Appendix — Medellin v. Dretke

Supreme Court brief2005

Ask Donna

What actually matters in this document.

Text

Supreme Court of the United States

JOSE ERNESTO MEDELLIN,

Petitioner,

DouG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

GARY TAYLOR DONALD FRANCIS DONOVAN

P.O. Box 90212 Counsel of Record

Austin, Texas 78709 CATHERINE M. AMIRFAR

(512) 301-5100 THOMAS J. BOLLYKY

DEBEVOISE & PLIMPTON LLP

MIKE CHARLTON

919 Third Avenue

P.O. Box 1964

El Prado, New Mexico 87529 prt New York 10022

(505) 751-0515

Attorneys for Petitioner

TABLE OF CONTENTS

Medellin v. State, Order, No. 71997

(Tex. Crim. App. Mar. 19, 1997).............

Ex parte Medellin, Order, No. 50191-01

Cee Cee. ROD. CHL. Fp BOOED cc dicccvcccess

Ex parte Medellin, Order, No. 675430-A

(339th Dist. Ct. Jan. 22, 2001)...............

Medellin v. Cockrell, Civ. No. H-01-4078

i ewan

Medellin v. Dretke, 2004 U.S. App. LEXIS 9912

Cee Gee NE Ay ORs a ceceicnesevivesccsess

Constitutional, Treaty, and Statutory

OE HPO cidiccnscceesccdacsccende

Torres v. Oklahoma, Case No. PCD-04-442

slip. op (Olka. Crim. App. May 13, 2004) ..

Harris County Pre-Trial Services Agency,

DOTORGAR IMTETVIEW ....... 0 ccccvccccccesvncvens

Affidavit of Manuel Perez Cardenas, the

Consul General of Mexico, filed in support

of state post-conviction application for a

WEEE GE REDON COTIOE ios ikke devcccidvesscccsee

Case Concerning Avena and Other Mexican

Nationals (Mexico v. United States of

America), 2004 I.C.J. No. 128 (March 31;

EP ag ccdtasduderenncddacaducuctbatvaobeebdennses

PAGE

119a

MANDATE FROM

COURT OF CRIMINAL APPEALS

Austin, Texas

THE STATE OF TEXAS,

TO THE 339TH JUDICIAL DISTRICT COURT OF HARRIS

COUNTY - GREETINGS:

Before our COURT OF CRIMINAL APPEALS, on the

30th day of April A.D. 1997 the cause upon appeal to

revise or reverse your Judgment between

JOSE ERNESTO MEDELLIN,

—_—vs.—

~ THE STATE OF TEXAS,

CCRA No. 71,997

Tr. Ct. No. 675430

was determined: and therein our said COURT OF CRIM-

INAL APPEALS made it’s order in these words:

“This cause came on to be heard on the transcript of

the record of the Court below, and the same being con-

sidered, because it is the Opinion of this Court that there

was no error in the judgment, it is ORDERED,

ADJUDGED AND DECREED by the Court that the judg-

ment be AFFIRMED, in accordance with the Opinion of

this Court, and that the appellant pay all costs in this

behalf expended, and that this Decision be certified

below for observance.” . |

The Appellant's Motion for Rehearing is Denied.

WHEREFORE, We command you to observe the Order

of our said COURT OF CRIMINAL APPEALS in this

behalf and in all things have it duly recognized, obeyed

and executed.

WITNESS, THE HONORABLE MICHAEL J. MCCORMICK,

Presiding Judge

of our said COURT OF CRIMINAL APPEALS, with the Seal

thereof annexed, at the City of Austin,

this 16th day of May A.D. 1997.

TROY C. BENNETT, JR., Clerk

BELVA MYLER, Deputy Clerk

ee ee

Appeal from HARRIS County

No. 71,997

JOSE ERNESTO MEDELLIN,

Appellant

—Y.—

THE STATE OF TEXAS,

Appellee

OPINION

Appellant, Jose Ernesto Medellin, was convicted in

September of 1994 of a capital murder committed in

June of 1993. TEX. PENAL CODE ANN. §19.03(a)(2).

