Sosa v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 31, 2005
__________________
Charles R. Fulbruge III
No. 04-70030 Clerk
__________________

PEDRO SOLIS SOSA,

Petitioner-Appellant,

v.

DOUGLAS DRETKE, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee.
______________________________________________

Appeal from the United States District Court
for the Western District of Texas
USDC NO. 5:00-CV-312
______________________________________________

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

BENAVIDES, Circuit Judge:*

Petitioner Pedro Solis Sosa (“Sosa” or “Petitioner”) was

convicted of capital murder in Texas state court and sentenced to

death. Sosa filed a petition for a writ of habeas corpus in the

United States District Court for the Western District of Texas

pursuant to 28 U.S.C. § 2254. The district court denied the

petition and also denied Petitioner a Certificate of

Appealability (“COA”).1 Petitioner now requests a COA from this

*
Pursuant to 5TH CIR. R. 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
1
Sosa v. Dretke, 2004 WL 1124949 (W.D. Tex.).
Court pursuant to 28 U.S.C. § 2253(c). For the following

reasons, Petitioner’s Application for a Certificate of

Appealability from Denial of a Petition for Writ of Habeas Corpus

is denied.

I. BACKGROUND

During the morning of November 4, 1983, Petitioner, who was

then 31-years-old, and his then 17-year-old accomplice Leroy

Sosa, flashed the lights of their vehicle to flag down Wilson

County Deputy Sheriff Ollie “Sammy” Childress while they were

driving on a rural road in Wilson County, Texas. When Deputy

Childress stopped his car, Petitioner pointed a handgun at him

and told him to move to the passenger seat of his patrol vehicle.

Petitioner then drove Deputy Childress’ vehicle to a dirt road

where he directed Deputy Childress to exit his vehicle, remove

his shirt, place himself in his own handcuffs, and climb into the

trunk of his patrol car. Petitioner and Leroy Sosa then drove

the patrol vehicle to the LaVernia State Bank where they robbed

the bank and unsuccessfully attempted to take two women as

hostages. After robbing the bank, Petitioner and Leroy Sosa

drove back to the isolated location where they had parked their

vehicle. Petitioner then opened the trunk of the patrol car and

shot Deputy Childress in the neck and head from close range

because Deputy Childress had seen Petitioner’s face. After

Petitioner and Leroy Sosa had driven a short distance away,

2
Petitioner directed Leroy Sosa to return to the patrol car so

that they could wipe off the trunk of that vehicle. When they

returned, Petitioner saw that Deputy Childress was still moving,

so he again shot him in the neck and head from close range.

Soon after police arrested Petitioner on February 3, 1984,

he signed a written confession admitting his guilt. Leroy Sosa

also signed a written confession soon after his arrest on

December 19, 1983, which was consistent with the key elements of

Petitioner’s confession. Additionally, Leroy Sosa testified at

Petitioner’s trial that Petitioner shot Deputy Childress.

A jury found Petitioner guilty of capital murder on November

27, 1984. The next day, the jury answered both of the Texas

capital sentencing special issues affirmatively and the state

trial judge sentenced Petitioner to death by lethal injection.

After Petitioner was convicted of this crime and his

sentence was imposed, the Texas Court of Criminal Appeals

affirmed the conviction and sentence on direct appeal on February

15, 1989. Petitioner did not seek certiorari in the Supreme

Court of the United States.

Petitioner subsequently filed his first state application

for a writ of habeas corpus on May 17, 1993. Petitioner filed

two supplemental state habeas applications, on October 29, 1993

and on November 8, 1993.

Petitioner also filed a motion to recuse the state trial

judge who had presided over Petitioner’s capital murder trial.

3
That motion was denied on November 8, 1993 following a hearing

presided over by a different judge.

The state trial court then held an evidentiary hearing from

November 8-12, 1993. The court heard evidence from

investigators, witnesses and lawyers involved in the prosecution

of Petitioner. On November 7, 1994, the state trial court issued

an Order recommending that Petitioner’s request for state habeas

corpus relief be denied.

In a one-page unpublished per curiam Order issued May 30,

1995, the Texas Court of Criminal Appeals denied Petitioner’s

state habeas corpus application.2

On November 17, 1995, Petitioner filed his first petition

for federal habeas corpus relief. On December 20, 1995,

Petitioner filed his first amended federal habeas corpus

petition. Subsequently, the federal district court allowed

Petitioner to engage in lengthy and extensive discovery,

including requests for information pursuant to the Freedom of

Information Act.

After obtaining new information during this lengthy

discovery period, Petitioner filed his second amended federal

habeas corpus petition on November 30, 1998. This petition was

accompanied by several thousand pages of deposition transcripts

and other documents theretofore never presented to any state

2
See Ex Parte Pedro Solis Sosa, Writ No. 24,852-01 (Tex. Crim. App. May
30, 1995).

4
court. On March 11, 1999, the federal district court dismissed

Petitioner’s second amended petition without prejudice for

failure to exhaust available state remedies with regard to his

newly discovered evidence. This Court affirmed the dismissal in

an unpublished opinion issued September 27, 1999.

