Perez v. Cockrell

United States Court of Appeals
Fifth Circuit
F I L E D
July 23, 2003
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk

_____________________

No. 03-20017
_____________________

EFRAIN PEREZ

Petitioner - Appellant

v.

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
No. 02-CV-908
_________________________________________________________________

Before KING, Chief Judge, and WIENER and CLEMENT, Circuit Judges.

PER CURIAM:*

Petitioner-Appellant Efrain Perez appeals the decision by

the District Court for the Southern District of Texas denying his

request for a writ of habeas corpus on any of the four grounds he

raised before that court. As the district court denied his

*
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that this opinion should not be published and is not precedent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.
request for a certificate of appealability (COA), Perez has

applied to this court for a COA on three of those issues. Perez

also raises one additional issue not presented to the district

court. After reviewing the district court’s thorough and

thoughtful treatment of the case, as well as the briefs of the

parties and the records from earlier proceedings, we find Perez’s

application for a COA to be without merit. Therefore, we reject

his application on all grounds.

I. FACTS AND PROCEDURAL HISTORY

On June 24, 1993, teenagers Elizabeth Pena and Jennifer

Ertman were taking a shortcut home when they encountered an

initiation ritual being conducted by members of Houston’s “Black

N White” gang. Among those gang members present at the

initiation was 17-year-old Efrain Perez. When the girls walked

past the area where the initiation was taking place, the gang

members en masse grabbed the girls, forced them to the ground,

and, over the course of an hour, committed a series of brutal

rapes and sexual assaults. When the rapes ended, the gang

members dragged the girls into a nearby wooded area and strangled

them with shoelaces and belts. The gang members also repeatedly

stomped on the girls to ensure that they were dead. Five days

later, Perez and his friends were arrested. Perez gave three

interviews to the police; while he denied any involvement in the

rapes and murders during the first interview, he ultimately

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confessed that he had sexually assaulted Elizabeth Pena and had

helped hold the shoestring used to choke her.

At trial, the prosecution presented overwhelming evidence of

Perez’s guilt, including Perez’s own statements as well as

statements of other gang members present at the time and others

to whom Perez had spoken about the incident. The jury found

Perez guilty of murder committed during the course of the sexual

assault. During the punishment phase, prosecutors provided

evidence that Perez had been a disinterested and disruptive

student prone to fighting and committing other crimes. As

mitigation, Perez’s attorney called several character witnesses

in an attempt to demonstrate that Perez was a follower who simply

got mixed up with the wrong crowd of friends. Nevertheless, the

jury returned answers to each of the special issues in a manner

that required the imposition of a sentence of death.

The Texas Court of Criminal Appeals affirmed Perez’s

conviction and sentence on direct appeal in an unpublished

opinion. Perez v. State, No. 72,201 (Tex. Crim. App. Oct. 23,

1996) (unpublished op.). Perez did not request certiorari review

of this decision from the United States Supreme Court. Perez

then filed a request for habeas corpus relief in state court. In

another unpublished opinion, the Court of Criminal Appeals denied

his application. Ex parte Perez, No. 48,614-01 (Tex. Crim. App.

Nov. 21, 2001) (unpublished op.).

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 Perez then filed a habeas petition in federal district

court, asserting four claims for relief. The district court, in

a lengthy reasoned opinion, denied Perez’s application for relief

on each claim. Perez v. Cockrell, No. H-02-908 (S.D. Tex. Dec.

18, 2002) (unpublished op.). The district court also sua sponte

refused to issue a COA to Perez for any of his claims. Alexander

v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (stating that a

district court may decline to issue a COA even where the

petitioner has not moved for a COA).

II. APPLICABLE LAW

Perez comes to this court seeking a COA on four issues,

three of which were considered by the district court. Perez

filed his habeas petition after the effective date of the Anti-

Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”).

Lindh v. Murphy, 521 U.S. 320, 326-27 (1997) (stating that the

AEDPA applies to all cases pending as of April 24, 1996). Under

the AEDPA, Perez must obtain a COA before he may receive full

appellate review of the district court’s denial of his request

for habeas relief. 28 U.S.C. § 2253(c)(1)(A) (2000) (“Unless a

circuit justice or judge issues a certificate of appealability,

an appeal may not be taken to the court of appeals from the final

order in a habeas corpus proceeding in which the detention

complained of arises out of process issued by a State court.”).

