The opinion
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 27, 2008
No. 04-70047
Charles R. Fulbruge III
Clerk
IGNACIO GOMEZ,
Petitioner-Appellant,
v.
NATHANIEL QUARTERMAN,
Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Texas
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
JERRY E. SMITH, Circuit Judge.
Ignacio Gomez, a Mexican citizen, confessed that he shot and killed three
teenagers in Texas. He was convicted of capital murder and sentenced to death.
After the Texas Court of Criminal Appeals (“CCA”) affirmed and denied his state
application for writ of habeas corpus, he petitioned for federal habeas relief. The
district court denied his petition, and he applied to this court for a certificate of
appealability (“COA”) on the ground, inter alia, that he was unconstitutionally
No. 04-70047
deprived of his rights under the Vienna Convention on Consular Relations, Apr.
24, 1963, 21 U.S.T. 77 (the “Vienna Convention”), as recognized by a decision of
the International Court of Justice (“ICJ”).
We granted Gomez’s motion to stay consideration of his COA application
pending exhaustion of remedies in state court. In Ex parte Cardenas, 2007 WL
678628, at *1 (Tex. Crim. App. Mar. 7, 2007) (per curiam), the court dismissed
Gomez’s second state habeas petition, citing Ex parte Medellin, 223 S.W.3d 315
(Tex. Crim. App. 2006). The Supreme Court affirmed the CCA’s decision in Med-
ellin, holding that although the ICJ’s decision regarding the Vienna Convention
created an international obligation, it is without direct domestic effect. Medellin
v. Texas, 128 S. Ct. 1346 (2008).
That new Supreme Court decision, in conjunction with Sanchez-Llamas
v. Oregon, 126 S. Ct. 2669 (2006)SSwhich held that the Vienna Convention does
not require that evidence obtained in violation of the Convention be suppressed
SSis fatal to Gomez’s argument that a COA should be granted. Because no “rea-
sonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong,” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (in-
ternal citations and quotations omitted), as to Gomez’s Vienna Convention claim
or his other arguments, we deny a COA.
I.
Gomez, a lawful United States resident alien and citizen of Mexico, lived
outside El Paso with members of his extended family. In November 1996, John
Greer hosted a bonfire at his home, about one block away from the Gomez prop-
erty. Greer was at the party with his son Jessie and some of Jessie’s teenage
friends, including Matthew and Michael Meredity, who were 16-year-old twins,
and Toby Hathaway, an 18-year-old.
For reasons that are not obvious, one of Gomez’s brothers, Roberto, and
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No. 04-70047
Gomez’s brother-in-law, Joel Guillen, engaged in a minor scuffle with a guest at
the party. Later that evening, someone broke a couple of windows at Gomez’s
mother’s home. The next day, according to his confession, Gomez’s mother told
Gomez about the vandalism and how it frightened her, and he became upset. He
wrapped a loaded .357 handgun in a white t-shirt, hid it in his Chevy Blazer,
and began scouring the neighborhoodSS“cruising around,” in his wordsSSfor the
vandals. Gomez came across Roberto, Guillen, and another of Gomez’s brothers,
Jose Luis, all of whom joined Gomez in the Blazer.
According to Guillen’s testimony at trial, the Meredith twins and Hatha-
way were walking along a dirt road. Roberto saw and identified them as “the
guys that broke the windows.” The vehicle stopped. Jose Luis, Roberto, and
Guillen each attacked one of the teenagers. No weapons were used in the fight-
ing, and Gomez at first just watched but, about a minute later, started shooting,
hitting one of the teenagers in the head. He continued to fire, hitting another;
the third ran.
Gomez returned to the Blazer and reloaded. He ordered Guillen to capture
the escaping teenager, but Guillen refused. Jose Luis did not, and he forced the
last victim back to Gomez, who proceeded to execute him. In all, about a dozen
shots were fired. Guillen and Roberto, frightened, ran away. When they re-
turned, they saw Gomez and Jose Luis loading the bodies into the back of the
Blazer, with Gomez still holding the gun. He ordered Guillen and Roberto to
help load the bodies.
Guillen also testified that Gomez and his cohorts drove into the desert and
dropped the bodies onto the ground. Gomez thought one of the victims was still
alive and proceeded to kick him six times in the face. Gomez stripped his vic-
tims, went home, and burned their clothes. He concealed the .357 in a chicken
coop and took shovels back into the desert, where he, Jose Luis, and Guillen dug
a shallow grave, buried the bodies, and covered the area with a bush.
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No. 04-70047
When the teenagers did not come home by curfew, their mothers became
worried and tried to find them. Eventually Michael’s baseball cap was spotted
next to two live rounds and some blood. The family called the police. While offi-
cers were at the scene, Roberto and Guillen arrived at the police station, con-
fessed all the information they had, and showed where the bodies were buried.
II.
A.
