Revised November 13, 2001
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 00-50222
_______________________
JOSE SANTELLAN, SR.,
Petitioner-Appellee-Cross-Appellant,
versus
JANIE COCKRELL, Director, Texas Department of Criminal Justice,
Institutional Division,
Respondent-Appellant-Cross-Appellee.
_________________________________________________________________
Appeals from the United States District Court
for the Western District of Texas
_________________________________________________________________
October 17, 2001
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
EDITH H. JONES, Circuit Judge:
The district court granted a writ of habeas corpus to
Jose Santellan, a death-sentenced Texas prisoner, after it
concluded that no rational jury could find that he murdered his ex-
girlfriend while in the course of attempted kidnapping. The
federal court also concluded that the Texas Court of Criminal
Appeals affirmed Santellan’s conviction on a factual basis
sufficiently different from that espoused by the state at trial as
to deny due process. Based on the appropriately deferential
(AEDPA) standard of review of the state court’s decision, we hold
that the state court did not unreasonably apply clearly established
federal law and reverse the district court’s judgment. We also
reject Santellan’s cross-appeal urging an ineffective assistance of
counsel claim.
BACKGROUND
On the afternoon of August 22, 1993, Santellan confronted
his former girlfriend, Yolanda Garza, as she left work at the Hill
Country Memorial Hospital in Fredericksburg, Texas. Garza had been
walking through the parking lot with a co-worker, Norma Hoffman.
As the two women parted, Santellan approached Garza; he might have
emerged from behind some dumpsters or a wall at the end of the
parking lot. Garza veered from her previous course along with
Santellan and walked away from her automobile. Hoffman watched
Garza and Santellan talking, but at a distance of 70 feet, she
could not understand what was being said or whether the two were
arguing. The last time Hoffman saw Yolanda standing, she was about
five feet from Santellan and about 20 feet from where she had met
him.
Garza suddenly screamed, “Think of my kids!” Santellan
was now standing over her with his pistol drawn. Hoffman heard two
shots and saw Santellan shake his gun as if to dislodge a jam, but
2
she acknowledged that other shots might have been fired before she
took notice. Santellan continued to stand over Yolanda’s body.
At about this time, a second eye-witness, hospital house-
keeper Guadalupe Noriega, entered the parking lot. She saw Garza
bleeding and motionless and rushed back into the hospital to seek
help. Returning to the parking lot, Noriega saw Santellan’s car
parked next to the victim as he loaded her into the passenger seat,
put in her backpack and drove away.
Santellan later confessed that he absconded with Garza’s
dying body because he “just wanted to get away and be with her and
spend some time together.” Santellan drove west for several hours
before checking into a motel in Camp Wood, Texas. He carried
Garza’s body into the hotel room. During the next night and day,
Santellan engaged in various sex acts with the corpse. He poured
perfume on the body to alleviate the growing stench of
decomposition. He also drafted several letters to family members,
asking their forgiveness for the murder. The police found and
arrested Santellan at the motel on August 24th. Santellan
confessed voluntarily.
In April 1994, Santellan was indicted for the capital
murder of Yolanda Garza while in the course of attempting to kidnap
her. He was tried, convicted and sentenced to death a year later.
The Texas Court of Criminal Appeals affirmed his conviction.
Santellan v. Texas, 939 S.W.2d 155 (Tex. Crim. App. 1997).
3
Santellan then unsuccessfully sought habeas corpus relief in state
court.
His quest for habeas relief prevailed, however, in the
federal district court. The district court found the evidence
constitutionally insufficient to support a conviction for murder in
the course of attempted kidnapping, and it refused to defer to the
state court’s decisions. The federal court first rejected the
state’s principal theory of the crime, as it concluded that, “No
rational jury could have found beyond a reasonable doubt that
[Santellan] attempted to abduct or restrain the victim by use of
deadly force when he approached the victim in the parking lot.”
