IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________________________________
No. 97-10851
______________________________________
DOMINGO CANTU, JR.,
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 Northern District of Texas
(94-CV-1397-H)
_____________________________________________
August 18, 1999
Before JOLLY, WIENER, EMILIO M. GARZA, Circuit Judges.
WIENER, Circuit Judge.*
In his pre-AEDPA1 quest for habeas corpus relief, Petitioner-
Appellant Domingo Cantu, Jr., asks us to grant a certificate of
probable cause (CPC) so that he can appeal from the district
court’s denial of habeas relief. Cantu insists that he has made a
substantial showing of the denial of a federal right, which he must
do to our satisfaction if we are to grant a CPC. Cantu has
specified errors in both the guilt-innocence and punishment phases
*
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that this opinion should not be published and is not precedent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.
1
Anti-terrorism and Effective Death Penalty Act of 1996,
28 U.S.C. § 2254 (1994 & Supp. 1998).
of his state court trial, in which he was convicted and sentenced
to death for the brutal rape and murder of a 94-year-old woman.2
From our examination of the records of Cantu’s state and
federal court proceedings, viewed in light of the legal arguments
advanced by able counsel in their appellate briefs and in their
arguments to this panel, we are satisfied that Cantu has failed to
demonstrate that the issues on which he bases his claims of the
denial of federal rights 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.’”3 For the reasons briefly set forth below,
therefore, we affirm the district court’s dismissal of his petition
for habeas relief and deny Cantu’s application for CPC.
I.
FACTS AND PROCEEDINGS
The homicide that occurred on June 25, 1988, during the course
of the aggravated sexual assault referred to above, led to the
August 26, 1988 indictment of Cantu in Dallas County, Texas. He
was tried and convicted by a jury in late October 1988, and on
November 1, 1988, the same jury affirmatively answered the two
special sentencing issues under Article 37.071(b) of the Texas Code
of Criminal Procedure, leading to imposition of the death penalty
2
The gruesome details of the crime are set forth in Cantu
v. State, 842 S.W.2d 667, 674-76 (Tex. Crim. App. 1992).
3
Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)
(quoting Gordon v. Willis, 516 F. Supp. 911, 913 (N.D. Ga. 1980))
(emphasis in Gordon).
2
by the state court. In June 1992, the Court of Criminal Appeals of
Texas affirmed Cantu’s conviction and sentence, and in September of
that year denied rehearing. The United States Supreme Court denied
certiorari in June 1993.
Cantu instituted state habeas corpus proceedings in April
1994, and the Court of Criminal Appeals of Texas denied such relief
on the basis of the findings of fact and conclusions of law of the
trial court. After his execution was scheduled Cantu instituted
these proceedings in federal district court, which stayed the
execution. The district court considered the recommendation of the
magistrate judge as well as Cantu’s objections, then adopted the
former. Cantu timely filed a notice of appeal and applied to the
district court for a CPC, which was denied some ten days later. He
now applies to us for a CPC to appeal the district court’s denial
of habeas relief.
II.
ANALYSIS
A. Guilt-Innocence Phase
Presumably in light of the plethora of evidence of guilt,
Cantu has not challenged the sufficiency of the evidence supporting
his conviction. Rather, he ties his insistence that he has made a
substantial showing of the denial of a federal right in the guilt-
innocence phase to allegedly reversible errors in his trial court’s
conduct of the jury trial. We address in turn each of those
allegations.
3
1. Batson Claim4
Cantu asserts that a Batson Equal Protection Clause violation
occurred when the state trial court allowed the prosecution to use
a peremptory challenge to exclude venireperson Sanchez, an
Hispanic, from the jury. In proffering race-neutral reasons for
that peremptory challenge, the prosecution listed seven5 and
expressed reliance on the cumulative effect of all those reasons.
The trial court credited the totality of those reasons as well as
Ms. Sanchez’s questionnaire and the court’s observation of her
demeanor when responding to voir dire questions, and found the
prosecution’s position credible.6 In response to Cantu’s complaint
that other unchallenged venirepersons had some of the same traits
as ascribed to Ms. Sanchez, the prosecution noted —— and the court
accepted —— that none had all seven traits and thus did not have
the same totality of circumstances. We perceive no substantial
showing of the denial of a federal right in the trial court’s
disposition of Cantu’s Batson objection to the state’s peremptory
challenge to selecting Ms. Sanchez.
2. Denial of Challenge for Cause
The trial court denied Cantu’s challenge of venireperson
Jennings for cause based on his response to questions regarding
proof of each element of the offense beyond a reasonable doubt.
When the trial court denied Cantu’s cause challenge he still had
4
Batson v. Kentucky, 476 U.S. 79 (1986).
5
See Cantu, 842 S.W.2d at 688.
6
Id. at n.16.