Gomez was arrested and given a Miranda warning, his vehicle was im-
pounded, and he was taken to the police station, where he was given another
Miranda warning. He then confessed,1 and told where the murder weapon was
hidden. He also consented to a search of his house and vehicle.
Gomez acknowledged that he was “upset” about what had happened to his
mother and that when he was closeSS“about six feet”SSfrom the person that Ro-
berto said had broken the windows, he “discharged one round from [his] .357 cal.
handgun[,] hitting him in the forehead.” He confessed to shooting the other two
teenagers and said that, after they were down, he “continued discharging the
rest of the rounds at the three bodies,” then “reloaded [his] gun with six more
rounds and fired them at the three bodies.” He recounted how, after the initial
gunshots, he made “the last guy [he] killed” “sit next to his friends [i.e., the vic-
tims], at which time [he] shot him [i]n the head,” then “shot him some more.” He
said he “just went out of control over [his] mother’s broken windows and her just
getting scared.”
The autopsy indicated that Toby was shot four times, including one bullet
to the head. Michael was shot once, also in the head. Matthew was shot six
times, including a close-range shot to the forehead, with another discharge to his
1
Gomez denied the validity of the confession, saying that he was induced to sign some-
thing that he did not understand. Contrary evidence, however, was presented.
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No. 04-70047
face. At trial, various experts testified to evidence that corroborated Gomez’s
confession, such as whether the .357 found on his property could fire .38 caliber
ammunition, which he said he had used, and whether Gomez’s .357 was the
weapon that killed two of the victims. The evidence was inconclusive as to
whether the gun fired the lone bullet that killed Michael.
At sentencing, the government presented evidence that Gomez was a dan-
gerous law breaker, that he had physically resisted arrest in the past, that he
had been convicted three times for driving while intoxicated, that he had been
arrested for unlawfully carrying a weapon, and that he had once tried to run
someone down with a truck. Gomez offered some mitigating evidence involving
his mettle as a father and his participation in community projects. The state ar-
gued that the brutality of the slayings justified the death penalty and that even
Gomez’s witnesses showed that he was dangerous. Gomez was sentenced to
death in June 1998.
Before trial, Gomez filed a motion to suppress his confession and the fruits
of the search of his home on the ground that he had not been advised of his
rights under the Vienna Convention. Specifically, he argued that the police
should have told him of his right to the assistance of a Mexican consul. Evidence
was presented that the officer who took his confession knew that Gomez was a
resident alien but did not advise him of his Vienna Convention rights, allegedly
because he believed the rights do not apply to resident aliens. The trial court
denied the motion.
B.
Gomez’s capital murder conviction was automatically appealed to the CCA,
where Gomez argued that the failure to suppress violated both Texas law and
the Supremacy Clause of the United States Constitution. The CCA affirmed in
September 2000. Gomez v. State, No. 73,199 (Tex. Crim. App. Sept. 20, 2000).
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No. 04-70047
Gomez filed a state habeas petition that the CCA denied in June 2002. In
federal court, he petitioned for habeas relief, arguing, inter alia, that his consti-
tutional rights had been violated because of the denial of his Vienna Convention
privileges. The district court ruled in late September 2004 that Gomez’s Vienna
Convention claims were unexhausted, because his briefing to the state court was
perfunctory and because he did not reargue his claim to the state court on a mo-
tion for rehearing.
Gomez applied to this court for a COA, arguing both that his claim was ex-
hausted and that, in any event, there was no “independent and adequate” state
ground, Lee v. Kemna, 534 U.S. 362, 375 (2002), precluding the federal courts
from considering his argument, because Vienna Convention claims like his pre-
sent an “exceptional case[] in which exorbitant application of a generally sound
rule renders the state ground inadequate to stop consideration of a federal ques-
tion.” Id. at 376.
Before we ruled on the COA application, Gomez moved this court to stay
consideration of his COA application so that he could pursue his claim further
in state court. We granted the motion in August 2005. In March 2007, the CCA,
in Cardenas, denied Gomez’s petition. In June 2007, we advised the attorneys
that we were putting this appeal on hold pending a decision by the Supreme
Court in Medellin.
III.
Under the Antiterrorism and Effective Death Penalty Act of 1996, a peti-
tioner must secure a COA to appeal the federal district court’s denial of habeas
relief, and a COA will be granted only if the petitioner makes “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To apply
this standard, we conduct a “threshold inquiry” and must issue a COA if “rea-
sonable jurists would find the district court’s assessment of the constitutional
6
No. 04-70047
claims debatable or wrong.” Miller-El, 537 U.S. at 336-38 (internal citations and
quotations omitted). “[A] claim can be debatable even though every jurist of rea-
son might agree, after the COA has been granted and the case has received full
consideration, that petitioner will not prevail.” Id. at 338. Nevertheless, “issu-
ance of a COA must not be pro forma or a matter of course,” and “a prisoner
seeking a COA must prove ‘something more than the absence of frivolity.’” Id.
at 337-38 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). In death pen-
alty cases, any doubts as to whether the COA should issue are resolved in favor
of the petitioner. See Lamb v. Johnson, 179 F.3d 352, 356 (5th Cir. 1999).