Second, the federal court held that the Texas Court of Criminal
Appeals unreasonably affirmed the conviction on a factual and legal
basis that the state had “disavowed” before the jury; the court
considered this alleged modification of the basis for the verdict
to violate Santellan’s due process rights. Finally, while the
court agreed with Santellan that his attorney rendered
unconstitutionally deficient performance by not investigating the
petitioner’s possible organic brain damage, it found that this
error did not prejudice Santellan.1
1
The district court rejected several other issues raised
by Santellan, but he has not appealed them.
4
The State has appealed from the grant of habeas corpus
relief, and Santellan appeals the single claim of defective
attorney performance.
Standard of Review
The federal courts’ review of this habeas petition is
governed by the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), 28 U.S.C. §§ 2241 et seq. See Lindh v. Murphy, 521 U.S.
320, 335, 117 S.Ct. 2059, 2067 (1997) (applying AEDPA to all habeas
petitions filed on or after April 24, 1996). Under AEDPA, a
federal court may grant a prisoner’s petition only where the state
court’s “decision” was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States” or was “based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d).
Pursuant to the Supreme Court’s recent interpretive decisions, the
“unreasonable application” inquiry asks whether a state court’s
application of clearly established law was “objectively
unreasonable.” Williams v. Taylor, 529 U.S. 362, 409, 120 S.Ct.
1495, 1521-22 (2000). The “most important point” of the Williams
decision is that an “incorrect application of federal law is not
necessarily unreasonable.” Williams, 529 U.S. at 411-12, 120 S.Ct.
at 1522-23. We consider, then, whether the Texas courts’
5
“decisions” applying long-established constitutional law principles
were “objectively unreasonable.”
The key to this case is the federal district court’s
revisiting of the evidence because it believed that the Texas Court
of Criminal Appeals should not have affirmed Santellan’s capital
murder conviction on a factual theory different from the theory
principally advocated by the State at trial. Santellan never
denied that he murdered Garza, but he challenged the enhancement to
capital murder based on attempted kidnapping, and he contended that
his acts did not meet state law criteria for the enhancement crime.
The federal district court agreed for two reasons. In the court’s
view, not only had the State “disavowed” the theory adopted by the
Court of Criminal Appeals, but that court’s analysis implicitly
rejected the State’s approach. The switching and contradiction of
theories violated the due process clause, according to the district
court. And in any event, neither theory of attempted kidnapping
was supported by constitutionally sufficient evidence. We shall
address the insufficiency point first.
Sufficiency of the Evidence
In considering challenges to the sufficiency of evidence
in habeas proceedings, “the relevant question is whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
6
Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979).
Whether the appellate court views the evidence as sufficient is
irrelevant. Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2789. The
Jackson inquiry “does not focus on whether the trier of fact made
the correct guilt or innocence determination, but rather whether it
made a rational decision to convict or acquit.” Herrera v.
Collins, 506 U.S. 390, 402, 113 S.Ct. 853, 861 (1993). The Texas
Court of Criminal Appeals invoked, recited and applied the Jackson
standard on Santellan’s direct appeal. Santellan, 939 S.W.2d at
160. While its decision was thus not “contrary to clearly
established Federal law”, it could be an “unreasonable application”
thereof. Williams, supra at 529 U.S. at 413, 120 S.Ct. at 1523.
The federal district court declared, after an independent review of
the evidence that ignored circumstantial inferences and, by its
selectivity, did not view the evidence in the light most favorable
to the verdict, that the evidence of attempted kidnapping was
constitutionally insufficient and, therefore, the state court’s
contrary determination was incorrect. We disagree with the
district court’s conclusion.
To begin with, the court appeared to interpret AEDPA to
authorize habeas relief solely because it found the state court’s
reasoning unsatisfactory. The plain language of AEDPA, as well as
the rulings of our sister circuits, renders this reasoning
7
untenable. AEDPA authorizes a federal court to grant habeas relief
only where a state court’s “decision” (a) was contrary to, or
involves a clearly unreasonable application of federal law, or
(b) was based on an unreasonable determination of the facts. 28
U.S.C. § 2254(d)(1), (2). The statute compels federal courts to
review for reasonableness the state court’s ultimate decision, not
every jot of its reasoning. As the Second Circuit recently noted,
even where a state court made a mistake (in relying on an
interrogating officer’s subjective state of mind as part of a
Miranda inquiry), “we are determining the reasonableness of the
state court’s ‘decision,’ . . . not grading their papers.” Cruz v.
