Felix Rocha v. Rick Thaler, Director
Filing
920100910
Opinion
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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
September 9, 2010 N o s . 05-70028 and 09-70018 Lyle W. Cayce Clerk
F E L IX ROCHA, Petitioner Appellant v. R I C K THALER, Director, Texas Department of Criminal Justice, C o r r e c t io n a l Institutions Division, Respondent Appellee
A p p e a ls from the United States District Court fo r the Southern District of Texas
B e fo r e JOLLY, HIGGINBOTHAM, and HAYNES, Circuit Judges. P A T R I C K E. HIGGINBOTHAM, Circuit Judge: F e d e r a l habeas petitioner Felix Rocha confessed to the murder of Rafael F u e n t e s -- a security guard found shot to death outside the Houston nightclub w h e r e he worked--but later pled not guilty and proceeded to trial. Texas
in d ic t m e n ts charged both Rocha and a co-defendant, Virgilio Maldonado, with c a p it a l murder, though each defendant was tried separately. A jury convicted R o c h a and on its answer to the sentencing questions he was sentenced to death. State courts affirmed the conviction and sentence on direct review. Over the
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course of the next eight years, Rocha filed four state habeas applications and one fe d e r a l habeas petition. All failed. The federal district court denied relief but h e ld an evidentiary hearing and granted Rocha a certificate of appealability (" C O A " ) on his claim under Brady v. Maryland, a claim we now examine. Before t h is court Rocha also renews his request for a COA on two additional questions: w h e t h e r he is entitled to review on the merits of his punishment-phase in e ffe c t iv e assistance of counsel claim under Wiggins v. Smith; and whether the s t a t e violated an individually-enforceable right under the Vienna Convention by fa ilin g to inform Rocha that he was entitled, as a Mexican citizen, to contact his c o u n t r y 's consulate. We affirm the district court, deny relief on Rocha's Brady c la im , and deny Rocha's request for a COA on his claim under the Vienna C o n v e n t io n . We also hold that Rocha was not entitled to have a federal court r e v ie w the merits of his Wiggins claim, but we grant his request for a COA on t h a t question.
I R o c h a 's federal petition is subject to the heightened standard of review set o u t in the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"). In the r e v ie w of state proceedings, AEDPA proscribes federal habeas relief unless the s t a t e court's adjudication on the merits (1) "resulted in a decision that was c o n t r a r y to, or involved an unreasonable application of, clearly established fe d e r a l law, as determined by the Supreme Court of the United States" or (2) " r e s u lt e d in a decision that was based upon an unreasonable determination of t h e facts in light of the evidence presented in the state court proceeding." 1 "A s t a t e court decision is `contrary to . . . clearly established precedent if the state
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28 U.S.C. § 2254(d).
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court applies a rule that contradicts the governing law set forth in [the Supreme C o u r t 's ] cases.'"2 "A state-court decision will also be contrary to . . . clearly e s t a b lis h e d precedent if the state court confronts a set of facts that are m a t e r ia lly indistinguishable from a decision of [the Supreme Court] and n e v e r t h e le s s arrives at a result different from [Supreme Court] precedent." 3 "A s t a t e -c o u r t decision involves an unreasonable application of [Supreme Court] p r e c e d e n t if the state court identifies the correct governing legal rule from [the] C o u r t 's cases but unreasonably applies it to the facts of the particular state p r is o n e r 's case."4 AEDPA requires us to presume state-court findings of fact to b e correct "unless the petitioner rebuts that presumption by clear and convincing e v id e n c e ."5 We review the district court's findings of fact for clear error and its c o n c lu s io n s of law de novo, "applying the same standards to the state court's d e c is io n as did the district court." 6
II A fte r the state courts affirmed his conviction on direct and habeas review, R o c h a learned that one of the officers who had testified at his trial, Jaime E s c a la n t e , had a disciplinary record and was romantically involved with the s is t e r of the lone eyewitness, Reynaldo Muñoz. Now on federal habeas, he says
Wallace v. Quarterman, 516 F.3d 351, 354 (5th Cir. 2008) (quoting Williams v. Taylor, 529 U.S. 362, 405 (2000)) (addition in Wallace).
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Williams, 529 U.S. at 406. Id. at 407. Valdez v. Cockrell, 274 F.3d 941, 947 (5th Cir. 2001) (citing 28 U.S.C. § 2254(e)(1)). Harrison v. Quarterman, 496 F.3d 419, 423 (5th Cir. 2007).
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the state suppressed this information in violation of Brady v. Maryland.7 Rocha c l a i m s he would have used the information to impeach the trial testimony of b o th Officer Escalante and eyewitness Muñoz. The district court, as we have n o te d , denied relief but granted a COA. We affirm the district court's denial of h a b e a s relief because the information was immaterial to the jury's decision to c o n v ic t.
A A successful Brady claim has three elements: "The evidence at issue must b e favorable to the accused, either because it is exculpatory, or because it is im p e a c h i n g ; that evidence must have been suppressed by the State, either w illfu lly or inadvertently; and prejudice must have ensued." 8 Rocha
p r o c e d u r a lly defaulted on this claim by failing to present it in any of his four s t a t e habeas petitions so in federal court he must demonstrate "cause and p r e j u d ic e " to qualify for habeas relief, unless failure to do so would result in a fu n d a m e n t a l miscarriage of justice.9 When a habeas petitioner brings a
B r a d y claim, the "cause and prejudice" requirements of the procedural default d o c t r in e parallel the last two elements of the alleged constitutional violation it s e lf.1 0 That is, a petitioner shows "cause" when the reason for his failure to d e v e lo p facts in state-court proceedings was the state's suppression of the r e le v a n t evidence, while "prejudice" exists when the suppressed evidence is
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See 373 U.S. 83 (1963). Strickler v. Greene, 527 U.S. 263, 28182 (1999). Id. at 282. Id.
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"material" for Brady purposes.1 1 On appeal, we assume without deciding both t h a t the asserted evidence is at least nominally favorable to Rocha and that the s t a t e suppressed the evidence. Our focus here is on materiality.
B T h e parties do not dispute the relevant facts. At Rocha's trial--again, c o n d u c t e d separately from co-defendant Maldonado's--eyewitness Muñoz t e s t ifie d that he was checking on some coin-operated pool tables he owned at the n ig h t c lu b when he saw two men--one taller, and one shorter--approach F u e n t e s , the eventual victim. The taller of the two men lifted his arms as if to p e r m it a frisk. According to Muñoz, the shorter man then pointed a gun at F u e n t e s before demanding and reaching for Fuentes's own holstered firearm. Muñoz fled the scene without seeing what happened next. He did, however, hear t w o or three gunshots as he ran. At Rocha's trial, Muñoz identified Maldonado a s the taller man who had approached Fuentes the night of the murder. Muñoz n e v e r pinned the murder on Rocha, saying only that his physical features "fit[] t h e description" of the shorter man. But the state's case against Rocha did not rise and fall on eyewitness t e s t im o n y -- R o c h a had confessed. The prosecution sought to lay a foundation for t h is confession through the testimony of Officer Escalante and a second police o ffic e r , Xavier Avila. Escalante began by testifying that after the shooting he " m a d e the scene" at the nightclub. There he interviewed "five or six Spanishs p e a k in g witnesses." From then on he "[took] charge . . . of investigating leads a n d following up on things [he] learned during that initial visit." Escalante's testimony continued: With no arrests made nearly a year and
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Id.
