Dennes v. Livingston

Filing 36

MEMORANDUM OPINION AND ORDER denying 22 Writ of Habeas Corpus, and dismissing this action with prejudice. No Certificate of Appealability shall issue. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

REINALDO DENNES,

§
§
§
§
§
§
§
§
§
§
§
§

Petitioner,

v.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice-Correctional
Institutions Division,
Respondent.

March 23, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. H-14-0019

MEMORANDUM OPINION AND ORDER

Petitioner Reinaldo Dennes, currently in the custody of the
Texas Department of Criminal Justice,
corpus

application pursuant

to

28

filed this federal habeas

U.S. C.

§

2254.

Dennes was

convicted of capital murder and sentenced to death for the murder
of Janos Szucs during the course of a robbery.

This case is before

the court on Dennes's First Amended Death Penalty Case Application
for

Post-Conviction Writ of Habeas Corpus

(Docket Entry No.
Brief in Support

22)

("Amended Petition")

and Respondent Lorie Davis's Answer with

("Respondent's Answer")

(Docket Entry No.

3 0) .

Having carefully considered the Amended Petition, the Answer, and
the arguments and authorities submitted by counsel, the court is of
the opinion that Dennes's Amended Petition should be denied.

I.
The Texas Court of

Background

Criminal Appeals

( "TCCA")

set out

the

relevant facts in its opinion on Dennes's direct appeal.
In December of 1995, Antonio Ramirez carne from Ecuador to
work in Texas. Shortly after his arrival, Ramirez met a
man named Francisco Rojas who sold jewelry for [Dennes] . 1
Some time later, Ramirez gave several rings to Rojas that
he wanted to sell. Rojas then took Ramirez and the rings
to [Dennes] at [Dennes] 's office in the Greenrich Building
on Richmond Avenue.
During this visit, Ramirez noticed
a lathe in [Dennes] 's jewelry workshop and began to play
with it. [Dennes] asked Ramirez if he knew how to operate
the machine and Ramirez said that he did.
[Dennis] then
"hired" Ramirez to make watch bezels for hirn. 2
Shortly thereafter [Dennes] invited Ramirez to travel to
Mexico with him to buy a diamond.
After the diamond
purchase, the pair returned to Texas and [Dennes] gave
Ramirez more work. In early January 1996, [Dennes] made
a sketch for Ramirez and asked him if he could make the
object depicted.
By the time he completed the job,
Ramirez had manufactured what turned out to be a silencer
for
[Dennes] .
After the silencer was completed,
[Dennes], his brother Alberto, and Ramirez went to a
field a few minutes away to test it.
Thinking the
silencer did not work as it should [Dennes] modified his
design and had Ramirez make another one.
[Dennes] test
fired this model in his office.
Shortly after the completion of the second silencer,
[Dennes] asked Ramirez to help him and Alberto rob a
jewelry dealer who also had an office in the Greenrich
Building.
[Dennes] explained that he would take the
videotape from the security station while Ramirez secured
the diamonds and Alberto shot tlre dealer.
Ramirez
consented, but returned to South America two days later. 3

1

[Dennes] ran a business called "Designs by Reinaldo."

2

Rarnirez stated that he did not expect to be paid for this
work, but thought it would be a good thing to do while waiting to
get money from the sale of his rings.
3

Rarnirez testified that he only consented so as not to alarm
the Dennes brothers; however, he had no intention of helping them.
-2-

Estrella Martinez, [Dennes] 's lover, had a cleaning job
at the Greenrich Building. In January of 1996, [Dennes]
told Martinez he wanted her to let him in a side door of
the building after working hours.
He told her he was
going to take some videotapes from the security guard's
station on the first floor.
On January 22, 1996,
[Dennes] gave Martinez a cellular phone with which he
planned to call her to tell her when to let him and
Alberto into the building. [Dennes] also wanted Martinez
to distract the guard so he could take the tapes.
Janos Szucs was a reputable wholesale diamond dealer who
had an office in the Greenrich Building. Shortly before
his death, Szucs had a diamond inventory worth more than
$3,600,000 which he kept in his office safe. He also had
approximately $200,000 in cash that he planned to use to
purchase diamonds on an upcoming trip.
Szucs did not
have a receptionist or secretary; access to his office
was controlled through an electronically-locked door.
Szucs had a television monitor in his office so he could
see who was at the door and he would allow people in by
pushing a remote button located on his desk.
In early
January 1996, Szucs and Sam Solomay formed a partnership
and Solomay moved into Szucs's office suite.
On January 24~, Solomay left the office at 5:40 p.m.,
but Szucs remained, explaining that he had an appointment
that evening. David Copeland was the security guard on
duty at the Greenrich Building that evening, working the
3:00 p.m. to 11:00 p.m. shift. A videotape recorder at
the security desk recorded the images from the security
cameras around the building. When Copeland arrived for
his shift, a technician was there working on the
surveillance system.
Around 6:30 p.m. that same evening, [Dennes] called
Martinez on the cellular phone he had provided her and
told her to open the loading dock door.
[Dennes] and
Alberto entered and immediately turned into a stairwell,
thereby avoiding the security guard's desk.
Shortly
after 7:00p.m. [Dennes] called Martinez and told her to
distract the security guard. Martinez told Copeland that
she had locked her keys in a fifth floor office and asked
him to help her retrieve them. A little after 7:30p.m.,
[Dennes] again called· Martinez and told her that he
needed another distraction. The security guard kept the
key to the snack bar so Martinez approached Copeland and
told him that she needed to clean the area and asked if
he would let her in.
Shortly after Martinez began
-3-

cleaning, however, the owner of the snack bar arrived and
told her to come back later.
When Copeland returned to the lobby, he found a man
kneeling behind the security desk apparently working on
the security system. Copeland assumed this was related
to the earlier repairs. As Copeland approached, the man
scrambled to his feet and walked briskly toward the
loading dock door. As Copeland neared the security desk,
the man turned and headed back toward the guard. When he
reached Copeland, the man placed his left hand on
Copeland's shoulder, stuck a .9 mm gun with a silencer to
Copeland's chest with his other hand and fired. The man
shot the guard again after he had fallen.
As Copeland
lay there playing dead, he heard the man walk to the
security desk. He then heard equipment and wires being
moved around followed by footsteps running toward the
loading dock door. 4 The owner of the snack bar called
"911."
Houston Police Officer Paul Terry arrived on the scene to
find Copeland lying face down in the lobby.
Copeland
told
Terry
what
had
happened
and
the
officer
unsuccessfully searched for a suspect. Inside the lobby,
Terry found spent shell casings and fragments of a fired
bullet.
He also noticed that the video equipment was
missing.
That same evening, Szucs's wife, Nicole, became concerned
that her husband had not arrived home.
After several
failed attempts to reach her husband, she received a c.all
from a friend who worked in the Greenrich Building who
told her that the building guard had been shot. Nicole
asked the friend to contact the building's office
manager. Sometime after 11 : 0 0 p.m. , the building manager
approached one of the officers remaining at the scene.
Officer M.R. Furstenfeld and a couple of other officers
then accompanied the manager to Szucs's suite to check on
his welfare.
Upon gaining access to the office,
Furstenfeld found Szucs's dead body.
Detectives who