“In a habeas corpus appeal, we review the district court’s findings of fact
for clear error and review its conclusions of law de novo, applying the same stan-
dard of review to the state court’s decision as the district court.” Thompson v.
Cain, 161 F.3d 802, 805 (5th Cir. 1998). We do “not grant relief on any claim ad-
judicated on the merits by a state court unless the state decision was contrary
to, or an unreasonable application of, clearly established federal law as deter-
mined by the Supreme Court, or if the state court’s determination of facts was
unreasonable in light of the evidence.” Id. (citing 28 U.S.C. § 2254(d)). A state
court decision is “contrary to . . . established federal law,” where it “applies a rule
that contradicts governing law set forth in [Supreme Court precedent]” or if it
“confronts a set of facts that are materially indistinguishable from a decision of
[the] Court and nevertheless arrives at a result different from . . . precedent.”
Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Moreover, “[a] state-court deci-
sion that correctly identifies the governing legal rule but applies it unreasonably
to the facts of a particular prisoner’s case certainly would qualify as a decision
‘involv[ing] an unreasonable application of . . . clearly established Federal law.’”
Id. at 407-08.
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IV.
The Vienna Convention, drafted in 1963, was ratified by the United States
in 1969. Sanchez-Llamas, 126 S. Ct. at 2674-75. “Article 36 of the Convention
concerns consular officers’ access to their nationals detained by authorities in a
foreign country,” requiring “that ‘if [the detained national] so requests, the com-
petent authorities of the receiving State shall, without delay, inform the consu-
lar post of the sending State if, within its consular district, a national of that
State is arrested or committed to prison or to custody pending trial or is detained
in any other manner.’” Id. at 2675 (quoting Vienna Convention, Art. 36(1)(b)).
“Article 36(1)(b) . . . states that ‘[t]he said authorities shall inform the person
concerned [i.e., the detainee] without delay of his rights under this sub-para-
graph.’” Id. (quoting Vienna Convention, Art. 36(1)(b)).
The United States also ratified the Optional Protocol Concerning the Com-
pulsory Settlement of Disputes, Apr. 24, 1963, 21 U.S.T. 325 (“Optional Proto-
col”), which places the resolution of disputes arising out of the Vienna Conven-
tion within the ICJ’s compulsory jurisdiction. Id.2 In 2004, the ICJ ruled that,
“based on violations of the Vienna Convention, 51 named Mexican nationals
were entitled to review and reconsideration of their state-court convictions and
sentences in the United States.” Medellin, 128 S. Ct. at 1355 (citing Case Con-
cerning Avena & Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (Judg-
ment of Mar. 31, 2004) (“Avena”)). The ICJ’s decision purported to apply regard-
less of any procedural-defaults; Gomez was one of those listed Mexican nation-
als.
Also in 2004, after Avena was decided, we denied a COA in Medellin v.
Dretke, 371 F.3d 270, 279-80 (5th Cir. 2004), holding that notwithstanding the
2
Though it is irrelevant to this case, which concerns alleged violations of Gomez’s rights
under the Vienna Convention in the 1990’s, as of March 7, 2005, the United States has with-
drawn from the Optional Protocol. Sanchez-Llamas, 126 S. Ct. at 2675.
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ICJ’s decision, the doctrine of procedural default applied and that, in any event,
“Article 36 of the Vienna Convention does not create an individually enforceable
right.” The Supreme Court granted certiorari. Medellin v. Dretke, 543 U.S. 1032
(2004) The President, however, then decided, in a Memorandum to the Attorney
General (“President’s Memorandum”), that the nation would comply with Avena.
Relying on Avena and the memorandum, the petitioner in Medellin again filed
a state petition. The Court dismissed the writ as improvidently granted. Medel-
lin v. Dretke, 544 U.S. 660, 664 (2005) (per curiam).
Before the CCA could rule again in Medellin, however, the Court in 2006
decided Sanchez-Llamas, a case raising issues similar to those in Medellin. In
Sanchez-Llamas, the questions were whether the Vienna Convention requires
the suppression of evidence and whether alleged violations of the Vienna Con-
vention are subject to procedural default. The petitioners in Sanchez-Llamas
were not named in the Avena ruling, but Sanchez-Llamas was decided after the
ICJ’s decision.
