Mata v. Johnson

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 96-20218

RAMON MATA, JR.,

Petitioner-Appellant,

versus

GARY JOHNSON, Director,
TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

Appeal from the United States District Court
For the Southern District of Texas

October 31, 1996

Before WIENER, PARKER, and DENNIS, Circuit Judges.

WIENER, Circuit Judge:

Petitioner-Appellant Ramon Mata, Jr., a Texas death row

inmate, appeals the district court’s grant of summary judgment in

favor of Respondent-Appellee Gary Johnson, Director of the Texas

Department of Criminal Justice (the Director), denying and

dismissing with prejudice Mata’s petition for a writ of habeas

corpus. For the reasons set forth below, we affirm the judgment of

the district court.
 I

FACTS AND PROCEEDINGS

In February 1986, Mata was convicted of capital murder and

sentenced to death for the murder of Minnie Rene Houston, a black

female prison guard in the Ellis Unit of the Texas Department of

Corrections in Walker County, Texas. At the time of the killing,

Mata was already serving a prison sentence at the Ellis Unit for a

previous murder. Mata and six other trustee inmates worked under

Officer Houston’s supervision at the corrections officers’ dining

hall. Evidence in the trial record suggests that Mata and Houston

may have been romantically involved.

On the night of the killing, Officer Houston issued filet

knives to the inmates so that they could clean fish. About 9:30

that evening, Mata used his knife to stab Houston to death. He

then ran from the kitchen, took Houston’s car, drove across a field

to the main picket tower, got out of the car, and told an officer

that he had killed Houston. The knife, with Mata’s fingerprints on

it, was found on the floor of Houston’s car between the seat and

the door on the driver’s side. Blood of Houston’s type was found

on Mata’s clothes, Houston’s clothes, and the knife.

Mata, who is Hispanic, was charged with capital murder under

Texas Penal Code § 19.03(a)(5). Under that provision, it is a

capital offense for a person, while incarcerated in a penal

institution, to murder another who is employed in the operation of

the penal institution.

The case commanded widespread attention in Walker County,

2
where over twenty percent of the adult residents were affiliated

with the prison. The trial judge conducted a poll and determined

that nearly everyone in the county was familiar with the case, and

that more than half had already formed an opinion about Mata. On

the basis of that information and pursuant to his own motion, the

trial judge changed the venue of the case to neighboring Madison

County. Although approximately seventeen percent of the adult

residents of Madison County also were affiliated with the prison,

Mata did not request another change of venue.

Seventy-six persons answered the summons for jury duty in

Mata’s trial, and eight members of the venire were black. During

jury selection, however, the prosecution and Mata’s defense counsel

agreed to exclude all eight black venirepersons from the jury. The

trial court permitted this to happen without requesting a non-

discriminatory explanation or even requiring the parties to expend

a single peremptory challenge.

Courtroom security was enhanced for Mata’s trial. Heavily

armed, specialized security forces were stationed throughout the

courtroom, and video cameras and metal detectors were installed in

the entryway. In addition, between thirty and forty fully

uniformed prison guards were in regular attendance as spectators

throughout the proceedings.

In the separate punishment phase of the trial that followed

Mata’s conviction, the jury answered “yes” to the three questions

posed to them pursuant to Texas Code of Criminal Procedure art.

37.071(b), and the trial court sentenced Mata to death. The Texas

3
Court of Criminal Appeals affirmed the conviction and sentence1 and

subsequently denied Mata’s motion for rehearing. Mata did not

petition the Supreme Court for a writ of certiorari. Thus, Mata’s

conviction became final on November 4, 1992.

Mata filed a state habeas corpus petition in 1993, which he

supplemented in 1994. On January 6, 1995, the trial court adopted

the appointed Master’s Final Report which concluded that Mata’s

claims did not entitle him to relief, and the Texas Court of

Criminal Appeals denied habeas relief on January 27.2 The U.S.

Supreme Court denied writs on October 10, 1995.3

Mata filed his federal habeas petition on September 18, 1995.