Pursuant to the jury’s answers to the special issues set

forth in Texas Code of Criminal Procedure art. 37.071

§§ 2(b) and 2-(e), the trial judge sentenced appellant to

death.' Article 37.071 § 2(g). Direct appeal is automatic.

Article 37.071 § 2(h). We will affirm.

Appellant raises nine points of error, including chal-

lenges to the sufficiency of the, evidence at both stages

of trial. In his first point of error, appellant asserts that

this cause should be abated and remanded to the trial

court for the trial judge to enter written findings of fact

and conclusions of law regarding the outcome of a hear-

ing on the voluntariness of appellant's confession as

required by Article 38.22 § 6 of the Texas Code of Crim-

Any subsequent references to Articles are to those in the

Texas Code of Criminal Procedure unless otherwise indicated.

inal Procedure. Because this has been done, appellant's

first point of error is now moot.’ .

A recitation of the facts will be helpful in addressing

the remaining points of error. Looking at the evidence in

the light most favorable to the jury’s verdict, the record

reveals the following facts: On the night of June 24,

1993, a gang called the “Black and Whites” had come

together to initiate a new member, Raul Villareal. The

other gang members present were appellant, Peter Cantu,

Roman Sandoval, Efrain Perez, and Sean O’Brien.

Roman's brother, Frank, and appellant's fourteen-year-

old brother, Venancio, were also tagging along. The ini-

tiation involved fighting each member of the gang for a

five to ten minute period. After the fighting was over,

Raul was welcomed into the gang.

Meanwhile, fourteen-year-old Jennifer Ertman and

sixteen-year old Elizabeth Pena were visiting a girl-

friend. Around 11:15 p.m., Jennifer and Elizabeth

decided to head for their respective homes by way of a

shortcut across the railroad tracks. Jennifer and Eliza-

beth first encountered Roman and Frank as they made

their way home, but managed to pass the brothers with-

out incident. However, as they passed appellant, he

attempted to engage Elizabeth in conversation. When

Elizabeth tried to run from appellant, he grabbed her and

threw her to the ground. Elizabeth screamed for Jennifer

to help her. In response to her friend's cries, Jennifer ran

back to help, but Peter and Sean grabbed her and threw

her down as well. At this point, the Sandoval brothers

decided that it was time to leave.

This cause was abated on May 8, 1996, pursuant to Tex. R.

App. Proc. 40(b)(2). See Green v. State, 906 S.W.2d 937 (Tex. Crim.

App. 1995). The requested findings of fact and conclusions of law

were thereafter forwarded to this Court. The trial court having com-

plied with our order, we now continue the appeal of this cause.

6 et ee les, AE et

Subsequent boastful statements of appellant and other

gang members revealed that what ensued was a brutal

gang rape of both of the girls. After the girls were

thrown to the ground, the gang members orally, vagi-

nally, and anally raped both of them. After the assault,

appellant, Raul, Efrain, and Peter regrouped at Peter's

house where he lived with his brother and sister-in-law,

Joe and Christina Cantu, to brag about their exploits.

Christina noticed that Raul was bleeding and that Efrain,

had blood on his shirt. She asked the group what had

occurred and appellant responded that they “had fun”

and that their exploits would be seen on the television

news. Appellant was hyper, giggling, and laughing. He

boasted to Joe and Christina that the group had met two

“hos” [sic] and had sex with them. He also told the cou-

ple that two girls had been talking to them and that he

punched one of the girls because she had started scream-

ing after he grabbed her.

Appellant related to Joe and Christina that he sexually

assaulted one of the girls and bragged about having

“opened” her since she had apparently been a virgin. As

if to accentuate his conquest, appellant showed Christina

his blood soaked underwear. Appellant related that after

another gang member sexually assaulted the second girl,

he “turned her around” and anally raped her. Appellant

also bragged of having forced both girls to engage in

oral sex with him. Peter joined the group shortly there-

after and began to divide up the money and jewelry that

had been taken from the two girls. Peter gave appellant

a ring with an “E” design on it so that he could give it to

his girlfriend, Esther. ;

When Christina asked the group what happened to the

girls, appellant told her that they had been killed so that

they could not identify their attackers. Appellant then

elaborated that it would have been easier with a gun, but ~~>

——

because they did not have one at the scene of the inci-

dent, he took off one of his shoelaces and strangled at

least one of the girls with it.‘ Both Joe and Christina

noted that appellant complained of the difficulty group

encountered in killing the girls. After appellant related

the difficulty he encountered in strangling one of the

girls, he said that he put his foot on her throat because

she would not die. ;

Christina subsequently convinced her husband to

report the incident to the police. By the time the bodies

were discovered, they were so badly decomposed that

dental records were required to identify them. However,

enough tissue remained for the medical examiner to

determine that each girl had died of a trauma to the neck

consistent with strangulation.

