Case: 07-70009 Document: 00511213605 Page: 1 Date Filed: 08/24/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 24, 2010
No. 07-70009 Lyle W. Cayce
Clerk
MIGUEL A. PAREDES,
Petitioner–Appellant,
v.
RICK THALER, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent–Appellee.
Appeal from the United States District Court
for the Western District of Texas
Before SMITH, WIENER, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
Petitioner Miguel Paredes, convicted of capital murder in Texas and
sentenced to death, appeals the federal district court’s denial of his petition for
writ of habeas corpus. We consider whether Paredes is entitled to relief based
on his contentions that (1) the state trial court violated Paredes’s constitutional
rights by failing to require a unanimous verdict as to which two or more of three
decedents Paredes murdered; and (2) he was denied effective assistance of
counsel because at trial, his attorney failed to object to the jury instructions in
this regard. We affirm.
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I
We have previously considered other grounds on which Paredes seeks
habeas relief in Paredes v. Quarterman (Paredes I).1 In our earlier opinion, we
described the events leading to Paredes’s conviction and death sentence. We
recount in this opinion only the facts essential to the disposition of the issues
presently before us.
Paredes, John Saenz, and Greg Alvarado, who were all members of the
Hermanos Pistoleros Latinos gang, anticipated a confrontation regarding an
illegal drug transaction and allegedly armed themselves, lay in wait, then shot
and killed rival gang members Adrian Torres, Nelly Bravo, and Shawn Cain
inside Saenz’s home. The victims were slain within seconds of one another.
Paredes was charged with murdering more than one person during the same
criminal transaction under the Texas capital murder statute.2 The State of
Texas alleged alternatively that Paredes should be held responsible for the
deaths of more than one of the three decedents under Texas’s law of parties,
which permits a defendant to be held criminally responsible for an offense
committed by another if “with intent to promote or assist the commission of the
offense, he solicits, encourages, directs, aids, or attempts to aid the other person
to commit the offense.” 3
1
574 F.3d 281 (5th Cir. 2009).
2
See TEX . PENAL CODE § 19.03(a)(7)(A) (“A person commits [capital murder] if he
commits murder as defined under Section 19.02(b)(1) and . . . the person murders more than
one person . . . during the same criminal transaction.”).
3
TEX . PENAL CODE § 7.02(a)(2); see also Rabbani v. State, 847 S.W.2d 555, 558 (Tex.
Crim. App. 1992) (“proof beyond a reasonable doubt that appellant actually fired the fatal shot
is not necessary for a capital murder conviction where the jury is charged on the law of
parties”).
2
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At trial, a witness testified that Paredes admitted to shooting Bravo, and
other witnesses testified that Paredes remained silent when, in Paredes’s
presence, John Saenz recounted that Paredes had shot both Bravo and Cain.
One witness, Eric Saenz, the brother of John Saenz, testified that after John
Saenz, in Paredes’s presence, had described in some detail how he, John Saenz,
shot Torres, how Paredes shot Bravo in the head, and how Paredes then shot
Cain, Paredes stated to Eric Saenz that Eric “should have been there, that [Eric]
would have had some fun.” Medical evidence was consistent with testimony that
Paredes was the shooter in the deaths of Bravo and Cain but not Torres. There
was direct evidence that Paredes was in John Saenz’s home at the time of the
killings and assisted in cleaning blood off the floor and walls of the home and in
disposing of the bodies afterwards. There was also strong circumstantial
evidence that Paredes was present during the killing of each of the three
decedents, and that at a minimum, he aided or attempted to aid Saenz in
carrying out the plan to kill these individuals.
In a general charge, the trial judge instructed the jury that it could convict
Paredes of capital murder if it found that he killed (1) Torres and either Bravo
or Cain; or (2) Bravo and either Torres or Cain; or (3) Cain and either Torres or
Bravo. The jury was also permitted to find that Paredes had committed capital
murder under the law of parties. The jury was not required to specify which of
the alternative grounds it found to be true, and Paredes’s lawyer did not object
to the instructions. The jury returned a general verdict finding “Paredes guilty
of Capital Murder as charged in the indictment,” and Paredes was subsequently
sentenced to death at the conclusion of the penalty phase of his trial.
