Briseno v. Cockrell

REVISED DECEMBER 13, 2001

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 99-41246

JOSE GARCIA BRISENO,

Petitioner-Appellant,

VERSUS

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

Appeal from the United States District Court
For the Southern District of Texas
November 26, 2001

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

DeMOSS, Circuit Judge:

In this death penalty habeas appeal from Texas, Petitioner-

Appellant Jose Garcia Briseno seeks review of the district court’s

judgment denying his claim that his direct appellate counsel

rendered ineffective assistance. The district court granted

Briseno a Certificate of Appealability (“COA”) on that issue. For

the reasons set forth below, we affirm the district court’s
judgment.

I. BACKGROUND

In late 1990, Ben Murray, the Sheriff of Dimmit County, was

investigating a burglary case. The Sheriff met with Briseno to

enlist his help in solving the burglaries. Several weeks later, on

Sunday, January 6, 1991, the Sheriff was found dead in his home,

with numerous stab wounds and a bullet wound to the head. At

trial, testimony revealed that over five hundred dollars in cash

had been taken from the Sheriff. Additionally, two of his pistols

were missing.

When Briseno was arrested, he had bandages on both hands. He

told police that he had received the cuts in a fight on the

previous Friday. While being held, he attempted to escape with

several other inmates, including Ricardo Basaldua. After their

capture, Basaldua told authorities statements Briseno made about

the Sheriff’s murder. Basaldua testified that on the night of the

Sheriff’s murder, Briseno and another defendant, Alberto Gonzales,

appeared at the Sheriff’s home offering to sell some rings.

Briseno and Gonzales did not have any rings for sale, but used the

ring story to gain entry to the Sheriff’s home. A struggle began,

and they stabbed the Sheriff. When Briseno and Gonzales could not

take the Sheriff down, Briseno grabbed the Sheriff’s gun off a

table and shot the Sheriff. Afterwards, Briseno and Gonzales stole

2
some money from the Sheriff’s home and hid it. Basaldua also

testified that during the escape Briseno showed him the spot where

Briseno had buried the gun used to kill the Sheriff. Briseno dug

up the gun but soon disposed of it in the same general area before

the police caught the escapees. Upon being recaptured, Basaldua

led the officers to the location where Briseno had hidden the gun,

and the gun was recovered.

At trial, the state introduced evidence demonstrating that

blood taken from the Sheriff’s carpet compared positively with that

of Briseno.1 Additional evidence submitted at trial included

bloody clothing that was found behind a sofa in a shed in which

Briseno had been staying. That clothing contained enzyme markers

consistent with Briseno’s and the Sheriff’s. Furthermore, a bullet

of the same caliber and brand as that used in the stolen pistol

utilized to kill the Sheriff was discovered at the shed. Moreover,

a bloodhound tracked a lighter found near the Sheriff’s residence

to the shed where Briseno had been staying.

A jury convicted Briseno of Sheriff Murray’s murder and

sentenced him to death. On appeal, court-appointed counsel George

Scharmen represented Briseno. Briseno filed his brief on appeal on

June 16, 1993. The Texas Court of Criminal Appeals affirmed the

conviction and death sentence in an unpublished opinion on June 29,

1
The state’s serologist testified that the enzyme markers found
in the blood are shared by Briseno and a little more than one
percent of the Hispanic population in the United States.

3
1994. The United States Supreme Court denied Briseno’s petition

for writ of certiorari on February 21, 1995.

On July 31, 1995, Briseno initiated state habeas corpus

proceedings, with Scharmen again as his attorney.2 The trial court

conducted an evidentiary hearing on some of Briseno’s claims raised

in the state petition. The trial court entered findings of fact

and conclusions of law, which the Court of Criminal Appeals

adopted. The Court of Criminal Appeals denied Briseno’s

application on November 27, 1996.

Thereafter, on November 28, 1997, Briseno timely filed a

petition for writ of habeas corpus in federal court, raising three

claims for relief.3 Those claims were that: 1) Briseno’s trial

counsel was ineffective during the penalty phase of trial due to

inadequate preparation and lack of investigation of mitigating

circumstances; 2) Briseno’s due process rights were violated

because he was unable to obtain assistance and information from his

former defense attorney; and 3) Briseno’s appellate attorney was

ineffective for failing to challenge on appeal the trial court’s

denial of a defense motion for an expert serologist. The district

court granted summary judgment and denied relief with respect to

the first two claims and scheduled oral argument and supplemental

2
Scharmen had moved for another attorney for Briseno, but that
motion was denied.
3
Because Briseno filed his petition after the effective date of
the Antiterrorism and Effective Death Penalty Act, that Act governs
his petition.

