Martinez v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
verIN THE UNITED STATES COURT OF APPEALS
March 31, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_____________________ Clerk
No. 05-70029
____________________

JAMES EDWARD MARTINEZ,

Petitioner-Appellant,

v.

DOUG DRETKE, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,

Respondent-Appellee.

__________________

Appeal from the United States District Court
For the Northern District of Texas
(04-CV-728)

__________________

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:1

James Martinez was convicted and sentenced to death for the

murders of Sandra Walton and Michael Humpreys. Martinez

initially raised 11 claims for relief in his state habeas

petition, and later sought to supplement his petition with

additional claims. After denial of relief in the state court,

1
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opinion should not be published and is not precedent except under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
Martinez filed his federal habeas petition in the district court,

raising 29 claims for relief. The district court denied relief

and sua sponte denied a certificate of appealability, and

Martinez now seeks a certificate of appealability to appeal the

district court’s denial of relief under 28 U.S.C. § 2254.2 For

the reasons stated below, we deny COA.

I.

A.

Martinez was indicted, convicted, and sentenced to death in

Tarrant County, Texas, for the September 21, 2000, murders of

Sandra Walton and Michael Humphreys. Martinez’s conviction and

sentence were affirmed on direct appeal by the Texas Court of

Criminal Appeals, Martinez v. State, No. 74,292, 2003 WL 22508081

(Tex. Crim. App. Nov. 5, 2003), and certiorari was denied by the

United States Supreme Court, Martinez v. Texas, 125 S.Ct. 32

(2004).

2
Martinez ostensibly raises two “issues,” denominated “Ineffective
Assistance of Trial Counsel” and “Unconstitutionality of Texas
Death Procedures as applied to Appellant.” Each issue, however,
comprises several related and overlapping questions and subparts,
some of which are repeated verbatim from Martinez’ initial
petition, and some of which are reformulated and combined versions
of issues previously raised. Because the issues as presented by
Martinez are repetitive and overlapping, certain issues are grouped
for purposes of discussion.

2
 Martinez filed his state application for writ of habeas

corpus in October of 2003, raising eleven grounds for relief. In

December 2003, Martinez filed a motion to supplement his writ

with additional claims. The trial court entered findings of fact

and conclusions of law recommending that relief be denied on

Martinez’s original claims, and that his supplemental claims be

dismissed as a subsequent application. The Court of Criminal

Appeals ultimately adopted those findings. Ex parte Martinez, No.

59,313-01 (Tex. Crim. App. Sept. 22, 2004). The motion for leave

to add claims was treated as a subsequent application and

dismissed. Ex parte Martinez, No. 59,313-02 (Tex. Crim. App.

Sept. 22, 2004).3 Martinez's related petition for writ of

certiorari was denied. Martinez v. Texas, 125 S.Ct. 1401 (2005).

3
The order stated, in pertinent part:
This Court has reviewed the record with respect to the
eleven allegations made by Applicant in his initial
application. We adopt the trial judge's findings and
conclusions. Based upon the trial court's findings and
conclusions and our own review, the relief sought is
denied.
With respect to Applicant's two subsequently filed
allegations, we conclude that Applicant has failed to
show the factual or legal bases of his claims were
unavailable to him at the time he filed his initial
application. Therefore, those claims are dismissed
pursuant to Code of Criminal Procedure Article 11.071 §
5. Ex parte Graves, 70 S.W.3d 103 (Tex. Crim. App. 2002).
Ex parte Martinez, Nos. 59,313-01 & 59,313-02, slip op. at 2 (Tex.
Crim. App. Sept. 22, 2004).

3
 Martinez filed his petition for federal habeas relief in the

federal district court in January of 2005 and included 29 related

and overlapping claims for relief. The district court denied

Martinez’s petition, rejecting each of Martinez’s claims in a

thorough and reasoned order. Martinez timely filed a notice of

appeal, and although not requested, the district court sua sponte

denied COA as to each of the 29 claims. This request for COA

followed.

B.

