United States Court of Appeals
Fifth Circuit
F I L E D
March 8, 2004
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
____________
No. 03-20508
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JAIME ELIZALDE, JR.,
Petitioner - Appellant,
versus
DOUG DRETKE, DIRECTOR TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent - Appellee.
Appeal from the United States District Court
for the Southern District of Texas
Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Jaime Elizalde, Jr. seeks a Certificate of Appealability (“COA”) to appeal the district court’s
denial of his petition for habeas corpus. Specifically he requests a COA to appeal the district court’s
ruling that his claims 1) that he is actually innocent, 2) that the State withheld exculpatory evidence,
and 3) that he was denied effective assistance of counsel both at trial and during his direct appeal are
procedurally barred because they were not exhausted in state court. Elizalde also seeks a COA to
appeal the district court’s denial, on the merits, of his claim that the state trial court violated the
United States Constitution when it refused to instruct the jury that if sentenced to life in prison
Elizalde would be eligible for parole in forty years. As the district court correctly determined that
Elizalde’s claims were procedurally barred and that the Constitution does not require his requested
jury instruction, his request for a COA is DENIED.
I
Jaime Elizalde, Jr., (“Elizalde”) was convicted of the capital murders of Marcos Vasquez and
Juan Guajado. Vasquez and Guajado were shot and killed outside the El Lugar bar. At trial, Juan
Millan, the manager of the bar, testified that while standing outside his establishment he saw Elizalde,
accompanied by his father Jaime Elizalde, Sr., shoot Guajado and then a fleeing Vasquez. Robert
Garcia testified that from the bar he saw Guajado as he was shot. He further testified that, although
he did not see the killer shoot Guajado, when he exited the bar he saw Elizalde flee with a gun.
Several days after the shooting, Millan gave a statement to the police wherein he stated that
he was playing pool inside the bar with Fidel Razo at the time of the shooting and did not go outside
until after he heard the gunshots. At trial, Razo testified that he was playing pool with Millan when
the shots were fired. Millan disavowed the statement and testified that he was not initially truthful
with the police because “he did not want to have any problems.” He also admitted that the police
pressured him, including threatening jail time, after he gave his initial statement.
After convicting Elizalde for capital murder, the jury determined that he posed a risk of future
danger, and the trial court sentenced him to death.1 Elizalde’s direct appeal was denied and he
applied for state habeas relief. Elizalde raised seven claims in his state habeas application: 1) that his
right to equal protection and his right to be free from cruel and unusual punishment were violated
1
At the punishment phase of the trial the state introduced evidence of Elizalde’s criminal history including
evidence of his membership in the Mexican Mafia. Additionally, the state presented evidence of Elizalde’s
involvement in prison assaults, including one in which he stabbed another prisoner with a shank.
2
when the trial court refused to instruct the jury that if sentenced to life imprisonment he would not
be eligible for parole for forty years; 2) that his due process rights were violated because there was
insufficient evidence to support the jury’s verdict; 3) that his due process rights were violated when
the trial court instructed the jury that it could consider the applicant’s flight from the scene as
evidence of guilty knowledge; 4) that his due process rights were violated because there was
insufficient evidence to support the jury’s affirmative finding as to the first issue of punishment; 5)
that the multiple murder provision of the Texas Capital Murder Statute violates the cruel and unusual
punishment provisions of bot h the United States and Texas constitutions; 6) that his right to due
process and his right to be free from cruel and unusual punishment would be violated if he was
executed after review under current Texas clemency procedures; and, 7) that his right to due process
and to be free from cruel and unusual punishment would be violated by the Texas government’s
failure to prevent his execution. In a written opinion, the Texas Court of Criminal Appeals denied
Elizalde’s state habeas petition.
