The opinion
Case: 09-70017 Document: 00511361817 Page: 1 Date Filed: 01/26/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 26, 2011
No. 09-70017 Lyle W. Cayce
Clerk
IVAN ABNER CANTU,
Petitioner-Appellant
v.
RICK THALER, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent-Appellee
Appeal from the United States District Court
for the Eastern District of Texas
Before WIENER, STEWART, and CLEMENT, Circuit Judges.
WIENER, Circuit Judge:
Petitioner-Appellant Ivan Cantu was convicted of murder and sentenced
to death. After the Texas Court of Criminal Appeals denied habeas corpus relief,
Cantu filed this federal petition, which the district court dismissed. On appeal,
Cantu asserts three claims: (1) ineffective assistance of counsel at the sentencing
phase, which the court denied on the merits; (2) ineffective assistance of counsel
at the conviction phase, which the court dismissed as procedurally defaulted;
and (3) actual innocence, which the court dismissed as not cognizable in the
Fifth Circuit. We affirm the district court’s dismissal of all three claims.
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I. FACTS & PROCEEDINGS
A. Facts
The relevant facts in this case pertain to the murders of which Cantu was
convicted and to the tactical and strategic decisions made by Cantu’s trial
counsel regarding Cantu’s mental health.
1. The Murders of James Mosqueda and Amy Kitchen
Cantu lived in an apartment with his girlfriend, Amy Boettcher, near
where his cousin, James Mosqueda, lived with his fiancee, Amy Kitchen.
According to Boettcher’s testimony, Cantu called Mosqueda on the night of
November 3, 2000 at approximately 11:30 p.m., and asked if he could come over
to Mosqueda and Kitchen’s house. Cantu then told Boettcher that he was going
to their house to kill them, but Boettcher did not believe him. Cantu left his
apartment with his gun and returned an hour later driving Kitchen’s Mercedes.
His face was swollen and a substance that looked like blood was on his jeans and
in his hair. Cantu had Mosqueda’s and Kitchen’s identifications and keys. Cantu
cleaned up, and Boettcher threw his bloody jeans into the trash. Cantu and
Boettcher then went together to the victims’ house in Kitchen’s Mercedes. There,
Boettcher saw both victims’ bodies through the doorway to the master bedroom,
while Cantu was searching the house for drugs and money. Cantu took the
engagement ring that had belonged to Kitchen and gave it to Boettcher. Cantu
and Boettcher left Kitchen’s Mercedes parked in the garage and drove off in
Mosqueda’s Corvette. The couple later drove to Arkansas to visit Boettcher’s
parents, where they were when the bodies were discovered the following
evening.
Police found no evidence of forced entry at Mosqueda and Kitchen’s house.
Police spoke with Cantu’s mother, then searched Cantu and Boettcher’s
apartment. Police obtained a search warrant to search the apartment a second
time and found the bloody jeans, ammunition, a key to the victims’ house, and
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a key to Kitchen’s Mercedes. Police also found Cantu’s gun at his ex-girlfriend’s
house where Cantu and Boettcher had stopped on the way home from Arkansas.
Cantu’s fingerprints were found on the gun’s magazine, and Mosqueda’s blood
was found on the gun’s barrel. Police arrested Cantu for the murders.
2. Cantu’s Mental Health and Related Trial Decisions
As part of Cantu’s state habeas corpus proceedings, Daneen Milam, Ph.D.,
evaluated Cantu at the request of his habeas counsel. Dr. Milam reported that
there were “multiple, overlapping indicators” that suggested that Cantu “may
suffer from organic brain damage or a severe mood altering disorder.” Dr. Milam
expressed the belief that, if a mental health professional had reviewed Cantu’s
family history and evaluated Cantu prior to the sentencing phase of his trial,
“any reasonably competent psychiatric professional would have recognized the
need to subject Ivan Cantu to a complete Neuropsychological evaluation to rule
out an organic cause of his behavior pattern.” In addition, Dr. Milam noted that
every time Cantu used a stimulant, he became abusive in his personal
relationships and that in the couple of months prior to the murders, Cantu had
moved into a “manic phase” and “began to abuse Crank, Ecstasy, and Speed,”
which “interact with a Bi-Polar disorder to cause difficult and unpredictable
behavior, irritability, agitation, and cause biological and chemical malfunctions
to escalate.”