Petitioner then filed his second application for state

habeas corpus relief on or about October 14, 1999. On November

10, 1999, the Texas Court of Criminal Appeals dismissed

Petitioner’s second state habeas corpus application pursuant to

the Texas writ-abuse statute.3

On April 21, 2000, Petitioner again filed a federal habeas

corpus petition. On May 12, 2000, Petitioner filed his amended

petition for federal habeas corpus relief.

On May 20, 2004, the federal district court denied

Petitioner’s federal habeas corpus petition, and also denied

Petitioner a COA. Petitioner now appeals the district court’s

denial of a COA.

Petitioner alleges ten grounds for relief on the following

bases: (1) his confession was involuntary; (2) Brady4 evidence

was withheld by the prosecutor; (3) the State did not produce

statements of witnesses; (4) and (5) the State set retaliatory

execution dates for Petitioner in violation of the Eighth and

3
See Ex Parte Pedro Solis Sosa, App. No. 24,852-02 (Tex. Crim. App.
Nov, 10, 1999).
4
Brady v. Maryland, 373 U.S. 83 (1963).

5
Fourteenth Amendments and the International Covenant on Civil and

Political Rights; (6) ineffective assistance of counsel; (7) the

State withheld evidence that could have impeached the testimony

of Petitioner’s accomplice; (8) and (9) Petitioner was denied

adequate representation of Hispanics and women on his grand and

petit juries; and (10) cumulation of error in grounds 1-3 and 6-9

warrant a new trial.

II. STANDARD FOR GRANTING A COA

Petitioner contends that the federal courts should review

his habeas claims using a de novo standard of review. He argues

that his current federal petition should be treated as a

continuation of his first federal petition, which he filed prior

to the effective date of the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”). We rejected this argument in

Graham v. Johnson, 168 F.3d 762, 775-87 (5th Cir. 1999). The

more restrictive standard of federal habeas review set forth in

AEDPA applies to a federal habeas corpus petition filed after the

effective date of AEDPA, even when a petitioner had filed a

federal habeas petition which was dismissed without prejudice for

failure to exhaust state remedies prior to the effective date of

AEDPA. Id. Therefore, AEDPA applies to Petitioner’s current

federal habeas petition.5

5
Although we decide this case using the more restrictive AEDPA standard
of review, we note that we would also find that reasonable jurists could not
disagree with the district court’s conclusion that Petitioner’s claims have no
merit even with a de novo review. Therefore, even if we were to apply the

6
 Under AEDPA, a petitioner must obtain a COA before he can

appeal the district court’s denial of habeas relief. See 28

U.S.C.A. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322,

336 (2003) (“[U]ntil a COA has been issued federal courts of

appeals lack jurisdiction to rule on the merits of appeals from

habeas petitioners.”).

The COA determination under § 2253(c) requires an
overview of the claims in the habeas petition and a
general assessment of their merits. We look to the
District Court's application of AEDPA to petitioner's
constitutional claims and ask whether that resolution was
debatable amongst jurists of reason. This threshold
inquiry does not require full consideration of the
factual or legal bases adduced in support of the claims.
In fact, the statute forbids it.

Miller-El, 537 U.S. at 336.

A COA will be granted if the petitioner makes “a substantial

showing of the denial of a constitutional right.” 28 U.S.C.A. §

2253(c)(2). “A petitioner satisfies this standard by

demonstrating that jurists of reason could disagree with the

district court’s resolution of his constitutional claims or that

jurists could conclude the issues presented are adequate to

deserve encouragement to proceed further.” Miller-El, 537 U.S.

at 327. “The question is the debatability of the underlying

constitutional claim, not the resolution of that debate.” Id. at

342. “Indeed, a claim can be debatable even though every jurist

more lenient pre-AEDPA standard of review, we would still deny Petitioner’s
request for a COA.

7
of reason might agree, after the COA has been granted and the

case has received full consideration, that petitioner will not

prevail.” Id. at 338. “Because the present case involves the

death penalty, any doubts as to whether a COA should issue must

be resolved in [petitioner's] favor.” Hernandez v. Johnson, 213

F.3d 243, 248 (5th Cir. 2000).

Additionally, in reviewing the district court’s assessment,

this Court must be mindful of the deferential standard of review

of 28 U.S.C. § 2254(d). Under § 2254(d), a federal court cannot

grant habeas corpus relief with respect to any claim that was

adjudicated on the merits in state court proceedings unless the

adjudication of that claim either (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,6 or (2) resulted in a decision that

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). With respect to the review of factual

findings, AEDPA significantly restricts the scope of federal

6
A decision is “contrary to” clearly established federal law “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.”
Williams v. Taylor, 529 U.S. 362, 413 (2000).
A state court’s decision is an “unreasonable application” of clearly
established federal law “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. An unreasonable
application is different from a merely incorrect one. Id. at 410-11.

