Gutierrez v. Quarterman

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS September 21, 2006
FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-70053

VINCENT GUTIERREZ,

Petitioner-Appellant,

versus

NATHANIEL QUARTERMAN, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee.

Request for Certificate of Appealability for Relief from the
Denial of a Petition for Writ of Habeas Corpus in the United
States District Court for the Eastern District of Texas
(SA-01-CA-1033-FB)

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

Vincent Gutierrez was convicted in Texas state court of

capital murder and sentenced to death. The district court’s having

denied habeas relief and a certificate of appealability (COA),

Gutierrez seeks a COA for five issues. Concomitantly, he

challenges the district court’s denying funding for investigative

assistance. A COA is DENIED.

I.

*
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this opinion should not be published and is not precedent except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.
 The following factual recitation is based primarily upon that

presented by the district court. Gutierrez v. Dretke (USDC Opn.),

392 F.Supp. 2d 802 (W.D. Tex. 2005).

On 10 March 1997, Gutierrez, Randy Arroyo, and several others

met at Christopher Suaste’s residence to discuss Arroyo’s desire to

steal an automobile. The next morning, Arroyo, Gutierrez, and

Suaste drove to an apartment complex where the target vehicle was

parked. It was owned by United States Air Force (USAF) Captain

Jose Cobo. Suaste parked his vehicle nearby and watched Gutierrez

and Arroyo approach the target vehicle, enter it, and drive out of

the complex. While returning to his home, Suaste saw Captain Cobo

lying on the shoulder of the highway with blood stains on his

shirt.

Several hours later, Suaste received several telephone calls

from Arroyo and Gutierrez, asking Suaste to pick them up. Upon

doing so, Suaste observed Gutierrez wearing different clothes than

those worn earlier that day. The newer clothes were a tee shirt

and a pair of gym shorts with the USAF logo. Gutierrez explained

his earlier clothes had blood on them, and the new clothes were

obtained from the back of the stolen automobile.

Upon Suaste’s inquiring about what happened after he left the

apartment complex, Gutierrez laughingly explained: upon entering

the target vehicle, he forced Captain Cobo at gunpoint to move to

the back seat; Arroyo drove the vehicle from the complex; when

2
Captain Cobo begged for his life and offered his wallet, Gutierrez

reassured him that he would be released; nonetheless, Captain Cobo

attempted to exit the vehicle, but was restrained by his seat belt;

Gutierrez grabbed Captain Cobo to prevent him from jumping from the

vehicle; at that point, Arroyo yelled “Shoot him. Shoot him.

He’s trying to escape.”; Gutierrez fired his pistol twice, striking

Captain Cobo in the back; Captain Cobo began choking and coughing

up blood; as Gutierrez and Arroyo drove on, Gutierrez stated he

did not want to drive around with a “dead man” in the car;

Gutierrez directed Arroyo to reduce the vehicle’s speed; and, upon

his doing so, Gutierrez shoved Captain Cobo out of the moving

vehicle onto the shoulder of the highway.

Later that day, Arroyo confessed to being involved in Captain

Cobo’s murder and led police to the pistol Gutierrez had used to

kill him. Gutierrez was charged with capital murder for an

intentional killing by firearm while in the course of kidnapping

and robbery.

On 2 March 1998, a jury found Gutierrez guilty of capital

murder, pursuant to § 19.03(a) of the Texas Penal Code. Pursuant

to the jury’s answers to the statutory special issues, he was

sentenced to death.

Gutierrez raised only two issues on direct appeal (jury

instruction on accomplice liability and facial challenge to the

constitutionality of Texas’ death penalty); neither is at issue

3
here. The Texas Court of Criminal Appeals affirmed. Gutierrez v.

State, No. 73,065 (Tex. Crim. App. 12 April 2000) (unpublished).

Gutierrez did not seek review by the Supreme Court of the United

States.

In requesting state-habeas relief, Gutierrez raised 11 claims,

including the claims for which he seeks a COA, but not including

the four claims for which he seeks a COA regarding insufficient

investigative funding. The judge who had presided at trial

presided over the state-habeas proceeding; granted part of the

amount requested for investigating possible claims; held an

evidentiary hearing; and, in a 61-page opinion, rendered findings

of fact and conclusions of law, recommending denial of relief. Ex

Parte Gutierrez, No. 97-CR-2457-B-W1 (226th Dist. Ct., Bexar

County, Tex. 2001). That court concluded, inter alia: Gutierrez

had procedurally defaulted his claims based on trial error, because

they were not raised on direct appeal. Id. In the alternative,

the court addressed each claim on the merits, concluding no relief

was warranted. Id.

