Fuentes v. Dretke , 89 F. App'x 868 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT February 11, 2004
Charles R. Fulbruge III
No. 03-20456 Clerk
ANTHONY GUY FUENTES,
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 Southern District of Texas
(01-CV-4018)
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Anthony Guy Fuentes requests a certificate of appealability
(“COA”) from our court, so that he can challenge the denial of
federal habeas relief for his Texas state court capital conviction
and death sentence. Accordingly, for each claim covered by a COA
request, we must determine whether that request makes the requisite
“substantial showing of the denial of a constitutional right”, 28
*
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this opinion should not be published and is not precedent except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.
U.S.C. § 2253(c)(2), necessary to be permitted to appeal the denial
2
of that claim in his 28 U.S.C. § 2254 habeas petition. DENIED.
I.
On direct appeal, and viewed in the light most favorable to
the verdict, the Texas Court of Criminal Appeals described the
facts as follows:
[O]n Friday, February 18, 1994, [Fuentes],
Kelvin Templeton, Terrell Lincoln, and Steve
Vela conspired to rob the Handi Food Mart and
any employees or customers who happened to be
in the store. The Handi Mart was busy with
employees of the Swartz Electric Company who
had just been paid, cashed their paychecks at
the store and were enjoying a few beers and
the company of coworkers outside the premises
of the store. Among those gathered was Robert
Tate, a regular customer and acquaintance of
the proprietors of the Handi Mart and sometime
employee of Swartz Electric.
[Fuentes] and his cohorts arrived at the
store, noted that it was busy and proceeded
with their plan. Templeton went directly to
the coolers, grabbed two cases of beer and
walked out. [Fuentes] and Vela walked into
the store behind Templeton and pulled out
their guns. Vela went to the cashier and
demanded money. [Fuentes] approached the
proprietor and a customer who were standing
near the counter. The customer, Raymundo
Soria, was a high school classmate of
[Fuentes]. He followed [Fuentes’] orders,
hiding his identity in fear that [Fuentes]
would recognize him. James Draffin was
walking into the store when he noticed that it
was being robbed. He ran to inform his co-
workers of the robbery. Ignoring his friends’
warnings not to get involved, Tate gave chase
when Templeton left the store with the beer.
Tate caught up to Templeton and grabbed him.
Templeton dropped the beer. Just then,
[Fuentes] came running out of the store.
Julio Flores testified that [Fuentes] came out
of the store, ran up to Tate and Templeton,
3
and shot Tate twice in the chest. Testimony
at trial indicated that [Fuentes] used a semi-
automatic gun. Tate fell into a nearby ditch
and died. The bullets recovered from Tate’s
body were consistent with those used in a 9
millimeter weapon, which are most commonly
semiautomatic.
Flores further testified that, despite
standing five hundred meters from [Fuentes],
he got a good look at his face and positively
identified [Fuentes] as Tate’s murderer.
Flores’ description of [Fuentes] was
consistent with the description given by the
proprietor as the man who robbed him in the
store. Flores and Soria positively identified
[Fuentes] in photo lineups.
Templeton was the only co-conspirator to
testify. He testified that he was not
watching when he heard the shots fired; he
thought Tate had shot at him, so he just began
running. Templeton testified that although he
did not see it, he was under the impression
that [Fuentes] had shot Tate because when he
looked back, [Fuentes] had a gun in his hand
and was the one closest to him, and he had not
seen Vela near the victim.
Fuentes v. State, 991 S.W.2d 267, 270-71 (Tex. Crim. App. 1999).
Fuentes was found guilty in Texas state court for the capital
murder of Robert Tate. The jury then answered Texas’ capital
murder special issues in a manner that required the trial court to
impose the death sentence.
The Court of Criminal Appeals affirmed the conviction and
sentence. Fuentes, 991 S.W.2d 267. The Supreme Court of the
United States denied certiorari. Fuentes v. Texas, 528 U.S. 1026
(1999).
4
Fuentes sought habeas relief in state court during the
pendency of his appeal. In February 2000, the trial-level state
habeas court rendered findings of fact and conclusions of law,
recommending that relief be denied. The Court of Criminal Appeals
adopted that recommendation and denied relief in September 2000.
After Fuentes filed a skeletal petition for habeas relief in
the district court to comply with the applicable statute of
limitations, he amended his petition. In March 2003, the district
court denied relief and a COA.
II.