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a half after the murder, police arrested Rocha and Maldonado on unrelated bank r o b b e r y and capital murder charges. Two days later, officers Escalante and A v ila went to see Rocha and Maldonado in detention, suspecting that the a t t e m p t e d bank robbers also had something to do with the Fuentes murder. Their hunch seemed to bear fruit: Rocha made an uncounseled waiver of his M ir a n d a rights with both officers present but requested that they come back the n e x t day, at which time he would allow them to record his statement. When the officers returned, they split up: Avila interviewed Rocha; Escalante took Maldonado. After about fifteen to thirty minutes, Maldonado c o n fe s s e d to the murder and implicated Rocha. This success in hand, Escalante in t e r r u p t e d Avila's interview with Rocha--which up to this point had been u n p r o d u c t iv e -- t o share the news. He presented an audio recording of
M a ld o n a d o 's confession and prompted Avila to use a particular segment as a tool t o speed Rocha's interview along. Avila, working alone, resumed his questioning o f Rocha, eventually making an audio recording of Rocha's full confession.12 E s c a la n t e took no direct part in Rocha's interview. E sca la n t e 's trial testimony then turned to his interactions with eyewitness
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On direct appeal, the Court of Criminal Appeals recounted Rocha's confession as
follows: [Rocha] and Fuentes had been involved in an altercation at some time prior to the murder. Fuentes had beaten and otherwise embarrassed [Rocha], and [Rocha] had vowed to get revenge. On the night of the killing, [Rocha] and Maldonado confronted Fuentes. [Rocha] intended to take Fuentes's gun to embarrass him and show that Fuentes was not a good security guard. [Rocha] pulled his own gun on Fuentes, and Fuentes grabbed [Rocha]'s gun. Then [Rocha] and Fuentes struggled over [Rocha]'s gun, and [Rocha]'s gun was shot once during the struggle. [Rocha] did not know whether the shot hit Fuentes or simply went into the air. Maldonado shot Fuentes several times to protect [Rocha]. Maldonado then took Fuentes'[s] gun, and [Rocha] and Maldonado fled the scene. Rocha v. State, 16 S.W.3d at 5.
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Muñoz. He explained that he first met Muñoz during the investigation and that in November 1994 he showed Muñoz two photo spreads, neither depicting M a ld o n a d o or Rocha. Muñoz did not identify anyone on the two spreads, noting o n ly that two photos "looked like" the taller man. Much later, in 1997, Escalante a g a in showed Muñoz a series of photographs--this time with Maldonado's p h o to g r a p h included. Muñoz identified Maldonado as the taller of the two men w h o had approached Fuentes. O ffic e r Avila's trial testimony confirmed Escalante's account of their initial v is it to Rocha. Avila testified in greater detail, answering questions regarding R och a 's mental state, physical well-being, and apparent ability to understand his w a iv e r of Miranda rights. He then stepped the jury through his interrogation o f Rocha. O n federal habeas review, the district court held an evidentiary hearing b e fo r e rejecting Rocha's Brady claim; Muñoz, Escalante, and others were d e p o s e d . In his deposition, Escalante disclosed, for the first time, that he had fr e e la n c e d for the owner of the nightclub--Maria Medeles--during the Fuentes i n v e s tig a t io n and that their relationship had turned romantic by the time of R o c h a 's trial. He testified that their professional relationship began sometime a ft e r the murder when Medeles hired him as an apparent jack-of-all-trades for h e r area businesses. Only later did the relationship blossom into something m o r e . In seeming contrast to his trial testimony, Escalante also downplayed the le v e l of his involvement in the Fuentes murder investigation, claiming, for e x a m p le , that he did not recall taking part in the initial crime scene in v e s t ig a t io n at all. Rather, he said his involvement began when the detectives h a n d lin g the case asked him, months after the murder, to contact eyewitness M u ñ o z through Medeles--Escalante's part-time employer and paramour--and, a s it turns out, Muñoz's sister: 7
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What happened, Avila couldn't get ahold of him, and he told me, " H e y , tell Maria that we need to talk to her brother, show him a p h o t o spread, and I said, `Well, give me the photo spread so I can s h o w it to him.' Maria tracked him down. I n his deposition, Escalante reiterated that he had first met Muñoz during t h e investigation and that he had seen Muñoz only "three or four times." Escalante said he could not "stand" Muñoz and that Medeles and Muñoz were n o t close, emphasizing that the siblings were related by adoption only. Consistent with testimony adduced at trial, Escalante confirmed that he had not b e e n present for Rocha's confession but had provided Avila with the audio r e c o r d in g of Maldonado's statement. In his federal petition, Rocha concedes " E s c a la n t e is vague on when his relationship with Medeles began" but asserts t h a t at a minimum Escalante "knew Medeles well enough in 1994 to use her to fin d her brother . . . during the investigation." E s c a l a n t e also admitted that he had been disciplined for running two b a c k g r o u n d checks on Medeles and three on her son at their request, and that h e had retrieved the case number for a case involving the theft of items from M e d e le s 's car. In response to these actions, the department suspended him for s ix days in 2001 for unauthorized usage of police computer systems. It is not e n tir e ly clear when the department's investigation began, but Escalante first g a v e a statement on the subject in September 1999--after Rocha's November 1 9 9 8 trial. A d d in g to this milieu, Rocha rests his Brady claim in part on the d e p o s it io n testimony of Andres Reza, a former police officer who is currently s e r v in g a prison sentence on an unrelated conviction for kidnapping Medeles and h o ld in g her for ransom. Based on Reza's testimony, Rocha claims that the police d ep a rtm en t 's internal affairs division had long investigated Escalante's activities 8
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and that the prosecution failed to disclose evidence of the following: (1) E s c a la n t e 's suspected involvement in the murder of a Colombian victim; (2) his s u s p e c t e d involvement in the drug trade; (3) a DEA investigation into his alleged d r u g activities; (4) his suspected use of local cantinas in distributing drugs; (5) h is suspected involvement with a Colombian drug-trafficking network; and (6) h is suspected involvement in underage prostitution at the cantinas. Notably, R o c h a provides no corroboration for these allegations. Nor does he assign dates t o any of the alleged incidents or investigations, explaining only that Escalante's d is c ip lin a r y history spanned 13 years and included seven sustained complaints. For its part, the state identifies three internal department misconduct c o m p la in t s filed prior to Rocha's trial, but the record admits no further detail.
C " U n le s s suppressed evidence is `material for Brady purposes, [its] s u p p r e s s io n [does] not give rise to sufficient prejudice to overcome [a] procedural d e fa u lt .'"1 3 "[T]he materiality standard for Brady claims is met when `the f a v o r a b le evidence could reasonably be taken to put the whole case in such a d iffe r e n t light as to undermine confidence in the verdict.'"1 4 Where, as here, t h e r e are a number of potential Brady violations, "a court must analyze whether t h e cumulative effect of all such evidence suppressed by the government raises a reasonable probability that its disclosure would have produced a different r e s u lt ." 15
Banks v. Dretke, 540 U.S. 668, 698 (2004) (quoting Strickler, 527 U.S. at 282) (alterations in Banks).
