Mark Stroman v. Rick Thaler, Director

Filing

UNPUBLISHED OPINION ORDER FILED. [09-70034 Affirmed ] Judge: EHJ , Judge: PEH , Judge: WED; denying motion for certificate of appealability filed by Appellant Mr. Mark Anthony Stroman. (iSSUED AS AND FOR THE MANDATE) [6543716-2] [09-70034]

Mark Stroman v. Rick ase: 09-70034 CThaler, Director

Document: 00511332658 Page: 1 Date Filed: 12/27/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
December 27, 2010 N o . 09-70034 Lyle W. Cayce Clerk

M A R K ANTHONY STROMAN, Petitioner - Appellant v. R I C K THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL J U S T I C E , CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellee

A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 3:05-CV-1616

B efo r e JONES, Chief Judge, and HIGGINBOTHAM and DAVIS, Circuit Judges. P E R CURIAM:* I n the wake of the 9/11 terrorist attacks, Mark Anthony Stroman, a m e m b e r of the Aryan Brotherhood, murdered two individuals he believed to be o f Middle Eastern descent. He was convicted and sentenced to death. He sought fe d e r a l habeas relief; the district court denied his petition and refused to grant a certificate of appelability (COA). Stroman now seeks a COA from this Court

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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Case: 09-70034 Document: 00511332658 Page: 2 Date Filed: 12/27/2010

No. 09-70034 p u r s u a n t to 28 U.S.C. § 2253. Because reasonable jurists would not find it d e b a t a b le that the district court's rejection of the underlying habeas petition was c o r r e c t , Stroman's application for a COA is DENIED. I . BACKGROUND S t r o m a n murdered a gas station attendant, Vasudev Patel, in the course o f an attempted robbery. Patel's murder was the last in a series of shootings ­ r e s u lt in g in two individuals killed and one severely disfigured ­ that Stroman c o m m it t e d post-9/11 against those whom he believed to be of Middle Eastern d e s c e n t . Stroman testified at trial that the United States government "hadn't d o n e their job so he was going to do it for them." Patel's murder, planned in a d va n c e , was captured in graphic detail by the gas station's surveillance camera. Stroman was convicted and sentenced to death. He has never shown remorse fo r the murders, and he even composed poetry in prison expressing his pride in h is crimes. T h e district court denied Stroman's habeas petition, concluding, among o t h e r things, that all but three of Stroman's claims were unexhausted and t h e r e fo r e procedurally barred, and the claims that were not procedurally barred w a r r a n te d no habeas relief. Stroman now moves for a COA. I I . STANDARD OF REVIEW U n d e r the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 2 8 U.S.C. § 2253(c)(2), a petitioner seeking a COA must demonstrate "a s u b s t a n t i a l showing of the denial of a constitutional right." In Miller-El v. C o c k r e ll, 537 U.S. 322 (2003), the U.S. Supreme Court clarified: "A petitioner s a t is fie s this standard by demonstrating that jurists of reason could disagree w it h the district court's resolution of his constitutional claims or that jurists c o u ld conclude the issues presented are adequate to deserve encouragement to p r o c e e d further." 537 U.S. at 327 (citing Slack v. McDaniel, 529 U.S. 473, 484

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Case: 09-70034 Document: 00511332658 Page: 3 Date Filed: 12/27/2010

No. 09-70034 (2 0 0 0 )). The district court's review of the conviction was, like ours, guided by the d e fe r e n t ia l standards of AEDPA. I I I . DISCUSSION A. Stroman's Unexhausted and Procedurally Barred Claims S t r o m a n 's habeas petition presented several unexhausted claims, in c l u d i n g : actual innocence; lack of a presumption of innocence; lack of a fair d e fe n s e ; and ineffective assistance of counsel claims for failure to investigate and fa ilu r e to introduce favorable evidence. Stroman does not contend that the c la im s are exhausted. He instead argues that: (1) he is excused from exhaustion b e c a u s e he is actually innocent; (2) the state corrective procedure was ineffective t o protect his rights as per 28 U.S.C. § 2254(b)(1)(B)(ii); and (3) his failure to e x h a u s t is excused in light of Ruiz v. Quarterman, 504 F.3d 523 (5th Cir. 2007). W e have reviewed the record, and we conclude that the district court's t r e a t m e n t of the actual innocence claim is not debatable among jurists of reason. To receive a hearing on the merits on a successive habeas claim, a petitioner " `m u s t show that it is more likely than not that no reasonable juror would have c o n v ic t e d him' in light of newly discovered evidence." Schlup v. Delo, 513 U.S. 2 9 8 , 332-33 (O'Connor, J., concurring). Moreover, the "new reliable evidence" o u g h t to consist of "exculpatory scientific evidence, trustworthy eyewitness a c c o u n t s , or critical physical evidence." House v. Bell, 547 U.S. 518, 537 (2006) (q u o tin g Schlup, 513 U.S. at 324). Stroman's proffered evidence of mental p r o b le m s falls far short of this demanding standard. The district court correctly a p p lie d this standard. A s to his claim of ineffective process, Stroman points to a "systemic failure o f the [Texas] habeas system to provide competent counsel to investigate and p r e s e n t habeas claims to the Texas courts." There is no constitutional right to c o u n s e l in post-conviction proceedings. Thus, the district court correctly noted t h a t numerous Fifth Circuit decisions reject this premise as a ground for habeas 3

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No. 09-70034 r e lie f. See, e.g., Ruiz v. Quarterman, 460 F.3d 638, 644 (5th Cir. 2006) ("Yet the la w of this Court is clear: ineffective state habeas counsel does not excuse failure t o raise claims in state habeas proceedings."). Stroman also mistakenly claims that a different Ruiz decision ­ Ruiz v. Q u a r te r m a n , 504 F.3d 523 (5th Cir. 2007) ­ excuses his failure to exhaust his c la im s . Ruiz held that Tex. Code Crim. Proc., art. 11.071, § 5(a)(1), did not serve, u n d e r unusual circumstances, as an independent and adequate state bar when t h e Texas Court of Criminal Appeals failed to state the basis for its rejection of a successive petition. Here, Stroman never filed a successive state petition, and t h u s , there never was a § 5(a) ruling. The Fifth Circuit has held post-Ruiz that § 5(a) remains an independent and adequate state ground for the purpose of im p o s in g a procedural bar. See Hughes v. Quarterman, 530 F.3d 336, 342 (5th C ir . 2008); see also Rocha v. Thaler, 619 F.3d 387 (5th Cir. 2010) (denying an a p p l i c a t io n for a COA as an abuse of the writ under § 5), clarified and panel r e h e a r in g denied, ___ F.3d ___, 2010 WL 4630794 (5th Cir. Nov 17, 2010). Ruiz d o e s not excuse Stroman's failure to exhaust. B. S tr o m a n 's Ineffective Assistance of Counsel Claims Stroman has properly exhausted two ineffective assistance of counsel c la i m s : one for his counsel's failure to challenge a juror, and another for his c o u n s e l's failure to object to purported hearsay. The record demonstrates,

h o w e v e r , that the district court carefully and correctly analyzed both prongs of S tr ic k la n d v. Washington, 466 U.S. 688 (1984). Stroman cannot demonstrate an a r g u a b le infringement of his right to effective assistance of counsel. Reasonable ju r is t s could not debate that the state court's denial of relief must be sustained u n d e r AEDPA. I V . CONCLUSION B e c a u s e the district court's conclusions are not debatable by jurists of r e a s o n , we DENY Stroman's motion for a COA. 4