Chief Justice Roberts, for the Sanchez-Llamas Court, 126 S. Ct. at 2674,
wrote that, “even assuming the [Vienna] Convention creates judicially enforce-
able rights, [the] suppression [of evidence] is not an appropriate remedy for a vi-
olation of Article 36 . . . .” The Court noted that “[t]he exclusionary rule as we
know it is an entirely American legal creation” and is not accepted elsewhere, so
“[i]t is implausible that other signatories to the Convention thought it to require
a remedy that nearly all refuse to recognize as a matter of domestic law.” Id. at
2678. “Under our domestic law, the exclusionary rule is not a remedy we apply
lightly,” id. at 2680, and it does not apply to violations of the Vienna Convention,
because, inter alia, “[t]he violation of the right to consular notification . . . is at
best remotely connected to the gathering of evidence,” id. at 2681; “Article 36
does not guarantee defendants any assistance at all [from their consulates],” id.;
and “[t]he failure to inform a defendant of his Article 36 rights is unlikely, with
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any frequency, to produce unreliable confessions,” id. Consequently, the “[s]up-
pression would be a vastly disproportionate remedy for an Article 36 violation.”
Id.
The Sanchez-Llamas Court, following Breard v. Greene, 523 U.S. 371
(1998), also held that procedural-default rules apply to violations of Article 36.
The Court acknowledged the contrary result reached by the ICJ on the same
question but decided that though “‘respectful consideration’” should be given to
the “ICJ’s interpretation,” “it does not compel [United States courts] to reconsid-
er our understanding of the [Vienna] Convention in Breard.” Sanchez-Llamas,
126 S. Ct. at 2683 (quoting Breard, 523 U.S. at 375).3 Moreover, the Court recog-
nized that the ICJ’s role “is to arbitrate particular disputes between national
governments,” and its decisions are “quintessentially international” in character.
Id. at 2684-85.
Later in 2006, the CCA again ruled in Medellin, 223 S.W.3d at 352, hold-
ing that the second petition constituted an abuse of the writ, that Avena was not
binding in domestic courts, and that the President’s Memorandum, when con-
strued as an executive order and not a mere friendly suggestion, violated separa-
tion of powers principles. Certiorari was again granted. Medellin v. Texas, 127
S. Ct. 2129 (2007).
The Medellin Court, with Chief Justice Roberts once more wielding the
pen, recognized that “the Avena decision . . . constitutes an international law ob-
ligation on the part of the United States” but that “not all international law obli-
gations automatically constitute binding federal law enforceable in United
States courts.” Medellin, 128 S. Ct. at 1356. The Court then held that the Op-
tional Protocol, United Nations Charter, and ICJ Statute do not “create[] binding
3
The Court also observed that ICJ decisions have no precedential force “even as to the
ICJ itself.” Id. at 2684 (citing Statute of the International Court of Justice, Art. 59, 59 Stat.
1062 (1945)).
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No. 04-70047
federal law in the absence of implementing legislation” and that “because it is
uncontested that no such legislation exists,” “the Avena judgment is not auto-
matically binding domestic law.” Id. at 1357. These agreements are not self-ex-
ecuting, and thus decisions as to howSSor whetherSSICJ judgments will be en-
forced lie with the political branches.4
The Medellin Court then addressed what effect should be given to the
President’s Memorandum, which was an attempt by the executive branch to
comply with Avena. The Court held that “[t]he President has an array of politi-
cal and diplomatic means available to enforce international obligations, but uni-
laterally converting a non-self-executing treaty into a self-executing one is not
among them.” Id. at 1368. Instead, the power to satisfy international obliga-
tions stemming from non-self-executing treaties by means of domestic law be-
longs to Congress “in the same way as [with] any other law . . . .” Id. at 1369.
V.
With this Supreme Court guidance in mind, we deny a COA in regard to
the asserted violations of the Vienna Convention.5 No reasonable jurist could
conclude, in light of the explicit pronouncements in Medellin and Sanchez-Lla-
4
Treaties, under the Supremacy Clause, are “the supreme Law of the land” such that
“the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of
any State to the Contrary notwithstanding.” U.S. CONST. art. VI, cl. 2. At first blush, it may
seem strange, given the explicitness of this constitutional language, that there are treaties that
do not bind courts. The explanation is that such treaties are without domestic effect because
they do not obligate the United States to give them domestic effect. Thus, when ratified, they
do become part of “the supreme Law of the land,” and they are respected according to their
terms, but those terms do not require automatic judicial enforcement. See Medellin, 128 S. Ct.
at 1369 (“A non-self-executing treaty, by definition, is one that was ratified with the under-
standing that it is not to have domestic effect of its own force.”).
5
Because these recent Court decisions have answered Gomez’s substantive legal ques-
tion, we need not address whether this issue was adequately exhausted in state court. Even
assuming that it was exhausted properly, the argument lacks merit, so, pursuant to 28 U.S.C.
§ 2253, we decline to issue a COA.