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Id. (quoting Kyles v. Whitley, 514 U.S. 419, 435 (1995)). See United States v. Sipe, 388 F.3d 471, 478 (5th Cir. 2004); see also Kyles, 514 U.S.
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at 434.
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"The materiality of Brady material depends almost entirely on the value o f the evidence relative to the other evidence mustered by the state." 16 U n d isclo s e d evidence that is merely cumulative of other evidence is not material, w h ile the impeached testimony of a witness whose account is "strongly c o r r o b o r a t e d by additional evidence supporting a guilty verdict . . . generally is n o t found to be material" either.1 7 Conversely, a Brady violation is more likely t o occur when the impeaching evidence "would seriously undermine the t e s t i m o n y of a key witness on an essential issue or there is no strong c o r r o b o r a t io n ." 1 8 T h e record, read liberally in Rocha's favor, indicates that Escalante had a professional and romantic relationship with Medeles by the time of Rocha's t r ia l; that because of this relationship Escalante at least knew of Medeles's b r o t h e r , eyewitness Muñoz; that Escalante saw Muñoz three or four times over t h e course of the subsequent investigation; and that his relationship with Muñoz w a s neither close nor particularly amicable. It is also undisputed that Escalante w a s the subject of three sustained misconduct complaints prior to Rocha's trial. Rocha contends that the state's failure to disclose this alleged im p e a c h m e n t evidence tainted the testimony of both Escalante and Muñoz. We c a n n o t say that he is entirely wrong--Escalante's credibility, for one, is strained t o say the least. Yet, even if the undisclosed evidence tends to impeach all of E s c a la n t e 's testimony, that testimony was merely duplicative of Officer Avila's.
Sipe, 388 F.3d at 478 (quoting Smith v. Black, 904 F.2d 950, 967 (5th Cir.1990)) (internal quotation marks omitted). Id. (quoting Spence v. Johnson, 80 F.3d 989, 995 (5th Cir. 1996); Wilson v. Whitley, 28 F.3d 433, 439 (5th Cir. 1994)) (quotation marks omitted). Id. (quoting United States v. Weintraub, 871 F.2d 1257, 1262 (5th Cir. 1989)) (internal quotation marks omitted).
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While Escalante went beyond Avila in stating he had "made the scene" at the n ig h t c lu b where the murder took place, "interviewed five or six Spanishs p e a k in g witnesses at the scene," and witnessed Muñoz's initial identification o f Maldonado as the "taller man," the prosecution primarily relied on Escalante t o lay a foundation for Rocha's confession. On that score, it was Avila--not E sca la n t e -- w h o provided the meaningful detail about Rocha's confession; he was t h e one, after all, who actually questioned Rocha. The remainder of Escalante's t e s t im o n y was largely irrelevant to the state's case. And at any rate Rocha does n o t now contend that his full confession was anything but knowing and v o lu n ta r y , so neither officer's testimony is particularly relevant in
d e m o n s t r a t in g Rocha's guilt. M u ñ o z 's testimony also withstands Rocha's scrutiny, especially given the m in im a l impeachment value of the Escalante-Medeles-Muñoz triangle. Escalante romanced Medeles; Escalante found Muñoz through Medeles a few y e a r s after the murder; Escalante presented a series of photographs and Muñoz id e n tifie d Maldonado, Rocha's co-defendant; and Muñoz later attested to that id e n tific a t io n , adding only that Rocha "fit[] the description" of the short man p r e s e n t moments before Fuentes's murder. Without more, this narrative--while n o doubt curious--is not compelling impeachment. As the district court
r e a s o n e d , "Muñoz'[s] relationship to Medeles does not establish that Muñoz had a n y motive to lie about Rocha or anything else in this case. . . . [or] had any r e a s o n to frame Rocha or otherwise lie about who committed the murder." A motive to lie or to frame is particularly difficult to fathom in light of the a c t u a l substance of Muñoz's testimony, which reached Rocha's guilt tangentially a t most. Muñoz merely related that Rocha resembled the shorter man seen at t h e nightclub the night of Fuentes's murder, and the balance of his t e s t i m o n y -- lik e Escalante's account--was only useful to the prosecution in 11
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corroborating the underlying facts of Rocha's full confession. That confession r e m a in s in evidence uncontested, strongly corroborating Muñoz's supporting t e s t im o n y and rendering it largely superfluous. V ie w e d as a whole, the "transcript falls far short of undermining c o n fid e n c e in the guilt phase's outcome,"1 9 and the undisclosed evidence is thus im m a t e r ia l for Brady purposes.
III Rocha also requests a COA to address two additional issues, first, a p u n is h m e n t -p h a s e ineffective assistance of counsel claim, and second, a charge t h a t the state violated his rights under the Vienna Convention. The district c o u r t rejected his request in full. Under AEDPA, a COA--which is a necessary predicate to our full r eview -- m a y issue only if the habeas petitioner "has made a substantial showing o f the denial of a constitutional right."2 0 We will grant a COA only when
" r e a s o n a b le jurists could debate whether (or, for that matter, agree that)" the c o u r t below should have resolved the claims in a different manner or that this c o u r t should encourage the petitioner to further litigate his claims in federal c o u r t.2 1 This "requires an overview of the claims in the habeas petition and a g e n e r a l assessment of their merits" but not "full consideration of the factual or le g a l bases adduced in support of the claims." 2 2
Miller-El v. Cockrell, 537 U.S. 322, 349 (2003) (quoting 28 U.S.C. § 2253(c)(2)) (internal quotation marks omitted).
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28 U.S.C. § 2253(c)(2); Miller-El, 537 U.S. at 33536. Id. at 336 (quoting Slack v. McDaniel, 529 U.S. 473, 48384 (2000)). Id.
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A i R o c h a first raised the claim that his trial counsel was constitutionally in e ffe c t iv e at sentencing by failing to investigate, develop, and present m it ig a t io n evidence--his claim under Wiggins v. Smith--in the district court as p a r t of his federal habeas petition.2 3 The court noted that Rocha did not raise t h is claim in state court, making the claim unexhausted. Ordinarily, the district c o u r t observed, "a federal habeas petition that contains unexhausted claims is d is m is s e d without prejudice, allowing the petitioner to return to the state forum t o present his unexhausted claims." However, "if the court to which a petitioner m u s t present his claims to satisfy the exhaustion requirement would now find t h e claims procedurally barred," the court need not dismiss his claims to allow e x h a u s t io n . The district court concluded that Rocha's Wiggins claim would be p r o c e d u r a lly barred in Texas court, and that Rocha was unable to show cause for o r prejudice from a procedural default or that he was actually innocent of capital m u r d e r or the death penalty. Accordingly, the district court held that Rocha's W ig g in s claim was procedurally barred from review in federal court and denied h im habeas relief.24 W it h his appeal pending before our court, Rocha filed a subsequent state h a b e a s application to exhaust his Wiggins claim. Rocha also moved for--and o b ta in e d -- a stay of the federal appellate proceedings until the Texas Court of
See 539 U.S. 510 (2003). As part of his initial habeas petition, Rocha also asserted that his trial counsel was ineffective for failing to discover and use impeachment evidence concerning Escalante and Muñoz. He has since abandoned this claim. After the district court denied his federal habeas petition and before Rocha filed his notice of appeal, Rocha filed a motion to alter or amend the district court's judgment on his Brady claim and a motion for a COA on his Vienna Convention claim. At that time, Rocha did not file a motion for post-judgment relief on his Wiggins claim.