3
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Paredes appealed his conviction and sentence, and the Texas Court of
Criminal Appeals affirmed.4 He then filed a habeas application in state court
but was denied relief. In its unpublished opinion denying habeas relief, the
Texas Court of Criminal Appeals did not discuss Paredes’s contentions regarding
jury unanimity, but the court did adopt the findings and conclusion of the state
trial court with regard to the habeas petition.5 The state trial court’s conclusions
as to the jury charge issue were brief, stating only that it “did not violate the
holding of Schad,” referring to the Supreme Court’s decision in Schad v.
Arizona.6 In Schad, four members of the Court in a plurality opinion,7 and one
Justice in a concurring opinion,8 held that a conviction based on an instruction
that did not require jury unanimity as to whether the murder was premeditated
or alternatively was a felony murder did not violate the petitioner’s right to due
process.
Paredes filed the instant federal habeas petition and requested an
evidentiary hearing. The district court denied habeas relief and the request for
a hearing, but granted a Certificate of Appealability (COA) on the issue of
whether trial counsel rendered ineffective assistance by failing to raise
Confrontation Clause objections to the testimony of two trial witnesses.
4
Paredes v. State, 129 S.W.3d 530 (Tex. Crim. App. 2004).
5
Ex parte Paredes, No. WR-61,939-01, (Tex. Crim. App. August 31, 2005), available at
http://www.cca.courts.state.tx.us/opinions/HTMLOpinionInfo.asp?OpinionID=13182.
6
501 U.S. 624 (1991).
7
Id. at 630.
8
Id. at 649 (SCALIA , J., concurring).
4
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Paredes appealed and requested a COA on six additional issues. We
affirmed the denial of habeas relief on the Confrontation Clause issue and
denied COAs on four issues.9 We granted a COA on the two related questions
that we now address: (1) whether the jury instructions violated Paredes’s
constitutional rights by not requiring the jury to agree unanimously on which
two of the victims he killed; and (2) whether Paredes’s attorney was
constitutionally ineffective for failing to object to those instructions.10
II
We review Paredes’s habeas petition under the “‘highly deferential
standard for evaluating state-court rulings’”11 set forth in the Anti-Terrorism
and Effective Death Penalty Act (AEDPA).12 The question before us is not
whether the state trial court should have instructed the jury as it did but instead
whether the determination of the Texas Court of Criminal Appeals that there
was no violation of Paredes’s constitutional rights “was ‘an unreasonable
application of . . . clearly established federal law’”13 “‘as determined by the
Supreme Court of the United States.’”14 The Supreme Court has repeatedly
admonished that “‘an unreasonable application of federal law is different from
9
Paredes I, 574 F.3d at 286-94.
10
Id. at 292-93.
11
Renico v. Lett, 130 S. Ct. 1855, 1862 (2010) (quoting Lindh v. Murphy, 521 U.S. 320,
333 n.7 (1997)).
12
28 U.S.C. § 2254(d).
13
Renico, 130 S. Ct. at 1862 (quoting 28 U.S.C. § 2254(d)(1)).
14
Berghuis v. Thompkins, 130 S. Ct. 2250, 2259 (2010) (quoting 28 U.S.C. § 2254(d)(1)).
5
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an incorrect application of federal law.’”15 “[A] federal habeas court may not
issue the writ simply because that court concludes in its independent judgment
that the relevant state-court decision applied clearly established federal law
erroneously or incorrectly.”16 Instead, the application must be “‘objectively
unreasonable.’”17 This standard of review “creates a ‘substantially higher
threshold’ for obtaining relief than de novo review.” 18
But even if a state court’s determination was an unreasonable application
of clearly established federal law, that is not the end of the inquiry. Generally,
on collateral review, “petitioners . . . are not entitled to habeas relief based on
trial error unless they can establish that it resulted in ‘actual prejudice.’” 19 An
error is prejudicial if it “had substantial and injurious effect or influence in
determining the jury’s verdict.”20 The Supreme Court has recently confirmed
that jury charge error in a case in which a jury rendering a general verdict had
been instructed on alternative theories of guilt and may have relied on an
invalid theory is not “structural” error and is subject to harmless-error analysis
“so long as the error at issue does not categorically ‘vitiat[e] all the jury’s
findings.’” 21
15
Renico, 130 S. Ct. at 1862 (quoting Williams v. Taylor, 529 U.S. 362, 410 (2000)).
16
Williams, 529 U.S. at 411.
17
Renico, 130 S. Ct. at 1862 (quoting Williams, 529 U.S. at 409).
