Muniz v. Johnson

REVISED
IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
_______________

No. 96-50508
_______________

PEDRO CRUZ MUNIZ,

Petitioner-Appellant,

VERSUS

GARY L. JOHNSON,
Director, Texas Department of Criminal Justice,
Institutional Division,

Respondent-Appellee.

_________________________

Appeal from the United States District Court
for the Western District of Texas
_________________________
January 2, 1998

Before SMITH, BARKSDALE, and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Pedro Muniz appeals the denial of his petition for a writ of

habeas corpus under 28 U.S.C. § 2254. Finding no reversible error,

we affirm and vacate the stay of execution.

I.

Muniz raped and murdered Janis Bickham in 1976. Before doing

so, he followed her down a city street and over a bridge. When she

reached the end of the bridge, Muniz grabbed her, dragged her down
a ravine, over a stream, and through a fence. He then took her to

an abandoned cabana, where he raped her and beat in her head with

a log. When he was finished, he buried her body in a pile of wood

and fled.

Two days later, police arrested Muniz and charged him with

murder. He was taken before a magistrate, then placed in a local

jail.

The next day, Officer William Shirley questioned Muniz; this

interview ultimately led to Muniz’s confession. In his written

statement, Muniz admitted to having the aggravated and

nonconsensual sexual relations with Bickham that preceded her

death. Muniz gave the statement while in police custody after

receiving his Miranda warnings.

During this interview, Shirley suggested at one point that

Muniz might want to call a lawyer. Muniz agreed, and Shirley

picked up the telephone to place the call for Muniz. When asked

for his lawyer’s number, Muniz indicated that he would contact the

lawyer later. Shirley then hung up the phone and continued the

interview.1

II.

A.

At the pre-trial hearings concerning his motion to suppress

1
There is confusion in the record about how many times Muniz invoked his
right to counsel. The state trial and appellate courts found that he did so only
once. We conclude that this finding is supported by the record. See infra
part IV.A.

2
the confession, Muniz testified that Shirley had coerced him into

giving the confession. He claimed that Shirley had made him feel

despondent, playing on his fears for his family; had promised him

leniency in exchange for the confession; and had offered to help

his family if he signed the statement.

Shirley testified that he told Muniz that sometimes when a

defendant confesses, the state shows leniency. Shirley, however,

denied that he guaranteed a reduced charge or sentence in exchange

for Muniz’s statement.

Shirley also stated that although he did offer to contact

social service agencies for Muniz’s family, he did not condition

his offer on whether Muniz confessed. Shirley testified that he

spoke with Muniz about religion and offered to get him a priestSSan

offer not conditioned on a confession. During the interview that

led to the confession, Shirley showed Muniz photos of Bickham’s

body and of the crime scene.

The trial judge credited Shirley’s testimony over Muniz’s and

admitted the confession into evidence. In 1986, a jury convicted

Muniz of capital murder and sentenced him to death.2

B.

The Texas Court of Criminal Appeals affirmed, see Muniz v.

2
Muniz originally was convicted and sentenced to death in 1977. This
court issued a writ of habeas corpus because the trial court had improperly
admitted psychiatric information obtained from Muniz without the benefit of
Miranda warnings. See Muniz v. Procunier, 760 F.2d 588, 590 (5th Cir. 1985).
The state retried Muniz in 1986. At the suppression hearing before trial, the
trial judge reincorporated all of the testimony from the suppression hearing
preceding the first trial and heard new testimony from the relevant actors.

3
State, 851 S.W.2d 238, 259 (Tex. Crim. App. 1993), whereupon Muniz

filed a state habeas corpus petition, which was denied by the Texas

Court of Criminal Appeals in 1994. Two months later, Muniz filed

a federal habeas petition, which was denied in 1996.

III.

We first must address the applicability to this case of the

Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996.

After denying Muniz’s habeas petition, the federal district court

granted a Certificate of Probable Cause (“CPC”), allowing him to

appeal. We remanded in light of our caselaw applying the AEDPA to

similar cases. See Muniz v. Johnson, 114 F.3d 43, 45-46 (5th Cir.

