Summary
observing that "[p]etitioner's state habeas counsel made no apparent effort to investigate and present a host of potentially meritorious and readily available claims for state habeas relief," and describing the initial state habeas application as "frivolous"
Summary of this case from Ex parte RuizOpinion
Civil No. SA-03-CA-303-OG.
October 13, 2005
ORDER DENYING REQUESTS FOR CERTIFICATE OF APPEALABILITY
The matters before the Court are (1) the implicit request for a Certificate of Appealability ("CoA") contained in petitioner's Notice of Appeal and (2) petitioner's formal application for a CoA, both filed October 12, 2005.
The Fifth Circuit has consistently held a Notice of Appeal is to be construed as implicitly containing a request for issuance of a Certificate of Appealability ("CoA"). United States v. Kimler, 150 F.3d 429, 430-31 (5th Cir. 1998); United States v. Cervantes, 132 F.3d 1106, 1109 (5th Cir. 1998); United States v. Youngblood, 116 F.3d 1113, 1114 (5th Cir. 1997); Hill v. Johnson, 114 F.3d 78, 81 (5th Cir. 1997); and United States v. Orozco, 103 F.3d 389, 390-92 (5th Cir. 1996).
As this Court explained in Section IX of the Memorandum Opinion and Order issued August 29, 2005, petitioner procedurally defaulted on his unexhausted ineffective assistance and jury instruction claims by failing to present same to the state courts during his state habeas corpus proceeding. Ruiz v. Dretke, 2005 WL 2146119, *12-*16 (W.D. Tex. August 29, 2005). Reasonable minds could not differ over the foregoing conclusion.
Petitioner does not challenge the legal basis for this Court's conclusion by citing to any case law or other authority supporting a contrary result. On the contrary, petitioner asserts a wholly novel, albeit intriguing, argument suggesting petitioner's procedural defaults should be excused by virtue of the inherent unfairness of (1) permitting the State of Texas to designate the indigent petitioner's state trial counsel to serve as petitioner's direct appeal counsel against petitioner's express wishes and over petitioner's objections and (2) effectively insulating that breach of fundamental fairness by permitting the State of Texas then to appoint a wholly incompetent state habeas counsel to represent petitioner in the one and only forum in which petitioner had an opportunity to raise ineffectiveness by his trial and appellate counsel before the state courts, i.e., in petitioner's state habeas corpus proceeding.
Unfortunately, the fundamental unfairness of petitioner's state habeas corpus proceeding does not furnish a basis for federal habeas relief. Infirmities in state habeas corpus proceedings do not constitute grounds for federal habeas relief. Moore v. Dretke, 369 F.3d 844, 846 (5th Cir. 2004); Beazley v. Johnson, 242 F.3d 248, 271 (5th Cir. 2001), cert, denied, 534 U.S. 945 (2001); Rudd v. Johnson, 256 F.3d 317, 319 (5th Cir. 2001), cert. denied, 534 U.S. 1001 (2001); Wheat v. Johnson, 238 F.3d 357, 361 (5th Cir. 2001), cert. denied, 532 U.S. 1070 (2001); Morris v. Cain, 186 F.3d 581, 585 n. 6 (5th Cir. 1999), (holding alleged errors committed by state habeas court did not furnish a basis for federal habeas relief); Hallmark v. Johnson, 118 F.3d 1073, 1080 (5th Cir. 1997), cert. denied sub nom. Monroe v. Johnson, 522 U.S. 1003 (1997), (holding state habeas court's refusal to entertain challenge to prison disciplinary proceeding did not furnish basis for federal habeas relief); Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir. 1995), cert. denied, 518 U.S. 1022 (1996), (holding an attack upon a state habeas proceeding is an attack on a proceeding collateral to the petitioner's detention and not the detention itself); McCowin v. Scott, 67 F.3d 100, 102 (5th Cir. 1995); Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir. 1992), cert. denied, 507 U.S. 1056 (1993); Millard v. Lynaugh, 810 F.2d 1403, 1410 (5th Cir. 1987), cert. denied, 484 U.S. 838 (1987); Vail v. Procunier, 747 F.2d 277 (5th Cir. 1984); and Tijerina v. Estelle, 692 F.2d 3, 5-6 (5th Cir. 1982).