Eventually, all of the individuals who participated in

the rapes and murders were apprehended. After appellant

was arrested, he gave a written and then an oral, tape-

recorded statement, the latter of which was never offered

into evidence at trial. In the written statement, appellant

admitted to having had oral sex with Elizabeth, but com-

mented that he only peripherally participated in her mur-

der.

At the punishment stage of trial, appellant's parents

testified that appellant had been a good student and had

made good grades until he entered the sixth grade. After

that point, appellant's behavior deteriorated rapidly.

Appellant was suspended from middle school in the Fall

, Apparently all of the gang members were talking about hav-

ing killed the two girls which resulted in some degree of confusion on

the part of the witnesses. However, Christina testified that she under-

stood appellant to have said that he personally participated in killing

both of the girls, while Joe testified that he understood appellant to

have said that he strangled one of the girls while his companions

killed the other girl.

et te Ses a eae

of 1990 for “misconduct and repeated misbehavior.” In

high school, appellant was well known to administrators

due to his repeated disciplinary violations. In January of

1992, appellant was restrained by an assistant principal

from attacking another student. Furthermore, appellant

repeatedly threatened to kill the assistant principal and

to “fix it” so that he could not father any more children.

Appellant told the assistant principal that life meant

nothing to him. (appellant) and that someday he would

be featured on television or the front page of the news-

paper as the result of having killed someone, “probably

a cop.” In October of 1992, appellant was involved in a

gang related fight at school which resulted in his expul-

sion from school and subsequent placement at an alter-

native school.

Appellant was also known to the police. In January of

1992, police were called to a restaurant in response to a

disturbance call involving a terroristic threat. When ini-

tially confronted by police, appellant refused to stop or

to remove his hand from his pocket. He was later found

to have a .38 caliber pistol concealed in his pocket. In

June of 1993, appellant was found at the emergency

room of a Houston hospital where Efrain Perez was

being treated for a gunshot wound. Testimony from an

employee of the hospital regarding a conversation the

employee overheard between appellant and co-defendant

Cantu indicated that the two knew who had shot Perez

and that they were going to go after that individual

themselves. When a police officer arrived to investigate

the shooting, appellant was delligerent and uncoopera-

tive. :

While appellant was in jail awaiting trial on the

instant offense, a search of appellant's cell turned up a

“shank’? which had been fashioned from a disposable

razor. Another search of appellant's cell a year later, the

day before punishment arguments were to be heard in

the instant case, turned up another “shank” in the mak-

ing.

I. SUFFICIENCY OF THE EVIDENCE

Appellant asserts in his sixth point of error that the

evidence was legally insufficient to support the jury's

guilty verdict. In reviewing the sufficiency of the evi-

dence, this Court reviews all of the evidence in the light

most favorable to the verdict to determine whether any

rational trier of fact could have found the essential ele-

ments of the offense beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307 (1979). Appeliant concedes

that sufficient evidence exists to prove his participation

in the underlying offenses to the capital murder. How-

ever, appellant takes issue with the sufficiency of the

evidence to prove his specific intent to commit the

offense of murder. He contends the evidence supporting

this intent, the testimony of Joe and Christina Cantu, was

more accurately attributable to appellant's co-defendants

than to appellant.

A review of the testimony of both Christina and Joe

Cantu shows that they did indeed attribute many state-

ments about the deaths of the two victims to the generic

“they” encompassing the whole group. However, each

witness also testified to statements attributed only to

appellant. Specifically, Christina testified that appellant

told her he killed the victims. In fact, she stated that

appellant said that he took turns killing both of the girls.

. A “shank” was described as a type of homemade or jailmade

knife.

Christina commented that appellant told her that “he

took off his shoelace and strangled one of the girls.”