4
unused peremptory challenges, yet he did not expend one on
Jennings. Under Texas law, this failure constituted procedural
default by Cantu, eschewing preservation of the alleged error.7 To
obtain federal habeas review under prescribed circumstances ——
state procedural default coupled with refusal of the state courts
to review his constitutional claim, for one —— Cantu must
demonstrate both cause and prejudice. Having failed to assert and
prove either prong of the applicable test,8 Cantu’s claim of
reversible trial court error in its ruling on the Jennings
challenge is procedurally barred in federal court.9 Even if that
were not so, however, Cantu’s claim would fail on its merits. Our
review of the voir dire of Jennings by counsel for both parties and
by the court satisfies us that the court did not err in concluding
that Jennings’s views would not prevent or substantially impair his
performance of the duties of a juror pursuant to his oath and the
instructions of the court. This entitles the trial court’s
conclusion to that effect, and the factual determinations on which
it is grounded, to a presumption of correctness.10
3. Prosecution’s Challenge for Cause
When the prosecution challenged venireperson Holloway for
cause in light of this potential juror’s voir dire testimony
7
Id. at 682-83.
8
Murray v. Carrier, 477 U.S. 478, 485 (1986); Wainwright
v. Sykes, 433 U.S. 72, 87 (1977).
9
Carrier, 477 U.S. at 485; Sykes 433 U.S. at 87.
10
28 U.S.C. § 2254(d) (Supp. 1998).
5
regarding the requirement that the state prove its case beyond a
reasonable doubt, the trial court granted the challenge over
Cantu’s objection. The gravamen of the state’s challenge was
Holloway’s assertion that she would require proof to an absolute
certainty, which the prosecution correctly classified as a more
stringent burden than beyond a reasonable doubt. A reading of all
the questions propounded to Holloway by the prosecution, the
defense, and the court discloses some answers that, when read out
of context, are facially inconsistent and susceptible of
interpretation of her acceptance of the appropriate level of proof.
When the entire colloquy is read in context, however, the trial
court’s ruling comes across as clearly irreversible. We need look
no further than the final exchange between the court and Holloway
to be convinced that its grant of the prosecution’s challenge for
cause was not erroneous, particularly when viewed under the
presumption of correctness of § 2254(d):
Q. And all I need to know from you, very simply is, in
a death penalty case, which would you require, proof
beyond a reasonable doubt, which is what the law
requires, or would you require, since it is a death
penalty case, absolute certainty, proved beyond any doubt
whatsoever?
A. I would require absolute certainty.11
B. Punishment Phase
11
Cantu v. State, 842 S.W.2d 667, 681 (Tex. Crim. App.
1992).
6
Cantu mounts a stereotypical punishment phase challenge by
asserting that the Texas statutory death penalty issues ——
deliberateness and probability of future violence12 —— were
constitutionally inadequate to allow the jury fully to reflect any
mitigating value of Cantu’s voluntary intoxication at the time of
the offense, which might have produced temporary insanity, or of his
history of substance abuse. In addition to being instructed to
answer the questions regarding the special issues of deliberateness
and future violence, the jury was properly instructed on deciding
the weight and credibility to give mitigating evidence and,
specifically, on the consideration of temporary insanity and
voluntary intoxication —— and their definitions —— in the sentencing
calculus. Our review of the pertinent portions of the record on
these matters demonstrates beyond cavil that the jury was able to
give adequate mitigating effect to evidence of Cantu’s intoxication,
possibility of temporary insanity, and any aspect of his character,
substance abuse record, and other circumstances advanced by Cantu
in support of his request for a sentence less than death. Assuming
without deciding that intoxication, and temporary insanity resulting
therefrom, are constitutionally relevant mitigating factors, nothing
in the jury instructions can be construed to have prevented the jury
from giving mitigating effect to Cantu’s drunken state, his history
of substance abuse, or any other purportedly mitigating evidence
adduced on his behalf.
12
Tex. Crim. P. Code Ann. § 37.071(b) (West 1981 & Supp.
1999).
7
We perceive no violation of the Eighth Amendment in the conduct
of the punishment phase of Cantu’s trial.13 Moreover, for whatever
comfort it may provide, Cantu should know that even if we had
concluded that there was some deficiency in the instructions and
presentation of the proffered mitigating evidence that prevented or
inhibited full application of its effects by the jury, we would hold
any such error to be harmless. The value of the evidence of Cantu’s
intoxication and history of substance abuse so pales in comparison
to the egregiousness of the crime and the plethora of punishment
phase evidence supporting the death penalty that any deficiency
affecting the jury’s ability to give effect to such mitigating
evidence would have been entirely harmless.
III.
CONCLUSION
We are completely satisfied that the district court committed
no reversible error in denying habeas relief to Cantu or refusing
to grant him a CPC. We therefore affirm all rulings of that court,
and for the foregoing reasons, decline to issue Cantu a CPC.
AFFIRMED; CPC DENIED.
13
For Cantu to prevail on the basis for which his challenge
to the mitigating effect aspect of the punishment phase is asserted
would require the application of a new rule of law, which in turn
would require the kind of retroactive application that is barred by
Teague v. Lane, 489 U.S. 288, 310 (1989).
8