Brooks v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 25, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 04-70023

CARL L. BROOKS,

Petitioner-Appellant,

versus

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

Respondent-Appellee.

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

Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.

PER CURIAM:

I

Carl L. Brooks was convicted by a Texas jury of the capital

murder of Frank Johnson in the course of a robbery and sentenced to

death. The Texas Court of Criminal Appeals affirmed1 and the

Supreme Court denied certiorari.2 The Texas Court of Criminal

Appeals adopted the findings of fact and conclusions of law of the

state trial court and denied Brooks’s state application for a writ

1
Brooks v. State, 990 S.W.2d 278 (Tex. Crim. App. 1999).
2
Brooks v. Texas, 528 U.S. 956 (1999).
of habeas corpus.3 Brooks then filed his application for a federal

writ under 28 U.S.C. § 2254 on April 4, 2003. The federal district

court judge denied all relief on June 2, 20044 and denied a

certificate of appealability two weeks later. Brooks now petitions

this court for a certificate of appealability, a prerequisite to an

appeal of the denial of relief by the district court.5

Brooks asks that we certify six issues:

1. Whether the trial court erred in granting
the State’s challenges for cause against
Jurors Jeffrey Chandler and Marina Campos;

2. Whether Brooks was denied an impartial jury
in violation of the Sixth and Fourteenth
Amendments of the United States Constitution
because the trial court permitted a juror
subject to disqualification to sit on the jury
and determine his death sentence;

3. Whether Brooks was denied an impartial jury
in violation of the Sixth and Fourteenth
Amendments of the United States Constitution
because the trial court failed to grant a
mistrial although Juror Garcia was subject to
disqualification under Articles 35.16(3),
35.19, and 44.6 of the Texas Code of Criminal
Procedure and Texas Government Code
§ 62.102(8);

4. Whether Brooks was denied an impartial jury
in violation of the Sixth and Fourteenth
Amendments of the United States Constitution
because Juror Garcia was permitted to sit on
the jury and determine his death sentence even

3
Ex Parte Brooks, No. 45,631-01 (Tex. Crim. App. Sept. 13, 2000)
(unpublished).

4
Brooks v. Dretke, No. SA-00-CA-1050-FB (W.D. Tex. Jun. 2, 2004)
(unpublished).
5
See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 335-
36 (2003).

2
 though Juror Garcia engaged in misconduct and
demonstrated a bias and prejudice against
Brooks;

5. Whether the trial court erred in allowing
the testimony of John Kipling at the
punishment phase of trial; and

6. Whether the death penalty was inflicted in
violation of the Federal Constitution when
Brooks was denied his right to due process and
a fair and impartial trial by jury under the
Sixth and Fourteenth Amendments to the United
States Constitution when the State’s witness
John Kipling presented testimony at the
punishment phase that provided a false
impression because Kipling’s testimony was
racially motivated by the fact that Brooks, a
Black, had an intimate relationship with his
daughter Stephanie Kipling, a White.

II

We can grant a certificate only if Brooks makes a “substantial

showing of the denial of a constitutional right.”6 This in turn

requires Brooks to show that “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.”7

Finally, in deciding whether Brooks has cleared these hurdles we

are to resolve doubts in his favor and be mindful that Brooks seeks

review of his death sentence.

III

6
28 U.S.C. § 2253(c)(2).
7
Miller-El, 537 U.S. at 336 (internal quotation marks and citation
omitted).

3
 For essentially the reasons stated by the federal trial court

we refuse a certificate upon issue number one, sustaining the

State’s challenges for cause of Jurors Jeffrey Chandler and Marina

Campos, and issues five and six challenging the admissibility of

the testimony of John Kipling during the sentencing phase of the

trial. We are not persuaded that jurists of reason could disagree

with the district court’s resolution of these issues or could

conclude that they are adequate to deserve encouragement to proceed

further.

Issues two, three and four are directed at Juror Santiago

Alexander Garcia. On the first day of the sentencing phase, Garcia

was arrested as he passed through courthouse security with a pistol

in his briefcase. He was arrested for a misdemeanor offense of

unlawfully carrying a weapon. Released on his personal

recognizance he completed his service on the jury. As recounted by

the federal district court, the state habeas judge, in findings

adopted by the Texas Court of Criminal Appeals, concluded inter

alia that

[1] Garcia did not at the punishment phase of
[Brooks’s] trial in a manner designed to
ingratiate himself with prosecutors but,
rather, based his vote solely on the evidence,
[2] [Brooks] had failed to show bias or
impartiality on the part of Garcia, [3]
[Brooks] had failed to show Garcia was treated
any differently than other persons arrested
under similar circumstances, [and] [4] no

4
 juror misconduct had occurred . . . .8

We are persuaded that these are issues deserving encouragement to

proceed further.

The clerk will calendar this case for oral argument with a

schedule for any additional briefs on the merits that Brooks or the

State may wish to file.

8
Brooks v. Dretke, No. SA-00-CA-1050-FB, at *76.

5