4

As she walked toward the restrooms, Martinez looked into the
lobby and saw a man in overalls approaching the guard with his
hands behind his back. Martinez recognized this person as [Dennes]
by his walk, but noted that he was wearing a mustache and some sort
of disguise. Shortly after entering the bathroom, Martinez heard
a strange sound. When she returned to the lobby, Martinez saw the
guard lying on the floor bleeding.
-4-

arrived at the scene noted no signs of a forced entry.
They also noticed that the safe was empty and there were
no signs of the 3. 6 million dollar diamond inventory
Szucs maintained or the $200,000 he was supposed to have
on hand in cash.
Plus, Szucs was not wearing the fivecarat diamond pinky ring he always wore nor was the ring
ever recovered. 5
The detectives also discovered that
Szucs's computer had been damaged as if someone had tried
to remove a disc with tweezers. 6
The police eventually focused their investigation upon
[Dennes] . A search of his office revealed a lathe that
had been broken down and boxed up, a fired .9 mm bullet,
and an owner's manual for a . 9 mm Taurus handgun.
Firearms examiner Robert Baldwin determined that the
bullets recovered from Szucs's body, the bullet found in
[Dennes] 's office, and the bullets found in the lobby of
the Greenrich Building were all fired from the same gun.
Moreover, the cartridge casings found in the lobby of the
Greenrich Building and those found in the field where
[Dennes] tested the silencer were fired from the same
gun. The weapon was determined to be either a Taurus or
a Beretta .9 mm handgun.
Dennes v. State, No. 72,966
op. at 2-7

(Tex. Crim. App. Jan. 5, 2000), slip

(footnotes in original,

footnote numbering changed to

keep notes sequential in this opinion) .
The jury found Dennes guilty of capital murder for murdering
Szucs during the commission of a robbery.

(CR at 2, 137)

conclusion of the punishment phase of Dennes's trial,

7

At the

the jury

found that there was a probability that Dennes would commit acts of
criminal violence constituting a continuing threat to society, that

5

Nicole testified that her husband was wearing the ring that
morning when she took him to work.
6

Szucs kept his diamond inventory records on the computer.

7

"CR" refers to the Clerk's Record on Dennes's state postconviction proceedings.
-5-

Dennes caused Szucs's death, intended to kill Szucs, or anticipated
that a human life would be taken, and that the mitigating evidence
did not warrant imposition of a life sentence.
Accordingly,

Id.

at 151-54.

the trial court sentenced Dennes to death.

Id. at

155-56.
The TCCA affirmed Dennes' s conviction and sentence.
State,

No.

72,966

(Tex.

Crim.

subsequently denied Dennes' s
corpus.

Ex

parte

Dennes,

App.

Jan.

5,

2000).

application for
No.

WR-34,627-02

a

writ

(Tex.

Dennes v.
The
of

TCCA

habeas

Crim.

App.

Dec . 18 , 2 0 13 ) .
Dennes filed his initial federal habeas corpus petition on
December 17, 2014, and amended the petition on September 17, 2015.
Respondent answered the amended petition on July 1, 2016.
II.

The Applicable Legal Standards

This federal petition for habeas relief is governed by the
applicable provisions of

the Antiterrorism and Effective Death

Penalty Act ("AEDPA"), which became effective April 24, 1996.
Lindh v.

Murphy,

521 U.S.

320,

335-36

(1997).

See

Under the AEDPA

federal habeas relief based upon claims that were adjudicated on
the merits cannot be granted unless the state court's decision
(1)

"was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court
of

the

United

States"

or

(2)

"was

based

on

an

unreasonable

determination of the facts in light of the evidence presented in
-6-

the State court proceeding."

28 U.S.C.

2254 (d);

§

Johnson, 190 F.3d 698, 700 (5th Cir. 1999).

Kitchens v.

For questions of law

or mixed questions of law and fact adjudicated on the merits in
state court, this court may grant federal habeas relief under 28
U.S.C.

§

2254(d) (1) only if the state court decision "was contrary

to, or involved an unreasonable application of, clearly established
[Supreme Court precedent]."
(5th Cir. 2001).
afford

habeas

See Martin v. Cain, 246 F.3d 471, 475

Under the "contrary to" clause, this court may

relief

only

if

"'the

state

court

arrives

at

a

conclusion opposite to that reached by . . . [the Supreme Court] on
a question of law or if the state court decides a case differently
than

[the

Supreme

indistinguishable facts.'"
41 (5th Cir. 2000)

Court]

has

on

a

set

of

materially

Dowthitt v. Johnson, 230 F.3d 733, 740-

(quoting Williams v. Taylor, 529 U.S. 362, 406

(2000)) .
The "unreasonable application" standard permits federal habeas
relief only if a

state court decision

governing

rule

legal

unreasonably applies

it

[the

from
to

the

"identifies the correct

Supreme

facts

prisoner's case" or "if the state court

of

Court]

the

cases

particular

but
state

. unreasonably extends

a legal principle from [Supreme Court] precedent to a new context
where it should not apply . . .

"

Williams, 529 U.S. at 407.

"In

applying this standard, we must decide (1) what was the decision of
the

state

courts

with

regard

to

-7-

the

questions

before

us

and

(2) whether there is any established federal law, as explicated by
the Supreme Court, with which the state court decision conflicts."
Hoover v. Johnson, 193 F.3d 366, 368

(5th Cir. 1999).

A federal

court's "focus on the 'unreasonable application' test under Section
2254(d) should be on the ultimate legal conclusion that the state
court reached and not on whether the state court considered and
discussed every angle of the evidence."
683,
(en

696

(5th Cir.

bane) .

The

2001),

sole

aff'd,

inquiry

286

for

a

Neal v. Puckett, 239 F.3d
F.3d 230
federal

(5th Cir.
court

2002)

under

the

'unreasonable application' prong becomes "whether the state court's
determination is 'at least minimally consistent with the facts and
circumstances of the case."'

Id.

(quoting Hennon v. Cooper, 109

F.3d 330, 335

(7th Cir. 1997)); see also Gardner v. Johnson, 247

F.3d 551,

(5th Cir. 2001)

560

("Even though we cannot reverse a

decision merely because we would reach a different outcome, we must
reverse when we conclude that the state court decision applies the
correct legal rule to a given set of facts in a manner that is so
patently incorrect as to be 'unreasonable.'").
The AEDPA precludes federal habeas relief on factual issues
unless the state court's adjudication of the merits was based on an
unreasonable determination of the facts in light of the evidence
presented
§

in

the

state

court

proceeding.

See

28

u.s.c.

2254 (d) (2); Hill v. Johnson, 210 F. 3d 481, 485 (5th Cir. 2000).

The

state

court's

factual

determinations

-8-

are

presumed

correct

unless rebutted by "clear and convincing evidence."
§

2254 (e) ( 1) ; see also Jackson v. Anderson,

28

u.s.c.

112 F. 3d 823, 824-25

(5th Cir. 1997).
III.

Analysis

Dennes's Amended Petition raises 33 claims for relief.

The

claims are addressed below.

A.

Denial of Motion For New Trial

Dennes's first three claims relate to the trial court's denial
of his motion for a

new trial on the grounds that juror Irene

Collins failed to disclose that she had been previously charged
with two misdemeanor offenses.

She received probation for both.

(Amended Petition, pp. 23-50)
Respondent argues that Dennes's first claim relies entirely on
state law, and is therefore not cognizable on federal habeas corpus
review.

She argues that the second claim, citing federal law, is

unexhausted and procedurally defaulted.
not,

in fact,

a

claim for

relief

but

Dennes's third claim is
is an argument that any

procedural default of these claims can be excused under Martinez v.
Ryan, 132 S. Ct. 1309, 1318-19 (2012).
In fact,

Dennes's first claim cites two federal cases.

The

first of these, McDonough Power Equipment, Inc. v. Greenwood, 464
U.S. 548 (1984), addressed questions concerning the selection of a
civil

jury in

federal

court

under

-9-

the

Federal

Rules

of

Civil

Procedure and federal statute.

It held that a party is entitled to

a new trial when he can demonstrate that a juror gave inaccurate
answers and was biased against that party.

Id. at 556.

The second case cited by Dennes in support of his first claim
is United States v. Scott, 854 F.2d 697 (5th Cir. 1998).

