United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
September 20, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
07-70002
SAMUEL BUSTAMANTE,
Petitioner-Appellant,
v.
NATHANIEL QUARTERMAN, Director,
Texas Department of Criminal Justice-
Correctional Institutions Division,
Respondent-Appellee.
Appeal from the United States District Court for the
Southern District of Texas, Houston
No. 4:05-CV-01805
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM*
Petitioner Samuel Bustamante, convicted of capital murder in
Texas and sentenced to death, requests this Court to issue a
Certificate of Appealability (COA) pursuant to 28 U.S.C. §
2253(c)(2). Bustamante contends that counsel rendered ineffective
assistance during the guilt phase of the trial. Finding that
Bustamante has made a substantial showing of the denial of a
*
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this opinion should not be published and is not precedent except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.
constitutional right, we GRANT the COA.
I. BACKGROUND
On January 17, 1998, Petitioner Samuel Bustamante, Walter
Escamilla, Arthur Escamilla, and Dedrick Depriest planned a
robbery.1 Walter suggested that the four of them drive to
Rosenburg, Texas to go “shopping.” “Shopping” entailed offering a
ride to an illegal alien, taking him to a deserted location, beating
him and stealing his money and jewelry. Arthur drove the group in
his pickup truck, and they arrived in Rosenburg at 2:00 a.m. The
group spotted Rafael Alvarado, and Bustamante noted that Alvarado’s
clothing was in good condition and his watch appeared to be gold.
Alvarado offered to pay for a ride across town, and the men
agreed. Arthur and Depriest sat in the truck cab and Bustamante and
Walter rode in the truck bed with Alvarado. After about fifteen
minutes, Bustamante asked Walter a question, and Walter said
Bustamante should wait. Bustamante stood up and stabbed Alvarado
ten times with a knife. Alvarado managed to break free and fall out
of the truck to the ground. Walter shouted at the driver to stop,
but by the time the truck stopped, they were unable to find Alvarado
after searching for several minutes in the darkness. As they drove
away, the other men called Bustamante crazy.
Subsequently, the police discovered Alvarado’s body in a ditch.
1
The facts underlying the conviction are taken largely
verbatim from the Texas Court of Criminal Appeals’ opinion.
Bustamante v. State, 106 S.W.3d 738, 739-40 (Tex. 2003).
2
He was wearing a watch, a gold necklace, and a ring. His wallet
contained one hundred dollars. The cause of death was stab wounds
to the heart and liver and the attendant loss of blood.
A grand jury indicted Bustamante on the charge of capital
murder. During the guilt phase of the trial, Bustamante’s brother
was called to the stand, and he refused to testify. Thus, his
brother’s written statement was not admitted into evidence. The
statement contained the facts of the crime as related by Bustamante
to his brother, and it also referenced previous times Bustamante had
gone “shopping.” At the conclusion of the guilt phase of the trial,
this statement was inadvertently submitted to the jury with the
properly admitted exhibits.2 The jurors realized the error and
notified the trial judge, who questioned the jurors. This
questioning revealed that three jurors had read the statement or
portions of it either silently or aloud. Bustamante, 106 S.W.3d at
742. Nine jurors had not read it themselves but had heard some or
all of it read aloud. Id. Five jurors said that “they learned
nothing new from the statement, three said that they learned that
[Bustamante] had ‘gone shopping’ before, and four said they learned
about an incident at a truck stop, after the murder, in which
[Bustamante] apparently started to break into another vehicle
2
Bustamante’s brother’s statement had been marked States’
Exhibit 107, but was never admitted into evidence. Another piece
of evidence subsequently was marked as Exhibit 107 and admitted
into evidence.
3
occupied by a sleeping person.” Id. Additionally, “[o]ne juror
said she also learned that [Bustamante] had told his brother before
leaving for Rosenburg that he intended to rob someone.” Id.
The judge overruled Bustamante’s motion for mistrial and
instructed the jurors not to consider that statement “as evidence
of any kind for any purpose at any stage of this trial.” The jury
found Bustamante guilty as charged. After the sentencing phase, the
jury answered the special issues, and the judge imposed a death
sentence.
After exhausting his direct appeal and state habeas remedies,
Bustamante filed the instant federal habeas petition. The district
court denied relief and a certificate of appealability (COA).
Bustamante now moves this Court for a COA.
II. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), a petitioner must obtain a COA before he can appeal the
district court’s denial of habeas relief. See 28 U.S.C. § 2253(c);
see also Miller-El v. Cockrell, 537 U.S. 322, 335-36 (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
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petitioner’s constitutional claims and ask whether that resolution
was debatable among 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 only if the petitioner makes “a
substantial showing of the denial of a constitutional right.” 28
U.S.C. § 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
(citation omitted). “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 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. Moreover, “[b]ecause 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) (citation omitted).