The district court succinctly summarized the facts of

Martinez’s offense:

Martinez briefly dated Walton, and gave or loaned her
money from time to time. In May of 2000, Walton signed
a promissory note reflecting that she owed Martinez
$1,000. Martinez became fixated on obtaining repayment
from her, stalking, harassing, and threatening Walton
on numerous occasions. On the night of her murder,
Martinez pounded on Walton's door, threatening to break
it down if she did not open the door. He had earlier
told Walton that her time was almost up. Walton and
Humphreys, who was visiting, went out to get something
to eat. When they returned, at approximately 1:00 a.m.
on September 21, 2000, they were shot to death with a
high-powered rifle. Witnesses saw a man dressed in
black trotting away from the scene. Police found
twenty-seven shell casings at the scene. Walton was
shot nine or ten times; Humphreys, eight.
On the night of the murders, Martinez called Casey
Ashford (“Ashford”), a long-time friend, several times.
Martinez drove to the farm where Ashford was staying to
deliver a black canvas bag for Ashford to keep. Ashford

4
 looked in the bag and saw the rifle later determined to
be the murder weapon, among other items. He buried the
bag, but later disclosed its location to police. When
police opened the bag, they found the rifle, a bag of
fertilizer, a fuse, dark clothing, combat boots,
gloves, a pipe bomb, a ski mask, a double-edged knife,
a bulletproof vest, and ammunition.
At trial, Martinez tried to pin the blame for the
murders on Ashford. His mother and brother testified
that he had been at home on the night of the murders.
He also showed that Ashford lied several times when
dealing with the police and that, prior to the murders,
Ashford had had access to the murder weapon.
Martinez v. Dretke, 2005 WL 1383350, *2 (N.D. Tex. June 8, 2005)

The district court also summarized the evidence introduced

during the punishment phase of trial:

At the punishment phase of the trial, the State
introduced items that had been kept by Martinez in a
storage facility. They included bomb-making components,
over 3000 rounds of ammunition, other weapons,
including two pistols, several illegal knives,
illegally modified shotguns, and several rifles. Also
introduced were four books bearing the notation
“completed reading by James Martinez”: Be Your Own
Undertaker: How to Dispose of a Dead Body; Master's
Death Touch: Unarmed Killing Techniques; 21 Techniques
of Silent Killing; and Dragon's Touch: Weaknesses of
the Human Anatomy. The State also offered victim-impact
testimony by Humphreys' father, mother, and stepmother,
and Walton's mother.
Martinez called a number of people to testify that they
had not known him to be a violent person and did not
believe he would commit any more crimes in the future.
None of them seemed to know Martinez very well, except
his mother and brother, and most of them did not know
(or admit that they knew) about his extensive
collection of weapons and the books Martinez had read.
Martinez also presented testimony of a former custodian
of records for the Texas Department of Criminal

5
 Justice, who testified generally about daily prison
routines and classification of prisoners. Martinez also
presented the testimony of Dr. Mark Cunningham
(“Cunningham”), a clinical and forensic psychologist
who testified about recidivism rates for capital
murderers with Martinez's characteristics. Cunningham
testified that there was only a small chance that a
person like Martinez would commit future acts of
violence in prison. In rebuttal, the state offered the
testimony of an investigator with the prison
prosecution unit, who testified about violence within
the prison population.
Id.

II.

Because Martinez initiated his federal habeas proceedings

after April 24, 1996, his petition and the instant appeal are

governed by AEDPA. Slack v. McDaniel, 529 U.S. 473, 478 (2000).

In order to appeal the denial of his petition by the district

court, Martinez “must first seek and obtain a COA” as a

jurisdictional prerequisite. Miller-El v. Cockrell, 537 U.S.

322, 335-36 (2003). A COA will only issue if Martinez makes a

substantial showing of the denial of a constitutional right,

which requires a showing that “reasonable jurists could debate

whether” the court below should have resolved the claims in a

different manner or that this court should encourage Martinez to

further litigate his claims in federal court. Id. at 336

(quoting Slack, 529 U.S. at 483-84); Dowthitt v. Johnson, 230

F.3d 733, 740 (5th Cir. 2000). The COA determination “requires

6
an overview of the claims in the habeas petition and a general

assessment of their merits” but not “full consideration of the

factual or legal bases adduced in support of the claims.”