4
briefing on the third claim of ineffective assistance of direct

appeal counsel. Later, the district court granted the director’s

motion for summary judgment and denied relief with respect to the

last claim.

Briseno timely filed a notice of appeal. Subsequently, the

district court granted a COA with respect to Briseno’s third claim.

II. DISCUSSION

Before arguing the issue to which the district court granted

a COA, Briseno raises two preliminary issues concerning 1) the

standard of prejudice to be utilized in an ineffective assistance

of direct appellate counsel claim, and 2) the legality and

parameters of 28 U.S.C. § 2254(d)(1), the statutory section

prescribing the standard of review to be accorded mixed questions

of law and fact. We review these matters prior to addressing the

merits of the issue granted a COA.

In denying Briseno’s third claim, the district court assumed

for purposes of its order that Briseno’s appellate counsel’s

failure to raise the denial of the blood expert on direct appeal

fell below the objective standard of reasonable conduct expected of

appellate counsel. Moreover, the district court assumed that the

trial court’s denial of a blood expert constituted error under Ake

v. Oklahoma, 105 S. Ct. 1087 (1985), and that the Texas Court of

Criminal Appeals would have reversed the trial court had that issue

5
been raised on direct appeal. Nevertheless, the district court

concluded that Briseno’s third claim did not establish an

ineffective assistance of counsel claim because it did not rise to

the level of constitutional error contemplated by Goodwin v.

Johnson, 132 F.3d 162, 170 (5th Cir. 1998).

Briseno asserts that the standard of prejudice to be utilized

in an ineffective assistance of direct appellate counsel claim as

stated in Goodwin conflicts with the Supreme Court’s recent

decision in Smith v. Robbins, 120 S. Ct. 746 (2000). In Goodwin,

we clarified the prejudice requirement of the test to show

ineffective assistance of counsel, which the Supreme Court

announced in Strickland v. Washington, 104 S. Ct. 2052 (1984).

Under Strickland, to prove that counsel afforded ineffective

assistance, a petitioner must show 1) that his attorney’s

performance was deficient, and 2) that such deficiency prejudiced

the defense. Id. at 2064. Goodwin held that the presence or

absence of Strickland prejudice as a result of unconstitutionally

deficient performance of counsel at either the trial or appellate

level hinges upon the fairness of the trial and the reliability of

the judgment of conviction resulting therefrom. Goodwin, 132 F.3d

at 174. That is, we rejected the outcome determinative aspect of

petitioner’s argument that Strickland prejudice is established if

there is a reasonable probability that the allegedly deficient

performance would have caused a reversal on direct appeal.

6
Instead, the focus had to be on the fairness of the proceeding and

the reliability of its result. Id. at 176. “To the extent that

the appellate process is merely a vehicle for correcting errors at

trial, the fairness and reliability of an appeal are necessarily

functions of the fairness and reliability of the trial.” Id.

Recently, in Smith v. Robbins, 120 S. Ct. 746 (2000), the

Supreme Court appears to have rejected Goodwin’s holding. Indeed,

the director concedes this point. Smith generally involved whether

some of the Court’s statements in Anders v. California, 87 S. Ct.

1396 (1967), reciting an acceptable procedure for treating

frivolous appeals by criminal defendants, were obligatory upon the

states and whether California’s procedure, as stated in People v.

Wende, 600 P.2d 1071, 1074-75 (Cal. 1979), violated the Fourteenth

Amendment. Although the Court concluded that the Anders procedure

was not obligatory and that California’s Wende procedure was not

constitutionally infirm, see Smith, 120 S. Ct. at 763, it noted

that the petitioner’s appeal may not have been frivolous and that

he may have been entitled to more than a Wende brief. In remanding

the case, the Court reiterated Strickland as the appropriate

standard. Id. at 764. And it stated that to demonstrate

prejudice, the petitioner had to show a reasonable probability

that, but for his counsel’s unreasonable failure (in this case, to

file a merits brief), he would have prevailed on his appeal. Id.

7
 Briseno’s second preliminary issue relates to the legality and

parameters of 28 U.S.C. § 2254(d)(1),4 the statutory section

prescribing the standard of review to be accorded mixed questions

of law and fact. In Williams v. Taylor, 120 S. Ct. 1495 (2000),

the Supreme Court attempted to clarify the murky confines of

§ 2254(d)(1). In Justice O’Connor’s Part II majority opinion, the

Court held that under the “contrary to” clause, a federal habeas

court may grant the writ of habeas corpus if the state court

arrives at a conclusion opposite to that reached by the Supreme

Court on a question of law or if the state court decides a case

differently than the Supreme Court has on a set of materially

indistinguishable facts. Id. at 1523. Moreover, the Court

concluded that under the “unreasonable application” clause, a

federal habeas court may grant the writ if the state court

identifies the correct governing legal principle from the Supreme

Court’s decisions but unreasonably applies that principle to the

facts of the prisoner’s case. Id. In making the “unreasonable

application” inquiry, a federal habeas court should ask whether the

4
Section 2254(d)(1) reads:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim–
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States . . . .