Furthermore, the Supreme Court and Fifth Circuit have held that because there is no constitutional right to the assistance of counsel in connection with a collateral attack upon an otherwise final conviction, error by counsel in an earlier state or federal habeas proceeding cannot give rise to a federal habeas claim or constitute "cause" for purposes of avoiding a procedural default. Coleman v. Thompson, 501 U.S. 722, 755, 111 S.Ct. 2546, 2567, 115 L.Ed.2d 640 (1991); Martinez v. Johnson, 255 F.3d 229, 239-41 (5th Cir. 2001), cert. denied, 534 U.S. 1163 (2002); In re Goff, 250 F.3d 273, 275 (5th Cir. 2001); Beazley v. Johnson, 242 F.3d 248, 270 (5th Cir. 2001), cert. denied, 534 U.S. 945 (2001); Wheat v. Johnson, 238 F.3d 357, 361 (5th Cir. 2001), cert. denied, 532 U.S. 1070 (2001); Fairman v. Anderson, 188 F.3d 635, 642-44 (5th Cir. 1999); Callins v. Johnson, 89 F.3d 210, 212 (5th Cir. 1996), cert. denied, 519 U.S. 1017 (1996); Woods v. Johnson, 75 F.3d 1017, 1035 n. 26 (5th Cir. 1996), cert. denied, 519 U.S. 854 (1996); Irving v. Hargett, 59 F.3d 23, 26 (5th Cir. 1995), cert. denied, 516 U.S. 1120 (1996); and Johnson v. Hargett, 978 F.2d 855, 859-60 (5th Cir. 1992), cert. denied, 507 U.S. 1007 (1993).
This Court is not unsympathetic to petitioner's plight. Quite frankly, the quality of representation petitioner received during his state habeas corpus proceeding was appallingly inept. Petitioner's state habeas counsel made no apparent effort to investigate and present a host of potentially meritorious and readily available claims for state habeas relief. Furthermore, petitioner's state habeas counsel made virtually no effort to present the state habeas court with any evidence supporting the vast majority of the claims for state habeas relief which said counsel did present to the state habeas court. More specifically, petitioner's state habeas counsel not only inexplicably failed to present Dr. Munsinger's testimony or any of the other, additional, allegedly mitigating evidence petitioner complains in this Court his trial counsel should have presented during the punishment phase of petitioner's trial but petitioner's state habeas counsel failed to present the state habeas court with any claim for state habeas relief alleging this glaringly obvious failure by petitioner's trial counsel constituted ineffective representation. Petitioner's state habeas counsel did little more than (1) assert a set of boilerplate, frivolous, claims which had repeatedly been rejected by both the state and federal courts and (2) fail to support even these claims with any substantial evidence. Insofar as petitioner contends his state habeas counsel merely "went through the motions" and "mailed in" a frivolous state habeas corpus application which said counsel failed to support with evidence, those complaints have merit. Wholly inept though it may have been, under the well-settled authorities cited above, the egregiously deficient performance of petitioner's state habeas counsel does not excuse the procedural defaults arising therefrom identified in Section III of this Court's Memorandum Opinion and Order. Ruiz v. Dretke, 2005 WL 2146119, *9-*16. The Teague non-retroactivity doctrine precludes this Court from addressing petitioner's novel argument in the context of this federal habeas corpus proceeding.
In sum, unless and until either the Supreme Court or Congress address the inherent unfairness of a state habeas system which permits elected officials of a party-at-interest (i.e., elected trial judges of the State of Texas) to (1) select wholly incompetent counsel to represent indigent prisoners in the one forum in which those prisoners have the opportunity to challenge the performance of their state-court-appointed trial counsel (i.e., the prisoner's state habeas corpus proceeding) and (2) effectively insulate from federal judicial review the allegedly incompetent performance of the prisoner's state trial counsel through the egregiously inept failure of the same prisoner's state habeas counsel to present claims for state habeas relief addressing obvious ineffective assistance by the prisoner's state trial counsel, Texas prisoners will continue to be put to death without a federal habeas court ever reaching the merits of what are often those prisoner's most substantial federal constitutional claims.
As this Court has previously explained, at present, Texas law prohibits the filing of a successive state habeas corpus application except in rare circumstances inapplicable to petitioner's first three claims herein, i.e., when the factual and legal bases of claims contained in a successive application were not readily available at the time the petitioner filed and litigated his initial state habeas corpus application. See Bagwell v. Dretke, 372 F.3d 748, 756 (5th Cir. 2004), cert. denied, ___ U.S. ___, 125 S.Ct. 498, 160 L.Ed.2d 374 (2005), (Texas law, specifically Section 5 of Article 11.071, Texas Code of Criminal Procedure, bars successive state habeas applications except where (1) the claim could not have been presented in the initial state habeas application because the factual or legal basis of the claim was unavailable at the time, and either (2) the petitioner shows by a preponderance of the evidence that, but for the constitutional violation, he would not have been convicted, or (3) the petitioner shows by clear and convincing evidence that, but for the constitutional violation, no rational jury would have answered in the state's favor on one or more of the capital sentencing special issues); Article 11.071, § 5(a), Tex. Code Crim. Proc. Ann. (Vernon Supp. 2004). Thus, no matter how obvious or compelling a state prisoner's claim of ineffective representation by his trial counsel will be precluded from federal habeas review on the merits unless the prisoner's state habeas counsel is sufficiently competent to identify and support such a claim with evidence during the prisoner's state habeas corpus proceeding. Unlike the federal courts, the courts of Texas do not recognize a "fundamental miscarriage of justice" exception to the procedural default doctrine which would excuse a state prisoner's failure to present such a potentially meritorious ineffective assistance claim in a previous state habeas corpus application.