Because Fuentes filed for federal habeas relief after the 1996
effective date of the Antiterrorism and Effective Death Penalty Act
(AEDPA), his application is subject to AEDPA’s constraints. Under
AEDPA, we cannot consider Fuentes’ appeal unless he first obtains
a COA. 28 U.S.C. § 2253(c)(2); e.g., Miller-El v. Cockrell, 537
U.S. 322, 327 (2003).
To obtain that COA, Fuentes must make “a substantial showing
of the denial of a constitutional right”. 28 U.S.C. § 2253(c)(2).
Restated, he must show “that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have
been resolved [by the district court] in a different manner or that
the issues presented were adequate to deserve encouragement to
proceed further”. Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(quotation marks omitted). In other words, “[w]e ... look to the
5
district court’s application of AEDPA to the petitioner’s
constitutional claims and determine whether the [district] court’s
resolution was debatable among reasonable jurists”. Miniel v.
Cockrell, 339 F.3d 331, 336 (5th Cir.), petition for cert. filed,
72 U.S.L.W. 3408 (17 Nov. 2003) (No. 03-811); see also Miller-El,
527 U.S. at 336. Therefore, at the COA stage, we do not apply the
deferential AEDPA standard of review, found in 28 U.S.C. § 2254,
concerning the merits of the habeas petition. See, e.g., Miller-
El, 537 U.S. at 342 (“Before the issuance of a COA, the Court of
Appeals had no jurisdiction to resolve the merits of petitioner’s
constitutional claims.”).
Fuentes seeks a COA on the following claims: (1) during jury
voir dire, the trial court made unconstitutional statements
suggesting that gender could be used as a mitigating circumstance;
(2) concerning his request for a jury instruction on the lesser
included offense of felony murder, (a) the state habeas court
improperly held the request was procedurally defaulted, and (b) the
trial court erred in denying his request for the instruction; and
(3) the Court of Criminal Appeals’ refusal to review the
sufficiency of his mitigation evidence denied him meaningful
appellate review.
A.
Fuentes first seeks a COA based on the district court’s
holding as harmless error the trial judge’s statements at jury voir
6
dire that gender could be used as a mitigating circumstance. The
trial judge stated:
[The punishment phase mitigation special
issue] is a little confusing, at least by
comparison with the rest of the things we’ve
talked about ... I said I can’t tell what a
mitigating circumstance is, and that’s true.
Lots of times some folks think that in some
cases youthfulness might be a mitigating
circumstance; others might not. Some folks
might think in some cases that gender might be
a mitigating circumstance.
(Emphasis added.) Fuentes’ counsel objected but the trial court
overruled and gave more examples of factors that could be
considered mitigating.
On direct review, Fuentes asserted that the trial court’s
statements violated his rights under the Fifth, Eighth, and
Fourteenth Amendments by suggesting that a jury could consider
gender a mitigating circumstance only if the defendant were female.
Fuentes is male; he claims these statements encouraged the jury to
discriminate against him. The Texas Court of Criminal Appeals held
that the comments did not authorize the jury to consider gender as
a mitigating circumstance, but instead supplied examples of
mitigating circumstances that were not defined categories.
Fuentes, 991 S.W.2d at 275. The Court of Criminal Appeals further
noted that Fuentes provided no legal basis to support his
contention that gender could not be considered a mitigating
circumstance.
7
The state habeas court held this claim procedurally barred
because it had been presented on direct appeal.
On federal habeas review, the district court held the use of
gender in the punishment phase of a capital murder trial violates
the Constitution. The district court denied habeas relief,
however, holding: even if the trial court erred, Fuentes had not
established “actual prejudice” from the comments; therefore, the
error was harmless. Brecht v. Abramson, 507 U.S. 619 (1993).
Pursuant to Brecht, a court must determine “whether the error
has substantial and injurious effect or influence in determining
the jury’s verdict”. Id. at 637. A constitutional trial error
does not mandate habeas relief unless it had a substantial effect
or influence in determining the verdict. E.g., O’Neal v. McAninch,
513 U.S. 432, 436 (1995). Under this standard, the petitioner
should prevail whenever the record is “so evenly balanced that a
conscientious judge is in grave doubt as to the harmlessness of the
error”. Id. at 437. Restated, “if our minds are ‘in virtual
equipoise as to the harmlessness’ under the Brecht standard, then
we must conclude that it was harmful”. Woods v. Johnson, 75 F.3d
1017, 1026-27 (5th Cir.) (quoting O’Neal, 513 U.S. at 435), cert.
denied, 519 U.S. 854 (1996).