The Texas Court of Criminal Appeals adopted the state-habeas

court’s findings and conclusions and denied relief. Ex Parte

Vincent Gutierrez, No. 49,887-01 (Tex. Crim. App. 10 Oct. 2001)

(per curiam) (unpublished). Gutierrez did not seek review by the

Supreme Court of the United States.

4
 In April 2002, Gutierrez presented 14 claims for federal

habeas relief. After filing his application, Gutierrez moved for

the appointment of an investigator, claiming such assistance was

necessary to rebut the state-habeas factual findings by clear and

convincing evidence, as required under the applicable Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-

132, 110 Stat. 1214 (1996). Gutierrez admitted, however, that the

claims for which he sought investigative assistance were

procedurally defaulted because they had not been exhausted in state

court.

The district court denied the requested investigative

assistance. Subsequently, in a 154-page opinion in September 2005,

it granted the State’s summary-judgment motion, denying habeas

relief on all 14 claims, and sua sponte denied Gutierrez a COA.

USDC Opn., 392 F.Supp. 2d at 810.

II.

As noted, Gutierrez’ 28 U.S.C. § 2254 habeas petition is

subject to AEDPA. See, e.g., Penry v. Johnson, 532 U.S. 782, 792

(2001). Under AEDPA, in order to appeal the denial of habeas

relief on a claim, he must obtain a COA from either the district,

or this, court. 28 U.S.C. § 2253(c); FED. R. APP. P. 22(b)(1); Slack

v. McDaniel, 529 U.S. 473, 478 (2000). To do so, he must “ma[k]e

a substantial showing of the denial of a constitutional right”. 28

U.S.C. § 2253(c)(2); see Miller-El v. Cockrell, 537 U.S. 322, 336

5
(2003); Slack, 529 U.S. at 483. In that regard, he must

demonstrate “reasonable jurists could debate whether (or, for that

matter, agree that) the petition should have been resolved in a

different manner or that the issues presented were ‘adequate to

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

336 (quoting Slack, 529 U.S. at 484). Moreover, for a COA request

involving a procedural ruling by the district court, such as its

reviewing the procedural-default rulings by the state-habeas court

discussed infra, the petitioner must show jurists of reason would

find it debatable whether: (1) the underlying claim for the COA

request is a valid assertion of the denial of a constitutional

right; and (2) the district court’s procedural ruling was correct.

Slack, 529 U.S. at 484.

In deciding whether to grant a COA, a federal court is

limited, inter alia, “to a threshold inquiry into the underlying

merit of [Gutierrez’] claims”. Miller-El, 537 U.S. at 327. “This

threshold inquiry does not require full consideration of the

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

336. Instead, our analysis “requires an overview of the claims in

the habeas petition and a general assessment of their merits”. Id.

This being a death penalty case, “any doubts as to whether a COA

should issue must be resolved in [Gutierrez’] favor”. Hernandez v.

Johnson, 213 F.3d 243, 248 (5th Cir.), cert. denied, 531 U.S. 966

(2000).

6
 Of course, for purposes of the requisite threshold-inquiry, we

are mindful that, in ruling on the merits, the district court was

required by AEDPA to defer to the state court’s adjudication on

questions of law and mixed questions of law and fact, unless that

“decision ... ‘was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by

the Supreme Court’” (reasonable decision). Hill v. Johnson, 210

F.3d 481, 485 (5th Cir. 2000) (quoting 28 U.S.C. § 2254(d)(1))

(emphasis added), cert. denied, 532 U.S. 1039 (2001). A decision

is 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”. Miniel

v. Cockrell, 339 F.3d 331, 337 (5th Cir. 2003), cert. denied, 540

U.S. 1179 (2004).

Likewise, for this threshold-inquiry, we are mindful that, in

ruling on the merits, the district court was required to defer to

the state court’s factual findings, unless they “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” (reasonable decision). 28 U.S.C. § 2254(d)(2)

(emphasis added). In that regard, those findings are “presumed to

be correct”; as noted, in district court, Gutierrez had “the burden

7
of rebutting [that] presumption ... by clear and convincing

evidence”. 28 U.S.C. § 2254(e)(1).

