Perez v. Cockrell , 77 F. App'x 201 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
July 23, 2003
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
_____________________
No. 03-20017
_____________________
EFRAIN PEREZ
Petitioner - Appellant
v.
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION
Respondent - Appellee
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
No. 02-CV-908
_________________________________________________________________
Before KING, Chief Judge, and WIENER and CLEMENT, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant Efrain Perez appeals the decision by
the District Court for the Southern District of Texas denying his
request for a writ of habeas corpus on any of the four grounds he
raised before that court. As the district court denied his
*
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that this opinion should not be published and is not precedent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.
request for a certificate of appealability (COA), Perez has
applied to this court for a COA on three of those issues. Perez
also raises one additional issue not presented to the district
court. After reviewing the district court’s thorough and
thoughtful treatment of the case, as well as the briefs of the
parties and the records from earlier proceedings, we find Perez’s
application for a COA to be without merit. Therefore, we reject
his application on all grounds.
I. FACTS AND PROCEDURAL HISTORY
On June 24, 1993, teenagers Elizabeth Pena and Jennifer
Ertman were taking a shortcut home when they encountered an
initiation ritual being conducted by members of Houston’s “Black
N White” gang. Among those gang members present at the
initiation was 17-year-old Efrain Perez. When the girls walked
past the area where the initiation was taking place, the gang
members en masse grabbed the girls, forced them to the ground,
and, over the course of an hour, committed a series of brutal
rapes and sexual assaults. When the rapes ended, the gang
members dragged the girls into a nearby wooded area and strangled
them with shoelaces and belts. The gang members also repeatedly
stomped on the girls to ensure that they were dead. Five days
later, Perez and his friends were arrested. Perez gave three
interviews to the police; while he denied any involvement in the
rapes and murders during the first interview, he ultimately
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confessed that he had sexually assaulted Elizabeth Pena and had
helped hold the shoestring used to choke her.
At trial, the prosecution presented overwhelming evidence of
Perez’s guilt, including Perez’s own statements as well as
statements of other gang members present at the time and others
to whom Perez had spoken about the incident. The jury found
Perez guilty of murder committed during the course of the sexual
assault. During the punishment phase, prosecutors provided
evidence that Perez had been a disinterested and disruptive
student prone to fighting and committing other crimes. As
mitigation, Perez’s attorney called several character witnesses
in an attempt to demonstrate that Perez was a follower who simply
got mixed up with the wrong crowd of friends. Nevertheless, the
jury returned answers to each of the special issues in a manner
that required the imposition of a sentence of death.
The Texas Court of Criminal Appeals affirmed Perez’s
conviction and sentence on direct appeal in an unpublished
opinion. Perez v. State, No. 72,201 (Tex. Crim. App. Oct. 23,
1996) (unpublished op.). Perez did not request certiorari review
of this decision from the United States Supreme Court. Perez
then filed a request for habeas corpus relief in state court. In
another unpublished opinion, the Court of Criminal Appeals denied
his application. Ex parte Perez, No. 48,614-01 (Tex. Crim. App.
Nov. 21, 2001) (unpublished op.).
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Perez then filed a habeas petition in federal district
court, asserting four claims for relief. The district court, in
a lengthy reasoned opinion, denied Perez’s application for relief
on each claim. Perez v. Cockrell, No. H-02-908 (S.D. Tex. Dec.
18, 2002) (unpublished op.). The district court also sua sponte
refused to issue a COA to Perez for any of his claims. Alexander
v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (stating that a
district court may decline to issue a COA even where the
petitioner has not moved for a COA).
II. APPLICABLE LAW
Perez comes to this court seeking a COA on four issues,
three of which were considered by the district court. Perez
filed his habeas petition after the effective date of the Anti-
Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
Lindh v. Murphy, 521 U.S. 320, 326-27 (1997) (stating that the
AEDPA applies to all cases pending as of April 24, 1996). Under
the AEDPA, Perez must obtain a COA before he may receive full
appellate review of the district court’s denial of his request
for habeas relief. 28 U.S.C. § 2253(c)(1)(A) (2000) (“Unless a
circuit justice or judge issues a certificate of appealability,
an appeal may not be taken to the court of appeals from the final
order in a habeas corpus proceeding in which the detention
complained of arises out of process issued by a State court.”).