Cantu’s lead trial counsel, J. Matthew Goeller, testified by affidavit that
he and his co-counsel, Don High, ultimately decided not to have Cantu complete
a neuropsychological evaluation for three main reasons: (1) Cantu did not want
to participate in psychiatric-based mitigation evidence; (2) they did not believe
Cantu would receive a favorable psychiatric report, based on the fact that he had
admitted to them that he killed Mosqueda and Kitchen out of revenge because
Mosqueda owed him drug money; and (3) the State’s evidence of Cantu’s prior
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violent acts against women,1 coupled with “the particularly gruesome nature of
the execution-style of the instant murders,” led them to believe that a state-
sponsored psychiatric evaluation could indicate that Cantu was a sociopath,
which they believed “would substantially lower [their] already slim chance for
a life sentence, considering the fact that Cantu was indicted for the murder of
two people who were at home in their own bed.”
Goeller rebutted Dr. Milam’s report by explaining that “she fail[ed] to
recognize that Cantu himself objected to any strategy that involved psychiatric-
based mitigation evidence (if any such evidence did exist), and, further, failed to
recognize the substantial sociopathic-type punishment evidence in possession of
the State.” If a psychological evaluation revealed Cantu to be a sociopath, Cantu
would have been considered a future danger, which would undermine the
mitigating evidence they intended to present in support of a life sentence.
Moreover, it was “[o]f great concern” to Goeller and High in deciding
whether to submit Cantu to a psychological examination that “Cantu was
manipulative and had lied on several occasions to his own counsel.” Goeller
explained that Cantu had suggested that his counsel elicit perjured testimony,
and they feared that a psychological examination might lead to findings of
manipulation, which is “a commonly-sought State theme in punishment phase.”
Goeller also attested that after seventeen years as a practicing attorney,
he was “well acquainted with [bipolar disorder’s] effects and symptoms” and that
he and High “had no evidence to support the theory that Mr. Cantu was
suffering from any kind of mental deficiency, and in particular a bi-polar
disorder.” In contrast to Dr. Milam’s evidence of Cantu’s social history, Goeller
and High interviewed many of Cantu’s family members, and “none of them ever
1
Cantu had a history of abusive conduct toward his two ex-wives and Boettcher, which
involved him flying into a rage and firing shots at them, beating them, or raping them. There
was also testimony at trial about incidents in which Cantu attempted to abuse his mother.
4
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stated (or even remotely suggested)” that Cantu had a diminished mental
capacity or bipolar disorder.
B. Proceedings
Cantu was indicted for capital murder and pleaded not guilty. A jury
convicted him of murder and sentenced him to death. Cantu appealed his
conviction and sentence directly to the Texas Court of Criminal Appeals, which
affirmed both.2 Cantu did not file a petition for certiorari in the Supreme Court.
Cantu filed a state petition for post-conviction relief. The state court
adopted the State’s proposed findings of fact and conclusions of law and
recommended denial of habeas relief. The Texas Court of Criminal Appeals
adopted those findings and conclusions, and affirmed.3
Cantu then filed this application for a writ of habeas corpus in the Eastern
District of Texas. The district court dismissed all of Cantu’s claims, finding in
pertinent part that: (1) “[Cantu’s trial counsel’s] decision not to investigate
Cantu’s mental health was not unreasonable”; (2) “it is entirely clear that the
state court would refuse to consider the merits of [Cantu’s unexhausted claim of
ineffective assistance of counsel at the conviction phase] if it were presented in
a successive state petition for post-conviction relief” and “Cantu failed to
establish either of the two exceptions to the rule prohibiting the federal courts
from reviewing procedurally defaulted claims”; and (3) Cantu’s claim that he is
actually innocent of capital murder “is not cognizable in habeas corpus in this
jurisdiction.” 4
2
Cantu v. State, No. 74220, 2004 WL 3093156, at *6 (Tex. Crim. App. June 30, 2004)
(unpublished).
3
Ex parte Cantu, No. WR-63624-01, 2006 WL 120829, at *1 (Tex. Crim. App. Jan. 18,
2006) (unpublished).
4
Cantu v. Quarterman, No. 2:06-CV-166, 2009 WL 728577, at *3-13 (E.D. Tex. Mar.
17, 2009).