1997). We instructed the district court to narrow the issues for

appeal by issuing a Certificate of Appealability (“COA”) under the

new law. See id.

On remand, the district court did as we had instructed and

issued a COA specifying the issues Muniz could appeal.

Contemporaneously, however, the Supreme Court decided Lindh v.

Murphy, 117 S. Ct. 2059 (1997), holding that the AEDPA is

inapplicable to cases like Muniz’s. See Lindh, 117 S. Ct. at 2063.

In light of Lindh, we erred in remanding this case for a COA.

Instead, the district court was correct originally to have issued

a CPC. Fortunately, however, under the law of this circuit, we

construe the COA grant as a grant of a CPC. See McBride v.

Johnson, 118 F.3d 432, 436 (5th Cir. 1997).

4
 IV.

A.

Muniz claims that on multiple occasions during the

interrogation that led to his confession, he invoked his right to

counsel. He further argues that the state can offer only one

instance of his voluntary re-initiation of the interrogation.

Therefore, he maintains, we should find a Miranda violation,

because the state is unable to disprove all of the instances in

which he claims that he invoked his right to an attorney. The

well-settled rule is that “an accused . . . having expressed his

desire to deal with the police only through counsel, is not subject

to further interrogation by the authorities until counsel has been

made available to him, unless the accused himself initiates further

communication, exchanges, or conversations with the police.”

Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).

At bottom, Muniz’s argument is an attack on the trial court’s

factual finding that Muniz made only one request for a lawyer,

rather than several.3 State court factual findings are presumed

correct under 28 U.S.C. § 2254(d)4 unless one of the statutory

exceptions is met. The exception at issue here is whether the

3
Muniz does not contest the voluntariness of the re-initiation when he
told Shirley that he would call his attorney at a later time. Rather, he rests
the validity of his claim on the fact that he made several other requests for an
attorney as to which the state cannot account for a voluntary re-initiation of
the interview.
4
We refer, throughout, to the former version of § 2254(d), applicable to pre-
AEDPA cases.

5
state court’s “factual determination is not fairly supported by the

record.” 28 U.S.C. § 2254(d)(8). “[T]he burden shall rest on the

applicant to establish by convincing evidence that the factual

determination by the State court was erroneous.” Id. § 2254(d).

Muniz testified that he had made several requests for counsel;

Shirley, the only other person in the room at the time, testified

to the contrary. At the suppression hearing prior to the first

trial, Shirley stated that Muniz asked for counsel “at one period.”

At that hearing, Shirley also testified, in response to a question

by defense counsel, that “there were a couple of times [Muniz]

asked to talk to an attorney,” but at the suppression hearing

before the second trial, Shirley clarified his former testimony,

stating that there was only one request for an attorney and that,

as he began to place the call to Muniz's lawyer, Muniz decided to

continue the interview without counsel.

The record supports the state court’s finding that Muniz made

only one request for counsel.5 Although Shirley equivocated at the

first suppression hearing, his subsequent testimony provides enough

evidence to support the trial judge's conclusion that Muniz

requested counsel only once.6 Moreover, there is reason to

5
These findings of fact were dictated into the record by the trial judge
and were affirmed and adopted by the Court of Criminal Appeals. See Muniz,
851 S.W.2d at 252.
6
The trial judge, as fact finder, was in the best position to evaluate the
credibility of witnesses, so the law defers to his judgment. See 28 U.S.C.
§ 2254(d). In this case, the ambiguity may have been the result of a confusing
line of questioning from defense counsel. The transcript of the suppression
hearing preceding the first trial is replete with puzzling questions by defense
counsel that had the noticeable effect of eliciting perplexing answers from the
police officers.

6
disbelieve Muniz’s testimony given at the suppression hearings.7

Given the record, therefore, Muniz has not established “by

convincing evidence that the factual determination by the State

court was erroneous.” 28 U.S.C. § 2254(d).