We may grant Perez’s request for a COA only if he can make a
“substantial showing of the denial of a constitutional right.”
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Id. § 2253(c)(2). To make such a showing, the petitioner must
demonstrate 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.” Dowthitt
v. Johnson, 230 F.3d 733, 740 (5th Cir. 2000), cert. denied, 532
U.S. 915 (2001) (quoting Slack v. McDaniel, 529 U.S. 473, 483-84
(2000)). If the district court has denied some or all of the
petitioner’s claim on procedural grounds, to obtain a COA the
petitioner must demonstrate both 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. When
considering the petitioner’s request for a COA, “[t]he question
is the debatability of the underlying constitutional claim, not
the resolution of that debate.” Henry v. Cockrell, 327 F.3d 429,
431 (5th Cir. 2003) (quoting Miller-El v. Cockrell, 537 U.S. 322,
(2003)).
Our review of whether Perez has made a “substantial showing
of the denial of a constitutional right” is also subject to the
applicable AEDPA standards of review. Moore v. Johnson, 225 F.3d
495, 501 (5th Cir. 2000), cert. denied, 532 U.S. 949 (2001). On
questions of law, the state court’s conclusions will be disturbed
only upon a showing that they were “contrary to, or an
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unreasonable application of, clearly established” Supreme Court
precedent. 28 U.S.C. § 2254(d)(1) (2000). In addition, the
state court’s findings of fact are presumed correct unless the
petitioner can rebut them by clear and convincing evidence. Id.§ 2254(e)(1).
III. PEREZ’S CLAIMS ON APPEAL
Perez raises three claims rejected by the district court as
potential grounds for a COA: (1) denial of his right to a public
trial; (2) ineffective assistance of trial counsel; and (3)
unconstitutionality of the Texas capital sentencing system as
applied to Perez. In a claim not presented to the district
court, Perez also asserts that courts reviewing his ineffective
assistance of counsel claims have consistently applied the wrong
standard.
A. Right to a Public Trial
Perez claims that he was denied his Sixth Amendment right to
a public trial because the courtroom in which the trial was being
held was tucked away at the end of a long corridor without any
signs indicating what was going on inside. In addition, on the
first day of trial while a preliminary hearing and jury selection
were being conducted, the doors to the courtroom were locked and
windowless, and a large sign on one of the doors admonished
passersby to “Knock, No Admittance.” Perez raised the public
trial objection in the trial court on that first day of trial,
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and the trial court agreed to make several changes. The door
with the combination lock was unlocked and could be readily
opened without the need to seek permission to enter. The trial
court also placed a sign in the corridor identifying the room as
the one where Perez’s trial was being held and stating again that
the door was unlocked. Evidence indicates that courtroom was in
an area of the building open to the public, and several of
Perez’s family members were able to locate the room and be
present during the trial. There is no evidence that any member
of the public who attempted to gain access to the courtroom
during the trial was turned away or was otherwise unable to
locate and observe the proceedings.
The district court considered the evidence concerning the
public nature of the courtroom and found that the state habeas
court’s conclusion that the trial proceedings had not been
affirmatively “closed” for the purposes of Sixth Amendment
analysis was not contrary to, or an unreasonable application of,
clearly established federal law. United States v. Al-Smadi, 15
F.3d 153, 154 (10th Cir. 1994) (“The denial of a defendant’s
Sixth Amendment right to a public trial requires some affirmative
act by the trial court meant to exclude persons from the
courtroom.”). Perez presents no new arguments that would cause
jurists of reason to find the district court’s resolution of this
issue to be debatable. Therefore, he has not made a substantial
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showing of the denial of a constitutional right, and we decline
to grant a COA on this issue.
B. Ineffective Assistance of Counsel
As his second ground, Perez argues that the district court
should have found that Perez’s trial counsel fell below the
standards for effective counsel set forth in Strickland v.