5
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Cantu timely filed a notice of appeal. The district court granted a
certificate of appealability (COA) on four of the thirteen claims raised in Cantu’s
petition. This appeal addresses the three of those claims listed at the beginning
of this opinion.5
II. ANALYSIS
A. Ineffective Assistance of Counsel at the Sentencing Phase
Cantu contends that his trial counsel failed to discover and present to the
sentencing jury evidence of his alleged bipolar disorder, which he claims “would
have put not only the instant offense but also the State’s entire punishment-
phase case into the proper context.”6 We conduct a de novo review of this claim.7
Because Cantu filed his federal habeas application after 1996, the Anti-
Terrorism and Effective Death Penalty Act (AEDPA) applies to his claims.8
Pursuant to the AEDPA, a federal court may only grant habeas relief if the state
court’s adjudication of the claims:
(1) resulted in a decision that 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) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.9
In addressing a claim of ineffective assistance of counsel, the “clearly established
5
Cantu did not advance one of the four claims on appeal. See Appellant’s Br. at 2 n.2.
6
Id. at 43.
7
See Ladd v. Cockrell, 311 F.3d 349, 357 (5th Cir. 2002) (“Because an ineffective
assistance claim is a mixed question of law and fact, we review de novo.”) (citing Crane v.
Johnson, 178 F.3d 309, 312 (5th Cir. 1999)).
8
See Lindh v. Murphy, 521 U.S. 320, 324-26 (1997).
9
28 U.S.C. § 2254(d).
6
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Federal law” is the Supreme Court’s decision in Strickland v. Washington 10 and
its progeny.11 “In order for a federal court to find a state court’s application of
[Supreme Court] precedent ‘unreasonable,’ the state court’s decision must have
been more than incorrect or erroneous. The state court’s application must have
been ‘objectively unreasonable.’”12 Therefore, we must determine whether the
state court’s dismissal of Cantu’s ineffective assistance of counsel claim “involved
an unreasonable application (and not merely an incorrect application) of
Strickland.” 13
Under Strickland, relief for ineffective assistance of counsel is appropriate
only when a petitioner demonstrates that (1) counsel’s performance was deficient
and (2) the deficient performance prejudiced the petitioner.14 Counsel’s
performance is measured against an objective standard of “reasonableness under
prevailing professional norms.”15 According to this standard, “every effort [must]
be made to eliminate the distorting effects of hindsight,” and “a court must
indulge a strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance.”16 Strategic judgments in particular are
owed a high degree of deference:
[S]trategic choices made after thorough investigation of law and
facts relevant to plausible options are virtually unchallengeable;
10
466 U.S. 668 (1984).
11
See Williams v. Taylor, 529 U.S. 362, 391 (2000) (“It is past question that the rule
set forth in Strickland qualifies as ‘clearly established Federal law, as determined by the
Supreme Court of the United States.’”).
12
Wiggins v. Smith, 539 U.S. 510, 520-21 (2003) (citations omitted).
13
Neal v. Puckett, 286 F.3d 230, 236 (5th Cir. 2002) (internal quotation marks omitted).
14
See 466 U.S. at 687.
15
Wiggins, 539 U.S. at 521.
16
Strickland, 466 U.S. at 689.
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and strategic choices made after less than complete investigation
are reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation.17
Therefore, we must “focus on whether the investigation supporting counsel’s
decision not to introduce mitigating evidence of [Cantu’s mental health] was
itself reasonable.”18 In addition, Cantu must establish that prejudice resulted
from his counsel’s deficient performance. Specifically, “[w]hen a defendant
challenges a death sentence . . ., the question is whether there is a reasonable
probability that, absent the errors, the sentencer . . . would have concluded that
the balance of aggravating and mitigating circumstances did not warrant
death.” 19
Cantu’s trial counsel, Goeller and High, agreed that their best strategy
was to home in on four salient points:
(1) Ivan Cantu’s dysfunctional childhood and family,
(2) Ivan Cantu’s misuse of drugs and alcohol, some of which was
supplied by the decedent Mosqueda.
(3) Ivan Cantu’s lack of future dangerousness when drugs and
alcohol were removed from his access, i.e., a plea for a life sentence.
(4) The advent of Ivan’s recent spiritual conversion experience,
making him a “born again Christian”, thereby reducing his
likelihood for future violence, and filling the void brought about for
the now-missing drugs and alcohol.