The next day, the trial court scheduled Mata’s execution for March

14, 1996. On March 5, the district court denied Mata’s habeas

petition and Application for Certificate of Probable Cause.4 Mata

promptly filed a Notice of Appeal to this court. Noting that the

district court had waited to deny Mata’s petition until less than

10 days before his scheduled execution, we stayed Mata’s execution

and carried his Application for Certificate of Probable Cause (CPC)

with this appeal.

Mata asserts three claims in his habeas petition: (1) that

1
Mata v. State, No. 69,632 (Tex. Crim. App. Nov. 4,
1992)(unpublished).
2
Ex parte Mata, Writ No. 8,937-02 (Tex. Crim. App. Jan. 27,
1995)(unpublished).
3
Mata v. Texas, 116 S.Ct. 297, 133 L.Ed.2d 204 (1995).
4
Mata v. Scott, No. H-95-4545 (S.D. Tex. March 5, 1996)
(unpublished).

4
the agreement between his own defense counsel and the prosecution

to exclude all blacks from the jury violated the Equal Protection

Clause of the Fourteenth Amendment, (2) that this agreement

deprived him of his Sixth Amendment right to a jury chosen from a

fair cross-section of the community, and (3) that his Sixth and

Fourteenth Amendment rights to a fair trial were denied through a

combination of harmful circumstances surrounding the trial,

including the presence of armed guards throughout the courtroom,

the addition of special video cameras and metal detectors for the

duration of the trial, prejudicial pretrial publicity, and the

constant and overbearing presence of uniformed correctional

officers in the spectator portion of the courtroom.

We construe Mata’s request for a CPC as a request for the

newly required Certificate of Appealability (COA), grant Mata’s

request for a COA, and proceed to the merits of his appeal.

II

ANALYSIS

A. ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT OF 1996

Our jurisdiction to employ the writ of habeas corpus to review

the constitutionality of Mata’s state court conviction and sentence

is derived from 28 U.S.C. §§ 2241-2255. The Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), signed into law on

April 24, 1996, revised that statutory scheme in two ways relevant

to Mata’s case: (1) The Amended Standard Procedures (AEDPA §§ 101-

106, codified at 28 U.S.C. §§ 2241-2255) are applicable to all

federal habeas petitions; and (2) the Expedited Procedures (AEDPA

5
§ 107, codified at 28 U.S.C. §§ 2261-2266) are applicable only to

capital cases. As an initial matter, we must determine whether

either or both of these new AEDPA provisions govern the case now

before us.

1. The Amended Standard Procedures

Although the AEDPA specifically provides that the expedited

procedures in § 2264 are immediately applicable when a state

fulfills the “opt-in” requirements, the Act is silent concerning

the effective date of the amended standard procedures in § 2254.5

Recently, in Drinkard v. Johnson,6 another panel of this court held

that the amendment to § 2254(d)(1) concerning the appropriate

standard of review applicable to federal courts considering habeas

corpus proceedings arising out of state convictions is procedural

in nature and therefore immediately applicable under the Landgraf

v. USI Film Products7 analytic framework. We see no basis for

divorcing the remainder of the § 2254 amendments -- all of which

involve standards of review -- from the Drinkard application of

Landgraf. We hold that the entire amended § 2254 applies to the

issues raised by Mata in this case.

5
The expedited procedures in § 2264 expressly require
application of § 2254(a),(d)&(e). Therefore, if the state
qualifies as an opt-in state, the immediate applicability of § 2264
includes the amended standard provisions. However, because we
determine that Texas is not an opt in state, the immediate
applicability of § 2264 does not inform this question.
6
Drinkard v. Johnson, --F.3d--, 1996 WL 571122 (5th Cir.
October 7, 1996).
7
511 U.S. 244, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994).