Elizalde then filed a federal habeas petition raising twelve claims. He amended his petition
and raised only the following seven claims: 1) that his right to equal protection and his right to be free
from cruel and unusual punishment were violated when the trial court refused to instruct the jury that
if sentenced to life imprisonment he would not be eligible for parole for forty years; 2) that his due
process rights were violated because there was insufficient evidence to support the jury’s verdict; 3)
that his due process rights were violated because there was insufficient evidence to support the jury’s
affirmative finding as to the first issue of punishment; 4) that he is illegally restrained in his liberty
because he is actually innocent of the offense of which he was convicted; 5) that his due process
rights were violated when the State withheld material, exculpatory evidence from the defense in
3
violation of Brady v. Maryland and Napue v. Illinois; 6) that he was denied effective assistance of
counsel under Strickland v. Washington when his trial counsel failed to fully and properly investigate
his case prior to trial; and, 7) that his due process rights were violated when the trial court instructed
the jury that it could consider the applicant’s flight from the scene as evidence of guilty knowledge.
The district court granted the State’s summary judgment motion and denied Elizalde’s habeas
petition. It found that his fourth, fifth and sixth claims were procedurally defaulted because he failed
to exhaust them in the state court. See 28 U.S.C § 2254(b)(1)(A). The district court further found
that Elizalde failed to demonstrate “cause and prejudice,” and that he did not demonstrate that failure
to consider his petition would be a “miscarriage of justice” because he failed to demonstrate that he
was actually innocent of the crime for which he was convicted. See Sawyer v. Whitley, 505 U.S. 333,
338-39, 112 S. Ct. 2514 (1992) (noting that “cause and prejudice” and “miscarriage of justice” are
exceptions to procedural bars preventing consideration of a habeas petition).
As to Elizalde’s remaining claims, the district court found that the Constitution does not
require that a jury be informed that if the defendant is sentenced to life imprisonment he would not
be eligible for parole for forty years. See Green v. Johnson, 160 F.3d 1029, 1045 (5th Cir. 1998).
It further found that there was sufficient evidence for the jury to both convict Elizalde of capital
murder and to sentence him to death. Finally, it found that Elizalde’s due process rights were not
violated when the trial court instructed the jury that it could consider evidence of Elizalde’s flight as
evidence of guilty knowledge. See Bailey v. Procunier, 744 F.2d 1166, 1168 (5th Cir. 1984); see
also United States v. Lopez, 979 F.2d 1024, 1030 (5th Cir. 1993). The district court refused to grant
a COA.
Elizalde now applies to this Court for a COA to appeal the following issues: 1) whether the
4
district court properly applied a procedural bar to his fourth, fifth and sixth claims and whether he is
entitled to habeas relief on the merits of those claims; 2) whether the district court erred in finding
that the Constitution does not require the trial court to instruct the jury that if sentenced to life in
prison he would not be eligible for parole for forty years.2
II
Before Elizalde can appeal the district court’s ruling he must first obtain a COA. See 28
U.S.C. § 2253(c)(1); Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S. Ct. 1029 (2003) (COA is a
“jurisdictional prerequisite” without which “federal courts of appeals lack jurisdiction to rule on the
merits of appeals from habeas petitioners.”). To obtain a COA, Elizalde must make a “substantial
showing of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2). To do so he must
demonstrate that “reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” See Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595 (2000).
“The question is the debatability of the underlying constitutional claim, not the resolution of that
debate.” Miller-El, 537 U.S. at 342. To obtain a COA for the claims which the district court found
procedurally barred, Elizalde must, in addition to establishing the debatability of the underlying
constitutional claim, demonstrate that jurists of reason would find it debatable whether the district
court was correct in its procedural rulings as to those claims. See Slack, 529 U.S. at 484; Hernandez
v. Johnson, 213 F.3d 243, 248 (5th Cir. 2000).
A
Elizalde contends that the district court incorrectly determined that his fourth, fifth and sixth
2
Elizalde does not seek a COA to appeal his claims that his due process rights were violated because there
was insufficient evidence to support the jury’s verdicts as to guilt and punishment, or his claim that the district court
improperly instructed the jury that it could consider his flight from the scene as evidence of guilt.