Miller, 255 F.3d 77, 86 (2d Cir. 2001). Other circuit courts
likewise focus on the result of a state court’s consideration of a
prisoner’s claim. Long v. Humphrey, 184 F.3d 758, 760-61 (8th Cir.
1999); Matteo v. Superintendent, 171 F.3d 877, 891 (3d Cir. 1999)
(en banc); Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999) (“.
. . we cannot grant relief unless the state court’s result is
legally or factually unreasonable”). This approach is consistent
with the federal courts’ view that if a state court denies a
prisoner’s claim without reasoning of any sort, our authority under
AEDPA is still limited to determining the reasonableness of the
ultimate decision. See, e.g., Bell v. Jarvis, 236 F.3d 149 (4th
Cir. 2000), cert denied, Bell v. Beck, 2001 WL 379029 (2001);
8
Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001). It would be
odd to require a less deferential approach to reasonableness in
cases where the state courts attempted to articulate reasons for
their decisions than in those where they did not.
In this case, the foregoing authorities dictate that
while it is not irrelevant that the Texas Court of Criminal Appeals
appears to have affirmed Santellan’s conviction on a theory of
attempted kidnapping that differs from the State’s preferred theory
at trial, because the inconsistency may shed light on the
sufficiency of either theory, that is not the whole story.
Instead, we focus, as does the Jackson standard itself, on what
inferences could have been drawn by any rational jury. The
elements of the offense and the facts and inferences supporting the
verdict must be considered.
Santellan was charged with capital murder by
intentionally committing murder in the course of attempting to
commit kidnapping. See Tex. Penal Code Ann. § 19.03(a)(2). The
State had to prove beyond a reasonable doubt that he had the
specific intent to commit kidnapping and that he committed an act
amounting to more than mere preparation for kidnapping Garza. See
Tex. Penal Code Ann. § 15.01 (defining criminal attempt). In
Texas, kidnapping is the intentional or knowing abduction of
another person. Tex. Penal Code. Ann. § 20.03. To “abduct” means
9
to restrain a person with the intent to prevent his liberation by
either (1) secreting or holding her in a place where she is not
likely to be found or (2) using or threatening to use deadly force.
Tex. Penal Code Ann. § 20.01(2). Under the law of criminal
attempt, the Texas Court of Criminal Appeals has held that “the
criminal act element of the attempted offense entailed proof beyond
a reasonable doubt that [Santellan] committed an act amounting to
more than mere preparation for the restraint of the victim.”
Santellan, 939 S.W.2d at 162. “Restraint” is defined as a
substantial interference with the victim’s liberty through the use
of deadly force, intimidation, or deception. Tex. Penal Code §
20.01(1). The assailant need not, however, have restrained the
victim for any certain period of time. Sanders v. State, 605
S.W.2d 613, 614 (Tex. Crim. App. 1980).
That Santellan had the specific intent to kidnap Garza
before or during the commission of the murder was proved by the
State, was carefully explained by the Texas Court of Criminal
Appeals, was implicitly confirmed by the federal district court,
and is not challenged by Santellan on appeal. Nevertheless, a
recitation of facts that proved Santellan’s intent is helpful in
explaining his actions toward Garza as he committed the crime. In
his confession, Santellan admitted his desire to “get away and be
with [Yolanda] and spend some time together.” Rather than fleeing
10
the scene after he shot her, he lingered, bringing his car around
to collect her body and backpack. Santellan stated at one point
that Garza may have been alive when he placed her in his car. He
made no effort to hide or dispose of the evidence. Santellan’s
bizarre treatment of Garza’s corpse, including his cleaning it,
dressing it in his underwear, and repeatedly engaging in sexual
relations with it, evinces a desire to possess or control the
victim. He admitted his sexual abuse of her corpse was motivated
by a desire to “show how much I really loved her.” Although
Santellan also confessed that he went to the hospital intending to
“say goodbye”, a reasonable jury could conclude that Santellan’s
intent in going armed to the hospital that day was to force Garza
to stay with him until she reciprocated his affections.