8
state court’s application of clearly established federal law was

objectively, not subjectively, unreasonable. Id. at 1521.

With Briseno’s two preliminary issues in mind, we now address

the merits of his appeal. The district court specifically granted

a COA as to whether Briseno’s direct appellate counsel rendered

ineffective assistance by failing to raise the trial court’s denial

of the defense motion for a blood expert as a violation of Ake v.

Oklahoma.

In Ake, the Supreme Court held that when a defendant has made

a preliminary showing that his sanity at the time of the offense is

likely to be a significant factor at trial, the Constitution

requires that a state provide access to a psychiatrist’s assistance

on that issue if the defendant cannot otherwise afford one. Ake,

105 S. Ct. at 1091-92. Briseno contends that under Ake, indigent

defendants must have access to the raw materials necessary to

present an effective defense and that he was denied that access

when the trial court denied his motion for a blood expert who could

have contested the state expert’s testimony linking Briseno’s blood

to the crime scene and the Sheriff’s blood to Briseno’s home.

Because his direct appellate counsel failed to raise the Ake claim

on appeal, Briseno maintains that he was provided ineffective

assistance of counsel.

9
 We disagree. As the director maintains, Briseno’s appellate

counsel appears not to have performed deficiently. At the time of

Briseno’s appeal, neither the Supreme Court or the Texas Court of

Criminal Appeals had explicitly extended Ake to the area of

serology. Admittedly, the Court of Criminal Appeals ultimately

extended the Ake rationale to fields other than psychiatry. See

Rey v. State, 897 S.W.2d 333, 338 (Tex. Crim. App. 1995) (“Ake is

not limited to psychiatric experts . . . .”). And various other

courts had recognized the applicability of Ake in contexts other

than psychiatry prior to Briseno having filed his direct appellate

brief. See, e.g., Terry v. Rees, 985 F.2d 283, 284 (6th Cir.

1993); Little v. Armontrout, 835 F.2d 1240, 1243 (8th Cir. 1987).

In light of those developments, one could argue that,

notwithstanding the lack of an explicit pre-appeal holding by the

Supreme Court or the Court of Criminal Appeals, the failure to

raise the Ake issue amounted to appellate representation that fell

below an objective standard of reasonableness. But there is a

qualitative difference between expert psychiatric testimony

required to prepare an insanity defense and expert testimony

concerning serology. In the former, testimony from experts can be

crucial as there is often no single, accurate psychiatric

conclusion on legal insanity. Ake, 105 S. Ct. at 1095. Psychiatry

is not an exact science, and juries remain the primary factfinders

on legal insanity and “must resolve differences in opinion within

10
the psychiatric profession on the basis of the evidence offered by

each party.” Id. In the case of serology, a blood sample either

has a certain marker, which fits within a certain group in a

statistical compilation of the population, or it does not. There

can be problems associated with the handling and testing of samples

and some differences of opinion may arise, but the vagaries of

human behavior are not rampant within serology. Enough of a

distinction between expert psychiatric testimony on insanity and

expert testimony on serology exists to suggest a tenable, and not

unreasonable, basis for believing that Ake would not necessarily be

extended.

Combine that with the high probability that the trial counsel

wanted a DNA expert, and not a serologist, and we may rightfully

conclude that the appellate counsel did not deficiently perform by

failing to raise an Ake claim with respect to the need for a

serologist. Briseno would only have had a valid Ake claim if the

state trial court had actually denied the trial counsel’s motion

for a blood expert. The state habeas court, however, found: 1)

that Briseno “sought appointment by the trial court of a ‘DNA

expert’; and not merely the appointment of an expert in serology”;