8
habeas review. Factual findings are presumed to be correct, and

a petitioner has the burden of rebutting this presumption with

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

When we apply AEDPA to Petitioner’s claims at the COA stage,

“we only ask whether the District Court’s application of AEDPA

deference, as stated in §§ 2254(d)(2) and (e)(1),” to

Petitioner’s claims “was debatable amongst jurists of reason.”

Miller-El, 537 U.S. at 341.

III. DISCUSSION

A. Involuntary Confession Claim

Petitioner contends in his first claim for relief that the

admission of his written confession was improper because his

confession was coerced, in violation of his due process rights.

Specifically, Petitioner contends that, in light of his

illiteracy, mental illness and retardation, law enforcement

officials coerced him by arresting his wife, holding him

incommunicado and interrogating him overnight, and by furnishing

him with information about the offense in order to ensure that

Petitioner’s and Leroy Sosa’s statements were consistent.

In order to determine whether a confession was obtained in

violation of a defendant’s due process rights, “courts look to

the totality of circumstances to determine whether a confession

was voluntary.” Withrow v. Williams, 507 U.S. 680, 693 (1993).

The potential circumstances include “the crucial element of

9
police coercion, the length of the interrogation, its location,

its continuity, the defendant’s maturity, education, physical

condition, and mental health.” Id. (citations omitted).

The Supreme Court has recognized that the mental condition

of the defendant is a factor in the “voluntariness” calculus.

Colorado v. Connelly, 479 U.S. 157, 164 (1986). However, “a

defendant's mental condition, by itself and apart from its

relation to official coercion” will not dispose of the inquiry

into constitutional “voluntariness.” Id.

The district court found that Petitioner did not offer any

evidence at the Jackson v. Denno7 hearing held May 18, 1984

suggesting that any promises or threats had ever been made which

actually induced Petitioner’s confession. Petitioner also failed

to introduce any evidence regarding (1) threatening or menacing

treatment of his wife, (2) his ability to read or understand his

written statement, (3) his mental impairment at the time he gave

his confession, (4) his impression that his wife had been charged

or would be charged with any crime relating to the bank robbery

or murder, or (5) police “feeding” him information during his

post-arrest interview relating to either the robbery or murder of

which Petitioner claims to have lacked pre-existing personal

knowledge.

Law enforcement officers did, however, testify that (1)

7
378 U.S. 368 (1964).

10
Petitioner was orally given his Miranda8 warnings both

immediately after his arrest and again immediately prior to the

start of his custodial interrogation, (2) Petitioner indicated he

understood his rights and he wished to answer questions

concerning the bank robbery and murder, (3) no promises or

threats were ever made to induce Petitioner’s confession, and (4)

Petitioner read over his written confession, had it read to him,

and made initialed changes before signing it. Furthermore, the

top of the first page of Petitioner’s written statement contains

a written recitation of Petitioner’s constitutional rights.

The district court found that Petitioner does not identify

any evidence in the record supporting a conclusion that there was

any coercion directed toward him which actually led to his

confession. Petitioner’s submissive personality, limited command

of the English language and mental impairment are a part of the

“voluntariness” calculus. See Connelly, 479 U.S. at 164.

However, Petitioner must still demonstrate that official coercion

took place, and that the coercive police conduct was causally

related to the confession in order to prove a constitutional

violation. Id. at 166-67. Petitioner did not offer any evidence

to show that any of the allegedly coercive law enforcement

tactics had any impact whatsoever upon his decision to give his

post-arrest confession.

8
384 U.S. 436 (1966).

11
 Petitioner also did not make any specific factual

allegations, much less present any evidence, that he did not

comprehend his Miranda warnings or that his waiver of his

constitutional right to remain silent and his ensuing confession

were anything other than voluntary.

Under such circumstances, reasonable jurists could not

debate the correctness of the district court’s conclusion that

Petitioner’s first claim is without merit, nor could jurists

conclude that this claim deserves encouragement to proceed

further. Accordingly, we decline to issue a COA on this claim.

B. Brady Claims

In his second, third and seventh claims for relief,

Petitioner contends that the prosecution withheld “voluminous”

Brady material that was crucial to his defense. Specifically,

Petitioner identifies the following allegedly exculpatory

material: (1) FBI reports summarizing descriptions of the bank

robbers given by eyewitnesses shortly after the robbery that

placed Petitioner in a subordinate role; (2) the results of

polygraph examinations of other suspects that indicated deception

by those suspects; (3) the fact that over sixty fingerprints were

lifted from the bank and others from the putative getaway car,

and none of them matched either Petitioner or Leroy Sosa; (4) the

fact that the persons who initially implicated Petitioner in the

offense were paid by the government and that they were a suspect

12
and his girlfriend; (5) the results of the hypnosis sessions of

witnesses; (6) the statements of trial witnesses; (7) information

regarding Leroy Sosa’s history of drug and alcohol abuse; and (8)

the cumulative effect of this evidence.

