Cruz v. Johnson

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 98-50546
____________________

JAVIER CRUZ,

Petitioner-Appellant,

v.

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
(SA-97-CA-764)
_________________________________________________________________
September 15, 1998

Before KING, JOLLY, and DeMOSS, Circuit Judges.

PER CURIAM:*

Javier Cruz, a Texas death row inmate, seeks a certificate of

appealability to review the district court’s denial of his petition

for a writ of habeas corpus and a stay of his execution scheduled

for October 1, 1998. For the reasons that follow, we deny Cruz’s

application to appeal and his motion to stay his execution.

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
 I. Facts and Procedural History

In 1992, a jury in Bexar County, Texas convicted Javier Cruz

of killing James Ryan and Louis Neal in different criminal

transactions pursuant to the same scheme and course of conduct

and of killing Ryan during the course of a robbery. See TEX.

PENAL CODE ANN. § 19.03(a)(2), (7)(B) (West 1994).1 After the jury

found at the punishment phase that Cruz killed Ryan deliberately

and with the expectation that death would result and that there

was a probability that Cruz would commit acts of violence

constituting a continuing threat to society, the court sentenced

Cruz to death.

Cruz contended on appeal that, inter alia, his conviction

for the Neal murder was based solely on the uncorroborated

testimony of an accomplice witness, Antonio Ovalle. Under Texas

law, he claimed, such evidence was insufficient to support a

capital-murder conviction. The Texas Court of Criminal Appeals

affirmed Cruz’s conviction and sentence. The court rejected

Cruz’s accomplice-testimony argument on the ground that the Neal

murder was merely the aggravating element that elevated Ryan’s

murder to a capital offense, obviating the need under state law

for corroborative evidence. The Supreme Court denied Cruz’s

petition for a writ of certiorari. Cruz v. Texas, 516 U.S. 839

1
Cruz was convicted in 1992 under § 19.03(a)(6)(B), the
historical predecessor to § 19.03(a)(7)(B). The 1993 amendment
to the Texas Penal Code did not change the statutory language.
See TEX. PENAL CODE ANN. § 19.03 historical and statutory notes.
All references in this opinion are to the current version of the
Texas Penal Code.

2
(1995).

Cruz then sought and was denied habeas corpus relief in

state court on several grounds, including the accomplice-

testimony issue. The Court of Criminal Appeals affirmed,

determining that the state habeas court’s findings of fact and

conclusions of law were correct.

Cruz petitioned on October 2, 1997 for federal habeas corpus

relief pursuant to 28 U.S.C. § 2254. Cruz raised three issues--

first, that Texas law barred his conviction for the Neal murder

because it was based solely on uncorroborated accomplice

testimony; second, that a capital sentence based on the Neal

murder violated the Eighth Amendment; and third, that

prosecutorial discretion in listing the Ryan murder first in the

indictment when in fact it occurred after the Neal murder

illegally allowed the State to avoid the Texas accomplice-

testimony rule. The respondent moved for summary judgment and

for denial of Cruz’s habeas petition. The district court denied

Cruz habeas relief; denied Cruz a certificate of appealability

(COA); and vacated its original stay of Cruz’s execution.

II. Discussion

Javier Cruz requests that this court grant him a COA from

the district court’s denial of his § 2254 habeas petition.

Because Cruz filed his § 2254 petition in October 1997 the COA

requirement of the Antiterrorism and Effective Death Penalty Act

(AEDPA) applies to his case. See Green v. Johnson, 116 F.3d

1115, 1119-20 (5th Cir. 1997). A COA may only be issued if the

3
prisoner has made a “substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). “A ‘substantial

showing’ requires the applicant to ‘demonstrate that the issues

are debatable among jurists of reason; that a court could resolve

the issues (in a different manner); or that the questions are

adequate to deserve encouragement to proceed further.’” Drinkard

v. Johnson, 97 F.3d 751, 755 (5th Cir. 1996) (citing Barefoot v.

Estelle, 463 U.S. 880, 893 n.4 (1983)(internal citations and

quotation marks omitted)).

Cruz raises two main issues for certification. First, he

claims that his capital-murder conviction, based on

uncorroborated accomplice testimony and the prosecutor’s

arbitrary classification of the Neal murder as the aggravating

element to the Ryan murder, violated the Due Process Clause.2

Second, Cruz claims that under the reasoning of United States v.

Singleton, 144 F.3d 1343 (10th Cir.), reh’g granted en banc and

vacated, 144 F.3d 1343 (10th Cir. 1998), the trial court

improperly considered Ovalle’s accomplice testimony, which was

the product of an agreement in which Ovalle testified in return

for the State’s promise not to seek the death penalty against

him. We discuss these issues in turn.