6
2. The Expedited Procedures

Section 107 of AEDPA, entitled “Death Penalty Litigation

Procedures,” expressly provides that the Expedited Procedures

codified in 28 U.S.C. § 2262-2266 are immediately applicable to

pending petitions brought by death row prisoners held in state

custody.8 Application of these new procedures, however, is

conditioned on the State establishing:

[by] statute, rule of its court of last resort or by
another agency authorized by State law, a mechanism for
the appointment, compensation and payment of reasonable
litigation expenses of competent counsel in state post-
convictions proceedings by indigent prisoners. . . .
The rule of court or statute must provide standards of
competency for the appointment of such counsel.9

A state may opt in to the expedited procedures by fulfilling

these requirements. Even prior to the enactment of AEDPA, Texas

had established a statewide mechanism for the appointment of

counsel to represent its burgeoning death row population in post-

conviction proceedings.10

a. Attorney’s fees and costs

The AEDPA requires a qualifying state to have established “a

mechanism for the . . . compensation and payment of reasonable

litigation expenses of competent counsel.”11 The Texas Court of

Criminal Appeals has adopted strict guidelines limiting

8
28 U.S.C. § 2266(c).
9
28 U.S.C. § 2261(b).
10
Act of May 24, 1995, Ch. 319, § 1, 1995 Tex. Sess. Law
Serv. 2764 (Vernon) (effective Sept. 1, 1995) (codified as Tex.
Code Crim. Proc. Ann. art. 11.071).
11
28 U.S.C. § 2261(b).

7
compensation to $7,500 and reimbursement of expenses to $2,500 for

each appointment made under art. 11.071. Mata contends that these

rates are inadequate to ensure the ability of death row inmates to

obtain competent counsel to represent them in state habeas

proceedings, urging that Texas is therefore disqualified as an opt-

in state. In other words, Mata contends that $7,500/$2,500 will

not pay the “compensation and reasonable litigation expenses of

competent counsel.”

We do not find the limits facially inadequate, and Mata has

not established any circumstances that would prove the limits

inadequate in his case.

b. Standards for ensuring competency of counsel

Mata next argues that Texas has not satisfied the requirement

set out in 28 U.S.C. § 2261(b) that, to qualify as an opt-in state,

the mechanism for appointment of counsel must include “standards of

competency” for such counsel. Art. 11.071 does not provide

standards of competency in the statute itself. Although art.

11.071, § 2(d) states that standards of competency will be adopted

by the Texas Court of Criminal Appeals,12 to date no such standards

have been adopted.

The State argues that the Texas Court of Criminal Appeals has

implemented a flexible mechanism for evaluating the qualifications

12
Art. 11.071 § 2(d) provides, in pertinent part:

Unless an applicant elects to proceed pro se or is
represented by retained counsel, the court of criminal
appeals shall, under rules and standards adopted by the
court, appoint competent counsel at the earliest
practicable time.

8
of prospective counsel: Each counsel seeking appointment in a

capital case must complete and submit a questionnaire, which the

Court of Criminal Appeals evaluates on a case-by-case basis to

ensure competence. But we interpret § 2261(b) to require explicit

standards of competency. The Texas statute, on its face, delegates

the task of developing competency standards to Texas’s highest

criminal court. Under § 2265(a), such delegation is appropriate;

so far, however, the Texas Court of Criminal Appeals has failed to

fulfill its delegated task. Moreover, Texas has failed to comply

fully with § 2265’s requirements, as it has not “establishe[d] by

statute, rule of court of last resort, or by another agency

authorized by State law” specific, mandatory standards for capital

habeas counsel. Therefore, we conclude that Texas is not yet

eligible to take advantage of the provisions afforded opt-in states

under the AEDPA.13

B. STANDARD OF REVIEW

Having determined that the amended standards of review in §

2254 apply to Mata’s case, we must next decide what those new

standards require of us. We begin by examining the amended

language of the statute.

(d) A [§ 2254 writ] shall not be granted . . . unless the
adjudication of the claim

13
See Ashmus v. Calderon, 935 F.Supp. 1048 (N.D.Cal.
1996)(California’s statute does not include adequate competency
standards to qualify as an opt-in state); Austin v. Bell, 927
F.Supp. 1058 (M.D.Tenn. 1996) (Tennessee’s statute does not include
adequate competency standards to qualify as an opt-in state); Hill
v. Butterworth, 1996 WL 447194 (N.D.Fla. August 9, 1996)(Florida’s
statute does not include adequate competency standards to qualify
as an opt-in state).