“[T]he suppression by the prosecution of evidence favorable

to an accused upon request violates due process where the

evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.”

Banks v. Dretke, 540 U.S. 668, 691 (2004) (quoting Brady v.

Maryland, 373 U.S. 83, 87 (1963)). The prosecution’s duty under

Brady to disclose material evidence applies even when there has

been no request from the accused. See Strickler v. Greene, 527

U.S. 263, 280 (1999); Kyles v. Whitney, 514 U.S. 419, 433 (1995).

The duty also applies to impeachment evidence, and to evidence

known only to police investigators and not to the prosecutor.

Kyles, 514 U.S. at 437.

There are three elements to a Brady prosecutorial misconduct

claim: (1) the evidence at issue must be favorable to the

accused, either because it is exculpatory, or because it is

impeaching; (2) that evidence must have been suppressed by the

State, either willfully or inadvertently; and (3) the evidence

must be material, i.e., prejudice must have ensued from its non-

disclosure. Banks, 540 U.S. at 691; Strickler, 527 U.S. at 281-

82. Evidence is material under Brady where there exists a

13
“reasonable probability” that had the evidence been disclosed the

result at trial would have been different. See Banks, 540 U.S.

at 698-99. A reasonable probability of a different result is

shown when the government’s evidentiary suppression undermines

confidence in the outcome of the trial. Kyles, 514 U.S. at 434

(citing United States v. Bagley, 473 U.S. 667, 678 (1985)).

The Supreme Court has emphasized four aspects of the

Brady materiality inquiry: first, a showing of materiality does

not require demonstration by a preponderance that disclosure of

the suppressed evidence would have resulted in the defendant’s

acquittal;9 second, the materiality inquiry is not a sufficiency

of the evidence test;10 third, once materiality is established,

harmless error analysis has no application;11 and fourth,

materiality must be assessed collectively, not item by item.12

Petitioner has failed to show a Brady violation with respect

to any of the evidence the State allegedly suppressed. Examining

each of Petitioner’s Brady claims in turn, the district court

found: (1) whether Petitioner was in a subordinate role in the

bank robbery is irrelevant because Petitioner was convicted of

capital murder for killing a law enforcement officer in the

9
See Strickler, 527 U.S. at 289-90; Kyles, 514 U.S. at 434-35.
10
See Kyles, 514 U.S. at 434-35.
11
See Id., 514 U.S. at 435-36.
12
See Id., 514 U.S. at 436-37.

14
performance of his official duties, not for his role in the bank

robbery;13 (2) the polygraph evidence suggests that other

individuals used the getaway car on the day of the robbery, but

it is not exculpatory because Petitioner and Leroy Sosa admitted

that they were back in San Antonio by that afternoon; (3) the

fact that there were many fingerprints lifted from the bank and

the putative getaway car that did not match those of Petitioner

or Leroy Sosa is not exculpatory evidence; it merely shows that

others were present in a public location and that others had been

in the car at some point in time; (4) Petitioner made no fact-

specific allegations, much less presented any evidence,

establishing that there has ever existed any evidence showing

that the suspect in question, Manuel Villanueva, had any

involvement in the murder of Deputy Childress; (5) of the three

individuals who were hypnotized during the investigation, only

one testified at trial14 and the portion of his testimony that

arose from the hypnosis session was completely immaterial for

Brady purposes;15 (6) aside from the summary of Charles Esparza’s

13
For the same reason, the district court found that impeaching the
bank eyewitnesses would have had no value in terms of refuting the clear
evidence of both the identity of the person who shot Deputy Childress and the
reason Petitioner shot Deputy Childress furnished by Petitioner’s confession
and Leroy Sosa’s trial testimony.
14
The district court found that the other two individuals who were
hypnotized during the investigation were unable to divulge any new or
additional information while under hypnosis that they had not furnished law
enforcement officers prior to being placed under hypnosis.
15
More specifically, the witness, Charles Esparza, was one of several
witnesses at Petitioner’s trial who testified that he had observed a yellow
vehicle on November 4, 1983 in the vicinity of LaVernia traveling close behind

15
statements made while under hypnosis which the district court

found to be immaterial for Brady purposes,16 Petitioner offered no

evidence showing that the witnesses identified by Petitioner ever

executed a written statement for any investigating authority that

was withheld from Petitioner’s trial counsel; and (7) Petitioner

failed to demonstrate that any law enforcement agency actually

knew about Leroy Sosa’s purported long-term drug and alcohol

abuse at the time of Petitioner’s trial, so by definition the

prosecution could not have “withheld” or “suppressed” such

information.17

The district court then examined the cumulative effect of

the non-disclosure of all of the evidence that was allegedly

withheld from Petitioner at trial. With respect to the guilt-

innocence phase of the trial, the district court found that none

of the evidence Petitioner contends the prosecution withheld or

a deputy sheriff’s vehicle. Mr. Esparza provided investigators with this
information prior to his hypnosis session. While under hypnosis, Mr. Esparza
“remembered” a license plate number that proved to be completely irrelevant
and erroneous, and he “remembered” that the rear license plate was hanging
down. It has never been established whether the rear license plate of
Petitioner’s car was actually hanging down. Even if Petitioner had been able
to impeach Mr. Esparza in some way with this evidence, Mr. Esparza was only
one of four trial witnesses who placed a yellow vehicle in close proximity to
a deputy sheriff’s car near LaVernia on November 4, 1983.
16
See note 15, supra.