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

This court has emphasized that in making the COA

determination, the court must be cognizant of the deferential

standard of review the district court applies under AEDPA.

Miniel v. Cockrell, 339 F.3d 331, 336 (5th Cir. 2003), cert.

denied, 540 U.S. 1179 (2004). The district court defers to a

state court's adjudication of a petitioner's claims on the merits

unless the state court's decision was: (1) “contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United

States;” 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.” Id. at 336-37 (quoting

28 U.S.C. § 2254(d)). A state court's decision is deemed

contrary to clearly established federal law if it reaches a legal

conclusion in direct conflict with a prior decision of the

Supreme Court or if it reaches a different conclusion than the

Supreme Court based on materially indistinguishable facts. Id.

at 337 (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).

7
A state court's decision constitutes an unreasonable application

of clearly established federal law if it is objectively

unreasonable. Id. (citing Williams, 529 U.S. at 407-08).

Additionally, AEDPA provides that the state court’s factual

findings “shall be presumed to be correct” unless the petitioner

carries “the burden of rebutting the presumption of correctness

by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). “The

presumption of correctness not only applies to explicit findings

of fact, but it also applies to those unarticulated findings

which are necessary to the state court’s conclusions of mixed law

and fact.” Valdez v. Cockrell, 274 F.3d 941, 948 n.11 (5th Cir.

2001). We now turn to a consideration of Martinez’s specific

claims.

8
 III.

A.

Martinez first alleges in his federal habeas petition that

he was denied the right to effective assistance of counsel

because his trial counsel failed to argue that Casey Ashford was

an accomplice witness. Martinez also argues that trial counsel

never informed him of the implications such a theory might have

for his case.

Counsels’ primary defense theory in the liability phase of

the trial was that Ashford had acted alone and that Martinez was

not involved in the murders. For obvious reasons, trial counsel

did not conduct voir dire on the accomplice witness theory, nor

request a jury charge on accomplice witness testimony.

In order to prevail on an ineffective assistance of counsel

ground, Martinez must show (1) that his counsels' performance

fell below an objective standard of reasonableness and (2) that

there is a reasonable probability that, but for his counsels'

unprofessional errors, the result of the proceedings would have

been different. Strickland v. Washington, 466 U.S. 668, 687

(1984). Both prongs of the Strickland test must be met to

demonstrate ineffective assistance. Id. at 697. Judicial scrutiny

9
of this type of claim must be highly deferential and Martinez

must overcome a strong presumption that his counsels' conduct

fell within the wide range of reasonable professional assistance.

Id. at 689.

As a threshold matter, the district court observed that the

state trial court made extensive findings of fact and conclusions

of law related to the performance of Martinez’s counsel, finding

that trial counsel engaged in sound strategy. Those findings

were adopted by the Court of Criminal Appeals in the habeas

proceedings. Martinez makes no attempt, either in his federal

petition or in the instant application for COA, to show that

those findings are not entitled to a presumption of correctness

under 28 U.S.C. § 2254(e)(1). Martinez also makes no attempt to

show that the state court’s application of Strickland was

“contrary to, or involved an unreasonable application” of that

precedent.

Moreover, the district court independently concluded that

the record supports the conclusion that Martinez's counsel

employed sound trial strategy. Also, according to Martinez’s

trial counsel they raised with Martinez the possibility of

arguing that he and Ashford had acted together, and Martinez

declined to agree with pursuing this strategy. The record fully

10
supports the district court’s conclusion that counsel followed a

conscious and informed decision on trial tactics. Such a

decision cannot be a basis for constitutionally ineffective

assistance of counsel unless it is so ill-chosen that it

permeates the entire trial with obvious unfairness. Crane v.

Johnson, 178 F.3d 309, 314 (5th Cir.1999). Martinez fails to

make any such showing. Because reasonable jurists could not

debate whether the district court’s conclusion was correct, we

deny COA on this issue.

B.