9
 (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; 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.

The Drinkard majority interprets the second clause of (d)(1), which

sets out the standard of review for mixed questions of fact and

law, thus:

[W]e hold that an application of law to facts is
unreasonable only when it can be said that reasonable
jurists considering the question would be of one view
that the state court ruling was incorrect. In other
words, we can grant habeas relief only if a state court
decision is so clearly incorrect that it would not be
debatable among reasonable jurists.14

The Drinkard dissent, while agreeing that (d)(1) is immediately

applicable, characterizes the standard of review as de novo.15 We

understand the Drinkard majority to articulate a somewhat hybrid

standard of review that is probably most closely akin to the

traditional “clearly erroneous” standard than to any other

established standard of review.

The concept of federal habeas courts applying a

“reasonableness” inquiry to state court decisions did not spring

full grown, in all its Athenian beauty, from the AEDPA’s forehead.

During what has been called the heyday of habeas review, the Warren

Court allowed habeas claims based on law not in existence at the

time of the petitioner’s trial, denominating the “adequate state-

14
Drinkard, 1996 WL 571122, *15 (emphasis added).
15
Id. at *27.

10
ground rule a function of appellate review.”16 Less than ten years

later, however, the Supreme Court developed the cause and prejudice

requirement. That is, a petitioner was required to show (1) cause

for his failure to comply with procedural rules and (2) actual

prejudice resulting from the federal violation claimed.17 In 1977,

Wainwright v. Sykes18 extended the “cause and prejudice” test of

Davis and Francis to state contemporaneous objection rules, calling

into question Fay v. Noia’s view of the adequate and independent

state ground doctrine. This trend of narrowing the federal habeas

review culminated in Teague v. Lane,19 which held that new

constitutional rules of criminal procedure will not be applicable

to those cases which have become final before the new rules are

announced. Justice Scalia explained the new view of the role of

federal habeas review in 1989:

[T]he historic role of habeas corpus in our system of law
[] is to provide a deterrence, the threat of which serves
as a necessary additional incentive for trial and
appellate courts throughout the land to conduct their
proceedings in a manner consistent with established
constitutional standards. Deterrence and threat are
meaningless concepts as applied to a situation in which
the law is so uncertain that a judge acting in all good
faith and with the greatest of care could reasonably read
our precedents as permitting the result the habeas

16
Fay v. Noia, 372 U.S. 391, 429, 83 S.Ct. 822, 9 L.Ed.2d 837
(1963)(emphasis in original).
17
Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36
L.Ed.2d 216 (1973); Francis v. Henderson, 425 U.S. 536, 96 S.Ct.
1708, 48 L.Ed.2d 149 (1976).
18
433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).
19
489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).

11
 petitioner contends is wrong.20

In effect, a reasonable, good faith application of Supreme Court

precedent will immunize the state court conviction from federal

habeas reversal, even if federal courts later reject that view of

the applicable precedent. The AEDPA essentially codified the

Supreme Court’s current position on the scope of the Great Writ.

We must therefore ask, under § 2254(d)(1), whether a state judge

could reasonably read Supreme Court precedent as permitting the

result of which Mata now complains.

C. THE EQUAL PROTECTION CLAIM

1. The state’s decision was clearly erroneous

We are convinced beyond peradventure that no reasonable state

judge could read Supreme Court precedent as permitting the

agreement that was reached and implemented in this case. The

prosecution and the defense counsel explicitly agreed to exclude

all eight black venire members from the jury, and the trial judge

approved the agreement, at least implicitly, by permitting the

parties to strike each and every black without articulating a

reason or even expending any of their allotted peremptory

challenges. Unquestionably, such collusion among the prosecution,

the defense, and the judge constitutes a flagrant violation of the

Equal Protection clause of the Fourteenth Amendment, as set forth

by the Supreme Court in an unwavering line of cases dating back

more than a century.