The first four claims for which a COA is requested are:

(1) whether the state-habeas and district courts erred in

construing Gutierrez’ due-process claim (regarding the

prosecution’s alleged failure to produce information about a

juror’s prior offense) as one arising under Brady v. Maryland, 373

U.S. 83 (1963) (holding prosecution’s suppression of favorable

material evidence violates due process);

(2) whether Gutierrez was denied a fair and impartial jury, as

required by the Sixth and Fourteenth Amendments, because (a) the

above-referenced juror misstated she had never been convicted of a

crime, thus precluding Gutierrez’ counsel from making a for-cause

challenge, and (b) the trial court granted the State’s for-cause

challenge for a prospective juror;

(3) whether the trial court’s denial of Gutierrez’ severance

motion at the trial’s penalty phase denied him the right to

individualized sentencing, pursuant to the Eighth Amendment; and

(4) whether, by failing to challenge on direct appeal both the

for-cause juror-dismissal and the severance-denial, Gutierrez’

counsel was constitutionally ineffective under Strickland v.

Washington, 466 U.S. 668 (1984) (two-pronged standard for making an

ineffective assistance of counsel (IAC) claim: counsel’s

performance was deficient; and that deficiency caused prejudice).

8
 The fifth COA request concerns four unexhausted claims.

Gutierrez maintains he failed to exhaust them because the state-

habeas court refused to grant him enough funding to conduct an

investigation. Regarding that fifth COA request, Gutierrez

challenges the district court’s denial of investigative-assistance

funding.

A.

In the state-habeas and district courts, Gutierrez claimed he

was denied due process by the prosecution’s failing to disclose

potential-juror Rosemary Harrell had been arrested for, and

convicted of, theft in 1979 of an amount less than five dollars.

Subsequently, she served as a juror. Both courts analyzed this

claim under the well-known Brady framework: as stated supra, a

claimant must show the prosecution suppressed favorable evidence

material to the outcome of the trial. Brady, 373 U.S. at 87.

Under Brady, evidence is “material” if there is a reasonable

probability the result of the proceeding would have been different

had the evidence been disclosed; a reasonable probability is one

sufficient to undermine confidence in the outcome. Martin v. Cain,

246 F.3d 471, 477 (5th Cir.), cert. denied, 534 U.S. 885 (2001).

Gutierrez claims prosecutorial misconduct — conduct barred by

the due-process clause. See, e.g., Brady, 373 U.S. at 85-88.

Although he insists both courts erred in applying Brady, he does

not explain why it is not the proper standard. In any event,

9
Gutierrez’ framing of the issue is quite similar to the Brady

standard. He maintains: “The issue ... involves the obligations

of the prosecutor, under the Due Process Clause[,] ... to disclose

to the trial court and defense[,] material evidence [that] raises

questions about whether a juror is categorically excludable from

the jury”. (Emphasis added.) Gutierrez does not claim such

misconduct requires automatic reversal and remand for a new trial.

See, e.g., United States v. Huey, 76 F.3d 638, 639 (5th Cir. 1996)

(where Batson v. Kentucky’s rule against the use of peremptory

strikes based on race, 476 U.S. 79 (1986), had been violated,

reversal and remand for new trial without analysis of prejudice to

the defendant). Indeed, not all prosecutorial misconduct requires

Batson-like reversal.

The prosecution’s failure to disclose information about a

prospective juror is not exculpatory, material evidence under

Brady. Jones v. Butler, 864 F.2d 348, 355 (5th Cir. 1988), cert.

denied, 490 U.S. 1075 (1989). Irrespective of the name utilized by

the state-habeas and district courts for their analysis of this

claim, a review for prejudice vel non was required. For example,

in Johnson v. Cabana, our court held: where a prosecutor

potentially knew a juror had made a false statement on a juror

questionnaire, namely that she did not have a relative in the same

jail as the defendant, there was no showing of prejudice. 818 F.2d

10
333, 343 (5th Cir.), cert. denied, 481 U.S. 1061 (1987).