In Scott

the juror in question failed to disclose that his brother was a
deputy sheriff in an office that performed some investigation in
the case for which the juror was selected.

The issue in Scott was

the juror's bias, not merely providing an inaccurate answer.
While

respondent's

argument

that

Dennes' s

first

claim

is

purely a state law claim is not accurate, the federal cases Dennes
cites do not support his contention that the allegedly inaccurate
answers,

by

themselves,

merited

a

new

trial.

Rather,

both

McDonough and Scott stand for the proposition that a party's right
to a

fair

trial

is violated by a

biased

juror whose

bias

is

undiscovered before trial because the juror gave inaccurate answers
to material voir dire questions.

Dennes, however, argues merely

that the juror gave inaccurate answers.
bias

by the

juror.

Indeed,

as

He makes no showing of

respondent

notes,

the

juror's

experiences with the criminal justice system seem more likely to
make her biased against law enforcement than against one charged
with a crime.
Assuming that Dennes's citations to McDonough and Scott were
sufficient to alert the state courts to the federal constitutional
nature of his claim,

he nonetheless is not entitled to relief.
-10-

While the juror in question failed to disclose her arrests and
probation

for

the

misdemeanor

charges

of

public

lewdness

prostitution, Dennes fails to demonstrate any bias on her part.

and
He

therefore fails to demonstrate any entitlement to a new trial based
on this juror's misleading answers, or any error by the trial court
in denying his motion.

He is not entitled to relief on his first,

second, or third claims for relief.
B.

Suppression of Evidence
In his fourth claim for relief Dennes contends that the State

suppressed material
phase

witness

involvement

impeachment

in an extraneous

concerning

Balderas

David Balderas.

evidence

testified
According

robbery.

Dennes hatched a plan to rob a diamond courier.

punishment
to Dennes' s

to Balderas,
Dennes would

follow the courier home when he knew that the courier had diamonds,
and then call Balderas who would call two confederates to break in
to the courier's home and steal the diamonds.

When the call came,

however, the two accomplices broke into the wrong house, detained
Danny Tsang and his family, and stole some jewelry and other items
from

them.

Balderas

testified

that

he

was

never arrested or

charged for the Tsang robbery, that he told prosecutors everything
he knew about it,
Tsang robbery,
prosecutors.

that he received immunity with regard to the

and that he had not reached any other deal with
( 3 4 Tr . at 8 3 - 8 8 )

Dennes contends that the State

failed to disclose that Balderas entered into an agreement with the
-11-

State to provide information unrelated to Dennes's case, and that
the

State

dismissed

two

criminal

charges

against

Balderas

in

exchange for the information.
A prosecutor must disclose evidence favorable to an accused if
it "is of sufficient significance to result in the denial of the
defendant's right to a fair trial."

u.s.

97,

108

(1976).

Evidence

United States v. Agurs, 427
is

material

"if

there

is

a

reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different."
United States v. Bagley, 473 U.S. 667, 682 (1985).

The question is

not whether the result would have been different.

Rather,

it is

whether given the non-disclosures of material evidence the verdict
is less worthy of confidence.
disclosure,

it

is

no

answer

In defining the scope of the duty of
that

a

prosecutor

did

not

possession of the evidence or that he was unaware of it.

have

Rather,

the prosecutor "has a duty to learn of any favorable evidence known
to

the others

acting on the

including the police."

government's

Kyles v. Whitley, 514

behalf

u.s.

in the

case,

419, 437 (1995).

"[T]he suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution."
668, 691 (2004)
In

Strickler

components

or

Banks v. Dretke, 540 U.S.

(citing Brady v. Maryland, 373 U.S. 83, 87 (1963)).
v.

Greene

essential

the

Supreme

elements
-12-

of

Court
a

framed

Brady

the

three

prosecutorial

misconduct claim:
accused,

"The evidence at issue must be favorable to the

either

because

it

is

exculpatory,

or

because

it

is

impeaching; that evidence must have been suppressed by the State,
either willfully or inadvertently; and prejudice must have ensued."
Banks, 540 U.S. at 691 (quoting Strickler v. Greene, 527 U.S. 263,
281-82 (1999)).
On Dennes's motion for a new trial the state trial court found
that the contract between Balderas and law enforcement authorities
was not Brady material because it was unrelated to Dennes's case,
and because the terms of the contract had already been fulfilled by
both parties before Balderas testified at Dennes's trial.
now

argues

that

information,

the

State

failed

including the fact

suspect in the Szucs murder,

to

disclose

Dennes

additional

that Balderas was considered a

and that one of Balderas's alleged

accomplices in the Tsang robbery -- Luis Hector Fugon -- testified
at his own trial that he did not know Balderas.
Respondent

points

out

that

most

of

the

submitted by Dennes comes from Fugon's trial.
place almost a year before Dennes's trial.

new

information

That trial took

Respondent asserts that

counsel could have obtained those transcripts, and correctly notes
that the State has no obligation to provide exculpatory evidence
that

is

available

diligence.
1997).

to

the

defense

through

the

exercise of

due

See Rector v. Johnson, 120 F.3d 551, 558-59 (5th Cir.

Thus,

the bulk of the allegedly suppressed evidence was

-13-

available to Dennes, and was not suppressed within the meaning of
Brady.
Whether or not the evidence was suppressed, Dennes fails to
demonstrate that the evidence was material, i.e., that there is a
reasonable probability that he would have been sentenced to life
imprisonment had the evidence been disclosed.

As noted above, the

trial court found that the agreement Balderas had with the State
was unrelated to Dennes's case, and was completed before Dennes's
trial.

Because the contract was completed by both parties before

trial, it provided no reason for Balderas to fabricate testimony.
Dennes

argues

that

Balderas

testified

falsely

about

the

circumstances under which he provided information about the Tsang
robbery.

Balderas testified that he provided the information to

his brother-in-law, a Houston homicide detective, and that it was
not the result of Balderas being arrested.

Dennes argues that

Balderas provided the information in connection with his arrest for
felony possession of marijuana, but provides nothing more than his
speculation that the two events were connected.

A petitioner's

speculation about the suppression of exculpatory evidence is an
insufficient basis to support a Brady claim.

Hughes v. Johnson,

191 F.3d 607, 630 (5th Cir. 1999).
On direct appeal Dennes argued that information about the
dropped charges

was material

because

between Balderas and the prosecution.
Dennes's direct appeal,

pp.

60-63.
-14-

it

showed a

relationship

See Brief for Appellant in
The TCCA rejected Dennes' s

argument on the grounds that Balderas was never convicted on these
charges, and that evidence of the alleged crimes would therefore be
inadmissible under Texas law.

Dennes v. State, No. 72,966

Crim. App. Jan. 5, 2000) slip op. at 14.

(Tex.

Dennes makes no showing

that this ruling is incorrect.
To the extent that Dennes now argues that the charges were
dropped as consideration for Balderas's testimony against Dennes,
such a claim is unexhausted.

The AEDPA requires that a prisoner

exhaust his available State remedies before raising a claim in a
federal habeas petition.
An application for a writ of habeas corpus on behalf of

a person in custody pursuant to the judgment of a State
court shall not be granted unless it appears that-(A)
the applicant has exhausted the
available in the courts of the State; or
(B) ( i) there is an absence
corrective process; or

of

remedies

available

State

(ii) circumstances exist that render such process
ineffective to protect the rights of the applicant.
28 U.S.C.

§

AEDPA case,

2254(b) (1).

As the Fifth Circuit explained in a pre-

"federal courts must respect the autonomy of state

courts by requiring that petitioners advance in state court all
grounds for relief, as well as factual allegations supporting those
grounds."

"[A] bsent

special

circumstances,

a

federal

habeas

petitioner must exhaust his state remedies by pressing his claims
in state court before he may seek federal habeas relief."
Cain,

228

F.3d

616,

619-20

(5th
-15-

Cir.