17
Additionally, the district court noted that Leroy Sosa’s written
confession was never admitted into evidence at Petitioner’s trial, so any
evidence showing that Leroy Sosa was suffering from drug or alcohol withdrawal
at the time he gave his confession was not material within the meaning of
Brady. Moreover, Petitioner presented no evidence showing that Leroy Sosa was
suffering from the effects of drug or alcohol withdrawal when he testified at
Petitioner’s trial.

16
suppressed would have reduced the inculpatory impact of either

Petitioner’s confession or Leroy Sosa’s trial testimony

establishing that Petitioner twice shot Deputy Childress, both of

which established Petitioner’s guilt beyond any doubt. None of

the purported Brady evidence casts any doubt on the veracity of

either Petitioner’s confession or the portion of Leroy Sosa’s

trial testimony in which he identified Petitioner as the person

who fatally shot Deputy Childress, so there is no reasonable

probability that with its disclosure the result of the trial

would have been different.

Similarly, with respect to the sentencing phase of the

trial, the district court found that there was not a reasonable

probability that the alleged “Brady” evidence would have altered

the outcome because of the overwhelming evidence of Petitioner’s

guilt, the nature of the murder of Deputy Childress, the behavior

exhibited by Petitioner throughout the bank robbery, the total

absence of any evidence showing Petitioner has ever accepted

responsibility for his offenses, the meager potential for

impeachment of the multiple eyewitnesses who testified to

Petitioner’s threatening conduct inside the bank, and the absence

of any significantly mitigating value to any of the allegedly

“withheld” or “suppressed” evidence.

In sum, the district court concluded that there is no

reasonable probability that, but for the failure of the

17
prosecution to disclose any of the alleged “Brady” evidence, even

when viewed collectively, the outcome of either phase of

Petitioner’s capital murder trial would have been different. We

find that reasonable jurists could not debate this conclusion,

nor could jurists conclude that this claim deserves encouragement

to proceed further, and we decline to issue a COA on this claim.

C. Delay in Execution and Retaliatory Setting of an
Execution Date Claims

In his fourth and fifth claims for relief, Petitioner

contends that (1) the extended period during which he was denied

the assistance of counsel for the purpose of pursuing state

collateral review of his capital murder conviction and death

sentence, (2) the alleged withholding of exculpatory evidence by

the State, and (3) the setting of multiple execution dates

combined with (4) his prolonged stay on death row violate his

rights under both the Eighth and Fourteenth Amendments and the

International Covenant on Civil and Political Rights (“ICCPR”).

Petitioner also contends that the State violated these rights by

setting an execution date following the federal district court’s

dismissal without prejudice of his first federal habeas corpus

action.

The district court found that Petitioner’s first two

contentions related to his fourth and fifth claims for relief

have no merit. First, the Supreme Court has held that there is

no constitutional right to the assistance of counsel in a state

18
habeas corpus challenge to an otherwise final criminal

conviction. See Coleman v. Thompson, 501 U.S. 722, 752 (1991);

Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). Second,

allegations of infirmities in state habeas corpus proceedings,

such as Petitioner’s complaints that he was denied adequate

discovery in his state habeas corpus proceedings, do not

constitute grounds for federal habeas relief. See Rudd v.

Johnson, 256 F.3d 317, 319-20 (5th Cir. 2001) (recognizing that

an attack on a state habeas corpus proceeding is an attack on a

proceeding collateral to the petitioner’s detention and not on

the validity of the detention itself), cert. denied, 534 U.S.

1001 (2001). Third, as explained in Section III.B. supra,

Petitioner has not presented “exculpatory” evidence that the

State had withheld from him.

The district court found that Petitioner’s remaining

contentions, (1) that the State violated his rights by setting

multiple execution dates and prolonging his stay on death row and

(2) that the State violated his rights by setting an execution

date after his first federal habeas corpus action had been

dismissed without prejudice, are foreclosed by the non-

retroactivity doctrine of Teague v. Lane, 489 U.S. 288 (1989).

Federal courts are generally barred from applying new

constitutional rules of criminal procedure retroactively on

collateral review. See Teague, 489 U.S. at 310. Under Teague, a

19
new rule is one which either breaks new ground, imposes a new

obligation on the States or the Federal Government or was not

dictated by precedent existing at the time the defendant’s

conviction became final.18 Graham v. Collins, 506 U.S. 461, 467

(1993) (quoting Teague, 489 U.S. at 301). Unless reasonable

jurists hearing the defendant’s claim at the time his conviction

became final would have felt compelled by existing precedent to

rule in his favor, a federal habeas court is barred from doing so

on collateral review. Id. (quoting Saffle v. Parks, 494 U.S.