Furthermore, the Supreme Court has directed that claims for

prosecutorial misconduct in a state conviction are reviewed

deferentially. See, e.g., Donnelly v. DeChristoforo, 416 U.S. 637,

643 (1974) (prosecutorial misconduct must have “so infected the

trial with unfairness as to make the resulting conviction a denial

of due process”).

Part of the following facts were developed at the state-habeas

evidentiary hearing, at which Gutierrez’ trial counsel and the lead

prosecutor testified. As part of the jury selection for Gutierrez’

trial in 1998, Harrell responded to her jury questionnaire that she

had never been “charged or arrested with any type of shoplifting or

theft offense”. Before questioning her during voir dire, however,

the lead prosecutor, having performed a criminal background check,

learned: almost 20 years earlier, Harrell had been arrested in

1979 for theft under five dollars.

Accordingly, during voir dire, the prosecutor questioned

Harrell about the incident. She responded she believed it had been

“totally dismissed”. The prosecutor also asked her “to the best of

[her] recollection” whether she paid a fine or attended a court

hearing. She responded “no”.

During jury selection, the prosecutor conducted further

research into Harrell’s prior arrest, contacting the municipal

court in the county where it had occurred. An individual at that

11
court told the prosecutor Harrell had neither a conviction for the

theft offense nor an active case against her, but that her bond had

been forfeited. Based on that information, the prosecutor

concluded Harrell likely did not have a conviction for the charge.

The prosecutor was provided a letter to that effect but did not

remember showing it to Gutierrez’ counsel.

Gutierrez’ counsel’s questioning of Harrell during voir dire

did not relate to her prior theft arrest. As noted, she was

selected as a juror.

After holding the evidentiary hearing, the state-habeas court

made detailed findings, including: (1) there was no evidence

Harrell had been convicted of theft in connection with her 1979

shoplifting charge; (2) her bond forfeiture did not make her

ineligible to serve on a jury, or subject her to a successful for-

cause challenge; (3) the prosecution’s alleged failure to disclose

the bond-forfeiture evidence did not constitute “favorable” Brady

evidence; and (4) even if the evidence was favorable, there was no

reasonable likelihood that the result of Gutierrez’ trial would

have been different.

The district court held: under AEDPA, Gutierrez had not, by

the requisite clear-and-convincing evidence, rebutted the state-

habeas court’s factual findings. USDC Opn., 392 F.Supp. 2d at 835-

37. According the deference required by AEDPA to these detailed

findings, the court held the state-habeas decision was “an

12
objectively reasonable application of clearly established federal

law”. Id. at 852.

In his COA request, Gutierrez notes that Texas’ Constitution

and Code of Criminal Procedure require any prospective juror who

has been convicted of, or is currently under a charge of, theft be

excused from jury service. TEX. CONST. ART. XVI, § 2; TEX. CODE CRIM.

PRO. ART. 35.16(a)(2). He further insists that state law also

requires the dismissal “of any juror who ‘appears’ to be

disqualified to serve as a juror because of a conviction for

theft”. Because the prosecutor knew Harrell might have been

convicted of theft, Gutierrez maintains his due-process rights were

violated by the failure to disclose this information.

For COA purposes, reasonable jurists would not debate that,

under AEDPA, the district court concluded correctly that, in

holding Gutierrez had not stated a meritorious Brady claim, the

state-habeas decision was not unreasonable because: evidence of

Harrell’s bond forfeiture was not favorable evidence that would

have sustained a for-cause challenge; and, even if the evidence was

favorable, Gutierrez has not shown how Harrell’s replacement would

have voted in jury deliberations concerning Gutierrez’ conviction

and/or sentence. Again, irrespective of the state-habeas and

district courts’ classifying this as a Brady claim, that does not

render the state-habeas decision unreasonable under AEDPA or the

district-court decision debatable by reasonable jurists. Each

13
court was required to consider whether any alleged prosecutorial

misconduct was prejudicial to Gutierrez’ trial.

As discussed infra, any alleged prosecutorial misconduct

concerning Harrell’s selection as a juror did not deny Gutierrez an

impartial jury. In fact, for several reasons, including Harrell’s

Catholic faith, as discussed infra, Gutierrez’ counsel wanted her

on the jury. In any event, for COA purposes, Gutierrez has not

adequately shown pursuant to AEDPA that he was prejudiced by the

alleged prosecutorial misconduct, or that it “so infected [his]

trial with unfairness as to make [his] conviction a denial of due

process”. DeChristoforo, 416 U.S. at 643. Moreover, this claim is

not “adequate to deserve encouragement to proceed further”. Slack,

529 U.S. at 484.

B.

