, we would stop short of the merits
because it appears that Mata never made a contemporaneous objection
to any of the factors that purportedly combined to deprive him of
a fair trial. If Mata believed that the circumstances surrounding
his trial were so pervasive that they compromised the jurors’
ability to focus on the evidence and evaluate it fairly, then it
was incumbent upon him to object and thereby provide the trial
judge an opportunity to assess the situation and correct it if need
be. Mata’s appellate brief makes no mention whatsoever of any
objections; and we have combed the record on our own in search of
evidence that Mata made a contemporaneous objection to any of these
factors, but to no avail. Under Texas law, Mata’s failure to make
a contemporaneous objection forfeited any error that might have
occurred in the conduct of his criminal trial.38 The Supreme Court
38
See TEX. R. APP. P. 52(a) (1994)(to preserve complaint for
appellate review, party must have presented to the trial court a
timely request, objection, or motion, stating specific grounds for
the ruling desired if specific grounds were not apparent from
context).
22
has recognized valid state interests in adopting procedural rules
that require defendants to make contemporaneous objections to
preserve error for appellate or habeas corpus review.39 As noted,
an objection is required to inform the trial judge of the basis of
the objection and afford him the opportunity to rule on it.
Mata’s fair trial claim is procedurally barred, and he has
demonstrated neither cause for the procedural default nor clear and
convincing evidence that, but for the alleged courtroom
distractions, no reasonable juror would have answered the special
issues in the affirmative and subjected him to the death penalty.
If Mata had objected at trial and raised the issue on direct
appeal, then depending on the accuracy of the facts he alleges, he
might have had a cognizable claim. It is also possible, but less
likely, that Mata could have sought relief on direct appeal under
a plain error analysis even though he failed to object at trial.40
But absent a contemporaneous objection at trial, there are no
circumstances under which Mata can raise this claim for the first
time on collateral review.
III
CONCLUSION
39
See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53
L.Ed.2d 594 (1977); Francis v. Henderson, 425 U.S. 536, 96 S.Ct.
1708, 48 L.Ed.2d 149 (1976).
40
See United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770,
123 L.Ed.2d 508 (1993)(declining to address the question whether a
court, on direct appeal, may determine that an intrusion to which
the defendant did not object should be presumed prejudicial even
though traditional plain error review requires the appellant to
demonstrate that the error “affect[ed] substantial rights”).
23
We grant Mata’s COA request, affirm the district court’s
denial of Mata’s petition for habeas relief, and vacate the stay of
execution issued by this court on March 12, 1996.
AFFIRMED.
24