2000);

see

Orman v.
28

U.S.C.

§

2254 (b) (1)

("An application for a writ of habeas corpus on behalf

of a person in custody pursuant to the judgment of a State court
shall not be granted unless it appears that . . . the applicant has
exhausted

the

. ") .

remedies

available

in

the

courts

of

the

State

This rule extends to the evidence establishing the

factual allegations themselves.
n.7 (5th Cir. 1989)

Knox v. Butler, 884 F.2d 849, 852

(citing 28 U.S.C.

2254(b)); see also Jones v.

§

Jones, 163 F.3d 285, 298 (5th Cir. 1998) (noting that "[s]ubsection
(b) (1)
§

[of

AEDPA]

2254(b)").

is

substantially

identical

to

pre-AEDPA

Because Petitioner did not present this claim to the

Texas state courts, he has failed to properly exhaust the claim,
and this court may not consider it.
Ordinarily,

a

federal

Knox, 884 F.2d at 852 n.7.

habeas

petition

that

unexhausted claims is dismissed without prejudice,

contains

allowing the

petitioner to return to the state forum to present his unexhausted
claims.
case,

Rose v. Lundy, 455 U.S. 509 (1982).

however,

Such a result in this

would be futile because Petitioner's unexhausted

claims would be procedurally barred as an abuse of the writ under
Texas law.

On habeas review, a federal court may not consider a

state inmate's claim if the state court based its rejection of that
claim on an independent and adequate state ground.
Maxey,
federal

98 F.3d 844,
habeas

petitioner

must

847

review
present

(5th Cir.

1996).

A procedural bar for

also

occurs

if

the

his

claims

to

satisfy

-16-

Martin v.

court
the

to

which

a

exhaustion

requirement would now find the unexhausted claims procedurally
barred.

Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991).

Texas

prohibits

successive

writs

challenging

conviction except in narrow circumstances.
art. 11.071
consider

§

the

5(a).
merits

the

same

TEx. CoDE CRIM. PROC. ANN.

The Texas Court of Criminal Appeals will not
or

grant

relief

on

a

subsequent

habeas

application unless the application contains sufficient specific
facts establishing the following:
(1) the current claims and issues have not been and could
not have been presented previously in a timely initial
application or in a previously considered application
filed under this article or Article 11.07 because the
factual or legal basis for the claim was unavailable on
the date the applicant filed the previous application;
(2) by a preponderance of the evidence, but for a
violation of the United States Constitution no rational
juror could have found the applicant guilty beyond a
reasonable doubt; or
(3) by clear and convincing evidence, but for a violation
of the United States Constitution no rational juror would
have answered in the state's favor one or more of the
special issues that were submitted to the jury in the
applicant's trial under Article 37.071, 37.0711, or
37.072.
Id.

The Texas Court of Criminal Appeals applies its abuse of the

writ doctrine regularly and strictly.
633, 642 (5th Cir. 1995)

Fearance v. Scott, 56 F.3d

(per curiam).

Dennes does not claim that he could not have presented the
claim in his direct appeal or his state habeas petition because the
factual basis for the claim did not exist, or that he is actually
innocent.

Therefore, his unexhausted claim does not fit within the
-17-

exceptions to the successive writ statute and would be procedurally
defaulted in the Texas courts.

Coleman, 501 U.S. at 735 n.1.

That

bar precludes this court from reviewing Dennes's claim absent a
showing of cause for the default and actual prejudice attributable
to the default, or absent a showing that this court's refusal to
review

the

justice.

claim will

result

in a

fundamental

miscarriage

of

Id. at 750.

"Cause" for a procedural default requires a showing that some
objective factor external to the defense impeded counsel's efforts
to comply with the state procedural rule or a showing of a prior
determination of ineffective assistance of counsel.
Carrier, 477 U.S. 478, 488
222 (1988).

Murray v.

(1986); Amadeo v. Zant, 486 U.S. 214,

Dennes makes no showing of cause.

A "miscarriage of justice" means actual innocence, either of
the crime for which Butler was convicted or of the death penalty.
Sawyer v. Whitley, 505 U.S. 333, 335 (1992).
the death penalty" means that,

but for a

"Actual innocence of
constitutional error,

Butler would not have been legally eligible for a
death.
innocent.

Id.

at 343.

sentence of

Dennes makes no claim that he is actually

Therefore, the miscarriage of justice exception to the

procedural default rule is inapplicable.

Because Dennes fails to

demonstrate cause for his procedural default,

this court cannot

address his claim that the dropped charges constitute impeachment
evidence.

-18-

C.

Extraneous Offense Evidence

In his fifth through ninth claims for relief Dennes complains
that the trial court erred in admitting evidence of his involvement
in the Tsang robbery.

Dennes' s

counsel testified that he was

advised in early 1996 that the State was trying to develop evidence
of Dennes's involvement in a home invasion robbery.
20; 36 Tr. at 47-49, 81-83)

(24A Tr. at

At a pretrial conference in January of

1997 the trial court ordered the State to provide notice of any
extraneous offense evidence it intended to introduce at least two
weeks before trial.

( 3 Tr. at 7-8)

The prosecutor testified that he had hoped to call Hector
Fugon as a witness, but that Fugon's case was still on appeal at
the time of Dennes's trial, and Fugon's attorney did not want him
to testify.
Fugon was

(36 Tr. at 82-84)
unavailable

that

It was only after learning that

the

prosecution

Balderas could testify about the Tsang robbery.

became

aware

Id. at 84-85.

prosecutor spoke to Balderas on August 12,

1997,

defense

intention

Balderas.

counsel

the

following

Id. at 85-87.

day

of

his

that
The

and informed
to

call

Individual jury voir dire commenced on

July 22, 1997, and was completed on August 18, 1997.

(5 Tr. at 2,

24A Tr. at 44)
Defense counsel objected to the extraneous offense evidence
because the State gave notice less than two weeks before trial.
(24A Tr.

at 4-21)

Balderas's testimony.

He requested a

continuance to prepare

for

The State responded that it gave notice
-19-

immediately after obtaining the evidence.

Id. at 17-18.

Defense

counsel renewed the objection and the request for a continuance
before the beginning of the punishment phase.
denied both.
1.
In

The trial court

(34 Tr. at, 29-38)

Notice/Unfair Surprise
claims

five,

six,

and

seven Dennes

contends

that

the

admission of the Tsang robbery evidence unfairly surprised him,
that he was

not given proper notice of

the State's

intent

to

introduce this evidence, and that the trial court improperly denied
his request for a

continuance.

Dennes disputes

the timing of

events discussed above, arguing that the State knew much earlier
that

Fugon

would

be

unavailable

to

testify.

Implicitly

acknowledging that there is no federal constitutional basis for a
claim that the State must disclose the identities of witnesses
ahead of time, Dennes attempts to characterize this information as
falling under the Brady standards discussed above, and argues that
he is entitled to voir dire jurors about their attitudes toward
extraneous offense evidence.
As discussed above, Brady and its progeny pertain to evidence
that is either exculpatory or impeaching.

There is nothing about

the identity of the witness or the State's intention to introduce
this evidence that is either exculpatory or impeaching.
While a defendant facing a possible death sentence does have
a right to determine potential jurors' attitudes about the death
-20-

penalty,

see,

e.g.,

Adams

v.

Texas,

Witherspoon v. Illinois, 391 U.S. 510

448

U.S.

38,

45

(1980);

(1968), the record clearly

demonstrates that Dennes was aware that the State was at least
considering presenting extraneous offense evidence at the time of
jury voir dire.

See 24A Tr. at 20; 36 Tr. at 47-49, 81-82.

Dennes

thus had the opportunity to inquire about jurors' attitudes.