B.

Muniz challenges the voluntariness of his confession. A

confession is voluntary if it is “the product of a rational

intellect and a free will.” Mincey v. Arizona, 437 U.S. 385, 398

(1978) (internal quotations omitted). The defendant, therefore,

must show that but for police coercion he would not have given the

confession. See Colorado v. Connelly, 479 U.S. 157, 163-64 (1986).

“[T]he ultimate question whether, under the totality of the

circumstances, the challenged confession was obtained in a manner

compatible with the requirements of the Constitution is a matter

for independent federal determination.” Miller v. Fenton, 474 U.S.

104, 112 (1985). Subsidiary factual questions, however, are

entitled to a presumption of correctness: “[S]ubsidiary questions,

such as length and circumstances of the interrogation, the

defendant’s prior experience with the Miranda warnings, often

require the resolution of conflicting testimony of police and

defendant. The law is therefore clear that state-court findings on

7
In other aspects of his testimony concerning the confession, Muniz’s
story had changed drastically in the interim between the 1977 suppression hearing
and the suppression hearing before his retrial in 1986. For instance, in the
1977 hearing, the defense concentrated on the fact that Shirley had used coercive
influences on Muniz to get him to confess. This coercion allegedly led Muniz to
break a glass against his head. In 1986, however, Muniz stated for the first
time that Shirley had smashed the glass against Muniz’s head and threatened to
shoot him if he did not confess.

7
such matters are conclusive on the habeas court if fairly supported

by the record . . . .” Id. at 117. Accordingly, using the

presumptively correct factual findings of the state court, we

reweigh de novo the voluntariness calculation.

“Whether the police engaged in the coercive tactics alleged by

the defendant is a subsidiary fact; as such, the trial court’s

finding is entitled to deference on habeas review if it is

supported in the record.” Pemberton v. Collins, 991 F.2d 1218,

1225 (5th Cir. 1993) (citation omitted). The record supports the

trial court’s factual findings that Shirley did not promise

leniency in exchange for the confession.8 There is also sufficient

evidence to support the finding that Shirley did not condition his

offer to help Muniz’s family seek social services, or his getting

a priest for Muniz, on a confession.9

In our voluntariness calculation, therefore, we are left with

Shirley’s showing Muniz the murder scene pictures; Shirley’s appeal

to Muniz’s religion; and Muniz's alleged fatigued physical and

emotional condition at the time of the confession. We cannot

conclude that the totality of these factors overpowered Muniz’s

will or produced a confession that was not of his own free choice.

Muniz was fully informed of his Miranda warnings before he

gave his statement. The evidence supports the state court’s

8
Shirley so testified at both suppression hearings.
9
In addition, Muniz claims that he was deprived of a meal before he
entered the interview in which he confessed. There is no evidence in the record,
however, that he ever requested food, nor does he offer an explanation why he
decided not to make such a request. Nothing in the record indicates that the
officers conditioned Muniz's access to food and drink on his confessing.

8
finding that he understood what these warnings meant. Moreover,

before he signed the statement, Muniz was asked by another

officerSSone who was not in the room at the time the confession was

writtenSSwhether the statement he gave was voluntary. Muniz stated

that it was.

Muniz also argues that his fatigued physical and emotional

condition at the time of the confession made him more susceptible

to coercion. He argues that he was arrested late at night on

December 22, 1976. Thereafter, he was taken to a magistrate and

then taken to a holding cell in the early hours of December 23. He

claims that at noon on December 23, Shirley began the interview

that led to the confession.

Even assuming this sequence of events, there appears to have

been ample time for Muniz to rest before the interview started.

Moreover, there is nothing in the record to suggest that he

complained to the officers about his fatigue; that he requested

additional time to rest; or that the officers conditioned

additional rest time on receiving his confession. These facts,

taken together, do not suggest a coerced confession.

V.