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claims were procedurally barred. He does not assert that the claims were exhausted in state court.
Rather he argues that he has established “cause and prejudice” justifying his failure to exhaust them
because he was denied effective assistance of state habeas counsel.3 Additionally, he argues that
because the state procedural bar preventing him from exhausting his claims violates due process, there
is no independent state law ground justifying the federal court’s refusal to consider these claims.
A federal habeas application brought by a person in custody pursuant to a state court
judgement shall not be granted unless the applicant has exhausted the remedies available in state
court. 28 U.S.C. § 2254(b)(1); Beazley v. Johnson, 242 F.3d 248, 263 (5th Cir. 2001). A claim not
raised in the petitioner’s initial state habeas application that would now be procedurally barred from
consideration by the state court is “procedurally barred [in federal court] for failure to exhaust.”
Beazley, 242 F.3d at 264. This procedural bar will not be applied if the petitioner can demonstrate
either “cause and prejudice or show that the failure to consider his claims will result in a fundamental
miscarriage of justice.” Id. at 263 (quoting Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993))
(emphasis in original); see also Sawyer, 505 U.S. at 338-39.
Elizalde claims that he has cause for his default because his state appointed habeas counsel
prejudiced him by not raising the now defaulted claims in his state habeas application. Ostensibly
Elizalde argues that he was provided ineffective assistance of state habeas counsel. “There is no
3
Unlike in the district court, Elizalde does not argue before this Court that failure to consider his claims will
result in a fundamental miscarriage of justice. Although he does briefly argue that he is actually innocent of the crime
for which he was convicted, he does so as an independent claim for habeas relief rather than as a challenge to the
district court’s procedural ruling. Consequently, this challenge to the district court’s procedural ruling is waived. See
Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993). Even if we were to consider this challenge to the procedural
ruling it would fail. Elizalde poin ts only to the testimony of witnesses “whose credibility was clearly in question.”
Considering these credibility questions were squarely before the jury, and it is within the jury’s discretion to make such
determinations, see United States v. Cathey, 259 F.3d 365, 368 (5th Cir. 2001) ("It is well-settled that credibility
determinations are the sole province of the jury."), Elizalde has failed to demonstrate that failure to consider his claims
will result in a fundamental miscarriage of justice.
6
constitutional right to an attorney in state post-conviction proceedings . . . [c]onsequently, a
petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings.”
Coleman v. Thompson, 501 U.S. 722, 752, 111 S. Ct 2546 (1991); Martinez v. Johnson, 255 F.3d
229, 240-41 (5th Cir. 2001).
Elizalde first contends that Coleman is inapplicable when a State takes on the responsibility
of providing competent state habeas counsel. Elizalde claims that Coleman only applies “where the
State has no responsibility to ensure that the petitioner was represented by competent counsel.” See
Coleman, 501 U.S. at 754. Further, Elizalde contends that Coleman recognized that “[w]here a
petitioner defaults a claim as a result of the denial of the right to effective assistance of counsel, the
State, which is responsible for the denial as a constitutional matter, must bear the cost of any resulting
default . . . .” See id. Relying on TEX CODE CRIM. PROC. art. 11.071 § 2(c-d) (requiring that the
state habeas court “appoint competent counsel”), Elizalde argues that Texas law requires the
appointment of competent state habeas counsel such that when the state appointed habeas attorney,
due to his own incompetence, defaults a claim, the State, and not the petitioner, is responsible for that
default.
First, neither the Supreme Court, nor this court, has ever recognized that a state created
obligation to provide effective assistance of counsel would make the State rather than the petitioner
responsible for a procedural default, as might be the case if a federal constitutional right existed.