The parties diverge over the basis for the jury’s
conclusion that Santellan committed an act amounting to more than
mere preparation for the restraint of Garza. Santellan asserts and
the district court ruled that it is impossible to conclude beyond
a reasonable doubt that Santellan “attempted to abduct or restrain
the victim by use of deadly force when he approached the victim in
the parking lot.” As stated, we disagree. The prosecution showed
that Santellan drove to the hospital, just as Garza was leaving
work, for the confessed purpose of saying goodbye. But he brought
along a loaded handgun, emerged from behind some concealment on the
11
edge of the parking lot and intercepted Garza after she had parted
company with Norma Hoffman. Santellan diverted Garza from the path
to her car and led her away from her car. He began talking to her.
Santellan did not like the result of this conversation and2, in
response, produced his pistol. He emptied his clip, shooting Garza
four times, but there could have been a pause between the intervals
of shooting, since Hoffman heard two shots and then saw Santellan
shake the pistol.
All of these facts are undisputed. Given Santellan’s
specific intent to kidnap Garza, this series of acts permitted a
reasonable jury to find more than “mere preparation” to restrain
Garza through the use of deadly force, intimidation, or deception.
Santellan armed himself, stalked his estranged ex-girlfriend
through the parking lot, confronted her verbally and prevented her
from reaching her car, brandished his pistol, and ultimately shot
her. Garza knew she was threatened – why else would she have
screamed at him in fear? Indeed, taking into account that
Santellan was mentally competent,3 a failed kidnapping coherently
2
Santellan’s confession does not detail the specifics of
this conversation, but it made him angry: “Yolanda became abusive,
my mind went blank, I pulled out a handgun with a full clip.”
3
The psychiatric report prepared by Dr. Lee Simes in 1994
concluded that while Santellan was mentally ill and suffering from
a depressive disorder, intermittent explosive disorder, alcohol
abuse, and personality disorder, he was not mentally retarded and
was competent to stand trial and assist in his own defense.
12
explains the “diversion of path” scenario pressed by the State at
trial.
The district court’s contrary conclusion rests on two
erroneous premises. First, the court simply ignored Yolanda’s
dreadful scream when it concluded that no evidence supported the
theory that Santellan brandished his pistol at her or attempted to
restrain her liberty with the threat of deadly force. The court
relied solely on the petitioner’s, not the State’s, evidence in
this regard. Second, the district court relied on the fact that
the Court of Criminal Appeals did not expressly affirm the
constitutional sufficiency of evidence on this theory, but instead
held that Garza’s heart might still have been beating when
Santellan placed her in his car. The district court inferred that
the Court of Criminal Appeals also rejected the “diversion of path”
theory.
Whether the Court of Criminal Appeals rejected the
“diversion of path” theory is not entirely clear, but is also
irrelevant to the ultimate question under Jackson. As we have
noted, the test in Jackson is whether any rational jury could have
found the elements of guilt beyond a reasonable doubt. The
“diversion of path” theory was sufficiently established. The facts
may be interpreted in other ways, with varying levels of
evidentiary support. The Court of Criminal Appeals affirmed on the
13
basis that Garza may have been “still alive” because forensic
evidence suggested her heart may have been beating after Santellan
loaded her into his car. The State alternatively hypothesizes that
Santellan struck Garza before shooting her, thereby knocking her to
the ground and effecting a restraint. Finally, Santellan may have
fired the fatal shot after Garza was already in his car, since
bullet casings were found there. Santellan urges that none of the
alternative theories of attempted kidnapping satisfies the Jackson
standard.4
Like the district court, Santellan recognizes that he
must defeat all of the theories of attempted kidnapping in order to
obtain relief. The Supreme Court has ruled that where a jury is
given the option of choosing between factually adequate and
factually inadequate theories of guilt, jurors “are well equipped
to analyze the evidence” and can be counted upon to base their
verdict upon the factually adequate theory. See Griffin v. United
States, 502 U.S. 46, 59, 112 S.Ct. 466, 474, 116 L.Ed.2d 371
(1991). In Griffin, the Supreme Court refused to overturn a
general guilty verdict because one of the possible bases of
4
We have no need to reach Santellan’s additional
contention that the “still alive” and “fatal shot in the car”
theories allege not an attempted, but a completed kidnapping under
Texas law, which introduced a fatal variance. See United States v.