We may grant Perez’s request for a COA only if he can make a

“substantial showing of the denial of a constitutional right.”

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Id. § 2253(c)(2). To make such a showing, the petitioner must

demonstrate that “reasonable jurists could debate whether (or,

for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were

adequate to deserve encouragement to proceed further.” Dowthitt

v. Johnson, 230 F.3d 733, 740 (5th Cir. 2000), cert. denied, 532

U.S. 915 (2001) (quoting Slack v. McDaniel, 529 U.S. 473, 483-84

(2000)). If the district court has denied some or all of the

petitioner’s claim on procedural grounds, to obtain a COA the

petitioner must demonstrate both that “jurists of reason would

find it debatable whether the petition states a valid claim of

the denial of a constitutional right and that jurists of reason

would find it debatable whether the district court was correct in

its procedural ruling.” Slack, 529 U.S. at 484. When

considering the petitioner’s request for a COA, “[t]he question

is the debatability of the underlying constitutional claim, not

the resolution of that debate.” Henry v. Cockrell, 327 F.3d 429,

431 (5th Cir. 2003) (quoting Miller-El v. Cockrell, 537 U.S. 322,

(2003)).

Our review of whether Perez has made a “substantial showing

of the denial of a constitutional right” is also subject to the

applicable AEDPA standards of review. Moore v. Johnson, 225 F.3d

495, 501 (5th Cir. 2000), cert. denied, 532 U.S. 949 (2001). On

questions of law, the state court’s conclusions will be disturbed

only upon a showing that they were “contrary to, or an

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unreasonable application of, clearly established” Supreme Court

precedent. 28 U.S.C. § 2254(d)(1) (2000). In addition, the

state court’s findings of fact are presumed correct unless the

petitioner can rebut them by clear and convincing evidence. Id.

§ 2254(e)(1).

III. PEREZ’S CLAIMS ON APPEAL

Perez raises three claims rejected by the district court as

potential grounds for a COA: (1) denial of his right to a public

trial; (2) ineffective assistance of trial counsel; and (3)

unconstitutionality of the Texas capital sentencing system as

applied to Perez. In a claim not presented to the district

court, Perez also asserts that courts reviewing his ineffective

assistance of counsel claims have consistently applied the wrong

standard.

A. Right to a Public Trial

Perez claims that he was denied his Sixth Amendment right to

a public trial because the courtroom in which the trial was being

held was tucked away at the end of a long corridor without any

signs indicating what was going on inside. In addition, on the

first day of trial while a preliminary hearing and jury selection

were being conducted, the doors to the courtroom were locked and

windowless, and a large sign on one of the doors admonished

passersby to “Knock, No Admittance.” Perez raised the public

trial objection in the trial court on that first day of trial,

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and the trial court agreed to make several changes. The door

with the combination lock was unlocked and could be readily

opened without the need to seek permission to enter. The trial

court also placed a sign in the corridor identifying the room as

the one where Perez’s trial was being held and stating again that

the door was unlocked. Evidence indicates that courtroom was in

an area of the building open to the public, and several of

Perez’s family members were able to locate the room and be

present during the trial. There is no evidence that any member

of the public who attempted to gain access to the courtroom

during the trial was turned away or was otherwise unable to

locate and observe the proceedings.

The district court considered the evidence concerning the

public nature of the courtroom and found that the state habeas

court’s conclusion that the trial proceedings had not been

affirmatively “closed” for the purposes of Sixth Amendment

analysis was not contrary to, or an unreasonable application of,

clearly established federal law. United States v. Al-Smadi, 15

F.3d 153, 154 (10th Cir. 1994) (“The denial of a defendant’s

Sixth Amendment right to a public trial requires some affirmative

act by the trial court meant to exclude persons from the

courtroom.”). Perez presents no new arguments that would cause

jurists of reason to find the district court’s resolution of this

issue to be debatable. Therefore, he has not made a substantial

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showing of the denial of a constitutional right, and we decline

to grant a COA on this issue.

B. Ineffective Assistance of Counsel

As his second ground, Perez argues that the district court

should have found that Perez’s trial counsel fell below the

standards for effective counsel set forth in Strickland v.