Second, Texas law does not provide a right to competent state habeas counsel. See Ex parte Graves,
70 S.W.3d 103, 113-16 (Tex. Crim. App. 2002). In Graves, the Texas Court of Criminal Appeals
addressed the question whether there was a right to effective assistance of counsel in Texas state
habeas proceedings. The court first recognized that neither a federal court “nor this Court has ever
7
held that a habeas petitioner has a federal or state constitutional right to counsel in a habeas
proceeding. Absent such a constitutional right to counsel, there can be no constitutional right to
effective assistance of counsel in a habeas proceeding.” Id. at 113; see In re Goff, 250 F.3d 273, 275-
76 (5th Cir. 2001) (finding that Texas’ decision to provide habeas counsel does not constitutionally
require it to provide competent or effective assistance of counsel).
The Texas Court of Criminal Appeals did recognize that TEX CODE CRIM. PROC. art. 11.071
provides a right to “competent counsel.” See Graves, 70 S.W.3d at 114 and n. 45 (“[I]t would seem
an empty gesture to appoint incompetent counsel. We agree a ‘potted plant’ appointed as counsel is
no better than no counsel at all.”). It, however, held that art. 11.071 only requires “that counsel shall
be ‘competent’ at the time he is appointed.” Id. Article 11.071 does not refer to “the final product
of representation.” Id. The court found that recognizing such a right would allow a petitioner to
bring an unlimited number of successive habeas petitions each time arguing that state habeas counsel
incompetently failed to raise the otherwise procedurally barred claims in the previous petition. See
id. at 114-15. Finally, it found that “the Legislature has not . . . evince[d] any intention that its choice
of the term ‘competent counsel’ as it applies to the appointment of a habeas attorney also applies to
the final product or services rendered by that otherwise experienced and competent attorney.” Id.
at 115-16 (emphasis in original).
Therefore, although Texas does recognize a limited right to competent counsel, it does not
recognize a right to effective assistance of counsel. As Elizalde complains only that his state-
appointed counsel provided ineffective assistance, he is unable to establish that the state is responsible
for the default of his claims.
Elizalde next contends that Coleman is inapplicable because it did not resolve the issue of
8
whether a prisoner is entitled to effective assistance of state habeas counsel if state collateral review
is the first place a prisoner can present a challenge to his conviction. See Coleman, 501 U.S. at 755
(holding only that there is no “constitutional right to counsel on appeal from the state habeas trial
court judgment”); see also Daniels v. United States, 532 U.S. 374, 387 (2001) (Saclia, J. concurring)
(“We have left open the question whether such ineffective assistance can establish a constitutional
violation . . . .”). Specifically he argues that because a state habeas application presents a petitioner’s
first opportunity to make a claim of ineffective assistance of trial or appellate counsel, there is a
constitutional right to effective state habeas counsel to present that claim. See Ex parte Torres, 943
S.W.2d 469, 475 (Tex. Crim. App. 1997) (acknowledging that “[i]n most instances” the state habeas
court will present the first opportunity to effectively raise an ineffective assistance of counsel claim).
Elizalde, however, correctly concedes that we have already resolved this question. See, e.g.,
Martinez, 255 F.3d at 240; Beazley, 242 F.3d at 256; Jones v. Johnson, 171 F.3d 270, 277 (5th Cir.
1999); Callins v. Johnson, 89 F.3d 210, 212 (5th Cir. 1996).
In Martinez, we recognized that Coleman may have reserved the issue of whether there is a
right to state habeas counsel when the state habeas corpus proceeding is the first opportunity to raise
a particular claim. See Martinez, 255 F.3d at 240. Like Elizalde, Martinez argued that “he possessed
a constitutional right to effective assistance of counsel in his first state habeas corpus proceeding so
that he could raise his claims of ineffective assistance of counsel.” Id. Martinez further argued that
“because his trial counsel also represented him on direct appeal, the state habeas corpus proceeding
was his first opportunity to present his ineffective assistance of counsel claims.” Id. We,
nevertheless, declined to recognize a right to state habeas counsel in such a circumstance observing
that “[t]his court is foreclosed by precedent from considering whether an exception exists under the
9
Coleman rule.” Id. Despite Martinez’s request that we “reevaluate” our precedent, we declined to
do so noting that “this panel may not undertake such a reevaluation, as it is bound by controlling
precedent.” Id. at 241. We continue to be bound by that precedent, thus there is no need to revisit
this issue.