Next, Gutierrez seeks a COA for whether he was denied an

impartial jury, in violation of the Sixth and Fourteenth

Amendments, because: (1) Harrell made a material misstatement that

she had never been arrested or convicted of a crime of theft; and

(2) the prosecution successfully challenged Gerald Becker for

cause, based solely on his religious beliefs, in violation of

Witherspoon v. Illinois, 391 U.S. 510 (1968) (holding prospective

jurors may not be excused from jury service in a capital case

14
because, based on religious beliefs, they voice general objections

to the death penalty).

1.

In both his state and federal habeas petitions, Gutierrez

claimed Harrell made a material misrepresentation when she stated:

in the jury questionnaire, that she had never been charged, or

arrested, with theft or shoplifting; and, during voir dire, that,

although she had been charged with theft in 1979, the charges had

been dismissed, and she had not been arrested. Gutierrez asserted

Harrell had been arrested, charged, and convicted of theft, making

her ineligible for jury service under Texas law. Furthermore,

under McDonough Power Equipment, Inc. v. Greenwood, Gutierrez

claimed his due-process rights were violated, because his trial

counsel did not make a for-cause challenge based on Harrell’s voir-

dire answers. 464 U.S. 548 (1984) (holding due process violated

where a potential juror’s failure to answer a material question on

voir dire deprived the defendant of information permitting a valid

for-cause challenge).

The state-habeas court held Gutierrez had procedurally

defaulted this claim because he did not raise it on direct appeal.

Alternatively, it held: no judgment of conviction had been entered

against Harrell; during voir dire, Harrell had responded

truthfully, to the best of her knowledge; and, even if she had been

disqualified under Texas law for jury service, this potential error

15
did not warrant reversal because Gutierrez neither made a timely

objection nor established he suffered significant harm as a result.

The district court likewise denied relief, noting: the state-

habeas court was correct in concluding the claim had been

procedurally defaulted, USDC Opn., 392 F.Supp. 2d at 835; and,

under Texas law, it is well settled that an otherwise final

conviction may not be collaterally attacked because a jury member

was statutorily disqualified. Id. at 834 (citing Ex Parte Bronson,

254 S.W.2d 177 (Tex. Crim. App. 1952)). Therefore, the district

court held: because the state-habeas court’s factual findings were

reasonable and its conclusions were not an unreasonable application

of clearly-established federal law, Gutierrez was not entitled to

federal habeas relief. Id. at 837. It further held: because the

state-habeas court reasonably determined Harrell did not testify

falsely and was not disqualified from jury service under Texas law,

the state-habeas court’s application of McDonough was objectively

reasonable. Id. at 837, 841.

Gutierrez maintains it is debatable among reasonable jurists

whether Harrell was dishonest about her theft conviction, and

whether that conviction would have subjected her to a for-cause

challenge. He does not contest, however, the district court’s

holding the claim was procedurally defaulted. Accordingly, he

fails to satisfy the above-described two-prong standard for

16
obtaining a COA when a district-court procedural ruling is at

issue.

2.

In his state and federal habeas petitions, Gutierrez claimed

he was denied an impartial jury by the trial court’s granting the

prosecution’s for-cause challenge against prospective juror Becker.

During voir dire, Becker stated repeatedly that, because of his

Catholic faith, he would find it “very difficult, if not virtually

impossible, ... to impose [the death penalty]”. (As noted above,

even though Gutierrez now challenges Harrell’s having served on the

jury, one reason Gutierrez’ trial counsel wanted her as a juror was

because of that faith.) Becker also stated: during the trial’s

penalty phase, and based on his religious beliefs, he would be

“more inclined to say ... there is sufficient mitigat[ing

evidence]” not to impose a death sentence. Based on these, and

other, statements, such as his religious beliefs would interfere

with his ability to fairly answer a special issue, the prosecution

made, and the trial court granted, the for-cause challenge. (The

trial court initially denied the motion and heard additional

examination on the issue.)