and 2) that his motion is “premised on the notion that ‘the

prosecution would be introducing the DNA evidence’.” Those

findings are presumed to be correct unless Briseno rebuts with

11
clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).5

Reviewing the record, we believe that Briseno has not satisfied

that high burden. Briseno’s trial counsel filed a motion entitled

“Defendant’s Ex-Parte Motion for Independent Expert Analysis of

Blood Samples in State’s Possession,” and that motion does raise

the need for an “independent blood expert analyst . . . to prepare

a relevant defense.” But while that motion states that “other

analysis of blood is possible,” it specifically mentions DNA

testing and lists as suggested experts two prominent legal experts

in the field of DNA testing, Professors Barry Scheck and Peter

Neufeld. Furthermore, at the pre-trial hearing on Briseno’s

motion, his trial counsel and the state talked at length about the

cost of a DNA analysis and how the state had already done a test

through the FBI, who indicated that the sample was too degraded for

proper DNA analysis. Because the sample had been degraded, the

state insisted that Briseno did not need a DNA expert. In other

words, the hearing did not center on the need for a serologist;

rather, it focused on the more specific area of DNA testing.

Hence, the record is, at best, unclear, and we cannot overrule the

presumption of correctness afforded to the state habeas court’s

5
Section 2254(e)(1) provides:
In a proceeding instituted by an application for a writ of
habeas corpus by a person in custody pursuant to the judgment
of a State court, a determination of a factual issue made by
a State court shall be presumed to be correct. The applicant
shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence.

12
findings that Briseno essentially sought a DNA, not blood, expert.6

With those findings in mind, we must conclude that the trial

counsel did not effectively inform the trial court of the need for

a serology expert to contest the state’s expert. That failure, in

addition to the possibility that Ake did not cover non-psychiatric

expert testimony such as those involving serologists, indicates

that the appellate counsel’s decision not to raise an Ake claim on

direct appeal may not have been erroneous. Accordingly, Briseno’s

appellate counsel may not have performed deficiently.

Even if Briseno’s appellate counsel had performed deficiently,

we do not believe that any prejudice necessarily resulted from that

deficiency. To establish prejudice, i.e., a reasonable probability

that the outcome of the direct appeal would have been different,

Briseno would have had to show 1) that the Texas Court of Criminal

Appeals would have held that the trial court’s denial of his motion

for a blood expert was error, and 2) that the Court of Criminal

Appeals would have vacated or reversed based on that error.

6
The fact that Briseno did not receive a DNA expert is not a
predicate for his Ake claim. First, he asserts no such basis for
his Ake claim. Second, the government did not present any DNA
evidence at trial, and the sample was either too small or degraded
for a proper analysis. Therefore, Briseno did not have a
sufficient interest or basis to receive DNA expert assistance.

13
Assuming that the Court of Criminal Appeals would have held that

the trial court’s denial was erroneous,7 we nonetheless conclude

that there was no Strickland prejudice.

At the time of Briseno’s appeal, former Texas Rule of

Appellate Procedure 81(b)(2) provided for a harmless error standard

of review.8 It stated:

If the appellate record in a criminal case reveals
error in the proceedings below, the appellate court
shall reverse the judgment under review, unless the
appellate court determines beyond a reasonable
doubt that the error made no contribution to the
conviction or to the punishment.

We realize that the Court of Criminal Appeals in Rey held that

under Texas law, Ake error is structural and cannot be evaluated

for harm. See Rey, 897 S.W.2d at 346. In Cain v. State, 947

S.W.2d 262 (Tex. Crim. App. 1997), however, the Court of Criminal

7
We make this assumption because, in all likelihood, if the
inability to recognize that Ake would be extended to non-
psychiatric experts is deficient performance, then that suggests
that the Court of Criminal Appeals would have found the trial
court’s denial to be erroneous. That is, as the state conceded at
oral argument, a finding of prong one under Strickland necessarily
means that there was error. Moreover, we note that the Court of
Criminal Appeals ultimately did find Ake applicable in other
contexts. See Rey, 897 S.W.2d at 338.
8
Rule 44.2(a) of the Texas Rules of Appellate Procedure replaced
Rule 81(b)(2). Texas courts apply the harmless error standard of
review under both rules in the same manner. See Mosley v. State,
983 S.W.2d 249, 259 (Tex. Crim. App. 1998). Rule 44.2(a) provides:
If the appellate record in a criminal case reveals
constitutional error that is subject to harmless error review,
the court of appeals must reverse a judgment of conviction or
punishment unless the court determines beyond a reasonable
doubt that the error did not contribute to the conviction or
punishment.

14
Appeals held that “[e]xcept for certain federal constitutional

errors labeled by the United States Supreme Court as ‘structural,’

no error . . . is categorically immune to a harmless error

analysis.” Id. at 264. The Supreme Court has never explicitly

stated that Ake error is structural. Therefore, we may conclude

that Cain essentially overruled Rey with respect to whether Ake

error is subject to harmless error analysis.9 See Lighteard v.