Elizalde additionally contends that his state-appointed attorney’s failure to provide effective
assistance of counsel is a violation of his right to due process. Relying on our decision in Welch v.
Beto, 355 F.2d 1016 (5th Cir. 1966), which held that “[h]aving invoked the Texas statutes granting
post-conviction hearings, [the petitioner] had the right to be tried according to the substantive and
procedural due process requirements of the Fourteenth Amendments,” id. at 1020, Elizalde contends
that Texas’ decision to provide state habeas counsel requires it to provide effective assistance of that
habeas counsel. Even if our decision in Welch suggests that Texas’ decision to provide state habeas
counsel requires it, as a function of due process, to provide effective assistance of counsel, we have
already recognized that the Supreme Court has decided otherwise. See Goff, 250 F.3d at 276 (“While
the Welch holding does hint at some form of due process right once a state decides to provide a non-
constitutionally obligated service, the Supreme Court has spoken quite explicitly on this subject since
Welch and has repeatedly emphasized that ineffective assistance of counsel in a post-conviction
proceeding cannot serve as cause to excuse default in a federal habeas proceeding.”); see also Morris
v. Dretke, 2004 WL 49095, at *6 (5th Cir. Jan. 6, 2004) (unpublished) (noting that this Court has
continuously “rejected the argument” that Art. 11.071 “creates a federal right enforceable on habeas
review”). We are forestalled by Supreme Court precedent, and the precedent of this Court, from
recognizing any constitutional right to effective assistance of counsel in state habeas proceedings.
10
As a separate challenge to the district court’s application of the procedural bar, Elizalde
argues that because the state procedural bar preventing him from exhausting his claims violates due
process, there is no independent state law ground justifying the district court ’s refusal to consider
these claims. Elizalde claims that because his right to due process was violated in the state court,
there is no independent state law ground supporting the federal procedural default. See Lee v. Kemna,
534 U.S. 362, 376 (2002) (finding that there are “exceptional cases in which exorbitant application
of a generally sound rule renders the state ground inadequate to stop consideration of a federal
question”). Presumably, though it is not clear from his brief, Elizalde is referring to the due process
violation of not being provided effective assistance of state habeas counsel. As explained above,
denial of effective assistance of state habeas counsel is not a violation of due process. Further, the
district court found that federal consideration of Elizalde’s claims is precluded by the application of
Texas’ abuse of writ doctrine. We have already found that application of that doctrine is necessarily
consistent with the requirements of due process. See Millard v. Lynaugh, 810 F.2d 1403, 1410 (5th
Cir. 1987) (“[S]tate court ruling denying Petitioner the opportunity to file further writs of habeas
corpus was not a denial of petitioner's due process rights because a state has no constitutional duty
to provide post conviction remedies.”); see also Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir.
1999) (“[I]nfirmities in state habeas court proceedings do not constitute grounds for relief in federal
court.”).
Elizalde cannot establish cause and prejudice excusing his failure to exhaust his claims in state
court. Therefore, the district court correctly concluded that his claims were procedurally barred, and
reasonable jurists would not find this conclusion debatable.
B
11
Elizalde co ntends that the district court incorrectly concluded that the trial judge was not
required by the Constitution to instruct the jury that Elizalde would have been eligible for parole in
forty years if sentenced to life in prison. Elizalde argues that under Simmons v. South Carolina, 512
U.S. 154, 114 S. Ct. 2187 (1994), the jury must be fully instructed on the alternatives to the death
penalty. By not fully informing the jury that a sentence of life imprisonment provides for parole only
after forty years, Elizalde argues, the trial court prevented the jury from understanding “the precise
meaning of ‘life imprisonment.’” See Simmons v. South Carolina, 512 U.S. at 169.