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Criminal Appeals ("CCA") ruled on Rocha's Wiggins claim. The CCA eventually d is m is s e d Rocha's claim, after briefly reciting the procedural history, in an u n s ig n e d per curiam order: We have reviewed the application and find that the allegations do n o t satisfy the requirements of Article 11.071, Section 5(a)(3). Therefore, we dismiss this application as an abuse of the writ.25 R o c h a then returned to federal district court and filed a motion to reopen t h e district court's final judgment under Federal Rule of Civil Procedure 60(b) fo r further evaluation of his Wiggins claim. Rocha asserted that the CCA had r e a c h e d the merits of his Wiggins claim, thus permitting federal habeas review. Rocha also moved for another stay and limited remand in the Fifth Circuit to a llo w the district court to consider Rocha's Rule 60(b) motion. While Rocha's m o t io n to stay the proceedings and for limited remand was pending, the district c o u r t denied Rocha's motion for Rule 60(b) relief and denied Rocha's application fo r a COA. The district court denied Rocha's Rule 60(b) motion for relief from j u d g m e n t because it concluded that the CCA's reliance on § 5(a)(3) was an in d e p e n d e n t and adequate state ground, leaving intact its original conclusion t h a t Rocha's Wiggins claim was procedurally barred. Rocha appealed the district court's denial of his Rule 60(b) motion to this c o u r t.2 6 We denied as moot Rocha's motion to stay the proceedings and for
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See TEX. CODE CRIM. PROC. ANN. art. 11.071, § 5(a)(3) (Vernon 2010).
This appeal was docketed as number 09-70018. We have jurisdiction to consider the denial of a Rule 60(b) motion in a habeas proceeding only if the motion "attacks, not the substance of the federal court's resolution of the claim on the merits, but some defect in the integrity of the federal habeas proceedings." Gonzales v. Crosby, 545 U.S. 524, 532 (2005). Where the Rule 60(b) motion contains a new claim, it is properly considered a successive habeas petition and is subject to AEDPA's "requirement that a successive habeas petition be precertified by the court of appeals as falling within an exception to the successive-petition bar." Id. (citing 28 U.S.C. § 2244(b)(3)). The parties agree that Rocha's Rule 60(b) motion was not an improper successive petition, which is in accord with the law of this circuit. Ruiz v.
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limited remand, and consolidated Rocha's appeal of the denial of his Rule 60(b) m o t io n with Rocha's appeal of the denial of his habeas petition.27 R u le 60(b)(6) authorizes relief from a final judgment, order, or proceeding fo r "any other reason that justifies relief."2 8 We have interpreted Rule 60(b)(6)'s " a n y other reason" language to mean any other reason than those contained in t h e preceding five enumerated grounds of Rule 60(b).2 9 While Rule 60(b)(6) is c o m m o n ly referred to as a "grand reservoir of equitable power to do justice," the r u le is only invoked in "extraordinary circumstances." 3 0 Indeed, this court has r e p e a t e d ly stated that "the decision to grant or deny relief under Rule 60(b) lies w it h in the sound discretion of the district court and will be reversed only for an
Quarterman, 504 F.3d 523, 526 (5th Cir. 2007) (holding that AEDPA's limitation on successive federal habeas petitions does not apply where the district court previously denied relief based on procedural default and failure to exhaust and the petitioner is using Rule 60(b) to seek a merits determination). We thus have jurisdiction to review the district court's denial of Rocha's Rule 60(b) motion.
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The original appeal was docketed as number 05-70028.
FED. R. CIV. P. 60(b)(6). In his briefing before this court, Rocha fails to state which subset of Rule 60(b) authorizes relief from the district court's judgment. In his briefing before the district court, Rocha asserted that he was entitled to relief under both Rule 60(b)(5) and (6). Rule 60(b)(5) vests a court with the authority to grant relief from a final judgment, order, or proceeding if "the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable." FED. R. CIV. P. 60(b)(5). The district court's judgment has not been satisfied, released, or discharged; nor was the district court's decision based on an earlier judgment of the Texas Court of Criminal Appeals since that judgment had not yet been issued at the time of the district court's decision. Accordingly, Rocha's claim for relief under Rule 60(b) is properly analyzed under subsection (6). See Bailey v. Ryan Stevedoring Co., Inc., 894 F.2d 157, 159 (5th Cir. 1990) ("It should be noted that while 60(b)(5) authorizes relief when a judgment upon which it was based has been reversed or otherwise vacated, it does not authorize relief from a judgment on the ground that the law applied by the court in making its adjudication has been subsequently overruled or declared erroneous in another and unrelated proceeding.") (quoting Lubben v. Selective Sys. Local Bd. No. 27., 453 F.2d 645, 650 (1st Cir. 1972)).
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28
Batts v. Tow-Motor Forklift Co., 66 F.3d 743, 747 (5th Cir. 1995). Williams v. Thaler, 602 F.3d 291, 311 (5th Cir. 2010).
30
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abuse of that discretion." 31
ii A federal court is precluded from considering a state prisoner's habeas p e t it io n if the underlying state decision rests on an adequate and independent s t a t e ground, such as a state procedural bar.3 2 We must presume "that there is n o independent and adequate state ground for a state court decision when the d e c is io n fairly appears to rest primarily on federal law, or to be interwoven with fe d e r a l law."3 3 A state court may overcome this presumption by "stating clearly a n d expressly that its decision is based on bona fide separate, adequate, and in d e p e n d e n t grounds."3 4 Otherwise, a federal court "will accept as the most r e a s o n a b le explanation that the state court decided the case the way it did b e c a u s e it believed that federal law required it to do so."3 5 Rocha asserted before t h e district court--and re-asserts on appeal--that the CCA's dismissal of his a p p lic a t io n did not unambiguously rest on an independent state ground, and t h a t the federal court accordingly erred by not reviewing the merits of his W ig g in s claim.36
Id. at 312 (internal quotations, brackets, and citations omitted); see also Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. Unit A 1981) ("It is not enough that the granting of relief might have been permissible, or even warranted[--]denial must have been so unwarranted as to constitute an abuse of discretion."). Coleman v. Thompson, 501 U.S. 722, 750 (1991). Whether a particular state-law rule is "independent" of federal law is a federal question. Lee v. Kemna, 534 U.S. 362, 375 (2002).
33 32
31
Coleman, 501 U.S. at 735. Id. at 733 (internal quotations, brackets, ellipses, and citations omitted). Michigan v. Long, 463 U.S. 1032, 104041 (1983).