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No. 04-70047
mas, that Gomez’s constitutional rights were violated when the Texas court re-
fused to suppress his confession. Sanchez-Llamas establishes the general propo-
sition that violations of the Vienna Convention do not require the suppression
of evidence, and Medellin reinforces Sanchez-Llamas by holding that the general
proposition applies even in the face of a contrary ICJ decision and presidential
order.
These precedents apply with full force to Gomez. As in Sanchez-Llamas,
he argues that his confession should have been suppressed, notwithstanding ap-
propriately-given Miranda warnings, because he confessed without first being
informed of his rights under Article 36 of the Vienna Convention. The law is
straightforward: “[S]uppression is not an appropriate remedy for a violation of
Article 36 . . . .” Sanchez-Llamas, 126 S. Ct. at 2674.
Moreover, as in Medellin, Gomez argues that the ICJ’s decision in Avena,
especially when coupled with the President’s Memorandum, requires that the ev-
idence be suppressed. The Court, however, has closed that door as well: “[T]he
Avena judgment is not automatically binding domestic law,” Medellin, 128 S. Ct.
at 1357, and the President’s Memorandum exceeded his constitutional powers,
id. at 1367-72. Though we “in no way disparage[] the importance of the Vienna
Convention,” Sanchez-Llamas, 126 S. Ct. at 2687, there is no reasonable debate
as to the critical legal infirmities of Gomez’s application.
VI.
Gomez offers sundry additional reasons why a COA should issue. He as-
serts that a venireman, Susan Campos, was improperly excluded based on her
attitude toward the death penalty, contrary to Witherspoon v. Illinois, 391 U.S.
510 (1968). He contends that four other veniremen were excluded because they
were opposed to capital punishment, a categorical exclusion improper under
Witherspoon, and he avers that his attorney, by failing to oppose the exclusion
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No. 04-70047
on Witherspoon grounds, was constitutionally ineffective under Strickland v.
Washington, 466 U.S. 668 (1984). Likewise, Gomez argues that the sentencing
court constitutionally erred in denying his request to inform the jury that if he
was not sentenced to death, he would be required to serve a minimum of forty
years in prison without parole, and further, and relatedly, that the district court
misapplied the non-retroactivity principle of Teague v. Lane, 489 U.S. 288
(1989), on that point.
The district court got it right, and undebatably so. To explain why, we
first state the question we are not called on to answer. The district court ruled
that Gomez’s Witherspoon claims for everyone but Campos were procedurally de-
faulted because they were not raised on direct appeal and that Gomez “ha[d] not
shown, or even attempted to show, cause and prejudice for the default.” As we
review Gomez’s application to this court relative to the four veniremen, we note
that he does not mention that ruling, much less explain why it was wrong. In-
stead, he appears to argue only that his counsel’s failure to oppose the exclusion
of the venireman constituted a violation of Washington,6 a similarSSbut narrow-
erSSobjection to their exclusion.7
6
For instance, Gomez argues that “[t]he question of counsel ineffectiveness . . . devolves
into a question of whether the record . . . reasonably supports a conclusion that these venire-
members were proven to be challengeable for cause” and that because there was a Witherspoon
violation, “[i]t follows that defense counsel’s failure to oppose their exclusion fell below objective
norms for the competent performance of counsel in capital cases . . . .” There is authority under
Texas law that “the failure to specify in objections that a juror’s exclusion was inconsistent
with Witherspoon waives any such error on appeal.” Carter v. State, 717 S.W.2d 60, 76 (Tex.
Crim. App. 1986). This might explain why Gomez, who did not object to these veniremen at
trial, argued on appeal that his trial counsel violated Washington by failing to object based on
Witherspoon but nonetheless failed to exhaust Witherspoon directly.
7
We also do not address the sixth issue listed in Gomez’s statement of issues, which is
whether the Eighth Amendment’s Cruel and Unusual Punishment Clause or the Fourteenth
Amendment’s Due Process Clause is implicated here. Gomez fails to argue that issue in his
brief, so we do not consider it. See, e.g., L&A Contracting Co. v. S. Concrete Serv., 17 F.3d 106,
113 (5th Cir. 1994).
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No. 04-70047
A.
Concerning the claim as it relates to Campos, under Witherspoon “a sen-
tence of death cannot be carried out if the jury that imposed or recommended it
was chosen by excluding veniremen for cause simply because they voiced general
objections to the death penalty or expressed conscientious or religious scruples
against its infliction.” 391 U.S. at 522. But,
nothing we say today bears upon the power of a State to execute a
defendant sentenced to death by a jury from which the only venire-
men who were in fact excluded for cause were those who made un-
mistakably clear (1) that they would automatically vote against the
imposition of capital punishment without regard to any evidence
that might be developed at the trial of the case before them, or
(2) that their attitude toward the death penalty would prevent them
from making an impartial decision as to the defendant’s guilt.
Id. at 522 n.21.