Martinez next argues that his trial counsel rendered

ineffective assistance during the punishment phase. He complains

that his attorneys presented the testimony of two witnesses, a

corrections expert and a psychologist, on the issue of future

dangerousness which was damaging to his defense. The district

court agreed with the state habeas court and concluded that

counsel employed sound trial strategy consistent with Strickland

in deciding to call these witnesses. Again, Martinez makes no

effort to demonstrate that the factual findings of the state

court are not entitled to the presumption of correctness under 28

U.S.C. § 2254(e)(1), or that the state court’s application of

11
Strickland was “contrary to, or involved an unreasonable

application” of that precedent.

The State’s brief exhaustively discusses trial counsels’

decision to elicit the testimony of these two witnesses. Counsel

ultimately determined that the best punishment phase strategy

would be to present evidence tending to show that Martinez was

most likely going to be a “good” and “nonviolent” inmate in

prison. The record makes clear that trial counsel carefully and

deliberately consulted with several experts and attorneys who had

presented similar testimony in death penalty trials before

arriving at the strategic decision to follow this path.

Moreover, although parts of the witnesses’ testimony was

negative, in that both witnesses acknowledged that there were

opportunities for violence in prison, neither affirmatively

testified that Martinez himself posed a threat of future

dangerousness. Even disregarding Martinez’s failure to address

the relevant standard of review in evaluating counsels’ strategic

decision, Martinez has failed to demonstrate either that his

trial counsel was deficient or that he was prejudiced, both of

which are required under Strickland. Because reasonable jurists

could not debate whether the district court should have reached a

different conclusion, we deny COA on this issue.

12
 C.

Martinez next argues that the state trial court violated his

Eighth and Fourteenth Amendment rights by issuing a jury

instruction that did not perfectly track the mitigation special

issue, and that his trial counsel rendered ineffective assistance

by failing to object to the instruction. Martinez complains that

the trial court’s instruction did not track the special issue on

mitigation the trial court required the jury to answer. The

Texas statute calls for a response to a special issue that asks

“[w]hether ... there is sufficient mitigating circumstance or

circumstances to warrant that a sentence of life imprisonment

rather than death sentence be imposed.” In explaining the

special issues, the trial judge instructed the jury to “consider

all evidence ... that militates for or mitigates against

imposition of the death penalty.” (emphasis added). As we

understand the argument, Martinez objects to the language in the

charge, designed to explain the mitigation special issue, that

refers to evidence that “militates for” the death penalty.”

Martinez admits in his application for COA that these claims

were neither raised on direct appeal nor in his first state writ

application. Instead, these claims were presented for the first

time in the late supplement to his first state habeas

13
application, which the Court of Criminal Appeals found to be

procedurally barred and dismissed as a subsequent writ. Martinez

made no effort in his federal habeas petition to overcome the

procedural bar, and therefore the district court denied relief

based on the procedural default.

Procedural default of a petitioner’s federal habeas claim

occurs where the last state court to consider a claim “clearly

and expressly” dismisses it based upon a state procedural rule

that provides an adequate basis for denial of relief, independent

of the merits. Coleman v. Thompson, 501 U.S. 722, 729 (1989);

Finley v. Johnson, 243 F.3d 215, 218 (5th Cir. 2001); Nobles v.

Johnson, 127 F.3d 409, 422 (5th Cir. 1997). The “independent”

and “adequate” requirements are satisfied where the court clearly

indicates its dismissal of a particular claim rests upon a state

ground that bars relief, and that bar is strictly and regularly

followed by the state courts. Finley, 243 F.3d at 218.

In this case, the Texas Court of Criminal Appeals expressly

based its dismissal of Martinez’s new claims raised in his

subsequent state writ application on an independent procedural

bar. Martinez, therefore, may not obtain federal habeas relief

absent a showing of cause for the default and actual prejudice

that is attributable to the default. Murray v. Carrier, 477 U.S.

14
478, 485 (1986); Wainwright v. Sykes, 433 U.S. 72, 87-88 (1977).