Christina also told the jury that appellant related to her

that he put his foot on one of the girl's throats, and she

testified that appellant “said it would have been faster if

he had a gun to kill them.” When Joe Cantu was asked if

he remembered specifically what appellant told him

about the killing, Joe responded that appellant had told

him that appellant strangled one of the victims from the

back and when she didn’t look like she was dead, he

started stomping on her. Joe also testified that appellant

commented that it would have been easier with a gun.

Given the totality of the evidence, we hold that a

rational trier of fact could have found appellant guilty of

the offense of capital murder beyond a reasonable doubt.

Point of error number six is overruled.

in his seventh point of error, appellant posits that the

evidence was insufficient to support the jury's affirma-

tive answer to the issue on whether appellant would be

a continuing danger. Article 37.071 § 2(b)(1). In review-

ing whether the evidence is sufficient to support the

jury's affirmative finding on the issue of future dan-

gerousness, this Court looks at the evidence in the light

most favorable to the verdict to determine whether any

rational trier of fact could have believed beyond a rea-

sonable doubt that “there is a probability that (appellant]

would commit criminal acts of violence that would con-

stitute a continuing threat to society.” Article 37.071

§ 2(b)(1); Jackson v. Virginia, 443 U.S. 307 (1979); A//-

ridge v. State, 850 S.W.2d 471 (Tex. Crim. App. 1991),

cert. denied, ___ U.S. ___, 114 S.Ct. 101 (1993). The

facts of the crime alone can be sufficient to support the

affirmative finding to the special issue. Allridge, supra.

In fact, the circumstances of the crime may provide

greater probative evidence of a defendant's probability

rs ee eT ce em

10a

for committing future acts of violence than any other

factor relevant to the second special issue. /d.

At trial, the jury ‘s-permitted to look at several factors

in its review of future dangerousness including, but not

limited to:

|. the circumstances of the capital offense, includ-

ing the defendant's state of mind and whether he

was acting alone or with other parties;

2. the calculated nature of the defendant's acts;

3. the forethought and deliberateness exhibited by

the crime’s execution;

4. the existence of a prior criminal record, and the

severity of the prior crimes;

5. the defendant's age and personal circumstances at

the time of the offense;

6. whether the defendant was acting under duress or

the domination of another at the time of the offense;

7. psychiatric evidence; and

8. character evidence.

Barnes v. State, 876 S.W.2d 316, 322 (Tex. Crim. App.),

cert. denied, ___ U.S. ___, 115 S.Ct. 174 (1994); Keet-

non v. State, 724 S.W:2d 58, 61 (Tex. Crim. App. 1987)

(“Keeton I”). These factors are also helpful in this

Court's evaluation of this question.

The facts of the instant case are brutal and barbaric

enough to alone support the jury's answer to the special

issue. The instant scenario began with underage drinking

and fighting as a gang initiation rite. When the two vic-

tims came into the picture, appellant not only took full

part in violently raping both of them and killing at least

one of them, but appears to have initiated those actions.

lla

In contrast to showing remorse afterward, appellant

laughed about the incident, referred to the girls in

Gerogatory terms, and enjoyed the spoils of the group's

perceived conquest.

In addition, appellant has a history of misconduct and

violent misbehavior both in school and out, with

repeated suspensions, expulsions, and arrests dating back

to the sixth grade. He has a history of threatening indi-

viduals with bodily harm or death and a history of being

found in possession of a firearm. Before his imprison-

ment, appellant chose to spend his social hours with a

group of young men who engaged in illegal drinking and

violent behavior. After being imprisoned, appellant con-

tinued to associate himself with weapons.

Given the totality of the evidence, we hold that a

rational trier of fact could have believed beyond a rea-

sonable doubt that “there is a probability that [appellant]

would commit criminal acts of violence that would con-

stitute a continuing threat to society,” whether in prison

or out. Point of error seven is overruled.