In Wainwright v. Witt, 469 U.S. 412, 424-26 (1985) (internal citations and
quotations omitted), the Court amplified this reservation by holding that the
standard is whether the juror’s views would prevent or substantially
impair the performance of his duties as a juror in accordance with
his instructions and his oath. We note that, in addition to dispens-
ing with Witherspoon’s reference to “automatic” decisionmaking,
this standard likewise does not require that a juror’s bias be proved
with unmistakable clarity. This is because determinations of juror
bias cannot be reduced to question-and-answer sessions which ob-
tain results in the manner of a catechism. What common sense
should have realized experience has proved: many veniremen simply
cannot be asked enough questions to reach the point where their bi-
as has been made unmistakably clear; these veniremen may not
know how they will react when faced with imposing the death sen-
tence, or may be unable to articulate, or may wish to hide their true
feelings. Despite this lack of clarity in the printed record, however,
there will be situations where the trial judge is left with the definite
impression that a prospective juror would be unable to faithfully
and impartially apply the law. [And] this is why deference must be
paid to the trial judge who sees and hears the juror.
In Uttecht v. Brown, 127 S. Ct. 2218, 2224 (2007), the Court reemphasized
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the importance of deferring to the trial court under Witherspoon, explaining that
“in determining whether the removal of a potential juror would vindicate the
State’s interest without violating the defendant’s right, the trial court makes a
judgment based in part on the demeanor of the juror, a judgment owed deference
by reviewing courts;” where federal courts do not afford this deference, they
“fail[] to respect the limited role of federal habeas relief in this area prescribed
by Congress and by our cases.” The Court expressly reaffirmed Witt, acknowl-
edging that “when there is ambiguity in the prospective juror’s statements, ‘the
trial court, aided as it undoubtedly [is] by its assessment of [the venireman’s] de-
meanor, [is] entitled to resolve [the question] in favor of the State.” Id. at 2223
(citing Witt, 469 U.S. at 434).
Campos, along with the other veniremen, was given a questionnaire on
which she agreed with statements such as “[c]apital punishment has never been
effective in preventing crime,” “I do not believe in capital punishment under any
circumstances,” “[c]apital punishment is not necessary in modern civilization,”
and the death penalty “is a disgrace to civilized society.” Though she did not
agree that capital punishment “should be abolished,” she did agree that “[c]api-
tal punishment is justified only for premeditated murder.” She disagreed that
“[c]apital punishment is just and necessary” and that “[w]e must have [it] for
[some] crimes.” She also checked the statement that “I cannot vote to assess the
death penalty under any circumstances.”
As part of her individual voir dire, the trial court tried to make sense of
these statements. In a lengthy examination, Campos said that “I feel like I’m
just not a person to judge anybody, and I believe that I can’t accuse somebody of
something that I don’t believe in,” and “I just don’t believe in it.” The court said
that “you struck me as having two minds about the issue,” and Campos said she
was “[j]ust confused,” and later “I’m confused about that. I mean, I’m just
against all that.” Then she said “I just don’t believe in the death penalty. I just
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No. 04-70047
don’t feel it’s right to kill anybody.”
The next question was, “Is your feeling so strongSS,” to which Campos
interjected, “Yes, sir.” The court finished its question “SSthat you would be un-
able to answer the questions honestly, according to what the evidence showed?”
Campos responded, “I’ll be honest about it, but I justSSI will answer questions,
but I just feel very strongly about it. I don’t believe in the death penalty at all.”
Later, the court asked, “[C]ould you ever voteSSno matter what the evidence
shows, that you could never vote for the death penalty?” She replied, “I wouldn’t
vote for the death penalty.” A lawyer asked her, “Do you think that there is any
crime, kind of crime, that deserves the death penalty?” Campos answered, “No,
I don’t.” The court excused Campos for cause.
No reasonable jurist could find that a constitutional error was committed.
Even on a stale printed page, Campos comes across as someone whose personal
views would taint her ability fairly to answer questions that might affect wheth-
er to impose the death penalty. In fact, she said as much. When asked whether
she could ever vote for death “no matter what the evidence shows,” she forth-
rightly stated, “I wouldn’t vote for the death penalty.” When asked whether her
feelings about capital punishment would “substantially impair [her] ability to
answer questions” that might lead to the imposition of death, she said she was
“confused about that” but also that she was “just against all that.” These
answers support the trial court’s assessment.
But there is more: The trial judge was there and heard Campos. Her
questionnaire showed dramatic vacillation and at least suggested that she could
not follow the law. The voir dire cinched it. In light of the deference that is af-
forded trial courts under Witt, we deny a COA as to Campos.
Campos’s opposition to the death penalty colored her ability to perform the
duties of a juror in a capital case. Therefore, consistent with Uttecht, 127 S. Ct.
at 2230, “where, as here, there is lengthy questioning of a prospective juror and
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No. 04-70047
the trial court has supervised a diligent and thoughtful voir dire, the trial court
has broad discretion;” no reasonable jurist could conclude that the court uncon-
stitutionally abused that discretion as to Campos.