18
Id. (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)).
19
Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).
20
Id. (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).
21
Hedgpeth v. Pulido, 129 S. Ct. 530, 532 (2008) (alterations in original) (quoting Neder
v. United States, 527 U.S. 1, 11 (1999)).
6
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III
To determine whether the Texas court’s determinations relating to the
jury instruction at issue in the case before us constituted an unreasonable
application of clearly established federal law as determined by the Supreme
Court, we must attempt to ascertain what the Supreme Court has held
regarding the requirement of unanimity in jury instructions in criminal cases.
The most recent guidance is found in the four-Justice plurality opinion in Schad
v. Arizona22 and Justice Scalia’s concurring opinion in that case.23 There, the
plurality and Justice Scalia concluded that a first-degree murder conviction
based on “jury instructions that did not require agreement on whether the
defendant was guilty of premeditated murder or felony murder”24 was not
unconstitutional. But in arriving at that decision, the Court did not, as we shall
discuss below, set forth an analytical framework that can be applied to
determine readily whether process has been due when facts such as those in the
instant case are presented.
A
In Schad, the Arizona Supreme Court had “authoritatively determined
that the State has chosen not to treat premeditation and the commission of a
felony as independent elements of the crime,” and the question was whether
22
501 U.S. 624, 630-45 (1991).
23
Id. at 648-52 (SCALIA , J., concurring).
24
Id. at 627.
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Arizona’s choice was unconstitutional.25 In the present case, it is not clear that
the Texas Court of Criminal Appeals has authoritatively determined what
elements the Texas legislature has prescribed for the crime of murdering more
than one person during the same criminal transaction.26
The State argues that the single offense of murdering more than one
person during the same criminal transaction may be proven by alternative
means, such as showing that the defendant killed A and either B or C, B and
either A or C, or C and either A or B, and that the jury does not have to agree as
to which two of the victims the defendant murdered. The State argues that the
murder of the same decedent does not have to be the predicate for each
alternative means of committing the crime of multiple murder when alternative
means of committing multiple murder under this statute are alleged. The State
acknowledges, however, that there is no case law in Texas that addresses this
precise question.
The decision of the Texas Court of Criminal Appeals that comes closest to
answering how the Texas statute should be construed arose out of the conviction
of John Saenz,27 one of Paredes’s cohorts in the killings of Torres, Bravo, and
Cain, for Saenz’s participation in the same criminal transaction leading to
Paredes’s conviction. The Court of Criminal Appeals’ opinion in Saenz reflects
that “[e]ach count alleged the murder of a different victim, and each count
25
Id. at 636-37.
26
See TEX . PENAL CODE § 19.03(a)(7)(A).
27
See Saenz v. State, 166 S.W.3d 270 (Tex. Crim. App. 2005).
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alleged the murder of the two other victims as aggravating circumstances.” 28
Saenz was convicted “of three counts of capital murder.”29 Under each count, the
jury found that Saenz would not be a future danger, and life imprisonment was
imposed for each count.30 The only issue that the Texas court decided was
whether Saenz “had been subjected to multiple punishments for the same
offense in violation of the Double Jeopardy clause, when separate judgments for
the offense of capital murder were entered for each victim of a multiple murder
committed in the same criminal transaction.”31 After surveying the legislative
history of section 19.03(a)(7)(A), the Texas court held that the Double Jeopardy
clause had been violated and ruled that Saenz could receive only one life
sentence for his crime of multiple murder.32
In construing section 19.03(a)(7)(A), the Texas court concluded in Saenz
that “the statute reflects that the killing of at least two persons allows the State
to charge a single count of capital murder.”33 The court recounted that the
impetus behind the enactment of section 19.03(a)(7)(A) was the “State’s inability
to seek the death penalty as punishment for the concomitant murders of six
Dallas nightclub patrons by [an individual],”34 and that the Texas legislature’s
28
Id. at 271.
29
Id.
30
Id.
31
Id. at 271-72.
32
Id. at 272-74.
33
Id. at 273.
34
Id.