Fuentes asserts that the Brecht harmless error test is no
longer viable in the light of AEDPA’s “contrary to” or
“unreasonable application of clearly established Federal law”
8
standard. 28 U.S.C. § 2254(d)(1). Moreover, he contends: Brecht
should not apply because the state court did not perform its own
harmless error analysis as required by Chapman v. California, 386
U.S. 18 (1967); and, accordingly, our court should review under the
Chapman standard, which requires reversal unless the error is
harmless beyond a reasonable doubt.
These contentions are foreclosed by Robertson v. Cain, 324
F.3d 297 (5th Cir. 2003). Although the circuits have split on this
issue, Robertson held that Brecht survived AEDPA and is applicable,
even where the state court failed to perform the harmless error
analysis. Id. at 306-07.
The district court found: at voir dire, the trial court
merely provided examples of what a juror may feel is a mitigating
circumstance, but did not define a category of mitigating evidence
or authorize its use in the punishment phase; neither side
contended at the punishment phase that the jury should consider
gender in answering the special issues; the trial court instructed
the jury that mitigating evidence “may include, but is not limited
to, any aspect of the defendant’s character, background, record,
emotional ability, intelligence, or circumstances which you believe
could make a death sentence inappropriate”, but cautioned the jury
to consider only those circumstances supported by the evidence;
neither side presented evidence relating to gender; and the trial
court properly informed the jury of the role of mitigating
9
evidence, noting that the jury should not be swayed by mere
sentiment, sympathy, prejudice, or public feeling. Based on
Brecht, the district court held: even if the trial court erred,
there was no indication that the jury based its sentencing
determination on Fuentes’ gender, either as a mitigating or
aggravating factor.
For COA purposes, and because the district court applied the
correct standard, we review its application of Brecht only to
determine if that application is debatable among reasonable
jurists. Fuentes asserts: of the several potential jurors who
heard the trial court’s comments about gender, one was selected for
the jury; and the comments implied it was permissible to consider
Fuentes’ masculinity against him on the mitigation issue. Even
assuming the trial court’s statements were error (but, along that
line, and as quoted above, the court only said some “might” think
gender “might be a mitigating circumstance”), the district court’s
ruling that the error did not affect Fuentes’ substantial rights is
not debatable among reasonable jurists. First, as noted, the
comments were only examples of evidence that a jury “might” find to
be mitigating. Second, it is unlikely that the single juror who
heard the statements at the start of trial even remembered them at
the sentencing phase. Moreover, the trial court did not specify
that only females could have their gender considered as mitigating
evidence. Neither side addressed gender at the punishment phase,
10
and the trial court warned the jury at that time not to be swayed
by prejudice when considering the evidence. Lastly, there is
nothing to suggest that the jury based its imposition of the death
sentence on Fuentes’ gender.
B.
Fuentes next requests a COA on whether the trial court erred
in denying an instruction on the lesser-included offense of felony
murder. The district court denied habeas relief on two bases: the
claim was procedurally defaulted; in the alternative, reviewing the
merits under the AEDPA deferential standard, the trial court’s
decision was neither contrary to, nor an unreasonable application
of, clearly established federal law, see 28 U.S.C. § 2254(d)(1).
1.
Texas law requires that a proposed jury instruction be made
either in writing or dictated to the court reporter. TEX. CRIM.
PROC. CODE ANN. § 36.15 (Vernon 2003). During its deliberations, the
jury sent a note to the court asking whether it could consider a
lesser degree of murder. Upon the trial court’s referring the jury
to the instructions as given, Fuentes’ trial counsel objected,
contending he had previously requested a lesser included offense
instruction on felony murder. The trial judge stated she had no
memory of such a request; and trial counsel noted that, although
they had such a discussion, it may have been off the record. Trial
11
counsel then requested a felony murder instruction, which the trial
court refused to give.
At the state habeas proceeding, the trial-level court
developed evidence on when and how the initial jury instruction
request was made. Based on trial counsel’s court-ordered affidavit
submitted to that state habeas court, it found that counsel had
made an off-the-record, oral request for the lesser included
offense instruction, which was refused.
The Court of Criminal Appeals denied relief. It adopted the
conclusion that the lesser included offense claim was procedurally
barred because, contrary to Texas law, Fuentes’ trial counsel had
not made a request for the instruction either in writing or on the
record.
On this point, the standard for federal habeas relief vel non
is well established.
A federal habeas court plainly cannot grant
relief where the last state court to consider
the claim raised by the petitioner expressly
and unambiguously based its denial of relief
on an independent and adequate state law
procedural ground. Coleman v. Thompson, 501
U.S. 722, 729-30 (1991). A state procedural
rule is adequate if it is “firmly established”
and regularly and consistently applied by the
court. James v. Kentucky, 466 U.S. 341, 348
(1984). A state procedural rule is
independent if it does not depend on a federal
constitutional ruling. Ake v. Oklahoma, 470
U.S. 68, 75 (1985).