Miller, 471 U.S. 130, 105 S.Ct. 1811 (1985); Stirone v. United
States, 361 U.S. 212, 80 S.Ct. 270 (1960).
14
conviction was unsupported by sufficient evidence. As an example,
the Court noted that invalidating a conviction on evidentiary
grounds was not appropriate if “an indictment charg[ed] murder by
shooting or drowning, where the evidence of drowning proves
inadequate.” 502 U.S. at 56, 112 S.Ct. at 472. Thus, the possible
insufficiency of the evidence to prove more than mere preparation
for restraint under one or more theories is irrelevant, where there
remains a sufficiently supported theory of guilt. As the Seventh
Circuit has put it:
It is one thing to negate a verdict that, while supported
by evidence, may have been based on an erroneous view of
the law; it is another to do so merely on the chance--
remote, it seems to us--that the jury convicted on a
ground that was not supported by adequate evidence when
there existed alternative grounds for which the evidence
was sufficient.
United States v. Townsend, 924 F.2d 1385, 1414 (7th Cir. 1991).
Because the diversion of path theory of attempted
kidnapping is factually adequate, this portion of Santellan’s
argument fails. The Court of Criminal Appeals’ “decision”
upholding the constitutional sufficiency of the evidence of
attempted kidnapping was not unreasonable.5
5
Santellan alternatively argues that, as applied in this
case, the Texas capital punishment statute is unconstitutional for
vagueness and because it does not sufficiently narrow the class of
death-eligible defendants. These arguments are meritless.
Attempted kidnapping is a statutory aggravating factor that
elevates Santellan’s crime above the offense of ordinary murder and
15
Due Process Claim
Santellan, supported by the district court, also argues
that the reliance by the prosecution at trial and by the Court of
Criminal Appeals on separate theories of attempted kidnapping
violated his due process rights and warrants the granting of habeas
relief. In support, he points to the Supreme Court’s decisions in
McCormick v. United States, 500 U.S. 257, 111 S.Ct. 1807 (1991) and
Dunn v. United States, 442 U.S. 100, 99 S.Ct. 2190 (1979).
Dunn stands for the proposition that “[t]o uphold a
conviction on a charge that was neither alleged in the indictment
nor presented to a jury at trial offends the most basic notions of
due process.” Dunn, 442 U.S. at 106, 99 S.Ct. at 2194. In Dunn,
the defendant was indicted, tried, and convicted on the theory that
he had lied under oath at a particular proceeding in September
1976. When the appeals court looked at the conviction, however, it
narrows the class of crimes to which the d death penalty may
attach. See Tex. Penal Code § 19.03; Jurek v. Texas, 428 U.S. 262,
268-72, 96 S.Ct. 2950, 2954-56 (1976); Lowenfield v. Phelps, 484
U.S. 231 at 243-46, 108 S.Ct. 546, 554-55 (1988). The offense of
attempted kidnapping requires both specific intent and more than
mere preparation to “restrain” the victim. Santellan’s argument
ignores the evidence of specific intent to kidnap and the evidence
of attempted intimidation and restraint by means of deadly force.
As the State observes, not only could a reasonable jury infer both
specific intent and the requisite amount of pre-murder restraint,
but the evidence of Santellan’s specific intent to kidnap Garza
distinguishes his case from ordinary murders. It is thus incorrect
to assert, as Santellan does, that his capital murder conviction
threatens to transform every murder into a death-eligible crime.
16
concluded that the September 1976 proceeding was not within the
coverage of the applicable criminal statute, and it chose instead
to affirm on the basis of a statement that the defendant had made
at an October 1976 proceeding not mentioned in the indictment. The
Supreme Court found this to be a due process violation. Similarly,
in McCormick, the jury instructions explained that a campaign
contribution could be proscribed by the Hobbs Act even where there
was no expectation of benefit by the contributor. The Tenth
Circuit disagreed, holding that the Hobbs Act required a quid pro
quo and listing a seven-factor test for such an arrangement.