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goal was not to create a means to seek multiple death penalties but to “mak[e]
it possible for the State to execute mass murderers.”35 In the concluding
paragraph of its opinion in Saenz, the court held that “[t]he most reasonable
interpretation of the statute and its legislative intent is that, under the
circumstances presented here [Saenz’s case], the statute allows only a single
capital murder conviction.”36 The court held that the Double Jeopardy clause
had been violated “when the State charged appellant with three separate counts
of capital murder under Section 19.03(a)(7)(A) because the charges rely on the
same three murders for each charge.” 37
It is not clear from the Saenz opinion whether Saenz was charged in
precisely the same manner as Paredes was charged in the present case, and we
do not know from the Saenz opinion how the jury instruction was worded in that
case. We can discern, however, that the holdings in Saenz do not directly answer
the question of whether the Texas legislature intended to permit a capital
murder conviction under section 19.03(a)(7)(A) to be established by alternative
means such as that the defendant murdered A and either B or C, B and either
A or C, or C and either A or B. The opinion in Saenz does at least hint that the
Texas Court of Criminal Appeals does not think that such a charge would be
proper, but instead is of the view that a single predicate murder must be alleged
together with an allegation that one or more additional murders was committed.
In discussing the allowable unit of prosecution under section 19.03(a)(7)(A), the
Texas court said “a predicate to charging capital murder” is “that a defendant
35
Id.
36
Id. at 274.
37
Id.
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commit murder as defined under Section 19.02(b)(1).”38 The Texas court
reasoned that the “aggravating circumstance for a capital murder prosecution
under Section 19.03(a)(7)(A) . . . is the murder of ‘more than one person during
the same criminal transaction.’”39 The Texas court continued, “[t]he commission
of at least one murder, then, which is in addition to the predicate murder, is the
aggravating circumstance required by Section 19.03(a)(7)(A).”40 This would seem
consistent with the requirement in section 19.03(a)(7)(A) that a person commit
a knowing or intentional murder of one individual under section 19.02(b)(1). The
Texas Court of Criminal Appeals has long held that under section 19.02(b)(1),
the murder of only one specific individual may be charged.41 The unit of
prosecution under section 19.02(b)(1) is a single, named individual.42
We nevertheless do not have a definitive construction of section
19.03(a)(7)(A) from the Texas Court of Criminal Appeals as to whether it is
proper in a jury charge to permit the crime of multiple murder to be established
by alternate means of varying combinations of more than one murder. However,
38
Id. at 272; see also TEX . PENAL CODE .§ 19.02(b)(1) (“A person commits an offense if
he . . . intentionally or knowingly causes the death of an individual.”).
39
Saenz v. State, 166 S.W.3d 270, 273 (Tex. Crim. App. 2005).
40
Id. (emphasis added).
41
See, e.g., Graham v. State, 19 S.W.3d 851, 854 (Tex. Crim. App. 2000) (striking down
an indictment that alleged that the defendant had committed a single capital murder by (1)
causing the death of Hurtado and Giraldo during the same criminal transaction; (2) causing
the death of Hurtado while in the course of robbing him; or (3) causing the death of Jesus
Garcia-Castro while in the course of robbing him. The court determined that, because “two
of the three paragraphs allege[d] different murders as the basis for the capital charge,” the
indictment actually “alleged two distinct capital offenses.”).
42
See Saenz, 166 S.W.3d at 272 (confirming that “the allowable unit of prosecution is
each individual victim” under section 19.02(b)(1)).
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the trial court’s charge to the jury that convicted Paredes allowed such varying
combinations. The jury instructions did not require all jurors to agree on
whether Paredes killed Bravo and Cain or Torres, Cain and Bravo or Torres, or
Torres and Cain or Bravo. In reviewing the trial court’s charge in this case, the
Texas courts have held that this did not violate Paredes’s due process rights, and
we will therefore consider whether United States Supreme Court decisions have
clearly established that this jury charge was beyond constitutional limits on how
a state may define the elements of an offense.43
B
We conclude that the Texas courts did not unreasonably apply clearly
established federal law as determined by the United States Supreme Court
because whether the jury charge at issue went beyond the limits of how a state
may define a single offense of multiple murder is not clearly established. Indeed,
the means by which we are to determine if the process accorded Paredes in
submitting the question of his guilt to the jury was due is not clearly established.
As discussed above, in Schad, Arizona law permitted a murder conviction
to rest on proof that a defendant “murdered either with premeditation or in the
course of committing a robbery.”44 The plurality opinion in Schad reasoned that
“the petitioner’s real challenge is to Arizona’s characterization of first-degree
murder as a single crime as to which a verdict need not be limited to any one
statutory alternative.”45 The petitioner had contended “that premeditated
43
See Schad v. Arizona, 501 U.S. 624, 631 (1991); see also id. at 649 (SCALIA , J.,
concurring).