At the sentencing phase of trial, Cantu’s counsel adduced the testimony of three
witnesses in support of their basic strategy. Dr. Mark Cunningham, a clinical
and forensic psychologist, had reviewed Cantu’s records—including the same
documents that Dr. Milam used to support her conclusion that Cantu has bipolar
disorder—and testified that Cantu was not a future danger to society as long as
17
Id. at 690-91.
18
Wiggins, 539 U.S. at 523 (emphasis in original).
19
Strickland, 466 U.S. at 695. The Supreme Court further defined a “reasonable
probability” as “a probability sufficient to undermine confidence in the outcome.” Id. at 694.
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he was in a controlled prison environment. Dr. Walter Quijano, another defense
pyschologist, testified about the severity of conditions in jail and limitations that
would be imposed on Cantu if he were sentenced to life in prison. Finally,
Reverend Maury Davis—a former prisoner incarcerated for murder who then
became a nationally recognized minister with a congregation of 5,000
persons—testified about Cantu’s future leading a life with God.
The state habeas court found that the performance of Cantu’s trial counsel
was “zealous and competent” and that their explanations of their trial strategy
were “consistent and credible.” The court agreed with Cantu’s counsel that
pursuing a bipolar disorder diagnosis for Cantu “would not have been wholly
consistent” with the focus on Cantu’s “conversion to Christianity and his ability
to change with self-control and discipline.”
Given that the strategy that Cantu’s counsel pursued and the strategy
Cantu now believes should have been pursued are inconsistent, Cantu’s counsel
could not have pursued both—and Cantu does not attack the sufficiency of the
evidence that counsel did present in support of their chosen strategy.20 Cantu’s
counsel made a conscious decision not to submit Cantu to a psychological
examination because, if they had done so with the intention of presenting the
results to the jury, the State could have submitted Cantu to its own examination
out of the presence of his defense counsel.21 The potentially detrimental results
of such an examination could have strengthened the State’s position that Cantu
was a sociopath and thus a future danger, thereby warranting the death penalty.
20
See, e.g., Neal, 286 F.3d at 238 (detailing the significant amount of additional
evidence that could have been presented at trial to support the trial counsel’s arguments,
including “forty-two pages of affidavits and reports concerning [Appellant’s] background as
evidence of mitigating factors”).
21
See Lagrone v. State, 942 S.W.2d 602, 609-12 (Tex. Crim. App. 1997).
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The state habeas court’s deference to Cantu’s counsel’s decision not to
investigate Cantu’s mental health—as a defensive strategy and in light of their
“zealous and competent” presentation of Cantu’s newfound mental and spiritual
stability—was a reasonable application of Strickland.22
B. Ineffective Assistance of Counsel at the Conviction Phase
Because Cantu did not raise this ineffective assistance of counsel claim in
his state petition for post-conviction relief, the district court had to determine
whether the state court would consider the merits of the claim if Cantu now
raised it in a successive state petition.23 The district court concluded that the
state court would refuse to consider the merits of this claim and dismissed it as
procedurally defaulted.24 We conduct a de novo review of the district court’s
decision to treat a claim as procedurally defaulted.25
Cantu asserts that he may still file a successive state petition. He points
to Texas Code of Criminal Procedure art. 11.071, § 5(a)(2), which provides an
exception to the Texas bar on successive petitions if a petitioner can establish
that “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.”
22
Because we hold that the state court reasonably determined that Cantu’s counsel’s
performance was not deficient, we need not reach the question of prejudice. See Amos v. Scott,
61 F.3d 333, 348 (5th Cir.), cert. denied, 516 U.S. 1005 (1995) (“In deciding ineffective
assistance claims, a court need not address both prongs of the conjunctive Strickland
standard, but may dispose of such a claim based solely on a petitioner’s failure to meet either
prong of the test.”) (citing Motley v. Collins, 18 F.3d 1223, 1226 (5th Cir.), cert. denied, 513
U.S. 960 (1994)).
23
See Finley v. Johnson, 243 F.3d 215, 220 (5th Cir. 2001).
24
Cantu, 2009 WL 728577, at *10-11.
25
See Nixon v. Epps, 405 F.3d 318, 322 (5th Cir. 2005).