12
Henderson v. Cockrell, 333 F.3d 592, 604 (5th Cir. 2003), cert.
denied, ___ U.S. ___ (26 Jan. 2004) (No. 03-6979) (some citations
omitted; quotation marks omitted).
The district court held the procedural ground was adequate
because this rule is generally followed. E.g., Vasquez v. State,
919 S.W.2d 433, 435 (Tex. Crim. App. 1996). Although the district
court did not hold this procedural ground independent, failing to
make a written request for a jury instruction is obviously
independent of any merits-based constitutional claim.
Because the district court denied habeas relief based on the
procedural default, the test for a COA has two parts. Fuentes must
show: that “jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling”. Slack,
529 U.S. at 484. If we hold that the district court’s decision to
invoke the procedural bar was not debatable, we need not address
the second prong of this test. Id.
Fuentes contends his claim falls under an exception to the
procedural default doctrine because, even though the claim may have
been defaulted in some technical sense, he substantially complied
with the relevant state law. E.g., Lee v. Kemna, 534 U.S. 362
(2002); Osbourne v. Ohio, 495 U.S. 103, 123 (1990); Douglas v.
13
Alabama, 380 U.S. 415, 422 (1965). The district court refused to
hold Fuentes’ claim falls under this exception.
In this regard, a very narrow exception exists when finding a
procedural default is a “ritual of meaningless form” which
“furthers no perceivable state interest”. Osbourne, 495 U.S. at
124 (citations omitted). The Texas statute requiring a proposed
jury instruction be made either in writing or on the record is not
a meaningless ritual — far from it. The rule furthers the
important state interest of providing meaningful appellate review
of issues that were fully resolved before the trial court. The
district court’s procedural ruling is not debatable among
reasonable jurists.
2.
As discussed, we need not address the district court’s
alternative determination on the merits, because its decision on
the procedural default is not debatable. We will do so, however,
because the district court did so.
a.
The district court denied relief on the merits of the lesser
included offense claim; that claim was based on Beck v. Alabama,
447 U.S. 625, 638 (1980) (holding where the unavailability of a
lesser included offense instruction enhances the risk of an
unwarranted conviction, a State is constitutionally prohibited from
withdrawing that option from the jury). Respondent challenges the
14
application of Beck, but did not do so in district court;
therefore, we will not consider this challenge on appeal.
Moreover, we assume that Beck applies and hold, even under this
heightened constitutional standard, that a COA should not issue.
A death penalty sentence may not be imposed if the jury was
not allowed to consider a lesser included offense that is supported
by the evidence. See Beck, 447 U.S. at 637; Dowthitt v. Johnson,
230 F.3d 733, 757 (5th Cir. 2000), cert. denied, 532 U.S. 915
(2001). Under Texas law, felony murder is a lesser included
offense of capital murder. See Ex Parte McClelland, 588 S.W.2d
957, 959 (Tex. Crim. App. 1979). To establish that he is
constitutionally entitled to a lesser included offense instruction,
Fuentes must demonstrate that the record contains evidence
permitting a rational jury to find him guilty of felony murder and
acquit him of capital murder. See Jones v. Johnson, 171 F.3d 270,
274 (5th Cir.) (citations omitted), cert. denied, 527 U.S. 1059
(1999).
A felony murder is one in which a person “commits or attempts
to commit a felony, other than manslaughter, and in the course of
and in furtherance of the commission or attempt, or in flight from
the commission or attempt, he commits or attempts to commit an act
clearly dangerous to human life that causes death of an
individual”. TEX. PENAL CODE ANN. § 19.02(b)(3) (Vernon 2003). The
requisite mental state for felony murder must not rise to
15
intentional or knowing conduct. See Medina v. State, 7 S.W.3d 633,
639 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1102 (2000).
Capital murder, on the other hand, requires (under these facts)
that the actor intentionally cause the death of another in the
course of committing or attempting to commit a robbery. TEX. PENAL
CODE ANN. § 19.03 (Vernon 2003).
Fuentes maintains the felony murder instruction is supported
by the evidence because he and Templeton testified that: robbery
was their objective; neither anticipated someone would be killed;
and the robbery was complete when the victim was shot and the
robbers were in flight from the store. The record reflects,
however, that Fuentes ran up to the victim, shot him twice in the
chest and fled. The district court held: even though Fuentes may
not have had the intent to kill when he began, his shooting the
victim twice and fleeing demonstrates that he formed the intent to
kill during the robbery. The district court’s decision is
supported by the record; reasonable jurists would not debate that
Fuentes formed the intent to kill during the robbery.
b.