44
Id. at 630.
45
Id. at 630-31.
12
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murder and felony murder [were] separate crimes as to which the jury must
return separate verdicts.”46 According to the plurality, the issue “then, is one of
the permissible limits in defining criminal conduct, as reflected in the
instructions to jurors applying the definitions, not one of jury unanimity.” 47
The disagreement between the plurality and concurring opinions in Schad
concerned the reasoning leading to their shared conclusion that the jury
instruction was not unconstitutional. While both opinions acknowledged that
the ultimate question to be resolved was whether the process that was received
was due, the two opinions diverged beyond that point, with no resulting majority
view.
In answering whether the Due Process Clause was violated, the plurality
opinion began with the understanding that there are “limits on a State’s capacity
to define different courses of conduct . . . as merely alternative means of
committing a single offense, thereby permitting a defendant’s conviction without
jury agreement as to which course [of conduct] actually occurred.” 48 The
plurality reasoned that the “practical consequence” of the “axiomatic
requirement of due process that a statute may not forbid conduct in terms so
vague that people of common intelligence would be relegated to differing guesses
about its meaning” is “that a defendant charged under a valid statute will be in
a position to understand with some specificity the legal basis of the charge
46
Id. at 631.
47
Id.
48
Id. at 632.
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against him.”49 The plurality further reasoned that “no person may be punished
criminally save upon proof of some specific illegal conduct.”50 This “simply
[raises] the problem of describing the point at which differences between means
become so important that they may not reasonably be viewed as alternatives to
a common end, but must be treated as differentiating what the Constitution
requires to be treated as separate offenses.” 51
The plurality opinion in Schad concluded that in order to determine
whether a State has exceeded constitutional bounds in prescribing the
alternative means of committing a single crime, it would be impractical to “try[]
to derive any single test for the level of definitional and verdict specificity
permitted by the Constitution.”52 The plurality opinion set forth the following
parameters for ascertaining “fundamental fairness” and “rationality,” reminding
us that there is “a threshold presumption of legislative competence to determine
the appropriate relationship between means and ends in defining the elements
of a crime” 53 :
[W]e think that instead of such a [single] test our sense of
appropriate specificity is a distillate of the concept of due process
with its demands for fundamental fairness and for the rationality
that is an essential component of that fairness. In translating these
demands for fairness and rationality into concrete judgments about
the adequacy of legislative determinations, we look both to history
49
Id. at 632-33.
50
Id. at 633.
51
Id.
52
Id. at 637.
53
Id. 637-38.
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and wide practice as guides to fundamental values, as well as to
narrower analytical methods of testing the moral and practical
equivalence of the different mental states that may satisfy the mens
rea element of a single offense. The enquiry is undertaken with a
threshold presumption of legislative competence to determine the
appropriate relationship between means and ends in defining the
elements of a crime.54
The plurality opinion in Schad then reiterated its “inability to lay down
any bright-line test,” noting “the difficulty of deciding, as an abstract matter,
what elements an offense must comprise.”55 The plurality “stressed that . . . the
state legislature’s definition of the elements of the offense is usually dispositive,”
although “there are obviously constitutional limits beyond which the States may
not go.” 56
In his concurring opinion, Justice Scalia concluded, as had the plurality,
that “it has long been the general rule that when a single crime can be
committed in various ways, jurors need not agree upon the mode of
commission.”57 He also observed, as had the plurality, “that one can conceive of
novel ‘umbrella’ crimes (a felony consisting of either robbery or failure to file a
tax return) where permitting a 6-to-6 verdict would seem contrary to due
process.”58 Justice Scalia, however, took issue with the plurality’s use of a
fundamental fairness assessment of the procedural or “so-called ‘substantive’”
54
Id. at 637 (citation omitted).
55
Id. at 639.
56
Id. (alteration in original).
57
Id. at 649 (SCALIA , J., concurring).
58
Id. at 650.