10
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The Texas Court of Criminal Appeals has explained that “Article 11.071,
Section 5(a)(2) was enacted in response to the Supreme Court’s decision in
[Schlup v. Delo, 513 U.S. 298 (1995)],” so that “standards set forth for evaluating
a gateway-actual-innocence claim announced by the Supreme Court should
guide our consideration of such claims under Section 5(a)(2).”26 The court
summarized:
[T]o mount a credible claim of innocence, an applicant must support
his allegations of constitutional error with reliable
evidence—whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence—that was not
presented at trial. . . . To determine whether an applicant has
satisfied the burden, we must make a holistic evaluation of all the
evidence, old and new, incriminating and exculpatory, without
regard to whether it would necessarily be admitted under rules of
admissibility that would govern at trial. We must then decide how
reasonable jurors, who were properly instructed, would react to the
overall, newly supplemented record.27
Cantu claims that his trial counsel rendered ineffective assistance by
failing to investigate evidence of his factual innocence and present it at trial. In
particular, he points to three factual inconsistencies that were admitted into
evidence at trial: (1) telephone records indicated that someone made a phone call
from Cantu’s apartment on the night after the murder when he and Boettcher
were in Arkansas; (2) toll tag records indicated that someone drove Mosqueda’s
Corvette at 11:15 a.m. on November 4, even though Boettcher claimed the last
time they drove the car was at 6:30 a.m.; and (3) the State’s blood-spatter expert
testified, based on photos of the crime scene, that Kitchen had been kicked or
punched in the face, while the doctor who performed the autopsies found no
26
Ex parte Reed, 271 S.W.3d 698, 733 (Tex. Crim. App. 2008) (internal footnote
omitted).
27
Id. at 733-74 (internal quotation marks and footnotes omitted).
11
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evidence of injuries to the victims apart from the gunshot wounds.28 Cantu does
not specifically explain, however, how this evidence proves his innocence by a
preponderance of evidence,29 and the district court pointed out that there are
rational explanations of these inconsistencies that reasonable jurors could
accept:
The fact that another person had access to Cantu’s house would not
lead a rational person to disbelieve the evidence that he committed
the murders. Similarly, a rational juror would likely conclude that
it was Cantu himself who drove Mosqueda’s car at 11:15 am on
November 4, 2000, and that he left for Arkansas shortly thereafter.
Finally, although Cantu is correct that Rohr’s autopsy report does
not mention that Kitchen suffered any facial trauma other than the
gunshot wound, the trauma is clearly evident in the autopsy photos
themselves. A rational juror would likely conclude that Dr. Rohr’s
autopsy report on Kitchen was less detailed than it could have been,
not that Cantu did not kill her.30
Most importantly, the inconsistencies derive from old evidence that was
presented at trial and do not introduce any new information, which is a
requirement under Schlup and thus under article 11.071, § 5(a)(2).31
28
Appellant’s Br. at 33-34.
29
Cantu alleges that these inconsistencies “support[] the conclusion that Cantu was
framed by the rival drug dealers truly responsible for James Mosqueda’s murder.” Id. at 33.
This evidence does not undermine the inculpatory evidence that was admitted at trial though,
and there is no reason to believe that these inconsistences would lead a rational juror to
discount the inculpatory evidence admitted at trial in favor of Cantu’s alternative theory.
30
Cantu, 2009 WL 728577, at *10. Furthermore, an officer testified that Cantu’s
mother placed a call using Cantu’s phone at about that time when they were with her at the
apartment.
31
Cantu argues that “this provision does not require the claim be based on newly
discovered evidence” (Appellant’s Br. at 23), but he ignores the case law guiding interpretation
of the provision that does require as much. See Schlup, 513 U.S. at 324 (“To be credible, [an
actual innocence] claim requires petitioner to support his allegations of constitutional error
with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence—that was not presented at trial.”).
12
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Cantu further contends that his counsel rendered deficient performance
(1) by failing to interview Cantu’s ex-girlfriend, at whose apartment police found
the murder weapon; (2) by failing to question State witnesses as to whether
Cantu’s face was indeed swollen and Boettcher’s hand was indeed injured, as she
testified; and (3) by conceding Cantu’s culpability for the murders during closing
argument. These claims, however, do not constitute “reliable evidence,” let alone
new evidence, and therefore also cannot support a Schlup claim of actual
innocence as required to file a successive petition under § 5(a)(2).
In sum, the district court was correct in its conclusion that the state court
would clearly refuse to consider the merits of this claim if it were now presented
in a successive state petition for post-conviction relief under § 5(a)(2).