State, 982 S.W.2d 532, 535 (Tex. App.–San Antonio 1998, pet. ref’d)

(applying harmless error rule to Ake claim because Cain was

subsequent to Rey and because the Supreme Court has never labeled

an Ake claim as a structural error); cf. Linton v. State, 15 S.W.3d

615, 620 (Tex. App.-Houston [14th Dist.] 2000, pet. ref’d) (holding

that because of Cain and the lack of direct Supreme Court

precedent, a violation of Texas Code of Criminal Procedure article

36.01 is subject to harmless error analysis despite prior Court of

Criminal Appeals ruling concluding that such a violation is not

reviewed for harm). But see Williams v. State, 958 S.W.2d 186, 194

(Tex. Crim. App. 1997) (noting that Rey’s holding that an Ake claim

is structural cannot be applied to conclude that a trial court’s

error in failing to allow an ex parte Ake motion is also structural

in nature).

9
Briseno concedes this point in his initial appellate brief.

15
 Notwithstanding the apparent change in Texas law, Briseno

argues that Rey, not Cain, should control. He asserts that the

Court of Criminal Appeals would undoubtedly have reversed his case

because that court, soon after the completion of his direct appeal,

made its structural error ruling in Rey. That is, the crux of

Rey’s holding on harmless error regarding Ake claims was in its

ascendancy, and Briseno believes that he should receive the benefit

of that occurrence.

We find Briseno’s argument unavailing. At the time of his

direct appeal, Rey had yet to be released, and there was no actual

holding that an Ake error is structural. Moreover, in Lockhart v.

Fretwell, 113 S. Ct. 838, (1993), the Supreme Court foreclosed a

state habeas prisoner’s ability to raise, as an ineffective

assistance of counsel claim, his attorney’s failure to introduce an

objection that under circuit precedent at the time of sentencing

would have resulted in a vacatur of the sentence, but which by the

time of the habeas appeal would not have resulted in a vacatur

because that precedent had been overruled. Here, Cain essentially

overruled the prior Rey precedent regarding harmless error review

of Ake claims. Even if Briseno would have received the benefits of

a Rey type ruling during his direct appeal, Fretwell suggests that

the current Cain holding on harmless error review controls over

this habeas petition. Consequently, to determine whether any

Strickland prejudice arose from the appellate counsel’s failure to

16
raise the Ake claim, we evaluate for harmless error.

Under the harmless error standard of review applicable in

Texas, the key question is “‘whether a rational trier of fact might

have reached a different result if the error and its effects had

not resulted.’” Burks v. State, 876 S.W.2d 877, 905 (Tex. Crim.

App. 1994). “An error is harmless if it did not interfere with the

integrity of the trial process sufficiently to affect the outcome

of the trial.” Id. Reviewing the record, we conclude that any

error on the part of the appellate counsel in failing to raise an

Ake claim with respect to the trial court’s denial of the alleged

motion for a blood expert was harmless. The remaining evidence,

such as the discovery of a bloody bullet that was of the same brand

of ammunition as that found in the Sheriff’s stolen pistol, the

bloodhound’s tracking from the Sheriff’s residence to Briseno’s

shed, and the bloody clothing, would have been sufficient to show

that any Ake error was harmless beyond a reasonable doubt.

On the other hand, Briseno argues that he can plausibly

explain all of those items of evidence. According to Briseno,

those incriminating pieces of evidence may be attributed to

Gonzalez, the co-defendant. Briseno charges that Gonzalez had a

fight with the Sheriff, came to Briseno’s shed leaving a trail for

the bloodhound, and discarded the clothing and the bullet. Thus,

Briseno maintains that but for the state serologist’s testimony

attaching a high probability that, among other things, Briseno’s

17
blood was at the Sheriff’s home, he can offer a strong and

reasonable case supporting his innocence.

The state, however, presented the testimony of Basaldua, to

whom Briseno related the accounts of the Sheriff’s murder. Based

on what Basaldua learned from Briseno, the state recovered the

pistol that apparently killed the Sheriff. Additionally, Briseno

had on his hands severe cuts, indicative of a vicious knife fight,

that others noted Briseno did not have before the night of the

murder. Those damaging facts plus the evidence discovered at the

shed and the bloodhound’s tracking lead us to believe that any Ake

error was harmless beyond a reasonable doubt. Accordingly, even if

Briseno’s appellate counsel performed deficiently, we conclude that

the error was harmless and that no prejudice resulted.

III. CONCLUSION

For the foregoing reasons, we affirm the district court’s

judgment denying Briseno’s claim that his direct appellate counsel

rendered ineffective assistance by failing to raise an Ake claim.

18