Because Gutierrez failed to raise this issue on direct appeal,

the state-habeas court held it was procedurally defaulted. In the

alternative, it held this Witherspoon claim lacked merit because,

under “Adams v. Texas, [448 U.S. 38 (1980)], a venireman may be

17
struck if his views prevent or substantially impair the performance

of his duties as a juror in accordance with the court’s

instructions and the juror’s oath”. Ex Parte Gutierrez, at 10.

The district court held this Witherspoon claim procedurally

defaulted. USDC Opn., 392 F.Supp. 2d at 822. Furthermore, it held

that, Becker’s having repeatedly made clear his death-penalty views

would not enable him to impose that penalty and having never stated

he could set aside those beliefs: Gutierrez had not presented

clear and convincing evidence to rebut the state-habeas court’s

factual findings, id. at 825; and, based on those findings, that

court’s application of Witherspoon and Adams was not contrary to,

nor an unreasonable application of, clearly-established federal

law, id. at 823.

In his COA request, Gutierrez maintains this claim was not

procedurally defaulted; in the alternative, he claims he has made

the requisite cause-and-prejudice showing for this claim to be

considered. Citing Ex Parte Frazier, 67 S.W.3d 189, 190 (Tex.

Crim. App. 2001), Gutierrez claims Texas courts have not

consistently held that a legitimate claim, not raised on direct

appeal, is procedurally defaulted for habeas purposes.

Furthermore, he maintains that, because he has made a colorable IAC

claim, discussed infra, this shows the requisite cause and

prejudice to enable the claim to be considered.

18
 Pursuant to the above-stated two-prong test for obtaining a

COA concerning a district-court’s procedural ruling, Gutierrez must

show, inter alia, that reasonable jurists would debate whether that

ruling was correct. He has not done so.

In all cases in which a state prisoner has
defaulted his federal claims in state court
pursuant to an independent and adequate state
procedural rule, federal habeas review of the
claims is barred unless the prisoner can
demonstrate cause for the default and actual
prejudice as a result of the alleged violation
of federal law, or demonstrate that failure to
consider the claims will result in a
fundamental miscarriage of justice.

Aguilar v. Dretke, 428 F.3d 526, 532-33 (5th Cir. 2005), cert.

denied, 126 S. Ct. 2059 (2006). Ex Parte Gardner, 959 S.W.2d 189

(Tex. Crim. App. 1996), held a state-habeas petitioner may not

raise for the first time in his petition a constitutional error

occurring at trial. The Gardner rule is “an adequate state ground

capable of barring federal habeas review”. Aguilar, 428 F.3d at

535. Furthermore, as discussed infra, Gutierrez has not made,

through his related IAC claim, a cause-and-prejudice showing.

Again, he fails to satisfy the above-discussed two-prong test for

obtaining a COA to contest the district court’s procedural ruling.

C.

19
 Gutierrez seeks a COA for whether the trial court

constitutionally erred in failing to grant him a severance during

the penalty phase. He concedes: he did not raise this severance-

denial claim on direct appeal and instead raised it for the first

time in his state-habeas proceedings.

The state-habeas court held the claim was procedurally

defaulted because it was not raised on direct appeal. In the

alternative, it held: the trial court’s instruction to the jury

that all the evidence must be considered individually with respect

to each of the two defendants prevented any prejudice resulting

from evidence admitted about Gutierrez’ co-defendant, Arroyo; and

the Eighth Amendment’s mandate for individual sentencing was not

violated.

In denying relief, the district court held: Gutierrez’

severance claim was procedurally defaulted; in the alternative, the

claim had no merit because, under Zafiro v. United States, 506 U.S.

534 (1993), the trial of co-defendants should be severed “only if

there is a serious risk that a joint trial [, inter alia,] would

compromise a specific trial right of one of the defendants”. 506

U.S. at 539. Furthermore, the district court noted that, under

Zafiro, proper jury instructions can be sufficient to prevent

prejudice where the penalty for each co-defendant is being

considered during the same proceeding. Along this line, the

district court held: because the trial court instructed the jury

20
to consider evidence individually for each defendant to whom it

pertained, and because the evidence was not so complicated that the

jury could not have compartmentalized it, severance was not

required. USDC Opn., 392 F.Supp. 2d at 827-29.

In his COA request, Gutierrez reiterates his claim that the

Eighth Amendment required severance because there was overwhelming

aggravating evidence presented during the penalty phase against

Arroyo, and much less aggravating evidence presented against him.