Washington, 466 U.S. 668 (1984). Perez contends that trial

counsel provided ineffective assistance by failing to request a

hearing to suppress Perez’s confession to the police and also by

failing to contest the admissibility of the confession during

trial. Perez argues that his trial counsel should have used the

circumstances surrounding the confession — aggressive police

tactics resulting from a high-profile case, lack of sleep,

Perez’s youth, the fact that he was strip-searched, and the fact

that the police took three statements from him within a seven-

hour period — as evidence that the confession was involuntary and

should be suppressed. Instead, trial counsel did not even

request a pre-trial suppression hearing and, when one was

conducted at the behest of the prosecution, posed little in the

way of cross-examination of the officers present during the

taking of the statements. In addition, Perez also argues that

trial counsel made little effort during trial to challenge the

confession in front of the jury.

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 The district court extensively reviewed the circumstances of

the statements, the pre-trial hearing, and the trial. The court

concluded that the state habeas court’s finding that Perez failed

to demonstrate either that trial counsel could have made a

tenable argument for suppressing the confession or that there was

a reasonable probability that such an argument would have been

successful was not contrary to, or an unreasonable application

of, clearly established federal law. Strickland, 466 U.S. at 694

(stating that, in order to obtain relief, petitioner must

demonstrate both that counsel’s performance was objectively

unreasonable and that, but for counsel’s ineffective performance,

there is a reasonable probability that a different outcome would

have been reached). Perez’s arguments to this court do not

persuade us that jurists of reason would find the district

court’s resolution of this issue debatable. Because he has

failed to make a substantial showing of the denial of the

constitutional right to effective counsel, we decline to grant a

COA.

C. Unconstitutionality of Texas Capital Sentencing Procedure as
Applied to Perez

The final ground Perez presented to the district court was a

claim that Texas’ capital sentencing system was unconstitutional

as applied to Perez because it failed to mandate an

individualized assessment of the emotional and mental status of

someone still a minor at the time the crime was committed. Perez

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argues that Supreme Court precedent requires that states give 17-

year-old defendants potentially subject to a capital charge the

procedural safeguard of either: (1) a juvenile transfer statute

that provides for individualized consideration of the maturity of

the defendant; or (2) a statute codifying age as a mitigating

factor in capital cases. Because Texas has neither, but instead

permits the jury to consider youth as a mitigating factor when

weighing its answers to the special issues during the sentencing

phase, Perez argues that the Texas capital system is

unconstitutional as applied to 17-year-old defendants. Perez

also argues that, had an individualized assessment of his

particular case been conducted, he likely would not have been

found eligible to be prosecuted as an adult facing the death

penalty.

The district court thoroughly reviewed the relevant Supreme

Court precedent concerning the status of the juvenile death

penalty and the constitutionality of the Texas capital sentencing

scheme, finding that the Supreme Court had never held that a

state’s failure to consider each individual defendant’s mental

and emotional maturity would violate the constitution. See also

Roach v. Angelone, 176 F.3d 210, 225 (4th Cir. 1999) (“[T]he

Supreme Court simply did not hold that juvenile transfer statutes

which do not provide for individualized consideration of the

minor’s maturity and moral responsibility violate the

Constitution.”). The district court concluded that the state

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habeas court’s finding that a jury has ample opportunity to

include a defendant’s youth as a relevant mitigating circumstance

when considering either the “future dangerousness” special issue

or the mitigation special issue during the sentencing phase was

not contrary to, or an unreasonable application of, clearly

established federal law.

Perez again presents no new arguments or evidence to

persuade us that the district court erred in its conclusion. It

would not be debatable among jurists of reason whether the Texas

system appropriately accounts for a defendant’s youth in the

sentencing phase of a capital trial. Perez has failed to make a

substantial showing of the denial of a constitutional right, and

he is not entitled to a COA on this issue.

D. Appropriate Standard of Review for Ineffective Assistance of
Counsel Claims

Perez’s final claim, one not raised in the district court,

is that courts have been using the incorrect standard to analyze

his ineffective assistance of counsel claims. Perez argues that

the standard set out in United States v. Cronic, 466 U.S. 648

(1984), rather than the Strickland standard, is the correct legal

framework through which to view his claims of ineffective

assistance of counsel.

As stated, Perez did not present this claim to the district

court. We do not consider claims raised by a habeas petitioner

for the first time in this court on appeal from the district

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court’s denial of habeas relief. Johnson v. Puckett, 176 F.3d

809, 814 (5th Cir. 1999). Therefore, we decline to grant a COA

on this ground.

IV. CONCLUSION

Perez’s request for a COA on each of the issues he has

raised is DENIED.

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