The

fact that the State did not make its final decision until later did
not

impinge

on

that

opportunity.

Therefore,

Dennes

fails

to

demonstrate any constitutional violation caused by the timing of
the State's disclosure, or by the trial court's denial of Dennes's
request for a continuance.
2.

Accomplice Testimony

In his eighth and ninth claims for relief Dennes notes that
the only evidence linking him to the Tsang robbery was accomplice
testimony by Balderas.

He argues that it was unconstitutional to

allow uncorroborated accomplice testimony.
Dennes correctly observes that the Supreme Court has held that
the constitution imposes a requirement of heightened reliability on
capital proceedings.

u.s.

280

requires

(1976).

See,
He

argues

corroboration

acknowledges

that

e.g., Woodson v.

federal

for

that

this

accomplice

courts

have

North Carolina,

428

heightened reliability
testimony.

rejected the

Dennes
claim that

accomplice testimony must be corroborated, see Thompson v. Lynaugh,
821 F.2d 1054

(5th Cir. 1987), but argues that this ignores the

requirements of Woodson.
-21-

Dennes is unable to cite a single case in the almost 30 years
since Thompson that holds that Woodson requires corroboration of
accomplice
offense.

testimony
In

rejected

the

concerning

Thompson,
claim

now

an

unadjudicated

however,

the

Fifth

asserted

by

Dennes.

extraneous

Circuit

expressly

"The

state-law

requirement that accomplice witness testimony be corroborated has
no independent constitutional footing."
1062.

Thompson,

821 F. 2d at

The fact that the Fifth Circuit has expressly rejected the

claim that accomplice testimony must be corroborated, along with
the fact
persuades

that no federal court has ever held to the contrary,
the court that Dennes' s

eighth and ninth claims

for

relief should be denied.
D.

Eyewitness Identification

David Copeland, the security guard at the building where Szucs
had his office, identified Dennes in a photo spread and at trial as
the person who shot him on the night of the murder.

In his tenth

and eleventh claims for relief Dennes argues that the photo spread
and lineup at which Copeland identified him were unduly suggestive.
In his twelfth claim for relief Dennes argues that Copeland's incourt

identification

of

Dennes

was

tainted

by

the

allegedly

suggestive out-of-court identifications.
At a suppression hearing Copeland testified that he was shown
a photo spread at his home on or about February 5, 1996.
spread

consisted

of

two

sheets,
-22-

each

containing

The photo

six

photos.

Copeland chose a picture that looked familiar to him.

Copeland

said that the person in the photo had similar facial features to
the man who shot him.

(6 Tr. at 72-75)

The man he picked was not

Dennes.
Dennes

was

arrested on

February

The

22.

following

day,

Copeland viewed a lineup consisting of Dennes, his brother Albert,
and four other men.

Id. at 13.

Copeland testified that he was

told before the lineup that an arrest had been made, id. at 75, but
the homicide detective who called Copeland disputed that statement,
id. at 19.

The detective testified that he told Copeland that the

person who shot him might or might not be in the lineup, id., and
Copeland testified that he was told that he was under no obligation
to pick anyone out of the lineup, id. at 75.

Copeland testified

that all six of the men in the lineup were similar in height and
weight.

Id. at 76.

Copeland identified Dennes as the one who was

closest in appearance to the shooter,

though Copeland noted that

Dennes had shorter hair and was not wearing glasses or a mustache
in the lineup.

Id. at 77.

Following the hearing, the trial court

denied Dennes's motion to suppress the identification.
At trial Copeland testified about the photo spread and how he
identified someone who looked similar to the shooter, but that it
was not, in fact,
that

the shooter.

he picked Dennes

out of

(25 Tr. at 149-52)

a

lineup,

and

that

He testified
he

had some

reservations because of the difference in Dennes's hair and the

-23-

absence of the disguise.

Id. at 152-57.

When Dennes donned the

disguise in court, Copeland identified him as the shooter.

Id. at

142-43.
An identification resulting from an unduly suggestive lineup

must be suppressed.
(1967).

See, e.g., Stovall v. Denno, 388 U.S. 293, 298

The admissibility of identification evidence is governed

by a two-step analysis.
to

whether

the

Initially, a determination must be made as

identification

suggestive.

Next,

totality of

the

procedure

was

impermissibly

the court must determine whether,

circumstances,

the

suggestiveness

under the
leads

substantial likelihood of irreparable misidentification.

to

a

Lavernia

v. Lynaugh, 845 F.2d 493, 499 (5th Cir. 1988).
Dennes

argues

that

the

photo

spread

and

lineup

were

impermissibly suggestive because Copeland knew that the police had
a suspect in custody.
Even assuming

that

That assertion is disputed in the record.

it

is

correct,

however,

the

identification

contains sufficient indicia of reliability to be admissible.
The

Supreme

determining

the

Court

has

reliability

noted
of

several
an

factors

relevant

identification:

( 1)

to
the

opportunity of the witness to view the criminal at the time of the
crime;
the

(2) t'he witness's degree of attention;

witness's

prior

description;

demonstrated by the witness at

(4)

the

(3) the accuracy of
level

the confrontation;

of

and

length of time between the crime and the confrontation.
Biggers, 409 U.S. 188, 199-200 (1972).
-24-

certainty
(5)

the

Neil v.

The record establishes that Copeland initially saw Dennes in
the lobby of the office building from a distance of about 10 yards.
The lobby was well lit.

(6 Tr. at 67-68)

He saw Dennes again a

short time later when Dennes came within inches of Copeland and
shot him.

Id. at 69-71.

Copeland was working as a security guard and saw Dennes in the
lobby.

Dennes

presents
Copeland

inattentive.

nothing
also

to

gave

suggest
a

detailed

description of the shooter to the police.
Copeland

identified

Dennes

at

that

the

Copeland was
and

accurate

(6 Tr. at 65-87)

lineup,

expressing

reservations only about the length of Dennes's hair and the lack of
disguise.

When Dennes put on the disguise in court, Copeland was

certain of the identification.

(25 Tr. at 142-43)

Copeland testified that the photo spread occurred somewhere
around February 5, and the live lineup occurred on February 23,
1996.

Both dates are within a month of the murder, on January 24,

1996.

Under the totality of the circumstances, the identification is
reliable.

The trial court did not err in admitting Copeland's

identification.
E.

Testimony of Antonio Ramirez

In his thirteenth through sixteenth claims for relief, Dennes
contends that the trial court erred in admitting the testimony of
Antonio Ramirez.

Ramirez testified during the guilt-innocence
-25-

phase

that

United

he

assisted Dennes

States

from

Mexico,

in

and

smuggling diamonds

that

he

into

the

two

gun

manufactured

silencers for Dennes.
Dennes complains that this amounted to extraneous offense
evidence that was not relevant to the crime for which he was on
trial.

He

further argues

that

the

trial

court

erred

in not

instructing the

jury that it must determine if Ramirez was an

accomplice and,

if so,

that his testimony must be corroborated.

All of these claims allege errors of Texas evidence law.

Dennes

cites no federal authority in support of any of these claims.
As discussed above, the Fifth Circuit has held that there is
no basis in the United States Constitution for a rule requiring
corroboration
fifteenth

and

of

accomplice

sixteenth

testimony.

claims

for

Therefore,

relief

fail

to

Dennes's
state

a

cognizable claim for relief.
His complaints about the general admissibility of Ramirez's
testimony are complaints about state court evidentiary rulings.
"[I]t is not the province of a federal habeas court to reexamine
state-court determinations on state-law questions.
habeas review,

a federal court is limited to deciding whether a

conviction violated the Constitution,
United States."

In conducting

Estelle v. McGuire,

laws,

or treaties of the

502 U.S.

62,

67-68

(1991).

Because Dennes fails to identify a constitutional violation, he is
not entitled to relief on his claims that the trial court erred
with regard to the testimony of Antonio Ramirez.
-26-

F.