However, Martinez has made virtually no effort to show cause for

his failure to bring these claims in his first state writ

petition. Instead he asserts, without elaboration or citation to

the record, that the default was “due to the fault of appointed

state habeas corpus counsel.” However, error by counsel

committed in a post-conviction proceeding, where there is no

constitutional right to counsel, cannot constitute cause. Jones

v. Johnson, 171 F.3d 270, 276-77 (5th Cir. 1999); Irving v.

Hargett, 59 F.3d 23, 26 (5th Cir. 1995). Martinez has completely

failed to offer any cause sufficient to meet the requirements to

overcome the procedural bar on these claims, and no reasonable

jurists could debate whether the district court should have

reached a different conclusion. We therefore deny COA on this

issue.4

D.

Martinez next argues, based on a strained reading of Ring v.

Arizona, 536 U.S. 583 (2002) and Apprendi v. New Jersey, 530 U.S.

466 (2000), that the State must bear the burden of proving beyond

4
On the merits, we also see no error in the instruction that
approaches constitutional error. The instruction attempts to give
the jury a balanced explanation of their duty to consider all the
relevant evidence.

15
a reasonable doubt a negative answer to the mitigation special

issue. Martinez’s theory is incorrect. Apprendi requires that

“other than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a

reasonable doubt.” Apprendi, 530 U.S. at 490. In Ring, the

Supreme Court applied Apprendi to the Arizona death penalty

scheme, and concluded that to the extent the sentencing scheme

allowed “a sentencing judge, sitting without a jury, to find an

aggravating circumstance necessary for the imposition of the

death penalty,” it was unconstitutional. Ring, 536 U.S. at 609.

However, the same requirements are not imposed on the

consideration of mitigating facts. The Supreme Court

specifically concluded in Walton v. Arizona that the burden of

proof may lie on a defendant to establish by a preponderance of

the evidence the existence of mitigating circumstances

sufficiently substantial to call for leniency. 497 U.S. 639,

649-51 (1990) (“So long as a State's method of allocating the

burdens of proof does not lessen the State's burden to prove

every element of the offense charged, or in this case to prove

the existence of aggravating circumstances, a defendant's

constitutional rights are not violated by placing on him the

16
burden of proving mitigating circumstances sufficiently

substantial to call for leniency.”), overruled in part on other

grounds, Ring v. Arizona, 536 U.S. 548 (2002).

Martinez’s theory that the State must prove beyond a

reasonable doubt a negative answer to the mitigation special

issue has been clearly rejected by both the Supreme Court and the

Fifth Circuit. We therefore deny COA on this issue.

E.

Finally, Martinez argues that the punishment phase jury

instruction on the special issue of future dangerousness fails to

give the jury sufficient guidance in understanding the term

“probability.”5 However, as the district court noted, Martinez

failed to raise these claims in either his direct appeal or his

state habeas application, so that they are unexhausted and

procedurally barred. Finley v. Johnson, 243 F.3d 215, 218 (5th

Cir. 2001). As with the barred claims discussed above, Martinez

makes no effort to overcome this procedural bar by showing any

cause for his failure to bring these claims before the state

courts. Moreover, even if Martinez were able to overcome the

5
During the sentencing phase of Martinez’s trial, the jury was
charged with answering the following special issue:
Do you find from the evidence beyond a reasonable doubt that there
is a probability that the defendant would commit criminal acts of
violence that would constitute a continuing threat to society?
TEX. CODE CRIM. PROC. ART. 37.071 § 2(b)(1).

17
procedural bar, his theory is clearly incorrect. As the district

court found, it is well established that the Texas punishment

issues are not impermissibly vague as they have a “common-sense

core of meaning.” Pulley v. Harris, 465 U.S. 37, 50 n. 10

(1984); Milton v. Procunier, 744 F.2d 1091, 1095–96 (5th Cir.

1984). Reasonable jurists could not debate either the

application of the procedural bar nor the conclusion that

Martinez’s substantive argument is flawed. We therefore deny COA

on this issue.

IV.

The claims asserted in Martinez’s request for COA are wholly

without merit or clearly subject to procedural bar. Because we

conclude that the district court’s denial of relief is not

debatable by jurists of reason, the petition for certificate of

appealability is denied.

PETITION DENIED.

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