Washington, 466 U.S. 668 (1984). Perez contends that trial
counsel provided ineffective assistance by failing to request a
hearing to suppress Perez’s confession to the police and also by
failing to contest the admissibility of the confession during
trial. Perez argues that his trial counsel should have used the
circumstances surrounding the confession — aggressive police
tactics resulting from a high-profile case, lack of sleep,
Perez’s youth, the fact that he was strip-searched, and the fact
that the police took three statements from him within a seven-
hour period — as evidence that the confession was involuntary and
should be suppressed. Instead, trial counsel did not even
request a pre-trial suppression hearing and, when one was
conducted at the behest of the prosecution, posed little in the
way of cross-examination of the officers present during the
taking of the statements. In addition, Perez also argues that
trial counsel made little effort during trial to challenge the
confession in front of the jury.
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The district court extensively reviewed the circumstances of
the statements, the pre-trial hearing, and the trial. The court
concluded that the state habeas court’s finding that Perez failed
to demonstrate either that trial counsel could have made a
tenable argument for suppressing the confession or that there was
a reasonable probability that such an argument would have been
successful was not contrary to, or an unreasonable application
of, clearly established federal law. Strickland, 466 U.S. at 694(stating that, in order to obtain relief, petitioner must
demonstrate both that counsel’s performance was objectively
unreasonable and that, but for counsel’s ineffective performance,
there is a reasonable probability that a different outcome would
have been reached). Perez’s arguments to this court do not
persuade us that jurists of reason would find the district
court’s resolution of this issue debatable. Because he has
failed to make a substantial showing of the denial of the
constitutional right to effective counsel, we decline to grant a
COA.
C. Unconstitutionality of Texas Capital Sentencing Procedure as
Applied to Perez
The final ground Perez presented to the district court was a
claim that Texas’ capital sentencing system was unconstitutional
as applied to Perez because it failed to mandate an
individualized assessment of the emotional and mental status of
someone still a minor at the time the crime was committed. Perez
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argues that Supreme Court precedent requires that states give 17-
year-old defendants potentially subject to a capital charge the
procedural safeguard of either: (1) a juvenile transfer statute
that provides for individualized consideration of the maturity of
the defendant; or (2) a statute codifying age as a mitigating
factor in capital cases. Because Texas has neither, but instead
permits the jury to consider youth as a mitigating factor when
weighing its answers to the special issues during the sentencing
phase, Perez argues that the Texas capital system is
unconstitutional as applied to 17-year-old defendants. Perez
also argues that, had an individualized assessment of his
particular case been conducted, he likely would not have been
found eligible to be prosecuted as an adult facing the death
penalty.
The district court thoroughly reviewed the relevant Supreme
Court precedent concerning the status of the juvenile death
penalty and the constitutionality of the Texas capital sentencing
scheme, finding that the Supreme Court had never held that a
state’s failure to consider each individual defendant’s mental
and emotional maturity would violate the constitution. See also
Roach v. Angelone, 176 F.3d 210, 225 (4th Cir. 1999) (“[T]he
Supreme Court simply did not hold that juvenile transfer statutes
which do not provide for individualized consideration of the
minor’s maturity and moral responsibility violate the
Constitution.”). The district court concluded that the state
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habeas court’s finding that a jury has ample opportunity to
include a defendant’s youth as a relevant mitigating circumstance
when considering either the “future dangerousness” special issue
or the mitigation special issue during the sentencing phase was
not contrary to, or an unreasonable application of, clearly
established federal law.
Perez again presents no new arguments or evidence to
persuade us that the district court erred in its conclusion. It
would not be debatable among jurists of reason whether the Texas
system appropriately accounts for a defendant’s youth in the
sentencing phase of a capital trial. Perez has failed to make a
substantial showing of the denial of a constitutional right, and
he is not entitled to a COA on this issue.
D. Appropriate Standard of Review for Ineffective Assistance of
Counsel Claims
Perez’s final claim, one not raised in the district court,
is that courts have been using the incorrect standard to analyze
his ineffective assistance of counsel claims. Perez argues that
the standard set out in United States v. Cronic, 466 U.S. 648(1984), rather than the Strickland standard, is the correct legal
framework through which to view his claims of ineffective
assistance of counsel.
As stated, Perez did not present this claim to the district
court. We do not consider claims raised by a habeas petitioner
for the first time in this court on appeal from the district
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court’s denial of habeas relief. Johnson v. Puckett, 176 F.3d
809, 814 (5th Cir. 1999). Therefore, we decline to grant a COA
on this ground.
IV. CONCLUSION
Perez’s request for a COA on each of the issues he has
raised is DENIED.
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