Sufficiency of the Evidence

In his seventeenth and eighteenth claims for relief, Dennes
argues that the evidence was insufficient to support his conviction
for

capital

underlying

murder
offense

of

reasonable doubt.
claim,
evidence

"the

because

the

robbery

evidence

or

question

light

most

is

did

attempted

In addressing a

relevant

in

the

not

prove

robbery

the

beyond

a

sufficiency of the evidence
whether,

favorable

to

after

the

prosecution,

the

viewing

any

rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt."
U.S. 307, 319
evidence

is

a

(1979)

mixed question of

u.s.

801

(1997).

law and

state

court

Therefore, as noted above,

decision

unreasonable application of,
precedent]."

See Gomez v.

fact.

(7th Cir.), vacated on other grounds,

grant federal habeas relief under 28 U.S.C.
the

443

The sufficiency of

(emphasis in original).

Acevedo, 106 F.3d 192, 198
522

Jackson v. Virginia,

"was

contrary

§

this court may

2254(d) (1) only if

to,

or

clearly established

involved

an

[Supreme Court

Martin v. Cain, 246 F.3d 471, 475 (5th Cir. 2001).

The TCCA summarized the evidence in addressing these claims.
Ramirez's testimony
indicated that [Dennes]
intended to rob and murder a jewelry dealer who kept an
office in the Greenrich Building.
The testimony also
indicated that [Dennes] test-fired a weapon in a field.
Further testimony and physical evidence indicate that a
jewelry dealer was shot to death in the Greenrich
building with bullets matching those used to shoot the
security guard as well as matching some spent casings
from bullets test-fired in a field.
[Dennes] was seen
approaching the security guard and immediately thereafter
the guard was found wounded and lying on the floor of the
-27-

building where the murder victim was eventually found.
All of this evidence connects [Dennes] to Szucs's murder.
Regarding the proof supporting the robbery, testimony
revealed that Szucs was in possession of $3.6 million in
diamond inventory and approximately $200,000 dollars in
cash at the time of the murder.
Plus-Szucs' s wife
testified that the victim always wore a diamond ring on
his pinky and had been wearing that ring the morning of
his death. However Szucs was not wearing this ring when
his body was found by the police shortly after he had
been killed nor was the ring ever recovered.
Finally
access to Szucs's office was limited to persons who had
a key or persons who were let in from the inside of the
office.
[Dennes] speculates that someone else could have taken
these items during the course of the evening as he
committed his own crime but he has presented no evidence
that anyone else was near the scene of the murder. Hence
the only reasonable conclusion for the jury to draw was
that [Dennes] or his accomplice took the items and killed
Szucs.
Dennes v. State, No. 72,966

(Tex. Crim. App. Jan. 5, 2000), slip

op. at 7-8.
The TCCA' s

discussion accurately summarizes

the

evidence.

Even if robbery by Dennes was not the only reasonable conclusion
for

the

jury

conclusion.

to

have

drawn,

it

was

certainly

a

reasonable

Therefore, the evidence was sufficient under Jackson,

the TCCA's conclusion is entitled to deference, and Dennes is not
entitled to relief on his seventeenth and eighteenth claims for
relief.
G.

Denial of Challenges for Cause

In his nineteenth and twentieth claims for relief,

Dennes

argues that the trial court erred in denying his challenges for
-28-

cause to two venire members.
Miller stated that

Dennes asserts that Richard Wayne

"I have my mind made up right now"

that a

defendant found guilty of capital murder would probably kill again
in the future.
stated

that

18 Tr. at 100.
she

could

not

Venire member Martha Jean Gutierrez
consider mitigating

evidence

after

finding a defendant guilty of capital murder and finding that he
would pose a future danger to society.

In a capital case, a juror

can be challenged for cause if "the juror's views would 'prevent or
substantially impair the performance of his duties as a juror in
accordance with his
412, 424 (1985)

.

. oath. '"

Wainwright v. Witt,

469 U.S.

(quoting Adams v. Texas, 448 U.S. 38, 45 (1980)).

Dennes used peremptory strikes to remove both Miller and Gutierrez
after the trial court denied his challenges for cause.
Assuming

that

challenges

for

nonetheless

fails

the

cause

trial
to

court

these

erred

two

to demonstrate

in

venire

denying
members,

Dennes' s
Dennes

any constitutional violation.

Dennes used peremptory strikes to remove both Miller and Gutierrez.
While he contends that he used all of his peremptory challenges and
was forced to accept an unfavorable juror, the record shows that
the trial court granted him two additional peremptory strikes, and
both parties then promptly accepted the next juror on the list as
the twelfth juror.

See 24A Tr.

at 30-34.

At most,

Dennes was

forced to accept an alternate juror who he would have challenged if
he had an additional peremptory challenge.

-29-

He makes no claim,

however, that any alternate juror participated in deliberations or
in rendering the verdict.
As a general rule, a trial court's erroneous venire
rulings do not constitute reversible constitutional error
"so long as
the
jury that
sits
is
impartial."
United States v. Martinez-Salazar, 528 u.s. 304, 313, 120
S.Ct. 774, 145 L.Ed.2d 792 (2000)
(quoting Ross v.
Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 101 L.Ed.2d 80
(1988)); see also United States v. Prati, 861 F.2d 82, 87
(5th Cir. 1988) ("Only in very limited circumstances ...
will such an unintentional mistake warrant reversal of a
conviction.") .
Jones v. Dretke, 375 F.3d 352, 355 (5th Cir. 2004).

Dennes makes

no showing that any of the jurors, including the alternates, were
not impartial.

He therefore fails to demonstrate a Sixth Amendment

violation.
Moreover, on federal habeas review, error is harmless unless
it

"had

[a]

substantial

and

injurious

determining the jury's verdict."
619, 623 (1993)

effect

or

influence

Brecht v. Abrahamson,

507 U.S.

(internal quotation marks and citation omitted).

The burden of proving such injury is on the petitioner.
637.

Dennes

in

makes

no

showing

that

any

unacceptable participated in deliberations.

juror

whom

Id. at
he

found

He therefore fails to

demonstrate that any trial court error in denying his challenges
"had a substantial and injurious effect or influence in determining
the jury's verdict."
H.

Therefore, any error was harmless.

Burden of Proof on Mitigation Special Issue

One of the special issues submitted to the jury required the
jury to determine:
-30-

Whether, taking into consideration all 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.
TEX. CODE CRIM. PROC.

art.

37.071(e)

(Vernon Supp.

1998).

In his

twenty-first claim for relief, Dennes argues that the trial court
erred in not instructing the jury that the State bears the burden
of disproving the existence of any mitigating evidence.
The Fifth Circuit
has held that "[n]o Supreme Court or Circuit precedent
constitutionally requires that Texas's mitigation special
issue be assigned a burden of proof." Rowell v. Dretke,
398 F.3d 370, 378 (5th Cir. 2005).
In Avila v.
Quarterman, this court rejected a petitioner's argument
"that allowing a sentence of death without a jury finding
beyond a reasonable doubt that there were no mitigating
circumstances sufficient to warrant a sentence of life
imprisonment violated his Sixth and Fourteenth Amendment
right to due process and a fair trial."
560 F.3d 299,
315 (5th Cir. 2009).
Other decisions have likewise
rejected the argument that failure to instruct the jury
that the State has the burden of proof beyond a
reasonable
doubt
on
the
mitigation
issue
is
unconstitutional. See, e.g., Scheanette v. Quarterman,
482 F. 3d 815,
828
(5th Cir.
2007);
Granados v.
Quarterman, 455 F.3d 529, 536-37 (5th Cir. 2006) .
Druery v. Thaler, 647 F.3d 535, 546-47 (5th Cir. 2011).