Muniz avers that the prosecutor made improper closing

arguments. Specifically, he alleges that the prosecutor deprived

him of due process by disparaging his constitutional rights and by

improperly vouching for the evidence. Muniz failed to object to

the prosecutor's closing arguments at trial and did not raise the

9
issue on direct appeal in the state court or in his state habeas

proceedings.

A.

A federal habeas court may not consider a state prisoner’s

claim if the state court based its rejection of that claim on an

independent and adequate state ground. See Martin v. Maxey,

98 F.3d 844, 847 (5th Cir. 1996). “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, federal

habeas review of the claims is barred unless the prisoner can

demonstrate cause for the default and actual prejudice as a result

of the alleged violation of federal law, or demonstrate that

failure to consider the claims will result in a fundamental

miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750

(1991). “This doctrine ensures that federal courts give proper

respect to state procedural rules.” Glover v. Cain, 128 F.3d 900,

902 (5th Cir. 1997) (citing Coleman, 501 U.S. at 750-51).

“[P]rocedural default does not bar consideration of a federal

claim on either direct or habeas review unless the state court

rendering a judgment in the case 'clearly and expressly' states

that its judgment rests on a state procedural bar.” Teague v.

Lane, 489 U.S. 288, 298-99 (1989) (plurality opinion) (quoting

Harris v. Reed, 489 U.S. 255, 263 (1989)). This method for

determining whether the “independence requirement” is met, however,

“assumes that a state court has had the opportunity to address a

10
claim that is later raised in a federal habeas proceeding. It is

simply inapplicable in a case such as this one, where the claim was

never presented to the state courts.” Id. at 299 (citation

omitted); accord Coleman, 501 U.S. at 735 n.*.10

The “adequacy” of a state procedural rule depends on whether

it is “strictly or regularly followed” by the state courts.

Johnson v. Mississippi, 486 U.S. 578, 587 (1988) (citations

omitted). We make our adequacy determination by looking at how the

state courts have applied the rule in a “vast majority of similar

claims.” Amos v. Scott, 61 F.3d 333, 339 (5th Cir.) (emphasis

omitted), cert. denied, 516 U.S. 1005 (1995).

1.

The Texas courts require a defendant to raise a

contemporaneous objection to a prosecutor’s improper closing

arguments. See TEX. R. APP. P. 52(a); Penry v. State, 903 S.W.2d

715, 760 (Tex. Crim. App.), cert. denied, 516 U.S. 977 (1995). The

rationale for the contemporaneous objection rule is that it

conserves judicial resources. A contemporaneous objection allows

the trial court to correct the error at the time it occurs, or to

grant a new trial.

We have previously held the contemporaneous objection

10
“[I]t is simply impossible to '[require] a state court to be explicit
in its reliance on a procedural default,' where a claim raised on federal habeas
has never been presented to the state courts at all. In such a context, federal
courts quite properly look to, and apply, state procedural default rules in
making the congressionally mandated determination whether adequate remedies are
available in state court.” Harris, 489 U.S. at 270 (O’Connor, J., concurring)
(quoting Harris, 489 U.S. at 264 (majority opinion)).

11
requirement to be an adequate state procedural rule; the Texas

appellate courts strictly and regularly enforce it, see, e.g.,

Sharp v. Johnson, 107 F.3d 282, 285 (5th Cir. 1997), in order to

give defendants the proper incentive to present their claims of

error in a forum in which they are most easily resolved.

Muniz made no objection to the prosecutor’s arguments at

trial. He suggests no reason why the state courts would choose not

to enforce the contemporaneous objection rule in his case had he

raised it on direct appeal. Therefore, we conclude that the rule

would foreclose the Texas courts’ direct review of Muniz’s closing

argument challenges.

2.

Texas law also requires habeas petitioners to present all of

their state habeas claims in their first petition. See TEX. CODE

CRIM. PROC. ANN. art. 11.071, § 5(a) (Vernon Supp. 1998). Absent

facts giving rise to one of the statutory exceptions, the Texas

Court of Criminal Appeals will not entertain a new issue in a

successive habeas petition. See Ex parte Davis, 947 S.W.2d 216,

221 (Tex. Crim. App. 1996).