A. Uncorroborated Accomplice Testimony

Cruz argues that his capital-murder conviction violated

Texas Criminal Procedure Code article 38.14, which prohibits

2
Because we find that Cruz is not entitled to a COA even if
Ovalle’s testimony is uncorroborated, we assume arguendo that
Cruz’s characterization of the record is accurate.

4
convictions based solely on uncorroborated accomplice testimony.3

Specifically, Cruz argues that Ovalle’s accomplice testimony

regarding the Neal murder and prosecutorial discretion labeling

the Neal murder the aggravating element of the Ryan murder

violated this Texas rule of criminal procedure. Because we agree

with the district court that these arguments do not raise a

substantial showing of the denial of a constitutional right, we

decline to issue a COA.

Rather than raise federal constitutional claims, as required

by § 2254, Cruz bases his COA application on perceived violations

of Texas state criminal procedure. To the extent that Cruz

simply complains of a state criminal procedure violation only,

his application must fail. “[I]t is not the province of a

federal habeas court to reexamine state-court determinations on

state-law questions. In conducting habeas review, a federal

court is limited to deciding whether a conviction violated the

Constitution, laws, or treaties of the United States.” Estelle

v. McGuire, 502 U.S. 62, 67-68 (1991); see also Lewis v. Jeffers,

497 U.S. 764, 780 (1990)(“[F]ederal habeas corpus relief does not

lie for errors of state law.”); Pulley v. Harris, 465 U.S. 37, 41

(1984)(“A federal court may not issue the writ [of habeas corpus]

on the basis of a perceived error of state law.”). This court

3
Article 38.14 specifically dictates that “[a] conviction
cannot be had upon the testimony of an accomplice unless
corroborated by other evidence tending to connect the defendant
with the offense committed; and the corroboration is not
sufficient if it merely shows the commission of the offense.”
TEX. CRIM. P. CODE ANN. art. 38.14 (West 1979).

5
does not sit as a super-state appellate court in reviewing

violations of state criminal procedure. See Bridge v. Lynaugh,

838 F.2d 770, 772 (5th Cir. 1988); Dillard v. Blackburn, 780 F.2d

509, 513 (5th Cir. 1986). Furthermore, as the district court

properly found, Cruz’s allegations of Texas criminal procedure

violations are unfounded.4

Assuming arguendo that Cruz was convicted of capital murder

solely on the basis of uncorroborated accomplice testimony in

violation of Texas criminal procedure, such a conviction raises

no debatable issues under the Due Process Clause. “The state-law

requirement that accomplice witness testimony be corroborated has

4
See Cruz v. Johnson, No. 97-CA-764-HG at 14-17 (W.D. Tex.
June 1, 1998). Cruz was actually convicted of the Ryan murder,
and the Neal murder was simply an aggravating element that
elevated the crime to capital murder under § 19.03(a)(7)(B) of
the Texas Penal Code. As Cruz does not contest the sufficiency
of the evidence concerning the Ryan murder, the murder conviction
satisfies the accomplice-testimony rule. Accomplice testimony is
sufficient to prove aggravating elements of capital murder. See,
e.g., White v. State, 910 S.W.2d 630, 635 (Tex. App.--Beaumont
1995, no writ) (stating that “the capital murder statute does not
require corroboration of any of the aggravating elements”);
Romero v. State, 716 S.W.2d 519, 520 (Tex. Crim. App. 1986)
(“[T]he testimony of an accomplice witness in the prosecution for
capital murder did not require corroboration concerning the
alleged robbery (the offense which elevated murder to capital
murder) as well as the alleged murder.”).
In addition, under Texas law the prosecutor has discretion
in labeling which murder constitutes the aggravating element. A
person convicted of capital murder for the killing of more than
one person is guilty of murdering the first person named in the
indictment, “whether or not that person was the person who was
murdered first in time.” Narvaiz v. State, 840 S.W.2d 415, 433
(Tex. Crim. App. 1992); see also Vuong v. Scott, 62 F.3d 673, 676
(5th Cir. 1995) (holding that prisoner was not entitled to
instruction to consider mitigating circumstances relating to
second-listed aggravating murder, where first-listed murder
occurred after aggravating murder). Thus the prosecutor’s
decision to list the second-occurring Ryan murder first in the
indictment did not violate Texas law.