Therefore,

well-established Fifth Circuit precedent shows that Dennes is not
entitled to relief on this claim.
I.

Meaningful Appellate Review

In his twenty-second claim for relief Dennes argues that the
Texas capital sentencing scheme is unconstitutional because the
-31-

jury's

conclusions

on

the

meaningful appellate review.

special

issues

are

not

capable

of

Federal death penalty jurisprudence

requires states to provide an opportunity for review by appellate
courts to guard against arbitrary imposition of the death penalty.
See, e.g., Clemons v. Mississippi, 494 U.S. 738, 749 (1990).
Supreme Court has also held, however,

The

that there is a difference

between the jury's decision whether a defendant is eligible for the
death penalty, and its decision whether to impose a death sentence.
Tuilaepa v. California, 512 U.S. 967 (1994).

While the former must

follow a process that is rationally reviewable by appellate courts,
the

latter

"requires

individualized

sentencing

and

must

be

expansive enough to accommodate relevant mitigating evidence so as
to assure an assessment of the defendant's culpability."
973.

Accordingly,

discretion

"the

sentencer

in determining whether

may

the

be

given

Id. at

'unbridled

death penalty should be

imposed after it has found that the defendant is a member of the
class made eligible for that [death] penalty.'"

Id. at 979-80.

As the Fifth Circuit has explained,
[a]
capital murder trial in Texas proceeds in a
bifurcated process. In the first, or "guilt-innocence,"
phase, a defendant's eligibility for consideration of the
death penalty is determined.
Once that eligibility is
determined,
the trial proceeds to the second, or
"punishment," phase, wherein the defendant is either
selected for death or for the alternative sentence of
life imprisonment.
Woods v. Cockrell, 307 F.3d 353, 359 (5th Cir. 2002).
jury's

answers

to

the

special

issues

-32-

is

not

Because the

relevant

to

the

question

of

a

defendant's

eligibility

for

the

death penalty,

Dennes's twenty-second claim for relief has no merit.
J.

The 12-10 Rule

Article

37.071

of

the

Texas

Code

of

Criminal

Procedure

requires a jury instruction informing the jury that it must have at
least 10

"no"

votes to answer "no"

on the aggravating special

issues, and at least 10 "yes" votes to answer yes on the mitigation
special issue.

In his twenty-third claim for relief Dennes argues

that this "12-10 rule" confuses jurors as to the effect of a single
negative

vote

on

the

special

issues,

and

might

cause

jurors

inclined to vote against a death sentence to waver and vote for a
death sentence instead.
Petitioner relies on Mills v. Maryland, 486

u.s.

and McKoy v. North Carolina, 494
claim.

In

those

sentencing schemes

cases

the

requiring

Supreme
the

433

u.s.

367 (1988),

(1990), to support his

Court

held

that

capital

jury to unanimously find

the

existence of any mitigating factor before giving that factor any
weight violated the Eighth Amendment.

Instead,

the Court held,

each juror must be free to give any mitigating evidence any weight
that

juror

deems

appropriate

in

weighing

mitigating

against

aggravating evidence.
The Fifth Circuit has rejected this claim.

"Mills is not

applicable to the capital sentencing scheme in Texas.

We have

concluded that '[u]nder the Texas system, all jurors can take into
-33-

account any mitigating circumstance.

One juror cannot preclude the

entire jury from considering a mitigating circumstance.'"
v. Johnson, 200 F.3d 274, 288-89 (5th Cir. 2000)

Miller

(quoting Jacobs v.

Scott, 31 F.3d 1319, 1329 (5th Cir. 1994)).
While the trial court in this case informed the jury that it
could not

affirmatively

find

that

the mitigating evidence was

sufficient to warrant a life sentence unless at least 10 jurors
agreed, it never instructed the jury that any particular number of
jurors had to agree that any particular piece of evidence was
mitigating.

In other words, even if only one juror felt that a

specific piece of evidence was mitigating, that juror could give
the evidence any weight he deemed appropriate.
stated

only

that

at

mitigating

evidence,

mitigating

evidence

least
had

to

10

to

impose

jurors,

agree
a

that

life

The instruction

individually
there

was

sentence.

weighing

sufficient

Because

this

instruction does not suffer from the constitutional flaw underlying
Mills and McKoy, Dennes is not entitled to relief.
K.

Conclusory Claims

In his twenty-fourth through thirty-second claims for relief
Dennes asserts numerous claims of error in conclusory fashion with
no citations to the record, and only one citation to any authority.
"The .

. presentation of conclusory allegations unsupported by

specifics is subject to summary dismissal.
Allison,

431 U.S.

63,

74

(1977).

Therefore,

through thirty-two will be dismissed.
-34-

"

Blackledge v.

claims twenty-four

L.

Ineffective Assistance of Counsel

In his thirty-third and final claim for relief Dennes contends
that he
respects.

received ineffective assistance of

counsel

in several

To prevail on a claim for ineffective assistance of

counsel, Dennes
must show that . . . counsel made errors so serious that
counsel was not functioning as the "counsel" guaranteed
the defendant by the Sixth Amendment.
Second, the
defendant must show that the deficient performance
prejudiced the defense.
This requires showing that
counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is
reliable.
Strickland v. Washington, 466 U.S. 668, 687

(1984).

In order to

prevail on the first prong of the Strickland test, Petitioner must
demonstrate that counsel's representation fell below an objective
standard of reasonableness.

Id.

at 687-88.

Reasonableness is

measured against prevailing professional norms and must be viewed
under the totality of the circumstances.
counsel's performance is deferential.
Where a
claim

Id. at 688.

Review of

Id. at 689.

state court has decided an ineffective assistance

adversely

to

the

petitioner,

the

petitioner

faces

extraordinarily difficult burden.
Establishing that a
state court's application of
Strickland was unreasonable under§ 2254(d) is all the
more difficult. The standards created by Strickland and
§ 2254(d) are both "highly deferential," [Strickland, 466
U.S.] at 689, 104 S.Ct. 2052; Lindh v. Murphy, 521 U.S.
3 2 0 , 3 3 3 , n . 7 , 11 7 S . Ct . 2 o5 9 , 13 8 L . Ed . 2 d 4 8 1 ( 19 9 7 ) ,
and when the two apply in tandem, review is "doubly" so,
Knowles [v. Mirzayance], 556 U.S., at 123, 129 S.Ct.
[1411], at 1420.
The Strickland standard is a general
one,
so the range of reasonable applications is
-35-

an

substantial.
556 U.S., at 123, 129 S.Ct. at 1420.
Federal habeas courts must guard against the danger of
equating
unreasonableness
under
Strickland
with
unreasonableness under § 2254(d).
When § 2254(d)
applies, the question is not whether counsel's actions
were reasonable.
The question is whether there is any
reasonable argument that counsel satisfied Strickland's
deferential standard.
Harrington v. Richter, 562 U.S. 86, 105 (2011).
1.

Probable Cause

Dennes first complains that counsel failed to object when
police officer Todd Miller

testified that Dennes

was

arrested

pursuant to a warrant based on a probable cause determination by a
Miller explained what

judge.
stated:

an arrest

warrant

is,

"Attached to the warrant is a detailed probable cause,

which the judge goes over in which the officer
154.

and then

II

27 Tr. at

Counsel then objected, and the objection was sustained.

Id.

Miller gave no further testimony about the contents of the warrant.
Dennes now complains that the reference to the finding of
probable cause suggested to the jury that a judge had already made
a determination of Dennes's guilt.
have objected to the

He argues that counsel should

testimony as

irrelevant and requested an

instruction for the jury to disregard the testimony.
Dennes clearly cannot demonstrate that he was prejudiced by
his

attorney's

sustained,

and

conduct
the

counsel

witness

subject matter again.

did

objected,

not

mention

the

objection was

the

objectionable

Dennes makes no showing that a different

objection would have produced a more favorable result.
-36-

Dennes

also claims

instruction

to

that

disregard.

counsel
Counsel

should have
submitted

an

connection with Dennes's state habeas application.

requested an
affidavit

in

Counsel stated

that he did not request an instruction because he did not wish to
highlight the statement for the jury.