Furthermore, he contends he has shown the requisite cause and

prejudice to overcome any procedural default.

As discussed, a federal-habeas petitioner must not have

procedurally defaulted his claim for relief. Furthermore, because

we do not grant a COA on Gutierrez’ IAC claim related to the

severance-motion denial, addressed below, the requisite cause and

prejudice has not been shown. He fails to satisfy the two-prong

standard for receiving a COA concerning a district-court procedural

ruling.

D.

Next, Gutierrez requests a COA for his claim that his

appellate counsel was constitutionally ineffective under Strickland

for failing to challenge on appeal: the for-cause dismissal of

Becker; and the severance-denial at the penalty phase.

1.

21
 Concerning his claim in his state and federal habeas petitions

that his appellate counsel was constitutionally ineffective for

failing to appeal the for-cause dismissal, Gutierrez contends the

prosecution made the challenge based on Becker’s religious beliefs,

discussed supra. The state-habeas court held: (1) the trial

court’s granting the for-cause challenge was not unconstitutional

in the light of Witherspoon; and (2) Gutierrez failed to show

counsel’s not raising this issue on appeal constituted IAC.

The district court held similarly:

Becker’s exclusion was consistent with
Witherspoon and its progeny, [and] even if
erroneous, was nonetheless reasonable under
clearly established federal law .... For
similar reasons, there was nothing
unreasonable with the state habeas court’s
determination that the failure of petitioner’s
state appellate counsel to pursue a
Witherspoon claim on direct appeal did not
cause the performance of said counsel to fall
below an objective level of reasonableness.

USDC Opn., 392 F.Supp. 2d at 883. Finally, the court noted that

Gutierrez had failed to show, under Strickland, how appellate

counsel’s not raising this issue caused Gutierrez prejudice because

there is “no reasonable probability that, but for [this failure],

the outcome of [his] direct appeal would have been any different”.

Id. at 884.

Gutierrez maintains he made a colorable IAC claim because:

the state court’s factual determination that Becker’s religious

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views would have precluded him from serving on the jury is not

supported by the record; appellate counsel’s failure to raise this

issue is inexplicable and was objectively unreasonable; and

resulting prejudice is shown because an automatic reversal is

required where a for-cause challenge is erroneously granted under

Witherspoon.

Of course, appellate counsel need not, and should not, raise

every non-frivolous issue on appeal. E.g., Smith v. Robbins, 528

U.S. 259, 288 (2000). As reflected earlier in describing the bases

for the for-cause challenge, reasonable jurists would not debate

that the district court correctly concluded the state-habeas court

was not unreasonable in holding appellate counsel’s performance did

not fall below an objectively reasonable standard. Furthermore,

this claim does not “deserve encouragement to proceed further”.

See Slack, 529 U.S. at 484.

2.

Concerning Gutierrez’ claim that his appellate counsel

rendered IAC for failing to appeal the penalty-phase severance-

denial, the state-habeas court held: because there were proper

jury instructions and the evidence presented was not too difficult

to be compartmentalized, a severance was not constitutionally

required; appellate counsel’s performance was not objectively

unreasonable for failing to raise this non-meritorious claim; and

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Gutierrez failed to show there is a reasonable probability that,

but for counsel’s failing to raise this issue, the result of his

appeal would have been different.

The district court likewise held that, under AEDPA, the

following state-court determinations were not unreasonable in the

light of clearly-established federal law: a severance was not

required under state and federal law; appellate counsel’s

performance was not deficient for failing to raise this issue; and

no prejudice resulted from counsel’s failing to do so. USDC Opn.,

392 F.Supp. 2d at 885-86.

For his COA request premised on his claim appellate counsel

was constitutionally deficient for failing to raise the severance-

denial issue, Gutierrez insists that, because the aggravating

evidence against him consisted primarily of prior, non-violent

property crimes, and that against Arroyo concerned substantially

more violent conduct, appellate counsel’s performance was not

objectively reasonable. He maintains he suffered prejudice as a

result because, under the Eighth Amendment’s harmless error

standard, the appeals court would have been required to reverse his

conviction.

As discussed supra, Gutierrez did not make the requisite

showing he was denied a constitutional right to individual

sentencing because his severance motion was denied. Accordingly,

it is not debatable among reasonable jurists that the district

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court correctly concluded the state-habeas court was not

unreasonable in holding appellate counsel’s performance was not

objectively unreasonable for failing to raise a non-meritorious

claim.