34
35
The "adequacy" of a state ground, which Rocha does not contest here, turns on whether the state law ground is both "firmly established and regularly followed" by the state
36
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In 1995, § 5(a) of Article 11.071 of the Texas Code of Criminal Procedure, o n which the CCA's dismissal relied, canonized Texas's abuse of writ doctrine. The provision governs whether Texas state courts have the authority to consider n e w claims raised in a subsequent application for writ of habeas corpus in a d e a th -p e n a lt y case. Once a habeas applicant has filed an initial habeas
a p p lic a t io n in state court, "a court may not consider the merits of or grant relief b a s e d on [any new claims brought in a] subsequent application unless the a p p lic a t io n contains sufficient specific facts establishing that": (1 ) the current claims and issues have not been and c o u ld not have been presented previously in a timely in itia l application or in a previously considered a p p lic a t io n filed under this article or Article 11.07 b e c a u s e the factual or legal basis for the claim was u n a v a ila b le on the date the applicant filed the previous a p p lic a tio n ; (2) by a preponderance of the evidence, but for a v io la tio n of the United States Constitution, no rational ju r o r could have found the applicant guilty beyond a r e a s o n a b le doubt; or (3) by clear and convincing evidence, but for a violation
courts. Ford v. Georgia, 498 U.S. 411, 42324 (1991) (internal quotation marks and citations omitted); see also Hughes v. Quarterman, 530 F.3d 336, 341 (5th Cir. 2008). The Supreme Court recently held that a state discretionary procedural rule is not automatically inadequate to bar federal court review on habeas. Beard v. Kindler, 130 S. Ct. 612, 619, ___ U.S. ____, ____ (2009). The state pointed to Beard in a December 2009 Rule 28(j) letter. Although Rocha's brief at times appears to contest both the independent and adequate nature of § 5, his response to the state's Rule 28(j) letter clearly disavows any claim that § 5 is inadequate: "Mr. Rocha has argued in his application for a Certificate of Appealability that he is entitled to federal review because the Texas Court of Criminal Appeals' . . . decision did not rest on an independent state ground. He has not made any argument that discretion in the [CCA's] judgment renders it inadequate and requires federal review. Rather, Mr. Rocha has argued that the [CCA's] decision disposing of Mr. Rocha's subsequent habeas application is not independent because: (1) the dismissal rests on a ground (specifically, Tex. Code of Crim. Proc. 5(a)(3)) that is interwoven with federal law, and (2) the decision did not clearly and expressly rely on state law."
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of the United States Constitution no rational juror w o u ld have answered in the state's favor one or more of t h e special issues that were submitted to the jury in the a p p lic a n t 's trial under Article 37.071, 37.0711, or 3 7 .0 7 2 .3 7 R o c h a invokes--and the CCA's dismissal specifically relied on--§ 5(a)(3), w h ic h , as paraphrased by the CCA, permits a subsequent state habeas applicant lik e Rocha to proceed with his claim "if he can show to the requisite level of c o n fid e n c e that no rational juror `would' have answered at least one of the s t a t u t o r y special punishment issues"--which determine whether capital p u n is h m e n t will be imposed--"in the State's favor."3 8 The Texas legislature "has d e t e r m in e d , however, that the State's interest in the finality of its judgments ju stifie s the imposition of higher burdens upon the subsequent applicant who did n o t avail himself of the opportunity and resources available to him . . . in an in it ia l writ to raise his claim."3 9 For an applicant who bypassed the opportunity t o raise a claim in an initial writ, the "requisite level of confidence" is clear and c o n v in c in g evidence.40 T h e state of Texas undisputedly has the right to establish the conditions u n d e r which it will entertain a subsequent writ. And we have long held that t h o s e conditions as enumerated in § 5(a) "normally constitute[] an adequate and in d e p e n d e n t procedural bar to federal review,"4 1 with at least two notable
37
TEX. CODE. CRIM. PROC. ANN. art. 11.071 § 5(a) (West 2010). Ex parte Blue, 230 S.W.3d 151, 161 (Tex. Crim App. 2007). Id. at 162. Id.
38
39
40
See Morris v. Dretke, 413 F.3d 484, 500 (5th Cir. 2005) (Higginbotham, J., concurring); see also Aguilar v. Dretke, 428 F.3d 526, 533 (5th Cir. 2005) ("This court has consistently held that Texas'[s] abuse-of-writ rule is ordinarily an `adequate and independent' procedural ground on which to base a procedural default ruling.").
41
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exceptions.42 A federal petitioner at the same time may avoid a state-law procedural bar if he "can demonstrate cause for the default and actual prejudice as a result of t h e alleged violation of federal law, or demonstrate that failure to consider the c la im s will result in a fundamental miscarriage of justice.'"4 3 The "miscarriage o f justice" exception applies where a petitioner is "actually innocent" of either the o ffe n s e giving rise to his conviction or "actually innocent" of the death penalty.44 U n d e r the Supreme Court's decision in Sawyer v. Whitley, a petitioner who c la im s to be actually innocent of the death penalty to which he has been s e n te n c e d "must show by clear and convincing evidence that, but for a c o n s t it u t io n a l error, no reasonable juror would have found the petitioner eligible fo r the death penalty under the applicable state law."4 5 Actual innocence is "not it s e lf a constitutional claim, but instead a gateway through which a habeas
See Rivera v. Quarterman, 505 F.3d 349 (5th Cir. 2007); Ruiz v. Quarterman, 504 F.3d 523 (5th Cir. 2007). Rivera involved a denial under § 5(a)(1), as indicated in the CCA's articulation of the applicable standard in that case: "an applicant must allege `sufficient specific facts' to support his entitlement to bring a claim under newly established law within that writ application." Ex parte Rivera, 2003 WL 21752841, at *1. Ruiz also considered a denial under § 5(a)(1). The CCA denied the habeas application under § 5, Ruiz argued § 5(a)(1) to this court, and we based our analysis on that argument: "The Texas Code of Criminal Procedure, as interpreted by the CCA, provides for subsequent applications where (1) the factual or legal basis for the subsequent claim was previously unavailable and (2) where the facts alleged would constitute a federal constitutional violation that would likely require relief from either the conviction or sentence." Ruiz, 504 F.3d at 527. Appended to this assertion was a citation to Ex parte Campbell, a CCA decision discussing § 5(a)(1), finding that the habeas applicant had "facially surmounted the `unavailability' hurdle of Section 5(a)(1)," and asking whether he had put forth a "prima facie" showing of a constitutional violation. 226 S.W.3d 418, 42122 (Tex. Crim. App. 2007).
43
42
Hughes, 530 F.3d at 341 (quoting Coleman, 501 U.S. at 750).
See Schlup v. Delo, 513 U.S. 298, 32627; Sawyer v. Whitley, 505 U.S. 333, 338 (1992); see also Williams, 602 F.3d at 307.