484, 488 (1990)). The only two exceptions to the Teague non-

retroactivity doctrine are reserved for (1) new rules forbidding

criminal punishment of certain primary conduct and rules

prohibiting a certain category of punishment for a class of

defendants because of their status or offense and (2) watershed

rules of criminal procedure implicating the fundamental fairness

and accuracy of the criminal proceeding.19 O’Dell v. Netherland,

18
A conviction becomes final for purposes of retroactivity analysis
when the availability of direct appeal to the state courts has been exhausted
and the time for filing a petition for a writ of certiorari has elapsed or a
timely filed petition has been finally denied. Caspari v. Bohlen, 510 U.S.
383, 390 (1994). Because Petitioner did not file a petition for certiorari,
his conviction became final for Teague purposes on May 16, 1989. The Texas
Court of Criminal Appeals issued its opinion affirming Petitioner’s conviction
and sentence on February 15, 1989. Petitioner then had 90 days to file a
certiorari petition with the United States Supreme Court. See Id.; Daniel v.
Cockrell, 283 F.3d 697, 705 (5th Cir. 2002). Because Petitioner did not file
a certiorari petition, his conviction became final on the ninetieth day
following the affirmance by the Texas Court of Criminal Appeals – May 16,
1989.
19
The second exception to Teague only applies “to a small core of rules
requiring observance of those procedures that . . . are implicit in the
concept of ordered liberty.” Graham v. Collins, 506 U.S. 461, 478 (1993).

20
521 U.S. 151, 157 (1997) (citing Penry v. Lynaugh, 492 U.S. 302,

330 (1989) and Graham v. Collins, 506 U.S. 461, 478 (1993)).

Neither of these two exceptions applies to Petitioner’s

contentions.

Petitioner does not cite any authority in existence as of

the date his conviction became final for Teague purposes, May 16,

1989, which would have compelled reasonable jurists on that date

to accept either Petitioner’s fourth or fifth claim for relief.

As of May 16, 1989, no American court had held that the Eighth

Amendment’s prohibition against cruel and unusual punishment or

the terms of the ICCPR prohibit the execution of a convicted

capital murderer who has successfully avoided multiple execution

dates by filing actions in state and federal court collaterally

attacking his conviction and sentence. The only impediments to

Texas carrying out Petitioner’s sentence that have arisen since

the Texas Court of Criminal Appeals affirmed Petitioner’s

conviction and sentence in 1989 have been of Petitioner’s own

creation.

Likewise, as of May 16, 1989, no federal court had ever held

that a state court’s allegedly retaliatory setting of an

execution date following the dismissal without prejudice of a

federal habeas corpus petition invalidates an otherwise valid

sentence of death.

Accordingly, we find that reasonable jurists could not

21
debate the district court’s conclusion that Petitioner’s fourth

and fifth claims for relief are without merit, nor could jurists

conclude that these claims deserve encouragement to proceed

further, and we decline to issue a COA on these claims.

D. Ineffective Assistance of Counsel Claim

In Petitioner’s sixth claim for relief, he contends that the

state trial court violated his constitutional right to the

effective assistance of counsel when it denied Petitioner’s

request for appointment of a second attorney and when it

appointed two independent mental health experts to evaluate

Petitioner, rather than an expert who would work solely for the

defense.

The district court found that both of these claims have no

merit for multiple reasons.20 First, as of the date Petitioner’s

conviction became final for Teague purposes (May 16, 1989), no

American court had ever held that the due process principles

discussed by the Supreme Court in Ake v. Oklahoma21 mandated

20
In addition to the reasons discussed herein, the district court also
found (1) that Petitioner failed to demonstrate that the alleged
constitutional error committed by the state trial court in this claim was not
“harmless,” see Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); White v.
Johnson, 153 F.3d 197, 201-02 (5th Cir. 1998), cert. denied, 529 U.S. 1149
(1999); and (2) that Petitioner did not satisfy the “prejudice” prong of the
Strickland v. Washington test for the denial of effective assistance of trial
counsel guaranteed by the Sixth Amendment. 466 U.S. 668, 687-88 (1984). The
“prejudice” prong requires the Petitioner to establish that there is a
reasonable probability that, but for the deficient performance of his trial
counsel, the outcome of either phase of petitioner’s capital murder trial
would have been different. Id. at 694.

21
470 U.S. 68 (1985).