Although Muniz filed his first state habeas action before

art. 11.071 became effective, the Court of Criminal Appeals

nonetheless has applied art. 11.071 to preclude the raising of new

issues in successive petitions when the claimant's original

petition was filed before the statute’s effective date. See id.

Recently, we held art. 11.071 to be an adequate state procedural

12
bar, finding that this rule is strictly and regularly enforced in

these circumstances by the Texas Court of Criminal Appeals. See

Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997).

Muniz failed to raise his complaints about the prosecutor’s

improper closing argument in his first state habeas petition. He

has made no showing that any of the statutory exceptions would

obtain in his case.11 He thus would be barred from raising these

issues under art. 11.071 in a successive petition for collateral

review in state court.

B.

Muniz, therefore, would find his challenges to the

prosecutor’s closing argument barred from both direct and

collateral review in the state courts. As a result, we are also

barred from reviewing the claim unless Muniz can make the requisite

showing of cause and actual prejudice, or that a fundamental

miscarriage of justice12 would result from our failure to address

his federal claims. See Coleman, 501 U.S. at 750.

Muniz has not attempted to make a showing of cause and actual

prejudice, nor has he asserted actual innocence. Accordingly, his

challenges to the prosecutor’s closing argument are barred by the

11
The exceptions include the inability to raise the claim in the first
petition because of facts unknown at the time, see TEX. CODE CRIM. PROC. ANN.
art. 11.071, § 5(a)(1) (Vernon Supp. 1998), and a showing of actual innocence,
see id. art. 11.071, § 5(a)(3). Muniz offers no showing on any of these prongs,
nor does he argue that the Texas Court of Criminal Appeals would find an
exception applicable to his case.
12
“In order to prove a fundamental miscarriage of justice, the prisoner
must assert his actual innocence.” Glover, 128 F.3d at 904 (citation omitted).

13
doctrine of state procedural default.

VI.

Muniz contends that the trial court effectively prevented the

admission of mitigating evidence at the sentencing stage in

violation of the Eighth and Fourteenth Amendments. At the

sentencing phase, Muniz wanted to call Merrill Person to testify.

Person worked for the state court system and had gotten to know

Muniz during his first trial in 1977. She thereafter made visits

to him in prison and had contributed money to his prison account so

that he could purchase art supplies.

Person swears in an affidavit that she would have testified

that Muniz was remorseful. Such testimony would have rebutted the

prosecutor’s argument that defendant had shown no remorse for the

heinous crime. Accordingly, this testimony would have helped to

negate the state’s argument that Muniz was likely to commit crime

in the future.13

The well-settled rule is that the state may not prevent the

defendant from introducing any mitigating evidence at the capital

sentencing phase.14 Mitigating evidence is “'any aspect of a

13
The Texas capital sentencing scheme requires the jury to answer two
questions affirmatively. First, it must find that “the conduct of the defendant
that caused the death of the deceased was committed deliberately and with the
reasonable expectation that the death of the deceased or another would result.”
TEX. CODE CRIM. PROC. art. 37.071, § 2(b)(1) (Vernon 1981). Second, it must find
that “there is a probability that the defendant would commit criminal acts of
violence that would constitute a continuing threat to society.” Id. art. 37.071,
§ 2(b)(2).
14
See Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion); accord
Eddings v. Oklahoma, 455 U.S. 104, 110 (1982); cf. Penry v. Lynaugh, 492 U.S. 302,
(continued...)

14
defendant’s character or record and any of the circumstances of the

offense that the defendant proffers as a basis for a sentence less

than death.'” Eddings, 455 U.S. at 110 (quoting Lockett, 438 U.S.

at 604).

There is little dispute that Person’s testimony is mitigating

evidence falling within the scope of the Lockett rule. The

question, however, is whether there was any state action that

prevented the defense from calling Person to testify at the

sentencing hearing. We conclude that there was not.