Fuentes also asserts that he was entitled to the felony murder
instruction because trial testimony casts doubt on the identity of
the shooter and supports that Fuentes was mistakenly so
identified. Fuentes did not present this contention in his amended
petition for habeas relief in the district court; he raised it only
16
in opposition to summary judgment. The district court did not
address it in its denial of relief. Because Fuentes did not make
this claim until his opposition to summary judgment, he has waived
it; we will not address it in his COA request.
In the alternative, Fuentes’ mistaken identity defense has no
bearing on the felony murder instruction. If the jury had believed
that defense, it would have acquitted him of capital murder,
irrespective of a lesser included offense instruction.
C.
Fuentes’ final COA request concerns the Court of Criminal
Appeals’ refusal to review the sufficiency of the evidence to
support the jury’s negative answer to the mitigation special issue
at the punishment phase. Mitigating evidence is “evidence that a
juror might regard as reducing the defendant’s moral
blameworthiness”. TEX. CRIM. PROC. CODE ANN. § 37.071 Sec. 2(f)(4)
(Vernon 2003). The Court of Criminal Appeals does not review the
sufficiency of mitigation evidence as a matter of law, because of
the jury’s unbridled discretion. Fuentes, 991 S.W.2d 267 at 280
(citing Green v. State, 934 S.W.2d 92, 106-07 (Tex. Crim. App.
1996), cert. denied, 520 U.S. 1200 (1997)). On the other hand, it
does evaluate the sufficiency of the evidence for finding guilt and
that contributes to the death sentence for the future dangerousness
special issue. Beazley v. Johnson, 242 F.3d 248, 261 (5th Cir.),
cert. denied, 532 U.S. 949 (2001); McFarland v. State, 928 S.W.2d
17
482 (Tex. Crim. App. 1996), overruled on other grounds, Mosley v.
State, 983 S.W.2d 249, 263 (Tex. Crim. App. 1998), cert. denied,
519 U.S. 1119 (1997).
At the punishment phase, Fuentes introduced character evidence
showing: he was a good person, an athlete and a hard worker; he
was profoundly affected by the death of his grandmother and fell
into the “wrong crowd” after her death; after this crime, he became
a responsible person; and he was gainfully employed and engaged to
be married. Fuentes contends: the refusal by Texas courts to
review the correctness of a jury’s negative answer to the
mitigation special issue violates the Eighth Amendment by denying
Texas capital defendants “meaningful appellate review”, e.g.,
Parker v. Dugger, 498 U.S. 308, 321 (1991) (emphasizing the crucial
role of meaningful appellate review in ensuring that the death
penalty is not imposed arbitrarily or irrationally); Clemons v.
Mississippi, 494 U.S. 738, 749 (1990) (noting that meaningful
appellate review of death sentences promotes reliability and
consistency); and the Supreme Court approved Texas’ capital
sentencing scheme with the understanding that there would be prompt
judicial review of a jury’s decision to impose the death penalty,
including a focus on whether mitigating factors were present,
Jurek v. Texas, 428 U.S. 262, 273 (1976).
As noted, in death penalty cases, the Court of Criminal
Appeals does review the future dangerousness special issue; it
18
holds this affords defendants meaningful review. See McFarland,
928 S.W.2d at 482. Fuentes contends, however, that under the
current Texas capital sentencing statute, the Penry v. Lynaugh, 492
U.S. 302 (1989), abrogated on other grounds, Atkins v. Virginia,
536 U.S. 304 (2002), special issue (considering the defendant’s
background and moral culpability in the light of all the evidence)
is now the primary vehicle for consideration of mitigating evidence
and thus should be reviewed.
The district court denied habeas relief on this issue because
our court has consistently held that Texas’ refusal to review the
sufficiency of mitigating evidence does not violate the
constitutional right to meaningful review. See Woods v. Cockrell,
307 F.3d 353, 359-60 (5th Cir. 2002); Beazley, 242 F.3d at 261;
Hughes v. Johnson, 191 F.3d 607, 621-23 (5th Cir. 1999), cert.
denied, 528 U.S. 1145 (2000). The district court’s decision is not
debatable among reasonable jurists because the Supreme Court has
never required review of mitigating factors on appeal; it has held
only that re-weighing aggravating and mitigating factors on appeal
is constitutional. See Hughes, 191 F.3d at 622.
III.
For the foregoing reasons, a COA is
DENIED.
19