45
44
505 U.S. at 336.
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petitioner must pass to have his otherwise barred constitutional claim c o n s id e r e d on the merits." 46 T e x a s largely adopted this federal gateway in crafting its own conditions fo r subsequent habeas applications. As the CCA has explained, "[t]he [Texas] L e g is la t u r e quite obviously intended [§ 5(a)(3)], at least in some measure, to m im ic the federal doctrine of `fundamental miscarriage of justice.' . . . apparently in t e n d in g to codify, more or less, the [actual-innocence-of-the-death-penalty] d o c t r in e found in Sawyer v. Whitley."4 7 The practical result in nearly all cases w ill be that the federal and state standards are identical.4 8 T e x a s is not alone in providing exceptions to habeas procedural bars under h e ig h ten e d pleading standards; as the Third Circuit recently recognized, "[m]any s t a t e s have procedural default rules with similar `safety valves' for situations in w h ic h enforcing the procedural default would work a serious injustice." 4 9 These r u le s typically invoke "plain error" review of alleged constitutional violations,5 0 o r pleading requirements to weed out "facially implausible" or "frivolous" claims, in order to mitigate the effects of procedural default.5 1 The circuits are split on w h e t h e r these exceptions negate an otherwise independent state-law ground.
See Schlup, 513 U.S. at 315 (quoting Herrera v. Collins, 506 U.S. 390, 404 (1993)) (internal quotation marks omitted). Ex parte Blue, 230 S.W.3d at 15960; see also Hughes, 526 F.3d at 196 ("[T]he Texas Court of Criminal Appeals has also construed section 5(a)(3) as analogous to the federal "actual innocence" exception to exhaustion."). Compare Sawyer, 505 U.S. at 336, with TEX. CODE. CRIM. PROC. ANN. art. 11.071 § 5(a) (West 2010).
49 48 47
46
Campbell v. Burris, 515 F.3d 172, 178 (3d Cir. 2008) (collecting cases). Id. Gardner v. Galetka, 568 F.3d 862, 884 (10th Cir. 2009).
50
51
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The First,52 Third,53 Fourth,54 Sixth,55 Seventh,5 6 Tenth,5 7 and Eleventh 5 8 Circuits
Lynch v. Ficco, 438 F.3d 35 (1st Cir. 2006) ("The [state court], expressly noting that the instruction `was not objected to at trial,' reviewed Lynch's jury instructions claim for `a substantial likelihood of a miscarriage of justice.' Limited review of this sort does not work a waiver of the contemporaneous objection requirement.") (internal citations and some quotation marks omitted). Campbell, 515 F.3d at 178 ("Many states have procedural default rules with similar `safety valves' for situations in which enforcing the procedural default would work a serious injustice. As a result, while the United States Supreme Court has not definitively resolved the matter, there is ample court of appeals case law on whether invocation of similar `plain error' review of alleged violations of the federal constitution in order to mitigate the effect of a state procedural default rule will suffice to deprive a state court ruling of its `independent' character. We agree with our sister Courts of Appeals for the First, Fourth, Sixth, Seventh, Tenth and Eleventh Circuits that it does not."). Daniels v. Lee, 316 F.3d 477, 487 (4th Cir. 2003) (holding that a federal court is procedurally barred from considering claim where state court's review was limited to determining, under the plain error doctrine, whether an error "so infected the trial with unfairness as to make the resulting conviction a denial of due process"). Gulertekin v. Tinnelman-Cooper, 340 F.3d 415, 423 (6th Cir. 2003) (`The [state court of appeals] did not conduct the sort of review of the jury instructions that presumably would have been undertaken had there been a timely objection to them; instead, the court inquired only whether affirmance of the conviction would `result in manifest injustice' because of the alleged instructional error . . . . We would be loath to adopt an exception to the `cause and prejudice' rule that would discourage state appellate courts from undertaking the sort of inquiry conducted by the [state] court, and we do not believe that the state court's explanation of why the jury instructions resulted in no manifest injustice can fairly be said to have constituted a waiver of the procedural default."). Rodriguez v. McAdory, 318 F.3d 733, 736 (7th Cir. 2003) ("Although a state court's review of whether an error is plain often entails at least limited review of the merits, that limited review is at most `entangled' with the merits and certainly not `entirely dependent on the merits.' Thus the state court's plain error review of Mr. Rodriguez's claims did not undo his procedural default.") (internal quotation marks and citation omitted). See Gardner, 568 F.3d at 884 (stating in dicta that a federal court is procedurally barred when state courts ask whether a constitutional claim was "facially implausible" or "frivolous" because the "frivolousness inquiry is not the bar; it is an element of the exception to the bar"). Julius v. Johnson, 840 F.2d 1533, 1546 (11th Cir. 1988) ("[T]he mere existence of a `plain error' rule does not preclude a finding of procedural default.").
58 57 56 55 54 53
52
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hold that such exceptions do not ordinarily deprive state court rulings of their " in d e p e n d e n t " character. The Ninth Circuit disagrees,5 9 the Eighth has reached in c o n s is t e n t results,60 and the Supreme Court's teachings are inconclusive.6 1 But w e need not enter this fray because the identity of state and federal law in this c a s e has rendered meaningless any search for an independent and adequate grou n d. Either § 5(a)(3) operates as an independent state ground, in which case fe d e r a l law permits merits review only if the petitioner demonstrates cause and p r e ju d ic e or actual innocence of the death penalty, or the provision is not in d e p e n d e n t of federal law, and we apply the actual-innocence-of-the-deathp e n a lt y standard because state law--§ 5(a)(3) itself--demands that of us. In b o th cases, Rocha must clear the identical hurdle before we can reach the merits o f his Wiggins claim. Texas may exercise its prerogative to establish heightened
See Walker v. Endell, 850 F.2d 470, 47475 (9th Cir. 1987) ("[A] state appellate court reviewing for plain error reaches the merits of a petitioner's claim . . . . In reaching its conclusion that there was no plain error, the [state] court conducted a review on the merits . . . effectively lift[ing] the state's procedural bar to [federal] review."). Compare Toney v. Gammon, 79 F.3d 693, 699 (8th Cir. 1996) ("[A] properly limited plain error review by a state court does not cure a procedural default."), with Hornbuckle v. Groose, 106 F.3d 253, 257 (8th Cir. 1997) (holding that when a state conducts a plain error review, the federal court may also review for plain error). In Osborne v. Ohio, a direct review case, the Supreme Court considered the Ohio Supreme Court's ruling that, although the trial judge failed to charge the jury that scienter was an element of the petitioner's crime, the petitioner had waived the issue by failing to object at trial and the omissions did not "amount[] to plain error." 495 U.S. 103, 10708 (1990). Without reciting Ohio's plain error analysis, the Court had "no difficulty agreeing with the State that Osborne's counsel's failure to urge that the court instruct the jury on scienter constitutes an independent and adequate state-law ground preventing us from reaching Osborne's due process contention on that point." Id. at 123. Furthermore, on direct review and in the non-death penalty context, the Supreme Court has suggested that where a state court does not actually reach the underlying merits, the independence of the state procedural rule is not automatically undermined by the mere existence of provisions requiring or empowering the state court to excuse procedural defaults if the underlying error is "plain" or "fundamental." See Sochor v. Florida, 504 U.S. 527, 534 n.*.