20
Penry v. Lynaugh, 492 U.S. 302, 350, 109 S.Ct. 2934, 106
L.Ed.2d 256 (1989)(Scalia, J., concurring in part, dissenting in
part)(quotations and citations omitted).

12
 Over one hundred years ago, in a series of cases beginning

with Strauder v. West Virginia,21 the Supreme Court enunciated the

“constitutional imperative of race neutrality in the courtroom.”22

In Strauder, the Supreme Court “recognized that denying a person

participation in jury service on account of his race

unconstitutionally discriminates against the excluded juror.”23

Since that time, the Court has never waivered on the principles

announced in Strauder. “Rather, the Court has been called upon

repeatedly to review the application of those principles to

particular facts.”24

Of course, the state appellate courts should have gleaned

guidance from more recent Supreme Court precedent as well. Mata’s

conviction became final in November 1992, long after the Court

issued its opinions in Batson v. Kentucky25 and Powers v. Ohio,26 and

six months after the Court’s opinion in Georgia v. McCollum.27 In

Batson and its progeny, the Supreme Court focused primarily on

proscribing the use of peremptory challenges to exclude jurors on

21
100 U.S. 303 (1880).
22
Powers v. Ohio, 499 U.S. 400, 402, 111 S.Ct. 1364, 113
L.Ed.2d 411 (1991).
23
Georgia v. McCollum, 505 U.S. 42, 48, 112 S.Ct. 2348, 2353,
120 L.Ed.2d 33 (1992).
24
Batson v. Kentucky, 476 U.S. 79, 90, 106 S.Ct. 1712, 90
L.Ed.2d 69 (1986).
25
476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
26
499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991).
27
505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992).

13
the basis of race. Batson was designed not only to protect

individual defendants from discrimination in the selection of

jurors, but also to protect the rights of potential jurors and to

ensure continued public confidence in the judicial system. In

Powers and McCollum, the Court noticeably shifted the focus further

away from the injury to the litigants and toward the more expansive

harm done to the excluded jurors and the community at large.

Neither the prosecution nor the defense is permitted to use

peremptories to exclude potential jurors on the basis of race,28 and

a litigant need not be of the same race as the excluded jurors to

have standing to champion their rights.29 That the judge, the

prosecution, and the defense are all state actors in the context of

jury selection was settled law before Mata’s conviction became

final.30 Thus, it would be ludicrous to believe that state actors

could avoid the constitutional infirmity of race-based peremptory

strikes by mutual agreement. Moreover, the constitutional

violation in this case was more clear-cut than in the typical

Batson-type situation because both the prosecution and the defense

participated, as did the trial court, albeit on a slightly more

passive level.

We conclude that any reasonable jurist — nay, every reasonable

jurist — would have held that, whether it be at the hands of one,

all, or some combination of, the three relevant state actors,

28
McCollum, 505 U.S. at 55, 112 S.Ct. at 2357.
29
Powers, 499 U.S. at 415.
30
McCollum, 505 U.S. at 54, 112 S.Ct. at 2356.

14
discrimination in the selection of jurors constitutes a violation

of the jurors’ right to equal protection under the law. “[R]ace

neutrality in jury selection [is] a visible, and inevitable,

measure of the judicial system’s own commitment to the commands of

the Constitution. The courts are under an affirmative duty to

enforce the strong statutory and constitutional policies embodied

in that prohibition.”31 We are duty bound to uphold the dignity of

excluded jurors and to do all we can to sustain the respect and

confidence of the people in the integrity and impartiality of our

judicial system.