In Simmons, the Supreme Court considered whether a state trial court unconstitutionally
prevented the petitioner from informing the jury that if sentenced to life imprisonment, rather than
death, he would not be eligible for parole. Id. at 156-61. The petitioner contended that because
juries often misunderstand the prison term required by a life sentence, and because ineligibility for
parole has a direct bearing on the important issue of his future dangerousness, a defendant must be
allowed to instruct the jury that if sentenced to life in prison he will ineligible for parole. Id. at 160-
61. In a fractured ruling, the Supreme Court agreed. Justice Blackmun’s plurality opinion4 held that
in a death penalty case, a “trial court’s refusal to provide the jury with accurate information regarding
petitioner’s parole ineligibility” constitutes a denial of due process. Id. at 162. It concluded that if
the State rests its case for imposing the death penalty at least in part on the defendant’s future
dangerousness, “the fact that the alternate to the death sentence is life without parole will necessarily
undercut the State’s argument regarding the threat the defendant poses to society.” Id. at 168-69.
We have repeatedly held that Simmons does not require a Texas trial court to instruct a jury
as to the meaning of life in prison, because the defendant would not, if sentenced to life imprisonment,
4
Joined by Justices Stevens, Souter and Ginsburg.
12
be ineligible for parole. See Green, 160 F.3d at 1045 (“[T]he Fifth Circuit has repeatedly refused to
extend the rule in Simmons beyond those situations in which a capital murder defendant is statutorily
ineligible for parole.”); see also Woods v. Cockrell, 307 F.3d 353, 361-62 (5th Cir. 2002); Wheat v.
Johnson, 238 F.3d 357, 361-62 (5th Cir. 2001); Miller v. Johnson, 200 F.3d 274, 290 (5th Cir.
2000); Montoya v. Scott, 65 F.3d 405, 416 (5th Cir. 1995); Kinnamon v. Scott, 40 F.3d 731, 733 (5th
Cir. 1994); see also Smith v. State, 898 S.W.2d 838, 850-53 (Tex. Crim. App. 1995) (rejecting a due
process and Eight Amendment challenge to a trial court’s refusal to instruct the jury as to time of
eligibility for parole if sentenced to life imprisonment).
Elizalde urges that we should reconsider ten years worth of jurisprudence because the
Supreme Court has not clarified its position as to the constitutionality of a refusal to instruct the jury
as to when the defendant would be parole eligible if sentenced to life in prison. In a dissent from the
Court’s refusal to grant certiorari in a Texas case considering this question, Justice Stevens
emphasized that the “Court’s action in denying certiorari does not constitute . . a decision on the
merits of the question presented . . . .” Brown v. Texas, 522 U.S. 940, 940, 118 S. Ct. 355 (1997).
Rather, he concluded, “the likelihood that the issue will be resolved may increase if this Court allows
other tribunals ‘to serve as laboratories in which the issue received study before it is addressed by this
Court.’” Id. Therefore, Elizalde argues, we should continue to study this question.
The Supreme Court, however, has clarified its position on t his issue. In Ramdass v.
Angelone, 530 U.S. 156, 120 S. Ct. 2113 (2000), a majority of the Court explained that “Simmons
applies only . . . [in] instances where, as a legal matter, t here is no possibility of parole if the jury
decides the appropriate sentence is life in prison.” Ramdass, 530 U.S. at 169. Therefore, the district
court correctly concluded that the trial court was not constitutionally required to instruct the jury that
13
if sentenced to life in prison Elizalde would not have been eligible for parole for forty years and
reasonable jurists would not disagree as to its conclusion.
III
Elizalde’s request for a COA is DENIED.
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