The Texas Code of Judicial Conduct, as it read at the time of

the trial, provided that a “judge should not lend the prestige of

his or her office to advance the private interests of himself or

herself or others; nor should he or she convey or permit others to

convey the impression that they are in a special position to

influence him or her. A judge should not testify voluntarily in an

adjudicative proceeding as a character witness.”15 The code extends

this obligation to the members of the judge’s staff: “A judge

should require his or her staff and court officials subject to the

judge’s discretion and control to observe the standards of this

Code.”16

Person was a court official subject to the trial judge’s

(...continued)
319 (1989) (“The sentencer must also be able to consider and give effect to
[mitigating] evidence in imposing sentence.”).
15
TEX. CODE JUD. CONDUCT Canon 2(B) (emphasis added), reprinted in TEX. GOV'T
CODE ANN., tit. 2, subtit.G app.B (Vernon 1988).
16
Id. Canon 3(B)(2).

15
discretion and control. Under the state conduct code, therefore,

it was entirely appropriate for the judge to advise Person that she

could not testify voluntarily for the defendant as a character

witness at sentencing. Consequently, to obtain Person’s testimony,

the defense would have had to issue a subpoena.

This requirement does not run afoul of the Eighth or

Fourteenth Amendment when applied at capital sentencing, for it is

designed to protect the institutional impartiality of the courts.

Were Person allowed to testify voluntarily, she may have signaled

to the jury that the court disfavored a death sentence for Muniz.

Her actions may have had an impact on a wider audience as well, for

the public may have viewed such an action as unfairly favoring one

of the litigants over the other.

Muniz responds that issuing a subpoena for Person’s testimony

would have been futile. He specifically points to testimony at the

recusal hearing for the trial judge. There, Muniz’s attorney

testified that he had seen the judge sternly telling Person in the

hallway that she was not to testify voluntarily. Muniz also points

to Person’s affidavit, in which she swears that she would not have

testified voluntarily and that she wished not to be subpoenaed,

because she believed it would upset the judge.

Although we sympathize with defense counsel’s dilemmaSSissuing

a subpoena and risk upsetting the witness and the court, or

foregoing the mitigating evidenceSSthere is an insufficient nexus

between what can properly be called state actionSSthe existence of

the Canon and the actions of the prosecutor and of the judgeSSand

16
the defense’s decision not to subpoena Person.17 At bottom,

defense counsel made a strategic decision to forego Person’s

testimony, and Muniz must now accept the consequences of that

choice.18

VII.

Muniz claims that the jury’s knowledge of his prior death

sentence amounts to a sentencing error of constitutional magnitude

and mandates our vacating his death sentence. We disagree.19

The only means by which the jury came to know of the prior

death sentence is that defense counsel elicited it. When

questioning a police officer at the 1986 sentencing phase, counsel

17
Cf. Callins v. Collins, 998 F.2d 269, 275 (5th Cir. 1993) (“It is well
settled that no Penry claim can be asserted for evidence that could have been, but
was not, introduced in the sentencing phase . . . .”).
18
The district court believed there to be an Eighth and Fourteenth
Amendment violation here but held the error to be harmless. The court reasoned
that but for judicial interventionSSthat is, the trial judge’s telling his
employee, Person, that she could not testify voluntarilySSthe defense would have
had an enthusiastic, credible witness at its disposal.