Our recent decision in United States v. Huey32 bears

significantly on Mata’s petition, as our holding in that case is

consistent with Supreme Court precedent. In Huey, we overturned

the convictions of two co-defendants because one of them, over

objections from the prosecution and the other co-defendant, used

all of his peremptory challenges to strike black jurors. Holding

that we were obligated to vacate the convictions of both co-

defendants, we stated:

We are not unaware that there is some irony in
reversing Huey’s conviction given that it was his counsel
who made the discriminatory strikes. We are convinced,
however, that this result is consistent with the
teachings of Batson and its progeny. In addition to
harming individual defendants and prospective jurors,
racial discrimination in the selection of jurors impugns
the integrity of the judicial system and the community at
large. ‘Be it at the hands of the State or the defense,
if a court allows jurors to be excluded because of a
group bias, it is a willing participant in a scheme that

31
Powers, 499 U.S. at 416.
32
76 F.3d 638 (5th Cir. 1996).

15
 could only undermine the very foundation of our system of
justice--our citizens’ confidence in it.’33

The Supreme Court has held repeatedly that the Constitution

prohibits purposeful discrimination on the ground of race in the

selection of jurors. Therefore, the state court’s determination

that the exclusion of black veniremembers from Mata’s jury, by

mutual agreement between the prosecution and the defense, passed

constitutional muster was contrary to clearly established Supreme

Court precedent.

That does not end our inquiry, however. The constitutional

violation is clear, but Mata’s petition states a unique claim in

two central respects. First, we cannot apply the traditional

Batson framework to Mata’s claim because no objection was made at

trial. Indeed, differing from the typical Batson situation, the

instant discrimination was accomplished without either party

expending a single peremptory strike. Second, and more

importantly, Mata is demanding a new trial to remedy the effect of

his own constitutional violation. This factor more than any other

sets Mata’s claim apart from those that we have encountered

previously. Thus, as a threshhold inquiry, we must first determine

whether Mata even has standing to raise this constitutional

challenge on behalf of the excluded jurors, and, if so, whether the

grant of a new trial is the only appropriate remedy, assuming that

remedy is appropriate at all.

Standing here is a close issue. If we should conclude that

33
Huey, 76 F.3d at 641 (quoting McCollum, 505 U.S. at 49-50,
112 S.Ct. at 2354).

16
the instant violation cannot be remedied through a grant of a new

trial, then the issue of standing would become moot. Therefore, we

assume arguendo that Mata has the requisite standing and proceed to

answer the question whether this constitutional violation warrants

the granting of a new trial.

2. Competing Harms to the System

As earlier noted, Mata asserts that the unconstitutionality of

the race-based agreement to exclude black veniremembers from the

jury requires us to vacate his conviction and order a new trial.

We do not find such a result to be so clear. First, we must

constantly bear in mind precisely whose harm we are attempting to

remedy. Mata does not suggest that we should concern ourselves

with any injury, perceived or real, that might have befallen him as

a result of the agreement. With that we agree: If the agreement

violated Mata’s constitutional rights, he waived those rights by

colluding in the violation. Instead, we are concerned with the

toll that the agreement took on the dignity of the excluded jurors

and on the integrity of the judicial system. Regrettably, there is

nothing we can do at this late date to remedy the injury to the

particular veniremembers who a decade ago were excluded from Mata’s

jury. Our current concern, then, must be principally for the

reputation and integrity of the system in general.

Viewed from that perspective, it does not necessarily follow

that we should grant a new trial. The parties to this agreement,

Mata included, have placed us in a “Catch 22" situation:

Regardless of whether we do or do not grant a new trial, we will

17
risk doing violence to public confidence in the judicial system

either way. On the one hand, if we should refuse to vacate Mata’s

conviction, we risk sending an unpalatable and unintended signal

that we decline to do absolutely everything in our power to deter

future acts of racial discrimination in the selection of jurors.

On the other hand, if we should grant Mata a new trial, we may do

even greater damage to the integrity of our judicial system; Mata

would receive a benefit because of an error which he or his counsel

invited, although Mata has never contended that he is innocent of

the crime. Consequently, the core value of the image of justice

would be impaired. By the phrase image of justice we do not mean

that any judicial decision ought to be made on the basis of its

likely impact upon the court’s public relations in the Madison

Avenue sense, but that it is important not only that courts

dispense justice but that, insofar as possible, courts also appear

to do so. We therefore resist the invitation to establish a per se

rule that would have us throw out the verdict and try the case

again whenever veniremembers have been excluded from a jury on the

basis of race. Instead, any time that a defendant requests a new

trial on the basis of his own constitutional violation, we shall

consider the facts peculiar to that case, balance the competing

harms to the system, and choose that course of action that we

believe will do the least damage to the system and to the peoples’

perception of it.