61 60 59
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barriers to subsequent state habeas applications, and the federal courts are o b lig e d to faithfully apply those barriers in federal habeas proceedings as well.62 " [N ]o t h in g in [the CCA's] perfunctory dismissal of the claims . . . suggests that it " went behind Sawyer and "actually considered or ruled on the merits." 6 3 It s i g n i f i e s that whether § 5(a)(3) is characterized as a federally-mandated e x c e p t io n to a state procedural bar or as an exception derived from federal c a s e la w yet circumscribed by state statute, the threshold review is for actual in n o c e n c e of the death penalty.6 4
See Haynes v. Quarterman, 526 F.3d 189, 19697 (5th Cir. 2008) (applying § 5(a)(3)'s "actual innocence of the death penalty" standard to determine whether Texas courts would grant a federal habeas petitioner the opportunity to pursue a successive habeas petition despite failing to assert his claims in a previous petition), rev'd on other grounds sub nom. Thaler v. Haynes, 130 S. Ct. 1171 (2010) ; see also Williams, 602 F.3d at 30708 (applying § 5(a)(2)'s "actual innocence" standard to decide whether a federal habeas petitioner's new evidence demonstrated that "but for a violation of the United States Constitution no rational juror could have found [him] guilty beyond a reasonable doubt"); Hornbuckle, 106 F.3d at 257 (8th Cir. 1997) (holding that when a state conducts a plain error review for "manifest injustice," the federal court may review the habeas petitioner's claim under the same standard); Jones v. Jerrison, 20 F.3d 849, 854 (8th Cir. 1994) ("Because the state courts reviewed Jones's claim under a plain-error standard, we also apply a plain-error standard on habeas review, not a more stringent standard.") (citation omitted); Roy v. Coxon, 907 F.2d 385, 390 (2d Cir. 1990) ("The implication of Osborne [v. Ohio], therefore, appears to be that even if the state court has addressed the questions of (a) whether there was error, and (b) whether the error was prejudicial, if these questions were answered in the context of plain-error analysis, the decision was not sufficiently a ruling on the merits to authorize the federal court to reach the merits."); cf. Osborne, 495 U.S. at 123.
63
62
See Hughes, 530 F.3d at 342.
In Balentine v. Thaler, 609 F.3d 729 (5th Cir. 2010), a panel of this Court held that the CCA reached the merits of a petition for habeas corpus when it dismissed the petition under Article 11.071 § 5. Balentine first relied on Ruiz to conclude that a bare citation to § 5 is not a clear and express statement that the decision rests on an independent and adequate state-law ground. See id. at 735-38. It then proceeded to consider the merits of the underlying claim. See id. at 738-43. To the extent that our decision today is not fully consonant with the decision in Balentine, we believe that dissonance stems from Balentine's misapplication of our decision in Ruiz. The mandate has yet to issue in Balentine, and a petition for rehearing en banc remains pending. We therefore instruct the clerk of the court that the mandate in this case shall not issue until the mandate has issued in Balentine.
64
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Here, Rocha cannot make the requisite showing under this shared s t a n d a r d . When a claim of actual innocence contests a sentence of death, the h a b e a s petitioner's claim must tend to negate not just the jury's discretion to im p o s e a death sentence but the petitioner's very eligibility for that punishment. That is, a habeas petitioner who is "unquestionably eligible" for the sentence r e c e iv e d can never be "actually innocent of the death penalty." 6 5 This is so b e c a u s e late-arriving constitutional error that impacted only a jury's sentencing d is c r e t io n is not "sufficiently fundamental as to excuse the failure to raise it t im e ly in prior state and federal proceedings."6 6 "[T]he `actual innocence'
r e q u ir e m e n t must," then, "focus on those elements that render a defendant e lig ib le for the death penalty, and not on additional mitigating evidence that was p r e v e n t e d from being introduced as a result of a claimed constitutional error." 6 7 B u t that is just the sort of evidence Rocha presents here. His Wiggins c la im reduces to an assertion that mitigating evidence could have influenced the ju r y 's discretion in considering a sentence of death; he does not argue that this e v id e n c e would have rendered him ineligible for the death penalty. A Wiggins c la im by its operation in this case goes only to a jury's discretion in meting out t h e penalty of death, not a particular defendant's eligibility for that p u n is h m e n t .68 T h a t said, a caveat is necessary. Although the state actual innocence s t a n d a r d as a general rule coincides with the federal standard, uncertainty
65
Ex parte Blue, 230 S.W.3d at 160 (citing Sawyer, 505 U.S. at 34348). Id. (citing Sawyer, 505 U.S. at 34348).
66
Sawyer, 505 U.S. at 347; Ex parte Blue, 230 S.W.3d at 161 ("This reading of the [§ 5(a)(3)] exception seems to limit its applicability to constitutional errors that affect the applicant's eligibility for the death penalty under state statutory law.") (emphasis in original).
68
67
See Haynes, 526 F.3d at 197; Ex parte Blue, 230 S.W.3d at 160.
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exists because the CCA speculated in Ex parte Blue that it might "permit a s u b s e q u e n t state habeas applicant to proceed under circumstances that would n o t excuse a federal petitioner under Sawyer v. Whitley," specifically c ir c u m s t a n c e s where the applicant faults his counsel's failure to develop and p r e s e n t mitigation evidence at sentencing.6 9 Thus, Rocha's Wiggins claim--the c o n s titu tio n a l vehicle for complaints of inadequate mitigation at
s e n te n c in g -- m ig h t very well "meet the criteria" of § 5(a)(3) as a matter of state la w .70 B u t in the face of this state-law uncertainty, the CCA in Rocha's case was s ile n t , dismissing his subsequent application with a bare citation to § 5(a)(3). From this silence we cannot discern whether the CCA resolved the question left o p e n in Ex parte Blue, concluded that the state version of actual innocence does in fact permit mitigation evidence to form the basis of such a claim, and then
See Ex parte Blue, 230 S.W.3d at 161 n.42 ("Since 1991, one of the special issues that determine whether capital punishment will be imposed is the so-called `mitigation' special issue, embodied in Article 37.071, Section 2(e). Article 11.071 was originally promulgated in 1995, after this amendment to Article 37.071. Therefore it is arguable that, in theory at least, a subsequent habeas applicant could demonstrate by clear and convincing evidence that, but for some constitutional error, no rational juror would have answered the mitigation special issue in the State's favor."); see also TEX. CODE CRIM. PROC. ANN. art. §37.071 (West 2010) ("(2)(b) On conclusion of the presentation of the evidence, the court shall submit the following issues to the jury: (1) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and (2) in cases in which the jury charge at the guilt or innocence stage permitted the jury to find the defendant guilty as a party under Sections 7.01 and 7.02, Penal Code, whether the defendant actually caused the death of the deceased or did not actually cause the death of the deceased but intended to kill the deceased or another or anticipated that a human life would be taken. . . . (e)(1) The court shall instruct the jury that if the jury returns an affirmative finding to each issue submitted under Subsection (b), it shall answer the following issue: Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment without parole rather than a death sentence be imposed.").
70
69
Ex parte Blue, 230 S.W.3d at 161 n.42.