Because the judge did not actually prevent Person from testifying, however,
we disagree. Judicial enforcement of the ethical code in these circumstances can
operate within the bounds of the Lockett rule. As long as the judge leaves some
reasonable avenue available to the defendant to introduce any and all mitigating
evidence he wishes, the state and the trial judge can otherwise structure the
means by which such mitigating evidence is introduced.
19
Alternatively, we find Muniz's arguments procedurally barred for the
reasons mentioned above in part V. He failed to make a contemporaneous objection
on these grounds, although Texas courts would require such an objection in this
instance. See TEX. R. APP. P. 52(a); Norris v. State, 902 S.W.2d 428, 444-45
(Tex. Crim. App.), cert. denied, 516 U.S. 890 (1995). Thereafter, he failed to
raise the issue to the state courts on direct appeal.
Muniz also failed to raise this issue in his initial state collateral
claim. He thus would find this claim barred in a subsequent state habeas action.
See TEX. CODE CRIM. PROC. art. 11.071, § 5(a). He has not attempted to show cause
and actual prejudiceSSor a fundamental miscarriage of justiceSSresulting from our
refusal to reach the issue.

17
asked the officer if he knew whether Muniz had committed any crimes

since 1978; the officer stated that he did not know of any such

offenses. The defense obviously wanted to use this testimony to

negate the future-dangerousness prong of the Texas capital

punishment scheme.

When the prosecutor questioned the officer, he sought to

remedy the misperception that defense counsel had left in the minds

of the jurors. To do so, the prosecutor asked why the officer had

no knowledge of any of Muniz's post-1978 bad acts. The officer

said this was because Muniz was incarcerated at the time.

Later, defense counsel stated in his closing argument that

Muniz had not committed any crimes in the recent past. In

response, the prosecutor stated in closing that “there are no

nineteen-year-old girls walking across bridges at night on death

row in [the state prison].”

We do not find that this testimony “so infected” the

sentencing phase with unfairness that it rose to the level of a due

process violation. See Donnelly v. DeChristoforo, 416 U.S. 637,

643 (1974). The introduction of a prior death sentence is

allowable if it does not mislead the jury in its sentencing role.

See Romano v. Oklahoma, 512 U.S. 1, 9 (1994).

Although Romano dealt with the introduction of an unrelated

offense, rather than a retrial for the same offense, the rationale

of that case speaks broadly. Essentially, the Court held that once

the basic requirements of the Eighth and Fourteenth Amendments are

metSSthat is, narrowing the class of eligible defendants and an

18
individualized inquirySS“the States enjoy their traditional

latitude to prescribe the method by which those who commit murder

shall be punished.” Romano, 512 U.S. at 7 (quotation omitted).

The Court extended “this latitude” to “evidentiary rules at

sentencing proceedings.” Id.

Assuming that this testimony is admissible under the Texas

Constitution and rules of procedure, we find no federal

constitutional violation in its admission. After reviewing the

record, we believe that these comments were isolated enough that

they did not mislead the jury in its sentencing role or diminish

its sense of responsibility in considering the death penalty.

Therefore, we find this claim to be without merit.

VIII.

Muniz challenges the constitutionality of the introduction of

an unadjudicated, extraneous offense at the sentencing phase. The

introduction of such evidence at capital sentencing is

constitutional: “[W]e hold that the admission of unadjudicated

offenses in the sentencing phase of a capital trial does not

violate the eighth and fourteenth amendments.” Williams v.

Lynaugh, 814 F.2d 205, 208 (5th Cir. 1987); accord Callins, 998

F.2d at 276-77 (5th Cir. 1993). Accordingly, this claim is without

merit.20

20
The claim is also procedurally barred. Muniz was required to make a
contemporaneous objection to the introduction of this evidence at sentencing.
See TEX. R. APP. P. 52(a); Bell v. State, 938 S.W.2d 35, 44-45 (Tex. Crim. App.
1996), cert. denied, 118 S. Ct. 90 (1997). His failure to do so forfeited his
(continued...)

19
 IX.

Muniz challenges the constitutionality of the instruction that

the jury not consider the length of time before his parole

eligibility under a life sentence when determining whether to give

him life in prison or the death penalty. This claim is problematic

on a number of grounds.

A.

Under the Texas death penalty statute, it is constitutional

to instruct the jury not to consider the length of time before a

capital defendant’s eligibility for parole if he receives a life

sentence.