B.
Gomez argues this his trial counsel violated Washington by failing to ob-
ject when four veniremen were excused based on their opposition to the death
penalty. That claim, too, is unavailing.
To establish that a defense lawyer’s representation fell below what is con-
stitutionally acceptable, “petitioner must show that counsel’s performance was
deficient, and that the deficiency prejudiced the defense. To establish deficient
performance, a petitioner must demonstrate that counsel’s representation fell
below an objective standard of reasonableness[, and] the proper measure of at-
torney performance remains simply reasonableness under prevailing profession-
al norms.” Wiggins v. Smith, 539 U.S. 510, 521 (2003) (internal citations and
quotations omitted). “[T]o establish prejudice, a ‘defendant must show that
there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the outcome.’” Id. at 534
(quoting Washington, 466 U.S. at 692).
A petitioner arguing that a Washington violation has occurred has a diffi-
cult task. “The measure of performance is highly deferential, calibrated to es-
cape ‘the distorting effect of hindsight.’ We must ‘indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional as-
sistance’ and that the ‘challenged action might be considered sound trial strate-
gy.’” Belyeu v. Scott, 67 F.3d 535, 538 (5th Cir. 1995) (quoting Washington, 466
U.S. at 689).
Any reasonable jurist would agree with the district court that Gomez can-
17
No. 04-70047
not show that the state trial court’s decision to exclude these jurors was even
wrong, much less that the decision was so obviously mistaken that Gomez’s at-
torney’s failure to object deprived him of the constitutional right to effective
counsel. As the district court demonstrated at length in its excellent opinion,
each of the four excused veniremenSSJoan Carson, Maria Garcia, Luis Jaramillo,
and Miguel MartinezSSexpressed at least some skepticism toward the death pen-
alty in their written questionnaires. The trial court conducted individualized
voir dire, and each of the would-be jurors stated additional things that cast
doubt on his ability lawfully to discharge his duties. Each was excused for cause.
Carson presents the closest case, but hers is not even that close.8 The
transcript of her voir dire reflects the statements of a person struggling with the
issue of capital punishment. For instance, though she had misgivings, she said
that “if I were voting to keep the death penalty in Texas . . . I would probably
vote to keep it.” But she also said that she did not know whether she could serve
on a jury that might be called on to impose the death penalty. The court then
asked her, “Would your internal feelings about responsibility for causing the
death penalty to be imposed materially substantially impair your ability to an-
swer the questionsSS,” to which Carson interjected, “Yes, sir.” The court con-
tinued, “SSwhich would determine the death penalty or life imprisonment.
That’s the question.” Carson replied, “I would not vote for the death penalty.”
Gomez’s lawyer did not object to her being excused for cause.
No reasonable jurist would conclude that this is enough to constitute a vio-
lation of Washington. Because Carson explicitly agreed that her “internal feel-
ings about responsibility for causing the death penalty to be imposed materially
8
The other veniremen left little doubt as to where they stood on the death penalty.
Garcia agreed during voir dire that “there is no way [she] could ever vote the death penalty;”
Jaramillo stated that he would “never vote for the death penalty;” and Martinez agreed that
“no matter how horrible the crime,” he would “still be opposed to capital punishment” and that
he was “opposed to capital punishment under any circumstances.”
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No. 04-70047
substantially [would] impair [her] ability to answer the questions” such that she
“would not vote for the death penalty,” and especially because we are only ad-
dressing Witherspoon vis-à-vis Washington and not Witherspoon directly,9 we de-
cline to grant a COA.10
9
Gomez mistakenly attempts to shoehorn Witherspoon into Washington. Although
failure to argue Witherspoon adequately could sometimes suggest inadequate counsel, the mere
fact that an attorney failed to make this particular Witherspoon argument does not mean, per
se, that he fell short of the performance required by Washington. Instead, the violation of
Witherspoon must be so egregious that it “fell below an objective standard of reasonableness”
for the attorney to fail to object. Wiggins, 539 U.S. at 522. Professionally competent lawyers
do not necessarily press every conceivable argument.
Gomez offers an interesting theory of WitherspoonSSone that may conflict with Morgan
v. Illinois, 504 U.S. 719 (1992), and one that he acknowledges that this court “has regularly
resolved . . . contrary to Gomez’s position”SSthat suggests that a venireman’s mere statement
that he will not vote to impose the death penalty is insufficient to satisfy Witherspoon because,
in Texas, jurors do not vote for or against the death penalty, but instead only answer ques-
tions, which answers the trial court uses to impose sentence. This may be a correct statement
of the law under Witherspoon; we take no firm position on that question, though we note that
in Adams v. Texas, 448 U.S. 38, 46 (1980), the Court recognized that Texas jurors “characteris-
tically know that affirmative answers to the questions will result in the automatic imposition
of the death penalty,” suggesting that the typical Witherspoon standard applies in Texas.