He also noted that the judge

stopped the witness's statement when counsel objected, and counsel
did not think any further action was necessary.

SH at 174.

The

state habeas court found that counsel was not ineffective because
'

his objection was sustained, and it was a reasonable decision to
choose not to emphasize the witness's statement.

Id. at 240.

The Supreme Court has held that "strategic choices made after
thorough

investigation of

law and

facts

relevant

options are virtually unchallengeable .

u.s. at 690.

to plausible

Strickland,

II

466

Thus, counsel's strategic decision not to emphasize

the officer's statement is "virtually unchallengeable," and the
state

habeas

court's

conclusion

that

counsel

did

not

render

ineffective assistance is reasonable, and is entitled to deference
under the AEDPA.
2.

Hearsay

Dennes
hearsay

next

objection

complains
to

that

testimony

counsel
by

should

Officer

have

Miller

raised

a

concerning

statements made by Dennes's counsel and by David Copeland at the
pretrial lineup.

Miller testified that he asked Dennes's lineup

counsel, Ellis McCullough, if he had any problem with the fill-ins
-37-

used in the lineup, and that McCullough stated that they were "fine
as they were."

27 Tr. at 167.

McCullough's statements were not hearsay.

The Texas Rules of

Evidence define hearsay as an out-of-court statement offered to
prove the truth of the matter asserted.

See Tex. R. Evid. 801(d).

The State did not introduce McCullough's statement for the truth of
the

statement,

demonstrate
lineup.

i.e.,

that

the

that counsel was

fill-ins

were

but

to

satisfied with the makeup of

the

Because the statement was not hearsay,

fine,

counsel was not

deficient for failing to raise a hearsay objection.
Miller also testified that David Copeland identified Dennes in
the

lineup,

tentative.
tentative,

though

he

characterized

When Miller was

asked why

the

identification

the

identification was

counsel objected on hearsay grounds.

Id.

as

at 176-77.

The prosecutor rephrased the question to ask if Copeland eliminated
anyone

from

the

lineup,

and

eliminated three fill-ins.

Miller

Id.

responded

that

Copeland

He also testified that Copeland

stated that number five in the lineup, which was Dennes,
closest to the shooter.

looked

Id.

There was nothing objectionable about Miller's testimony that
Copeland eliminated three fill-ins.
a statement,

The testimony does not relate

but an action that Miller observed.

Thus,

to the

extent that Dennes complains about this testimony, the complaint is
meritless.

-38-

The state habeas court found that Copeland's statement that
Dennes looked most like the shooter came within the present sense
impression exception to Texas's
(citing Tex. R. Evid. 803(1).

hearsay rule.

See

SH at

240

Therefore, it was not hearsay.

Because none of the complained-of statements were hearsay, any
hearsay objection would have been futile.

Counsel's failure to

raise a meritless claim did not constitute deficient performance.
See, e.g., Sones v. Hargett, 61 F.3d 410, 415 n.5 (5th Cir. 1995)
("Counsel cannot be deficient for failing to press a

frivolous

point."); Koch v. Puckett, 907 F.2d 524, 527 (5th Cir. 1990)

("This

Court has made clear that counsel is not required to make futile
motions or objections.") .

In addition,

because such objection

would have been without merit, it is not reasonably probable that
counsel would have obtained any relief had the objection been made.
Dennes fails to demonstrate deficient performance by counsel or
Strickland prejudice.
3.

Leading Questions

In his final claim Dennes argues that counsel was ineffective
by failing to object to several allegedly leading questions posed
to Estrella Martinez.

Martinez

was

the

cleaning

lady in

the

Greenrich Building on the night of the murder.
Martinez testified through an interpreter.

Respondent points

out that the Texas Rules of Evidence allow for leading questions
when necessary to develop the testimony of a witness, and argues
-39-

that leading questions were necessary here because of the language
barrier.

Dennes's trial counsel stated the same in his affidavit,

SH at 176, and the state habeas court found that this was the case,
id.

at

241.

Dennes

makes

no

conclusion was unreasonable.

showing

that

the

state

court's

Moreover, even if the questions were

improper and counsel was deficient by failing to object,

Dennes

makes no showing that such deficiency caused him any prejudice.

IV.
Dennes

has

Certificate of Appealability

not

requested

a

certificate

of

appealability

( "COA''), but this court may determine whether he is entitled to
this relief in light of the foregoing rulings.
Johnson, 211 F.3d 895, 898 (5th Cir. 2000)
for district court's

[sic]

See Alexander v.

("It is perfectly lawful

to deny COA sua sponte.

The statute

does not require that a petitioner move for a COA; it merely states
that

an

appeal

may

not

be

taken

without

a

appealability having been issued. 11

)

either

certificate

or an appellate

from

the

district

court

•

of

A petitioner may obtain a COA
court,

but

an

appellate court will not consider a petitioner's request for a COA
until the district court has denied such a request.
v. Johnson,
Johnson,

157 F.3d 384,

114 F. 3d 7 8,

82

388

See Whitehead

(5th Cir. 1988); see also Hill v.

(5th Cir.

1997)

(" [T] he district court

should continue to review COA requests before the court of appeals
does.

11

)

•

A COA may issue only if the petitioner has made a "substantial
showing of

the

denial

of

a

constitutional
-40-

right.

11

28

u.s.c.

§

2253(c) (2); see also United States v. Kimler, 150 F.3d 429, 431

(5th Cir. 1998).
demonstrates

A petitioner "makes a substantial showing when he

that

his

application

involves

issues

that

are

debatable among jurists of reason, that another court could resolve
the issues differently, or that the issues are suitable enough to
deserve encouragement to proceed further."
213 F.3d 243, 248 (5th Cir. 2000).

Hernandez v. Johnson,

The Supreme Court has stated:

Where a district court has rejected the constitutional
claims on the merits, the showing required to satisfy
§
2253 (c) is straightforward:
The petitioner must
demonstrate that reasonable jurists would find the
district court's assessment of the constitutional claims
debatable or wrong.
The issue becomes somewhat more
complicated where . . . the district court dismisses the
petition based on procedural grounds.
We hold as
follows:
When the district court denies a habeas
petition on procedural grounds without reaching the
prisoner's underlying constitutional claim, a COA should
issue when the prisoner shows, at least, 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 v. McDaniel, 529 U.S. 473, 484 (2000).
of

whether

a

COA

should

issue

must

be

"[T]he determination
made

by

viewing

the

petitioner's arguments through the lens of the deferential scheme
laid out in 28

u.s.c.

§

2254(d) ."

Barrientes v. Johnson, 221 F.3d

741, 772 (5th Cir. 2000).
The court has carefully considered each of Dennes's claims and
concludes that each of his claims is foreclosed by clear, binding
precedent.

The court concludes that Dennes has failed to make a

"substantial showing of the denial of a constitutional right."
-41-

28

U.S.C.

§

2253(c) (2).

Dennes is not entitled to a certificate of

appealability.
V.

Conclusion and Order

For the foregoing reasons, it is ORDERED as follows:
1.

Petitioner Reinaldo Dennes' s First Amended Death
Penalty Case Application for Post-Conviction Writ
of Habeas Corpus (Docket Entry No. 22) is DENIED
and is DISMISSED with prejudice.

2.

No Certificate of Appealability shall issue.

SIGNED at Houston, Texas, on this 22nd day of March, 2017.

SIM LAKE
UNITED STATES DISTRICT JUDGE

-42-