E.

Gutierrez seeks a COA for the following claims, which he

admits are procedurally-defaulted because he did not raise them in

his state-habeas proceedings: trial counsel IAC; juror misconduct;

and due-process violations for a possible undisclosed agreement

between a prosecution witness and the State, and the suppression of

impeachment evidence relating to a prosecution witness. He

maintains the state-habeas court’s denial of sufficient funding to

investigate these claims creates cause and prejudice for the

procedural default. (Along this line, as discussed in part II.F.

below, Gutierrez challenges the district court’s denial of

investigative assistance.)

Gutierrez moved in the state-habeas trial court for funding to

investigate the factual bases for these potential claims. It

granted him $3000 of the requested $6500 ($1500 of which was

granted seven days before his state-habeas petition was due).

Despite this funding, Gutierrez claimed in his state-habeas

petition he was not able to sufficiently develop the facts to state

cognizable claims for relief. The state-habeas court held

Gutierrez: had not contended any of the grounds for investigation

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were meritorious; and had not produced any witnesses to testify

about the limitations on his investigative ability. Therefore, it

held these claims procedurally defaulted.

Likewise, the district court denied habeas relief, holding:

a federal court is not an alternative forum for the development of

the factual bases for a claim; Gutierrez would only be entitled to

a federal evidentiary hearing upon showing the claim relies on a

new rule of constitutional law or the facts could not have been

previously discovered through the exercise of due diligence, and

those facts would show, by clear and convincing evidence, Gutierrez

was actually innocent of the offense, see 28 U.S.C. § 2254(e)(2);

and Gutierrez had been afforded a full opportunity at the state-

habeas evidentiary hearing to develop the factual basis for his

claims. USDC Opn., 392 F.Supp. 2d at 890-91.

Gutierrez maintains a COA should issue on whether he can show

cause and prejudice, based on insufficient funding, for

procedurally defaulting on these claims in the state-habeas court.

Reasonable jurists, however, would not debate that the district

court was correct in concluding that the state-habeas court was not

unreasonable in holding them procedurally defaulted. As the

district court noted: “Petitioner alleges no specific facts

showing his state habeas counsel exercised due diligence to

investigate, develop, and present any of [his] unexhausted claims

herein to [the] state habeas court”. Id. at 891. Accordingly,

26
Gutierrez fails to satisfy the two-prong standard for obtaining a

COA for the district court’s procedural ruling.

F.

In the final point for consideration, Gutierrez contests the

district court’s denial of his motion for investigative assistance

to develop the procedurally-defaulted claims discussed above in

part II.E. Pursuant to 21 U.S.C. § 848(q)(9), a district judge, in

a capital case, “upon a finding that investigative, expert, or

other services are reasonably necessary for the representation of

the defendant”, may authorize funding for such services.

“This court has held that a COA is not necessary to appeal the

denial of funds for expert assistance.” Smith v. Dretke, 422 F.3d

269, 288 (5th Cir. 2005). Instead, we review for an abuse of

discretion the denial of § 848(q) funding. Id. As Smith noted,

[t]his court has upheld the denial of such
funding when a petitioner has (a) failed to
supplement his funding request with a viable
constitutional claim that is not procedurally
barred, or (b) when the sought-after
assistance would only support a meritless
claim, or (c) when the sought after assistance
would only supplement prior evidence.

Id. (internal citation omitted; emphasis added).

Gutierrez has not shown the district court abused its

discretion in failing to grant additional investigative assistance.

“[Gutierrez’] right under 21 U.S.C. § 848(q)(9) to the assistance

27
of experts where reasonably necessary to press his habeas claims

does not entitle him to a federal evidentiary hearing when he has

failed to ... develop his evidence in state court”. Turner v.

Johnson, 106 F.3d 1178, 1184 n.16 (5th Cir. 1997) (internal

citations omitted); see also Riley v. Dretke, 362 F.3d 302 (5th

Cir. 2004) (holding petitioner cannot show a substantial need for

investigative assistance when the claims he seeks to pursue are

procedurally barred), cert. denied, 543 U.S. 1056 (2005).

III.

For the foregoing reasons, a COA is

DENIED.

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