[D]ue process requires the state to inform a sentencing
jury about a defendant’s parole ineligibility when, and
only when, (1) the state argues that a defendant
represents a future danger to society, and (2) the
defendant is legally ineligible for parole. [T]exas did
not statutorily provide for parole ineligibility at the
time of [the petitioner’s] conviction . . . .”

Allridge v. Scott, 41 F.3d 213, 222 (5th Cir. 1994) (emphasis in

original). In Allridge, we distinguished Simmons v. South

Carolina, 512 U.S. 154 (1994), upon which Muniz relies, because in

Simmons, state law made the petitioner legally ineligible for

parole, while Texas capital defendants, sentenced when Muniz was,

would be eligible for parole in thirty-five years if sentenced to

(...continued)
right to review on direct appeal in state court (he never attempted to raise it
on direct appeal in state court in any event), and his failure to raise this
issue in his first state habeas claim forfeited his right to raise it in a
subsequent state habeas action. See TEX. CODE CRIM. PROC. art. 11.071, § 5(a).
Muniz has made no showing of cause and actual prejudiceSSor of a fundamental
miscarriage of justiceSSfor us to overcome the default.

20
life imprisonment.21 Accordingly, the claim has no merit under the

law of our circuit.22

B.

The rule Muniz would have us adopt also would constitute a

“new rule” in violation of Teague v. Lane, 489 U.S. at 299. Muniz

relies on Simmons v. South Carolina, 512 U.S. at 162 (plurality

opinion), in which the trial court prevented the jury from knowing

that a capital defendant was statutorily ineligible for parole with

a life sentence. The Supreme Court found this action

unconstitutional, because the death penalty statute relied on the

jury’s determination of the defendant’s future dangerousness. See

id.

Muniz seeks to apply (and expand) the Simmons rule to his

case. Even assuming, arguendo, that we did not foreclose this

extension of Simmons in Allridge, see Allridge, 41 F.3d at 222, the

Supreme Court has declared Simmons a “new rule” under Teague. See

O'Dell v. Netherland, 117 S. Ct. 1969, 1973-74 (1997). Because

Muniz’s conviction became final in 1993, see Muniz v. Texas,

510 U.S. 837 (1993), and Simmons was not decided until 1994, we

cannot apply this new rule to Muniz’s case unless one of the two

Teague exceptions attaches.

21
See TEX. CODE CRIM. PROC. art. 42.18, § 8(b)(2) (Vernon Supp. 1986).
22
But cf. Brown v. Texas, 118 S. Ct. 355, 355-57 (1997) (opinion of
Stevens, J., respecting denial of petition for writ of certiorari) (suggesting
that Texas's prohibition on informing juries of parole eligibility is in “obvious
tension” with Simmons).

21
 Teague provides that a new constitutional rule can apply

retroactively on federal collateral review only if the new rule

(1) puts “certain kinds of primary, private individual conduct

beyond the power of the criminal law-making to proscribe” or (2)

is a rule of procedure that is “implicit in the concept of ordered

liberty.” Teague, 489 U.S. at 307 (quotations omitted). This

second exception is “reserved for watershed rules of criminal

procedure.” Id. at 311.

By definition, the rule Muniz seeks does not fall within the

ambit of the first Teague exception. In O'Dell, the Court held

that the Simmons rule does not fit within the narrow, second Teague

exception. “Simmons possesses little of the 'watershed' character

envisioned by Teague's second exception.” O'Dell, 117 S. Ct.

at 1978. Thus, the Teague exceptions are inapplicable, and Muniz

is barred from seeking to have this new rule of constitutional law

applied retroactively to him.23

There being no merit to any of Muniz's claims, the judgment

is AFFIRMED, and the stay of execution is VACATED.

23
The state argues that this claim is procedurally defaulted. We need not
reach the issue, however, because we find the claim Teague-barred. See Smith v.
Black, 904 F.2d 950, 982 (5th Cir. 1990) (adopting a prudential rule that we
decide Teague challenges before reaching those based on procedural default),
vacated and remanded on other grounds, 503 U.S. 930 (1992).

22