In the alternative, Cantu argues that his procedurally defaulted claim may
nevertheless be reviewed in federal court pursuant to the Coleman v.
Thompson32 exceptions. These exceptions allow for federal habeas review if a
petitioner can “demonstrate cause for the default and actual prejudice as a result
of the alleged violation of federal law, or demonstrate that failure to consider the
claims will result in a fundamental miscarriage of justice.”33 The only cause that
Cantu alleges, however, is that his “state habeas counsel’s ineffectiveness
constitutes cause sufficient to excuse that default.”34 We have repeatedly rejected
this argument and held, to the contrary, that “ineffective assistance of habeas
counsel cannot provide cause for a procedural default” under these
32
501 U.S. 722 (1991).
33
Id. at 750.
34
Appellant’s Br. at 26.
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circumstances,35 which Cantu conceded.36 Cantu therefore does not satisfy the
Coleman cause and prejudice exception.
As for the fundamental miscarriage of justice exception, we have held that
“the fundamental miscarriage of justice exception is confined to cases of actual
innocence, where the petitioner shows, as a factual matter, that he did not
commit the crime of conviction.”37 We apply the Schlup standard to establish the
requisite probability that the petitioner is factually innocent38 —which Cantu
does not meet, as discussed above.
Because Cantu does not qualify for either of the two Coleman exceptions,
his claim cannot be reviewed in federal court. The district court was correct to
dismiss this claim as procedurally defaulted.
C. Actual Innocence
Cantu makes a freestanding claim of actual innocence based on the factual
inconsistencies that evolved at trial. The district court dismissed this claim as
legally incognizable in the Fifth Circuit. We review the district court’s legal
determination de novo.39
In Herrera v. Collins, the Supreme Court addressed the possibility of a
freestanding habeas claim of factual innocence based on newly discovered
evidence that had not been presented at trial.40 The Court explained:
We may assume, for the sake of argument in deciding this case, that
in a capital case a truly persuasive demonstration of “actual
35
Martinez v. Johnson, 255 F.3d 229, 240-41 (5th Cir. 2001).
36
See Appellant’s Br. at 26 n.4.
37
Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999).
38
See id.
39
See Buntion v. Quarterman, 524 F.3d 664, 670 (5th Cir. 2008).
40
506 U.S. 390, 416-17 (1993).
14
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innocence” made after trial would render the execution of a
defendant unconstitutional, and warrant federal habeas relief if
there were no state avenue open to process such a claim. But
because of the very disruptive effect that entertaining claims of
actual innocence would have on the need for finality in capital cases,
and the enormous burden that having to retry cases based on often
stale evidence would place on the States, the threshold showing for
such an assumed right would necessarily be extraordinarily high.41
We have interpreted this language narrowly as “simply assum[ing] such a
premise arguendo” while “never h[olding], however, that actual innocence would
entitle a petitioner to habeas relief.”42 Never having seen such a claim that was
supported by anything that even approached a “truly persuasive demonstration”
of actual innocence, “[t]he Fifth Circuit has rejected this possibility and held that
claims of actual innocence are not cognizable on federal habeas review” in
accordance with our pre-Herrera precedent.43
Neither do we see a viable claim here. Not one fact that Cantu presents to
support his claim of actual innocence is new, and most importantly, none
establishes—or even tends to establish—that Cantu is factually innocent of the
murders.44 Inasmuch as Cantu cannot meet even the lesser Schlup actual
innocence standard discussed above, he surely cannot meet the “extraordinarily
high” Herrera standard. Like the petitioner in Herrera, Cantu “is not innocent,
in any sense of the word.” 45
41
Id. at 417.
42
Lucas v. Johnson, 132 F.3d 1069, 1075 (5th Cir. 1998).
43
Graves v. Cockrell, 351 F.3d 143, 151 (5th Cir. 2003) (internal citation omitted).
44
See Herrera, 506 U.S. at 417 (describing an actual innocence claim as “a truly
persuasive demonstration of ‘actual innocence’ made after trial”) (emphasis added).
Presumably if the evidence was persuasive enough to meet the Herrera standard and was
presented at trial, the petitioner would have been found not guilty.
45
Id. at 419 (O’Connor, J., concurring).
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CONCLUSION
For the foregoing reasons, the district court’s denial of habeas relief is
AFFIRMED.
16