Washington, however, is an inappropriate vehicle with which to make the argument.
A reasonable lawyer prepares reasonably for cases. That means that he conducts rea-
sonable research, drafts reasonable briefs, directs reasonable investigation, and reasonably al-
locates time to those avenues with the most likelihood of success. Gomez’s trial counsel’s
knowledge of the ins and outs of Witherspoon, as reflected by the record, shows that he satis-
fied Washington. He may not have made the argument that Gomez now presses, but this par-
ticular argument was not so obvious that any competent attorney would have leaped at the
chance to employ it.
In regard (at least, but not exclusively) to Campos, the only would-be juror for which
Witherspoon was properly raised, the trial court did more than ask whether she opposed the
death penalty. It also asked whether her personal views on the death penalty would “substan-
tially impair” her ability to perform her duty. The court decided, based in part on her answer,
that she should be excused.
10
The state habeas court conducted an evidentiary hearing on this issue and ruled, as
a factual matter, that these four veniremen were “unalterably opposed to the death penalty
under any circumstances, and that those prospective jurors’ categorical opposition to the death
penalty and inability to vote to impose the death penalty under any circumstances were even
more apparent . . . than were . . . Campos’ attitudes and beliefs in that regard.” There is a pre-
sumption under 28 U.S.C. § 2254(e)(1) that state habeas courts’ factual determinations are cor-
(continued...)
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No. 04-70047
C.
Gomez claims the trial court erred in failing to instruct the jury that, if he
was not sentenced to death, he would be required to serve a minimum of forty
years in prison without parole. Gomez argues that this violates the Compulsory
Process Clause of the Sixth Amendment.11 No reasonable jurist could agree with
that assertion.
“[W]here a capital defendant’s future dangerousness is at issue, and the
only sentencing alternative to death available to the jury is life imprisonment
without possibility of parole, due process entitles the defendant to inform the
jury of his parole ineligibility, either by jury instruction or in arguments by coun-
sel.” Shafer v. South Carolina, 532 U.S. 36, 39 (2001) (internal citations and
quotations omitted). But we have “consistently emphasized that a defendant can
receive a jury instruction regarding parole ineligibility only if there exists a life-
without-possibility-of-parole alternative to the death penaltySSan option not
available under Texas law.” Tigner v. Cockrell, 264 F.3d 521, 525 (5th Cir.
2001).
In Thacker v. Dretke, 396 F.3d 607, 617 (5th Cir. 2005), we discussed
whether the Compulsory Process Clause “guarantees [Texas capital defendants]
the right to present testimony and argument relating to parole eligibility.” For
support, and to avoid the effects of the non-retroactivity principle announced in
Teague, the petitioner in Thacker, as Gomez does here, cited United States v.
Scheffer, 523 U.S. 303 (1998), involving the Compulsory Process Clause in the
context of “allegedly exculpatory polygraph evidence.” Thacker, 396 F.3d at
10
(...continued)
rect, absent clear and convincing evidence to the contrary. See Ortiz v. Quarterman, 504 F.3d
492, 500-01 (5th Cir. 2007), cert. denied, 2008 U.S. LEXIS 3853 (U.S. May 12, 2008).
11
“In all criminal prosecutions, the accused shall enjoy the right to . . . have compulsory
process for obtaining witnesses in his favor . . . .” U.S. CONST. amend. VI.
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No. 04-70047
617-18.
As did the petitioner in Thacker, Gomez argues that Scheffer establishes
a broad general principle such that, if we were to find that the Compulsory Pro-
cess Clause was violated, Teague would not apply. Just as in Thacker, we reject
that argument:
Scheffer . . . merely holds that the exclusion of polygraph results is
not disproportionate or arbitrary in light of a defendant’s not unbri-
dled right to present evidence in his defense. To hold that it extends
to, and invalidates, all restrictions on discussion of parole eligibility
would undoubtedly be a bold new step, not an “unremarkable” appli-
cation of settled precedent. Thacker’s Sixth Amendment argument,
therefore, is so plainly barred by Teague that we cannot conceive
that reasonable jurists would disagree.
Id. at 618.
Moreover, “[e]ven if Thacker’s claim based on the Compulsory Process
Clause claim were not barred by the non-retroactivity principle of Teague, its
substance is insufficient for the issuance of a COA.” Id. Expressly likening this
Compulsory Process argument to our due process precedents, we held that “it
can hardly be said that the Texas Court of Criminal Appeals acted contrary to,
or engaged in an unreasonable application of, federal law. . . . [W]e have expli-
citly rejected such an argument under the analogous due process framework, . . .
[and] we [cannot] imagine that reasonable jurists could disagree.” Id. at 619.
The application for a COA is DENIED.
21