Our holding in Huey does not compel the granting of a new

trial in this case. The factors in Huey that counseled against

18
granting a new trial were outweighed by our obligation to deter

discriminatory jury selection practices. In Huey, though, there

was no question but that the case had to be retried with respect to

the co-defendant who had not acted in a discriminatory fashion.

Thus, our decision to order a new trial for both co-defendants did

not significantly increase the financial or emotional burden on the

community. In contrast, the factors weighing against the

imposition of a new trial for Mata are more pronounced. Mata was

convicted in 1986 shortly before the Supreme Court issued its

seminal Batson decision. In the ten years that have passed since

Mata’s conviction, Batson has been fleshed out and explained. We

are convinced that the agreement in this case was unique at the

time and is certainly an anachronism now. We are equally convinced

that such jury selection collusion among litigants and judges is

virtually certain never to be repeated.

D. The Fair Cross-Section Claim

Mata argues that the agreement to exclude each black

veniremember from the jury violated his sixth amendment right to a

jury chosen from a fair cross-section of the community. Mata

reasons that the practical effect of excluding eight black

veniremembers by agreement, without the use of peremptories, is

indistinguishable from the effect of having had an all-white venire

from the outset. We see no merit in Mata’s Sixth Amendment claim.

Regardless of the practical effect, no prior case has held that

exclusion of minority veniremembers by the parties during jury

selection somehow relates back, so that the original venire can be

19
characterized as all-white. Thus, even if we were inclined to be

the first to create such a legal fiction — which we are not — our

authority to do so in the context of federal habeas review would be

circumscribed by 28 U.S.C. § 2254(d)(1).

E. The Fair Trial Claim

Mata also argues that the totality of the circumstances

surrounding his trial created an inherently prejudicial atmosphere,

violating his due process right to a fair trial. Specifically,

Mata claims that his trial was tainted to the point of reversible

prejudice by the combined effects of excessive pretrial publicity,

conspicuous presence of heavily armed security personnel in and

around the courtroom, installation of surveillance cameras and

metal detectors for the duration of the trial, and the intimidating

presence of 30-40 uniformed prison guards as spectators in the

courtroom throughout his trial. We note with some consternation,

as did the state habeas court, that Mata does describe a factual

situation that could provide the basis of a cognizable

constitutional claim.34 Nevertheless, our addressing the merits of

this claim by Mata is proscribed.

34
See Woods v. Dugger, 923 F.2d 1454 (11th Cir.), cert.
denied sub nom., Singletary v. Woods, 502 U.S. 953, 112 S.Ct. 407,
116 L.Ed.2d 355 (1991). In Woods, the Eleventh Circuit dealt with
facts that were virtually indistinguishable from the facts Mata
alleges in his petition. The defendant was convicted of murdering
his prison guard. He was tried in a small town, where nearly 30%
of the adult population worked for the prison, and the case was the
subject of heavy pretrial publicity. On direct appeal, the
Eleventh Circuit determined that the presence of a large number
uniformed officers in the courtroom was inherently prejudicial and
vacated the defendant’s sentence. Unlike Mata, however, the
defendant in that case objected to presence of the officers and
raised the issue on direct appeal.