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Bustamante argues that trial counsel’s failure to inspect the
5
exhibits and discover his brother’s statement constituted
ineffective assistance. As previously set forth, his brother’s
statement contained the facts of the crime as related by him to his
brother. Bustamante’s own confessions to the murder were properly
before the jury. Nonetheless, he argues that his brother’s
statement prejudiced him because it provided that Bustamante had
expressed his intention to commit robbery prior to the murder. He
contends that, without his brother’s statement, there is a
reasonable probability that the jurors would have found him guilty
of murder but not robbery.
To establish ineffective assistance of counsel, Bustamante must
show (1) defense counsel’s performance was deficient and (2) this
deficient performance prejudiced the defense. Strickland v.
Washington, 466 U.S. 668, 687 (1984). We must find that trial
counsel “made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed ... by the Sixth Amendment.” Id. The
Supreme Court instructs courts to look at the “norms of practice as
reflected in the American Bar Association standards” and to consider
“all the circumstances” of a case. Id. at 688.
A. Deficient Performance Prong
Bustamante contends that counsel’s failure to review the
exhibits before they were given to the jury constituted deficient
performance. While “[j]udicial scrutiny of counsel’s performance
must be highly deferential,” Bustamante can demonstrate deficient
6
performance if he shows “that counsel’s representation fell below
an objective standard of reasonableness.” Id. at 688-89. However,
“[t]here is a ‘strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.’”
United States v. Webster, 392 F.3d 787, 793 (5th Cir. 2004) (quoting
Strickland, 466 U.S. at 689).
In support of his contention, Bustamante cites a Texas
appellate court’s opinion stating “that it is the responsibility of
the attorneys for [a]ll parties, as well as of the judge and
bailiff, to check the materials to be sent to the jury room.”
Houston v. Simon, 580 S.W.2d 667, 668 (Tex.Civ.App. – Houston [14th
Dist.] 1979).3 Bustamante also relies on a Seventh Circuit case.
Adams Laboratories v. Jacobs Engineering Co., 761 F.2d 1218 (7th
Cir. 1985). In that case, the jury received exhibits that had not
been redacted as ordered. Id. at 1227. The complaining party
argued that it did not thoroughly examine the exhibits because it
was relying on the court’s order to redact. The Seventh Circuit
found the argument “unpersuasive since it is also their attorney[’]s
responsibility to thoroughly examine all exhibits before they are
submitted to the jury.” Id. Although Adams Laboratories was not
a case involving ineffective assistance, that case does support the
3
It should be noted that Simon involved a claim of jury
misconduct in a civil case. Id. Ultimately, the court found that
the inadvertent presence of a copy of the charge with counsel’s
notes was not an act of misconduct such that harm could be
presumed.
7
proposition that it is counsel’s duty to examine the exhibits before
they are submitted to the jury. We therefore conclude that
Bustamante has demonstrated that it is debatable among jurists of
reason whether counsel’s failure to examine the exhibits constitutes
deficient performance.
B. Prejudice Prong
Bustamante next contends that counsel’s failure to discover
that his brother’s statement was erroneously marked as an admitted
exhibit prejudiced him. He argues that the statement prejudiced him
by informing the jurors of an extraneous offense that was similar
to the instant robbery charge. He further argues that his brother’s
statement prejudiced him because it provided that Bustamante had
expressed his intention to commit robbery prior to the murder. He
contends that, without his brother’s statement, there is a
reasonable probability that the jurors would have found him guilty
of murder but not robbery. Strickland’s “prejudice” prong requires
Bustamante to establish that there is a reasonable probability that,
but for the deficient performance of his trial counsel, the outcome
of his capital murder trial would have been different. Id. at 694.
Under Texas law, to convict Bustamante of capital murder, the
jurors had to unanimously find beyond a reasonable doubt that he
killed the victim in the course of attempting the robbery. Tex.
Pen. Code § 19.03(a)(2). Bustamante argues that a juror could have
been persuaded that the murder was not connected to the robbery.
8
He asserts that the killing was unanticipated. This is demonstrated,
Bustamante argues, by the evidence that the driver of the pickup
truck had to be told to slow down and turn around after the victim
had fallen from the truck. He also points to an accomplice’s
testimony that the killing made no sense.
Resolving any doubts as to whether a COA should issue in
Bustamante’s favor,4 we conclude that he has demonstrated that
jurists of reason would find it debatable whether the district court
correctly found no Strickland prejudice. Cf. Old Chief v. United
States, 519 U.S. 172, 185 (1997) (explaining that the risk of unfair
prejudice is “especially obvious” when a prior similar conviction
is admitted).
COA GRANTED.
4
Hernandez, 213 F.3d at 248.
9