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due process components when testing “an American tradition that is deep and
broad and continuing.”59 He reasoned, “[i]t is precisely the historical practices
that define what is ‘due,’”although he recognized that a “‘[f]undamental fairness’
analysis may appropriately be applied to departures from traditional American
conceptions of due process.” 60
Justice Scalia then addressed the plurality’s discussion of moral
equivalency, pointing out that the petitioner in Schad was not complaining
about the lack of moral equivalency between premeditated murder and killing
in the course of a robbery.61 The petitioner’s objection was that “as far as we
know, only six jurors believed he was participating in a robbery, and only six
believed he intended to kill.”62 Justice Scalia posited that “[p]erhaps moral
equivalency is a necessary condition for allowing such a verdict to stand, but
surely the plurality does not pretend that it is sufficient.”63 It was in this context
that Justice Scalia hypothesized, “[w]e would not permit, for example, an
indictment charging that the defendant assaulted either X on Tuesday or Y on
Wednesday, despite the ‘moral equivalence’ of those two acts.”64 In our prior
opinion granting a COA on the issues presently under consideration, we quoted
59
Id.
60
Id.
61
Id. at 651.
62
Id.
63
Id.
64
Id.
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this passage from the concurring opinion in Schad.65 We observed that this
example “informs Paredes’s case,”66 but we did not decide whether the jury
charge in Paredes’s case violated his right to due process. We noted the Schad
plurality’s due process concerns about the “fluid conceptual boundary between
calling two things different crimes and calling them different methods of
committing the same crime,” and also noted that this “is an area with no well-
defined definitions.” 67
After considering additional briefing and hearing oral arguments on the
merits of this habeas issue, we can now conclude that the Texas courts did not
unreasonably apply clearly established federal law as determined by the
Supreme Court with regard to the jury charge given in Paredes’s case. Were we
to undertake the fundamental fairness analysis adopted by the plurality in
Schad, with its various components, the outcome would be far from clear. There
are many variables and considerable room for differing viewpoints in such an
analysis, and the Supreme Court’s determinations have not thus far given the
guidance necessary to apply the fundamental fairness test fashioned by the
plurality to the present circumstances with any confidence that the outcome
would be derived from “clearly established” law.
Nor can we with any confidence discern where the jury charge in the
present case lies on the continuum discussed in Justice Scalia’s concurring
opinion or what the outcome would be when the principles set forth in that
opinion are applied. Hypotheses similar to those set forth in the concurring
65
Paredes I, 574 F.3d 281, 293 (5th Cir. 2009).
66
Id.
67
Id.
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opinion and similar to the facts before us raise difficult questions. Does due
process require a jury to agree on precisely which defendant killed which
individuals when it is proven that two defendants each threw two grenades into
a crowded area, ten individuals were killed, but forensics cannot determine
which of the grenades was the cause of any particular individual’s death? In the
case presently before us, it may be that the Texas multiple murder law, as
applied by the Texas trial court, is a departure from traditional American
conceptions of due process but that a fundamental fairness test would result in
a determination that the process given was due. On the other hand, the
principles articulated in Justice Scalia’s concurring opinion in Schad might lead
to the conclusion that all jurors must believe that a defendant killed at least two
specifically identified individuals to establish multiple murder.
We do not undertake the fundamental fairness analysis described by the
plurality opinion or the analyses the concurring opinion discusses in Schad
because were we to do so, we would be applying principles to circumstances that
the Supreme Court has yet to address. We would not be “merely []
illuminat[ing]” existing Supreme Court precedent.68 We would be extending the
application of Supreme Court precedent, which we are not permitted to do under
AEDPA.
C
The fundamental fairness test embraced by the plurality in Schad and
recognized by the concurring opinion in Schad as appropriate in some
68
Renico v. Lett, 130 S. Ct. 1855, 1866 (2010) (holding that a decision of the court of
appeals could not “be understood merely to ‘illuminat[e]’” the Supreme Court’s decision in
Arizona v. Washington, 434 U.S. 497 (1978), which had considered the breadth of a trial court’s
discretion in granting a mistrial).
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circumstances presents fairly broad, fluid parameters, as we have noted. In
another context, the Supreme Court has recently explained that a “general
standard triggers another consideration under AEDPA”: “When assessing
whether a state court’s application of federal law is unreasonable, ‘the range of
reasonable judgment can depend in part on the nature of the relevant rule’ that
the state court must apply.”69 The Renico decision emphasized that “[b]ecause
AEDPA authorizes federal courts to grant relief only when state courts act
unreasonably, it follows that ‘[t]he more general the rule’ at issue—and thus the
greater the potential for reasoned disagreement among fair-minded judges—‘the
more leeway [state] courts have in reaching outcomes in case-by-case
determinations.’”70 While the due process analyses set forth in the plurality and
concurring opinions in Schad differ in many respects from a trial court’s broad
discretion in deciding whether a jury is deadlocked and therefore whether to
grant a new trial, which was the applicable legal standard in Renico, the due
process analyses in Schad have considerable “potential for reasoned
disagreement among fair-minded judges” as to whether the jury charge in the
present case met due process requirements. Accordingly, it cannot be said that
the Texas court unreasonably applied federal law even if the due process
parameters to be applied in the present context were clear.