6
no independent constitutional footing.” Thompson v. Lynaugh, 821

F.2d 1054, 1062 (5th Cir. 1987); cf. Lisenba v. California, 314

U.S. 219, 227 (1941) (“The Fourteenth Amendment does not forbid a

state court to construe and apply its laws with respect to the

evidence of an accomplice.”). A guilty verdict may be supported

with only the uncorroborated testimony of an accomplice, as long

as that testimony is not insubstantial on its face. See United

States v. Jaras, 86 F.3d 383, 387 (5th Cir. 1996); United States

v. Singer, 970 F.2d 1414, 1419 (5th Cir. 1992). Cruz does not

claim that the accomplice testimony in this case is

insubstantial; his only criticism is that it was provided as a

result of a plea bargain with the state. However, uncorroborated

accomplice testimony will support a verdict even if only provided

as a result of a plea bargain. See United States v. Bermea, 30

F.3d 1539, 1552 (5th Cir. 1994) (“[A] guilty verdict may be

sustained if supported by only the uncorroborated testimony of a

coconspirator, even if the witness is interested due to a plea

bargain of promise of leniency, unless the testimony is

incredible or insubstantial on its face.”); accord United States

v. Payne, 99 F.3d 1273, 1278 (5th Cir. 1996).

Thus, Cruz’s allegation that his conviction was based solely

on uncorroborated accomplice testimony does not constitute a

substantial showing of a due process violation. As another

federal court has explained,

Although due process is violated when a conviction is
obtained through the use of unreliable evidence, due
process does not mandate that a presumption of
unreliability attach to the inculpating testimony of an

7
 accomplice when the accused is given a meaningful
opportunity for cross-examination. As a general rule,
the uncorroborated testimony of an accomplice is not
per se unreliable and is sufficient to sustain a
conviction unless patently incredible.

United States ex rel. Kubat v. Thieret, 679 F. Supp. 788, 795

(N.D. Ill. 1988), aff’d 867 F.2d 351 (7th Cir. 1989). Such a

procedure does not render the trial as whole “fundamentally

unfair” so as to violate a defendant’s due process rights. See

Lavernia v. Lynaugh, 845 F.2d 493, 496 (5th Cir. 1988).

Therefore, because Cruz’s application does not make a substantial

showing of the denial of a constitutional right on this issue, we

decline to issue a COA on this issue.

B. Admissibility of Plea-Bargained Testimony

Cruz next contends that the State violated 18 U.S.C.

§ 201(c)(2) by agreeing not to seek the death penalty against

Ovalle in exchange for his testimony, and that Ovalle’s testimony

must therefore be excluded. Because we find that this contention

does not raise a debatable issue of a constitutional violation,

we decline to allow Cruz to appeal this issue.

Cruz did not raise this issue in the district court

proceedings. In general, we refuse to allow COAs on issues not

raised before the district court in habeas corpus proceedings.

See, e.g., United States v. Cervantes, 132 F.3d 1106, 1109 (5th

Cir. 1998) (“We do not consider issues raised for the first time

on the appeal of a section 2255 motion.”); Carter v. Johnson, 131

F.3d 452, 464 (5th Cir. 1997) (stating that “[t]hese allegations

were not adequately presented to the district court, however, and

8
they are deemed waived”), cert. denied, 118 S. Ct. 1567 (1998).

Even assuming arguendo that this issue has not been waived,

Cruz is not entitled to a COA. Cruz bases his argument that

plea-bargained testimony violates § 201(c)(2) wholly on United

States v. Singleton, 144 F.3d 1343 (10th Cir.), reh’g granted en

banc and vacated, 144 F.3d 1343 (10th Cir. 1998). While

Singleton held that such testimony must be barred under the

federal anti-bribery statute, the decision was promptly vacated

by the Tenth Circuit and therefore has no precedental value, even

in the Tenth Circuit. See Quivira Mining Co. v. United States

Nuclear Regulatory Comm’n, 866 F.2d 1246, 1248 n.3 (10th Cir.

1989). Of course, even if Singleton had not been vacated, a

Tenth Circuit ruling cannot bind this court. See United States

v. Brockway, 769 F.2d 263, 264 (5th Cir. 1985).

Moreover, in the Fifth Circuit, an accomplice witness who

has been promised a reduced sentence in return for his testimony

may testify consistent with the Due Process Clause “so long as

the government’s bargain with him is fully ventilated so that the

jury can evaluate his credibility.” United States v. Cervantes-

Pacheco, 826 F.2d 310, 315 (5th Cir. 1987) (en banc) (footnote

omitted). In this case, the plea bargain required Ovalle to

testify truthfully in return for consecutive life sentences for

the Neal and Ryan murders. Defense counsel cross-examined Ovalle

about the agreement, and the jury could therefore evaluate the

credibility of his testimony. The use of such testimony

therefore does not raise a debatable issue of a Due Process

9
Clause violation or show the substantial denial of any other

constitutional right. Accordingly, Cruz’s motion for a COA on

this issue is denied.

III. Conclusion

For the foregoing reasons, we deny Cruz’s application for a

COA and a stay of his execution.

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