20
 Federal habeas review is barred 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,35 unless the

petitioner can satisfy the new “cause and actual innocence”

standard imposed by amended 28 U.S.C. § 2254(e)(2).36 The state

habeas court disposed of Mata’s claim on procedural grounds. The

Master’s report, which the Texas Court of Criminal Appeals adopted

in denying Mata’s state habeas petition, determined that Mata

failed to meet his pleading burden under Texas law. Citing the

Texas Court of Criminal Appeals’ decision in Ex parte Empey,37 the

Master stated that Texas law requires a petitioner to offer, along

with his habeas petition, at least some proof to support his

factual allegations. The Master concluded that, as Mata failed to

35
Coleman v. Thompson, 501 U.S. 722, 751, 111 S.Ct. 2546,
2565-66, 115 L.Ed.2d 640 (1991).
36
Section 2254(e)(2) states:

(2) If the applicant has failed to develop the factual
basis of a claim in State court proceedings, the court
shall not hold an evidentiary hearing on the claim unless
the applicant shows that--
(A) the claim relies on--
(i) a new rule of constitutional law, made
retroactive to cases on collateral review by
the Supreme Court, that was previously
unavailable; or
(ii) a factual predicate that could not have
been previously discovered through the
exercise of due diligence;
and
(B) the facts underlying the claim would be
sufficient to establish by clear and convincing
evidence that but for constitutional error, no
reasonable factfinder would have found the
applicant guilty of the underlying offense.
37
757 S.W.2d 771, 775 (Tex. Cr. App. 1988).

21
attach any affidavits, exhibits, newspaper clippings, letters from

participants, or any other documents that might demonstrate or

reflect the events that Mata described in his petition, Mata failed

to establish a prima facie case and therefore was not entitled to

an evidentiary hearing.

Mata has not offered any argument that the procedural ground

relied on by the Master was unconstitutional, arbitrary, or

pretextual. Thus, we conclude that the state habeas court’s

decision rested on adequate state procedural grounds. Moreover,

even if we could press onward, we would stop short of the merits

because it appears that Mata never made a contemporaneous objection

to any of the factors that purportedly combined to deprive him of

a fair trial. If Mata believed that the circumstances surrounding

his trial were so pervasive that they compromised the jurors’

ability to focus on the evidence and evaluate it fairly, then it

was incumbent upon him to object and thereby provide the trial

judge an opportunity to assess the situation and correct it if need

be. Mata’s appellate brief makes no mention whatsoever of any

objections; and we have combed the record on our own in search of

evidence that Mata made a contemporaneous objection to any of these

factors, but to no avail. Under Texas law, Mata’s failure to make

a contemporaneous objection forfeited any error that might have

occurred in the conduct of his criminal trial.38 The Supreme Court

38
See TEX. R. APP. P. 52(a) (1994)(to preserve complaint for
appellate review, party must have presented to the trial court a
timely request, objection, or motion, stating specific grounds for
the ruling desired if specific grounds were not apparent from
context).

22
has recognized valid state interests in adopting procedural rules

that require defendants to make contemporaneous objections to

preserve error for appellate or habeas corpus review.39 As noted,

an objection is required to inform the trial judge of the basis of

the objection and afford him the opportunity to rule on it.

Mata’s fair trial claim is procedurally barred, and he has

demonstrated neither cause for the procedural default nor clear and

convincing evidence that, but for the alleged courtroom

distractions, no reasonable juror would have answered the special

issues in the affirmative and subjected him to the death penalty.

If Mata had objected at trial and raised the issue on direct

appeal, then depending on the accuracy of the facts he alleges, he

might have had a cognizable claim. It is also possible, but less

likely, that Mata could have sought relief on direct appeal under

a plain error analysis even though he failed to object at trial.40

But absent a contemporaneous objection at trial, there are no

circumstances under which Mata can raise this claim for the first

time on collateral review.

III

CONCLUSION

39
See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53
L.Ed.2d 594 (1977); Francis v. Henderson, 425 U.S. 536, 96 S.Ct.
1708, 48 L.Ed.2d 149 (1976).
40
See United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770,
123 L.Ed.2d 508 (1993)(declining to address the question whether a
court, on direct appeal, may determine that an intrusion to which
the defendant did not object should be presumed prejudicial even
though traditional plain error review requires the appellant to
demonstrate that the error “affect[ed] substantial rights”).

23
 We grant Mata’s COA request, affirm the district court’s

denial of Mata’s petition for habeas relief, and vacate the stay of

execution issued by this court on March 12, 1996.

AFFIRMED.

24