22
appointment of two attorneys to serve as defense counsel in all

capital murder trials. Likewise, no American court had held that

multiple defense counsel were required by the United States

Constitution, under either the Sixth or Eighth Amendments, in

every capital murder prosecution. Thus, Petitioner’s contention

that his constitutional rights were violated by the state court’s

failure to appoint a second trial counsel is foreclosed by

Teague.22

Second, although Petitioner’s trial counsel requested a

mental health expert to examine Petitioner prior to the hearing

on Petitioner’s competence to stand trial and to report his or

her findings to the state court, Petitioner’s trial counsel never

requested that a mental health expert be appointed to solely

assist the defense. Thus, Petitioner’s contention that his

constitutional rights were violated by the state court’s failure

to appoint a mental health expert to solely assist the defense

has no merit because Petitioner never requested such an expert.23

22
The district court also noted that the state trial judge who had
presided over Petitioner’s trial specifically found during the state habeas
proceeding that Petitioner’s lead trial counsel was assisted by court-
appointed co-counsel Roger Trevino and a court-appointed investigator and that
a third attorney, Ed Camara, also assisted Petitioner’s lead trial counsel at
times.
23
The district court found that Petitioner’s claim would be barred by
the Teague doctrine even assuming that Petitioner’s trial counsel did request
such an expert. The Supreme Court ruled in Ake that an indigent criminal
defendant is entitled to psychiatric assistance when either (1) the
defendant’s sanity is likely to be a significant factor at trial or (2) the
prosecution presents psychiatric evidence of an indigent defendant’s future
dangerousness in a capital sentencing proceeding. Ake, 470 U.S. at 82-84.
However, the Supreme Court has never extended the rule in Ake to apply to
situations such as the Petitioner’s, in which an indigent criminal defendant’s

23
 Accordingly, we find that reasonable jurists could not

debate the district court’s conclusion that Petitioner’s sixth

claim for relief is without merit, nor could jurists conclude

that this claim deserves encouragement to proceed further, and we

decline to issue a COA on this claim.

E. Representation of Hispanics and Women on Petitioner’s
Grand Jury

In his eighth claim for relief, Petitioner contends that the

process used for selecting grand jurors in Wilson County results

in an underrepresentation of Hispanics, women and Hispanic women

on grand juries in that county, and that this underrepresentation

violated his constitutional rights under both the Fourteenth

Amendment’s Equal Protection Clause and the Sixth Amendment’s

“fair cross-section” requirement.

The Supreme Court has clearly and consistently stated that

indictment by a grand jury from which members of a racial group

purposefully have been excluded violates equal protection

principles. See, e.g., Rose v. Mitchell, 443 U.S. 545, 556

(1979); Castaneda v. Partida, 430 U.S. 482, 492 (1977); Strauder

v. West Virginia, 100 U.S. 303, 307-10 (1879). In order to show

trial counsel made a specific request for a neutral evaluation of the
defendant’s sanity and competency to stand trial but no request for the
appointment of a confidential defense expert like that envisioned by Ake.
Petitioner failed to present the state trial court with any evidence showing
that his sanity at the time of his offense would likely be a significant issue
at trial, nor did the prosecution offer expert opinion testimony at the
punishment phase of Petitioner’s capital murder trial. Extension of the rule
in Ake to a situation such as Petitioner’s is foreclosed by the non-
retroactivity doctrine announced in Teague.

24
that an equal protection violation has occurred in the context of

grand jury selection, the defendant must show that the procedure

employed resulted in substantial underrepresentation of the

members of a race or another identifiable group. See Mitchell,

443 U.S. at 565; Partida, 430 U.S. at 494. The test for

determining whether this standard has been satisfied has four

components: (1) the petitioner must establish the excluded group

is a recognizable, distinct class, singled out for different

treatment under state law, as written or as applied; (2) the

degree of underrepresentation must be proved by comparing the

population of the group in the total population to the proportion

called to serve as grand jurors, over a significant period of

time; (3) there must be a selection procedure that is susceptible

of abuse or is not racially neutral to support the presumption of

discrimination raised by the statistical showing; and (4) once

the petitioner establishes the foregoing prima facie case, the

burden shifts to the State to rebut the prima facie case.

Mitchell, 443 U.S. at 565; Partida, 430 U.S. at 494-95.

With respect to Petitioner’s equal protection claim based on

an underrepresentation of Hispanics, the district court found

that Petitioner failed to satisfy any of the three elements

required to establish a prima facie case. Specifically,

Petitioner did not present evidence indicating that Hispanics in

Wilson County had been singled out for different treatment by

25
state law as written or applied, that Hispanics were

underrepresented in the grand jury pool over a significant period

of time, or that Wilson County employed a selection procedure

that is susceptible of abuse or is not racially neutral.

With respect to Petitioner’s equal protection claim based on

an underrepresentation of women, the district court found that

Petitioner failed to satisfy the first required element. More

specifically, Petitioner failed to show that, in terms of the

selection of grand jurors, women had been singled out for

different treatment in Wilson County. Petitioner also failed to

overcome evidence indicating grand jury commissioners attempted

to comply with the fifty-fifty gender split urged by their

supervising judge, and that gender-neutral factors most likely

explain the difference in female participation on Wilson County

grand juries over the time period in question. Finally, the

district court also noted that five of the twelve persons who

actually served on the grand jury that indicted Petitioner were

female.