Because the Texas court did not unreasonably apply clearly established
federal law as determined by the Supreme Court, Paredes is not entitled to
69
Id. at 1864. Renico also held that the legal standard to be applied in determining
whether a trial court erred in granting a mistrial due to jury deadlock was “whether there was
an abuse of the ‘broad discretion’ reserved to the trial judge.” Id. at 1865.
70
Id. (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)) (alterations in
original).
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habeas relief with regard to the fact that the jury instructions did not require all
jurors to agree on the identity of at least two of the three victims allegedly killed
by Paredes.
IV
Our denial of habeas relief with regard to the jury instruction issue is
based on an additional, independent ground. Paredes cannot establish prejudice
from the disjunctive jury charge because the jury was also permitted to conclude
that he was criminally responsible for the murders under Texas’s law of parties
even if he did not personally shoot any of the victims.
Paredes does not contend that permitting the jury to convict him of capital
murder based on an alternative allegation of his responsibility for the action of
others violated his due process rights to a unanimous verdict. Nor does he
contend that any error in submitting three other alternative means of
committing capital murder (namely, that Paredes either murdered Torres and
Bravo or Cain, Cain and Bravo or Torres, or Bravo and Cain or Torres) vitiates
all of the jury’s findings.71 The jury’s finding regarding the law of parties would
not be vitiated by any such error, so there is no structural error, and Paredes
does not contend that there is structural error.72
71
See Hedgpeth v. Pulido, 129 S. Ct. 530, 532 (2008) (concluding that harmless-error
analysis applied to the jury charge error at issue “so long as the error at issue does not
categorically ‘vitiat[e] all the jury’s findings’” (quoting Neder v. United States, 527 U.S. 1, 11
(1999))).
72
See Sullivan v. Louisiana, 508 U.S. 275, 281 (1993) (distinguishing “structural
defects” in the trial, “which defy analysis by ‘harmless-error standards,’” from trial errors,
which are subject to harmless-error analysis (quoting Arizona v. Fulminante, 499 U.S. 279,
309 (1991))).
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The evidence is overwhelming that Paredes was guilty of capital murder
under Texas’s law of parties. Based on the record before us, we conclude that
any error in submitting alternative theories of who Paredes shot did not have a
substantial and injurious effect or influence in determining the jury’s verdict.
Any error in failing to require all jurors to agree which of two or more victims
that Paredes killed was harmless in light of the general charge that included the
law of parties, a general verdict of guilty, and the virtually unchallenged
evidence of Paredes’s responsibility under the law of parties.
V
Paredes next argues that he received ineffective assistance of counsel
because his lawyer failed to object to the disjunctive jury charge regarding the
identity of the victims shot by Paredes. To obtain relief on this claim, Paredes
must show that (1) he received constitutionally ineffective assistance, and (2) the
state court’s ruling that he did not receive ineffective assistance is contrary to,
or an unreasonable application of, clearly established federal law.73 To
demonstrate ineffective assistance of counsel, Paredes must show that his
attorney’s performance fell “below an objective standard of reasonableness” and
prejudiced his defense.74
Even if we assume that, by failing to object to the jury instructions, the
performance of Paredes’s attorney fell below an objective standard of
reasonableness, Paredes suffered no prejudice. As noted, supra, if the jury had
been required to agree on the identity of at least two of Paredes’s victims and
73
Carty v. Thaler, 583 F.3d 244, 258-59 (5th Cir. 2009).
74
Strickland v. Washington, 466 U.S. 668, 688, 692 (1984).
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failed to agree, Paredes would have been convicted of capital murder because of
the overwhelming evidence that Paredes was criminally responsible for the
killings under Texas’s law of parties. Accordingly, Paredes is not entitled to
habeas relief on his ineffective assistance claim.
* * *
For the foregoing reasons, we AFFIRM the district court’s denial of habeas
relief.
22