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determined on the facts of this case that Rocha had nevertheless failed the s t a n d a r d , or whether the court simply reverted to the federal standard. Putting a s id e the low probability that any court would resolve sub rosa an issue it had v e r y recently and explicitly left unanswered, we must at any rate conclude that t h e CCA relied on federal law in making its decision. Hitched to the Supreme C o u r t 's teachings in Sawyer, bare citation to § 5(a)(3)--without more--"fairly a p p e a r s to rest primarily on federal law, or to be interwoven with federal law," 7 1 n a m e ly the federal actual innocence standard, and there is no clear and express b a s is to say otherwise.7 2 Accordingly, we must "accept as the most reasonable e x p la n a t io n that the state court decided the case the way it did because it b e lie v e d that federal law required it to do so."7 3 And federal law under Sawyer p r e c lu d e s Rocha's Wiggins claim. Seen generally, the district court's conclusion--that Rocha's Wiggins claim is of no help to him given the procedural posture of his case and the contours of s t a t e law--was correct. However, given Balentine and its newly minted reading, r e a s o n a b le jurists could debate whether Rocha's Wiggins claim fails because § 5(a)(3) operates as an independent and adequate state ground and Rocha c a n n o t make the showing of actual innocence of the death penalty that is r e q u ir e d to overcome a state-law procedural bar, or his Wiggins claim fails b e c a u s e his claim of actual innocence under § 5(a)(3) fails on the merits. Therefore, a COA will issue on this question. As for our broader conclusion, w h e t h e r state court invocation of § 5(a) of Article 11.071 of the Texas Code of C r im in a l Procedure or its parts clearly rests a decision upon independent state
71
Coleman, 501 U.S. at 735. Id. at 733 (internal quotations, brackets, ellipses, and citations omitted). Long, 463 U.S. at 104041.
72
73
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grounds does not yield to a universal answer. Rather, the answer will often turn o n contextual and case specific inquiries laid on the federal blanket of Michigan v . Long7 4 and Coleman v. Thompson,7 5 ever mindful that the state has the right t o define the gateways of state habeas processes--free of federal review if clearly sta ted .
B L a s t ly , Rocha requests a COA to determine whether the state of Texas v io la t e d his rights under Article 36 of the Vienna Convention and whether such a violation warrants the exclusion of his confession. The state admits that it v io la t e d the Convention's terms: Rocha is a citizen of Mexico--a fact known to t h e arresting officer--yet Rocha was never informed of his right to talk to the M e x ic a n consulate. For this violation, Rocha seeks to suppress his confession. The trial court denied relief, and direct and state habeas review upheld that d e c is io n . The federal district court also denied relief, explaining that Article 36 d id not create individually-enforceable rights.7 6 R o c h a acknowledges we have held that Article 36 does not create in d iv id u a lly -e n fo r c e a b le rights but wants a COA so that he may pursue en banc
74
463 U.S. 1032. 501 U.S. 722.
75
The district court also observed that the International Court of Justice ("ICJ") has already determined that Rocha's rights under the treaty were not substantively violated. While it is true that the ICJ refused to find that Mexico's right to "arrange for [Rocha's] legal representation" had not been violated, it found that the state violated the Convention when it failed to inform Rocha of his right to request that the authorities inform his government's consulate that he had been detained. Case Concerning Avena and Other Mexican Nationals (Mexico v. United States), 2004 I.C.J. 12; see also Medellín II, 552 U.S. at 502. The rights of an individual are distinct from those of a government under the Convention, and the ICJ decision is not determinative here.
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consideration.7 7 He points to the Supreme Court's 2006 decision in SanchezL la m a s where four justices--Ginsburg, Breyer, Stevens, and Souter--expressed t h e ir belief that the Vienna Convention does create individually-enforceable r ig h t s .7 8 Without a clear holding from the Court, however, our precedent stands a n d we must decline Rocha's request for a COA on this issue. Even if we were to take up the subject as a full court, Rocha's requested r e m e d y -- s u p p r e s s io n of inculpatory statements--is unavailable. Sanchez-
L la m a s held that suppression of evidence is not an available remedy where, as h e r e , the Vienna Convention "does not provide [that] particular remedy, either e x p r e s s ly or implicitly."7 9 Absent a prescribed remedy, "it is not for the federal c o u r ts to impose one on the States through lawmaking of their own." 8 0 And in a n y event, suppression here would upend the state courts' determination that R o c h a knowingly and voluntarily confessed and did not desire an attorney at t h a t time, whether provided to him by the Mexican consulate or not.
*** W e AFFIRM the district court, DENY relief on the Brady claim, DENY a C O A on the claim under the Vienna Convention, and HOLD that Rocha was not e n tit le d to have his Wiggins claim considered on the merits but GRANT a COA o n that question. Because we are convinced that the issue on which we grant t h e COA has been fully briefed and squarely addressed at oral argument by able
77
See, e.g., Leal Garcia v. Quarterman, 573 F.3d 214, 218 n.19 (5th Cir. 2009); Cardeñas v. Dretke, 405 F.3d 244, 253 (5th Cir. 2005). Sanchez-Llamas v. Oregon, 548 U.S. 331, 360 (Ginsburg, J., concurring in the judgment); id. at 365 (Breyer, J., dissenting).
79 78
Id. at 347. Id.
80
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counsel, we will not seek additional briefing. In addition, we instruct the clerk o f the court not to issue the mandate in this case until the mandate issues in B a len tin e .
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HAYNES, Circuit Judge, concurring and dissenting: I concur in the majority opinion with the exception of Section III.A. and t h e portion of the conclusion reflecting that ruling. I agree that a COA should b e granted on this issue, but I respectfully dissent from the majority opinion's d e t e r m in a t io n , at this stage, that Rocha is not entitled to have a federal court r e v ie w the merits of his Wiggins claim. The majority opinion represents a deft a n d scholarly approach, but it also represents a novel analysis not fully c o n s o n a n t with this court's recent decision in Balentine v. Thaler, 609 F.3d 729 (5 t h Cir. 2010), as well as other decisions of this court. In Balentine, we addressed a case with an almost identical procedural p o s t u r e and reversed the district court's denial of the habeas petitioner's Rule 6 0 (b ) motion as an abuse of discretion. We concluded that a Texas Court of C r im in a l Appeals's decision denying habeas relief on a successive petition did n o t rest upon an independent state-law ground because "that denial could have b e e n a decision that the facts were previously available and no excuse from p r e s e n t in g the claim earlier existed--an adequate and independent state g r o u n d -- o r that denial could have been based on a finding that the facts as a lle g e d did not indicate a federal constitutional violation." 609 F.3d at 737. Because the basis for the Texas Court of Criminal Appeals's decision could have r e s t e d on a finding that the petitioner failed to allege facts establishing a federal c o n s t it u t io n a l violation--a question of federal constitutional law--the court c o n c lu d e d that Balentine was entitled to have a federal court review the merits o f his Wiggins claim. Id. at 738 (citing Ruiz v. Quarterman, 504 F.3d 523 (5th C ir . 2007)).
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Document: 00511229088
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Date Filed: 09/09/2010
Balentine and Ruiz support a reversal of the district court's denial of R o c h a 's Rule 60(b) motion in the instant case. Here, the Texas Court of Criminal A p p e a ls 's decision rested upon a finding that Rocha's allegations "do not satisfy t h e requirements of Article 11.071, Section 5(a)(3)." Under our decisions in B a le n tin e and Ruiz, the Texas Court of Criminal Appeals's decision--relying on § 5(a)(3), which incorporates federal constitutional law--was based on the merits o f Rocha's federal constitutional claim
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