To further compound the problem, the Fifth Circuit has consistently held federal habeas review of unexhausted claims presented by a convicted Texas capital murder defendant is barred under the procedural default doctrine. See Matchett v. Dretke, 380 F.3d 844, 848 (5th Cir. 2004), cert. denied, ___ U.S. ___, 125 S.Ct. 1067, 160 L.Ed.2d 1074 (2005), (holding the violation of the Texas writ-abuse rule ordinarily furnishes an adequate and independent procedural ground which bars federal habeas review of a claim); Bagwell v. Dretke, 372 F.3d at 755-56 (holding that a petitioner procedurally defaulted by failing to "fairly present" a claim to the state courts in his state habeas corpus application); Cotton v. Cockrell, 343 F.3d 746, 755 (5th Cir. 2003), cert. denied, 540 U.S. 1186 (2004), (holding the Texas writ abuse doctrine is an adequate and independent barrier to federal habeas review of unexhausted claims); Smith v. Cockrell, 311 F.3d 661, 684 (5th Cir. 2002), cert. dism'd, 541 U.S. 913 (2004), (holding unexhausted claims were procedurally barred); Jones v. Johnson, 171 F.3d 270, 276-77 (5th Cir. 1999), cert. denied, 527 U.S. 1059 (1999), (holding unexhausted ineffective assistance claim procedurally barred from federal habeas review); Muniz v. Johnson, 132 F.3d 214, 221 (5th Cir. 1998), cert. denied, 523 U.S. 1113 (1998), (holding unexhausted claims procedurally barred); Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997), cert. denied, 523 U.S. 1139 (1998), (holding the Texas writ-abuse rule an adequate and independent barrier to federal habeas review of unexhausted claims).
Petitioner cannot satisfy the fundamental miscarriage of justice exception to the federal procedural default doctrine in this case because (1) the evidence of petitioner's guilt was overwhelming and (2) petitioner's remorseless, unrepentant, demeanor during his trial testimony combined with petitioner's recantations of his multiple confessions and the overwhelming evidence showing petitioner had begun following his capital murder arrest to serve as enforcer for a notorious prison gang to compel any reasonable jury to answer the capital sentencing special issues in a manner favorable to the prosecution.
Petitioner offers this Court no contrary legal authority nor any basis upon which reasonable jurists could disagree with this Court's conclusions regarding either (1) petitioner's procedural default of his initial three claims for relief herein or (2) petitioner's inability to satisfy either of the recognized exceptions to the procedural default doctrine. The legal and factual bases for petitioner's unexhausted claims in this federal habeas corpus action were readily available and openly obvious to even minimally competent state habeas counsel at the time petitioner's state-court-appointed state habeas counsel filed and litigated what amounted to a pro forma state habeas corpus application on petitioner's behalf.
Petitioner's state habeas counsel did little more at the evidentiary hearing held in petitioner's state habeas corpus proceeding than furnish the Bexar County District Attorney's office with an opportunity to elaborate on why that office chose to seek a death penalty for petitioner while permitting the two "brains" behind the murder-for-hire of Theresa Rodriguez to escape the death penalty. Petitioner offered the state habeas court no evidence whatsoever showing the Bexar County District Attorney's decisions regarding which charge to bring and which penalty to seek were the products of anything other than purely rational consideration of objective, non-discriminatory, factors. As such, petitioner's equal protection claim, as presented to the state habeas court, was "totally" without evidentiary support. This Court's conclusions regarding petitioner's selective prosecution claim are not subject to debate by reasonable jurists. Nor are they subject to debate by anyone else, reasonable or unreasonable, who takes the time to read the sparse record from petitioner's state habeas corpus hearing. Petitioner's state habeas counsel utterly failed to present the state habeas court with any evidence showing improper motivations played any role whatsoever in the decision-making processes engaged in by the Bexar County District Attorney's Office with regard to petitioner and his murderous co-conspirators. Petitioner is not entitled to a CoA on his selective prosecution claim.
Petitioner is not entitled to a CoA with regard to the issue of whether he has procedurally defaulted on his claims of ineffective assistance and improper limitations on defense counsel's punishment-phase jury argument. The remaining issues for which petitioner requests a CoA were more than adequately addressed in Section IX of this Court's Memorandum Opinion and Order and are wholly unworthy of a CoA for the reasons set forth therein.
Accordingly, it is hereby ORDERED that (1) petitioner's implicit request for a CoA, contained in petitioner's Notice of Appeal, filed October 12, 2005, and (2) petitioner's formal application for CoA, also filed October 12, 2005, are GRANTED IN PART and DENIED IN PART in conformity with Section IX of this Court's Memorandum Opinion and Order issued August 29, 2005 as follows: petitioner is GRANTED a CoA with regard to his fourth claims herein, i.e., his Witherspoon claim regarding venire member Mary Castro; in all other respects, petitioner is DENIED a Certificate of Appealability.