Rather than remand the case, however, the court affirmed the
conviction on this new legal basis, thereby violating due process.
McCormick, 500 U.S. at 269-270, 111 S.Ct. at 1814-15.
The present case is readily distinguishable from Dunn and
McCormick. The indictment of Santellan alleged attempted
kidnapping only in general terms and did not commit the State to
prosecuting any one factual theory. Similarly, the jury
instructions described the law of kidnapping and criminal attempt
in considerable detail, but do not bind the State to a particular
interpretation of the facts or theory of attempted kidnaping. In
contrast to Dunn, the incident for which Santellan was convicted by
the jury--the murder and attempted kidnaping of Yolanda Garza in
Fredericksburg on August 22, 1993--was also definitively the basis
17
of the appellate court’s affirmance of his conviction. As
distinguished from the federal circuit court in McCormick, the
Texas Court of Criminal Appeals did not reinterpret the relevant
criminal statute or apply different legal standards than the trial
court in Santellan’s case. Instead, the court focused on a
different interpretation of the facts than that emphasized by the
prosecution at trial. Contrary to Santellan’s suggestion, the
Court of Criminal Appeals did not “disavow” the diversion of path
theory of attempted kidnaping, but raised and discussed the theory,
albeit somewhat briefly, in its published opinion. Santellan, 939
S.W.2d at 162-63 and 165. Because of the general nature of the
indictment and the jury charge, and because the Court of Criminal
Appeals affirmed on the basis of the same law and the same ultimate
acts that underlay the conviction in the trial court, neither Dunn
nor McCormick is applicable to Santellan’s case.
The Texas Court of Criminal Appeals did not unreasonably
apply federal law in rejecting a due process claim and sustaining
Santellan’s conviction.
18
Ineffective Assistance of Counsel Claim
Santellan has challenged on cross-appeal the denial of
his habeas claim based on his trial counsel’s failure to introduce
potentially mitigating psychiatric evidence during the punishment
phase of trial. He faults counsel’s failure to investigate,
prepare, and present mitigating evidence that Santellan suffers
from organic brain damage. Had the jury been presented with this
evidence, he contends, there is a reasonable probability that he
would have received a life sentence rather than death. See Glenn
v. Tate, 71 F.3d 1204 (6th Cir. 1995)(holding that trial counsel’s
failure to present evidence of the defendant’s brain damage
required reversal of his death sentence).
The standard for ineffective assistance of counsel is
well established: Petitioner must show that (1) his counsel’s
representation was deficient, and (2) that the deficient
performance was so serious that it prejudiced his defense. See
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064
(1989). For a federal court to grant habeas relief, the state
court must have unreasonably applied the Strickland standard. See
Williams, 529 U.S. at 413, 120 S.Ct. at 1523. The federal district
court held that while the Court of Criminal Appeals unreasonably
applied the deficiency prong of Strickland, its conclusion that
Santellan suffered no prejudice as a result of this deficient
19
performance was reasonable. Based on the district court’s
evaluation of the prejudice prong, and expressing no opinion on its
decision as to the first prong, we affirm.
Overwhelming evidence illustrated Santellan’s history of
displaying a violent personality and behavior wholly apart from the
kidnapping and murder of Garza. Considering that history in light
of the horrific nature of this offense, a reasonable court could
conclude that there was no substantial likelihood that the outcome
of the punishment phase would have been altered by evidence that he
suffered organic brain damage. Under the deferential standard of
Section 2254(d), the Texas court did not unreasonably apply the
second prong of Strickland to Santellan’s case.
Conclusion
Based on the foregoing discussion, the Texas Court of
Criminal Appeals did not unreasonably apply clearly established
federal law to Santellan’s insufficiency of the evidence, due
process or ineffective assistance of counsel claims. Accordingly,
the judgment of the district court granting the relief under § 2254
is REVERSED.
20