With respect to Petitioner’s equal protection claim based on

an underrepresentation of Hispanic women, the district court

found that Petitioner failed to present evidence showing a

pattern of historical discrimination against Hispanic women has

ever existed in Wilson County. Petitioner also failed to present

evidence of any intentional discrimination against Hispanic women

in grand jury selection in Wilson County. In fact, Hispanic

26
women were overrepresented among Wilson County grand jury

commissioners during the time period in question.

In addition to the equal protection right discussed above,

the Sixth Amendment guarantees a criminal defendant the right to

have his or her jury chosen from a venire or panel representing a

fair cross-section of the community. Taylor v. Louisiana, 419

U.S. 522, 527-30 (1975); Holland v. Illinois, 493 U.S. 474, 478-

83 (1990). In order to establish a prima facie violation of the

fair-cross-section requirement, the defendant must show (1) that

the group alleged to be excluded is a “distinctive” group in the

community; (2) that the representation of this group in venires

from which the juries are selected is not fair and reasonable in

relation to the number of such persons in the community; and (3)

that this underrepresentation is due to systematic exclusion of

the group in the jury-selection process. Duren v. Missouri, 439

U.S. 357, 364 (1979). The district court found that Petitioner

failed to present evidence demonstrating that any

underrepresentation was due to systematic exclusion of the group

in the jury-selection process.24

For the foregoing reasons, the district court found that

Petitioner’s eighth claim for relief has no merit. We agree.

Under such circumstances, the district court’s conclusion that

24
The district court also found that the Supreme Court has never
applied this principle to the selection process for state grand juries,
foreclosing this argument on account of the non-retroactivity doctrine of
Teague v. Lane.

27
Petitioner’s eighth claim is without merit is not debatable

amongst jurists of reason, nor could jurists conclude that this

claim deserves encouragement to proceed further. Accordingly, we

decline to issue a COA on this claim.

F. Representation of Hispanics on Petitioner’s Petit Jury

In his ninth claim for relief, Petitioner contends that

Hispanics are underrepresented on Atascosa County petit jury

venires in sufficiently substantial margins to violate both the

Fourteenth Amendment’s equal protection guarantee and the Sixth

Amendment’s guarantee of a petit jury selected from a fair cross-

section of the community.

The applicable federal constitutional standards for deciding

these claims are set forth in Section III.E. supra.

The district court found that Petitioner presented no

evidence to either his state trial court or state habeas court

regarding either the ethnic composition of Atascosa County’s

adult population or the ethnic composition of petit jury venires

in that county. Because he did not present evidence showing that

Hispanics were underrepresented on Atascosa County petit jury

venires in relation to their percentage of the county’s adult

population, Petitioner did not establish a prima facie case of an

equal protection or a Sixth Amendment violation. Accordingly,

the district court denied Petitioner relief on this claim.

The district court’s conclusion that Petitioner’s ninth

28
claim is without merit is not debatable amongst jurists of

reason, nor could jurists conclude that this claim deserves

encouragement to proceed further. Accordingly, we decline to

issue a COA on this claim.

G. Cumulative Error Claim

In his tenth and final claim for relief, Petitioner contends

that the cumulative impact of the alleged violations of his

federal constitutional rights outlined in his amended petition

independently warrants federal habeas corpus relief.

The cumulative error doctrine provides relief only when the

constitutional errors committed in the state court trial so

fatally infected the trial that they violated the trial’s

fundamental fairness. See Jackson v. Johnson, 194 F.3d 641, 655

n.59 (5th Cir. 1999), cert. denied, 529 U.S. 1027 (2000).

The district court found that Petitioner could not

demonstrate that the cumulative error doctrine should apply

because none of the alleged errors about which Petitioner

complains rises to the level of a constitutional violation. See

Derden v. McNeel, 978 F.2d 1453, 1454 (5th Cir. 1992) (en banc)

(holding that in order to merit federal habeas relief, the

individual errors must involve matters of constitutional

dimension rather than mere violations of state law), cert.

denied, 508 U.S. 960 (1993); Yohey v. Collins, 985 F.2d 222, 229

(5th Cir. 1993) (stating that because certain errors were not of

29
constitutional dimension and other claims were meritless, “Yohey

has presented nothing to cumulate”). Moreover, the district

court found that Petitioner’s state court capital murder trial

was not rendered fundamentally unfair by virtue of any of the

matters about which Petitioner complains in this Court.

Accordingly, the district court denied relief based on a

cumulative error theory.

The district court’s conclusion that Petitioner’s cumulative

error claim is without merit is not debatable amongst jurists of

reason, nor could jurists conclude that this claim deserves

encouragement to proceed further. Accordingly, we decline to

issue a COA on this claim.

IV. CONCLUSION

Petitioner has not shown that reasonable jurists could

disagree with the district court’s denial of any of his claims.

Accordingly, we deny Petitioner’s Application for a Certificate

of Appealability from Denial of a Petition for Writ of Habeas

Corpus.

DENIED.

30