Il. VOIR DIRE

Appellant complains in his third point of error that the

trial court erred in granting the State's challenge for

cause to venireperson R. L. Mackey pursuant to her

views concerning the death penalty. The State contends

the trial court did not abuse its discretion in granting the

Chailenge for cause because the veniremember’s attitude

about the death penalty would have prevented or sub-

stantially impaired the performance of her duties as a

juror in accordance with her oath and the instructions of

the court. See Wainwright v. Witt, 469 U.S. 412 (1985):

Coleman v. State., 881 S.W.2d 344, 347-48 (Tex. Crim.

App. 1994), cert. denied, ___ U.S. ___, 115 S.Ct. 763

|2a

(1995). In reviewing such a point of error, we apply a

deferential standard because the trial court was in the

best position to evaluate the responses of the venire-

member. Coleman, supra.

The record reveals the following pertinent exchanges:

THE CourRT: Do you have any conscientious, reli-

gious, moral, or philosophical scruples against the

infliction of death as punishment in an appropriate

case?

[ VENIREMEMBER:] No.

[THE COURT:] You said no, you don’t. So do you

have any opposition to the death penalty?

{ VENIREMEMBER:] Religious beliefs. Thou shall not

kill.

[THE COURT:] Well, you're entitled to those; and

nobody is going to disagree with you.

* * *

What we don’t want is someone whose beliefs are

so strong that when they take an oath to foilow the

law and render a true verdict according to that law,

that it’s going to do violence to their conscience.

** *

So, [veniremember], only you know the answer to

this question. Are your religious beliefs so strong

that you could not follow the oath you would have

to take as a juror and render a true verdict according

to the law and the evidence and if the evidence

called for it, vote in such a way that it would result

in the death penalty?

een £0 OE Se 8 ee

l3a

I know that’s a mouthful. But did you understand

the question? Might have been too long.

[| VENIREMEMBER:] I could follow the law; but, like

I say, it’s just my religious belief. The law says one

thing, and the religious belief says another.

[THE COURT:] Could you then participate with 1]

other people in voting on these questions that we'll

go over, in voting in such a way that you know

would result in this defendant receiving a death sen-

tence if the evidence called for it?

[VENIREMEMBER:] If the evidence called for it, yes.

(THE STATE:] And when you filled out your ques-

tionnaire, you stated to Question 86 — .. . that: I'm

opposed to capital punishment under any circum-

stances.

Okay. Now, I take it, if you marked that, you had

a reason for marking it, correct?

[VENIREMEMBER:] Yes, I did.

[THE STATE:] That’s what you believe?

[ VENIREMEMBER:] Uh-huh.

* * *

[THE STATE:] In response to . . . Question No. 12,

you said: I do not believe in capital punishment

under any circumstance; and you checked that “dis-

agree.”

And then in response to 89, you said you don't

want to be a juror in this case because of your reli-

gious background, you don’t think that you could.

Ida

[ VENIREMEMBER:] Uh-huh, that’s what I stated.

[THE STATE:] Followed by 90 that states: My Bible

tells us thou shall not kill and this is my belief.

* e

And if you were seated on this jury with those

conflicts that you are having — I'm evidencing

right now that perhaps you are having some conflict

about this. Am I correct?

[ VENIREMEMBER:] If — if — if — yes.

[THE STATE:] And only if I'm correct, ma’am. Cer-

tainly. Nobody is here to try to persuade you or

make you participate in this. This is fully one where

you have an opportunity to say: No; that if I was

called upon to participate in this trial, that my belief

would substantially impair me from participating

and returning a verdict of death in this case even if

it was the right thing to do because of my religious

belief.

Is that the way you feel?

[ VENIREMEMBER:] Yes.

[THE STATE:] And you understand that I’m just a

mere mortal man. I don’t think I have the power of

persuasion and [ability to] cloud your mind like the

shadow could and get you to do my deed in light of

your religious belief. And if you were selected on

this jury, you would be more inclined to try to find

a way, if you did end up on this jury, in some man-

ner or form, you would try to find a way to come up

with a life sentence, would you not, if you were put

in that box?

{ VENIREMEMBER:] That's correct.

[THE STATE:] To be a juror would substantially

impair you from carrying out the law, following the

law in this case, because of your religious belief?

You answered yes to that at one time.

[VENIREMEMBER:] The reason I said yes is I have

just retired. And I worked with children, young

adults, and I worked with young adults which have

cancer. And my daughter died of cancer and that has

a total thing with me for — I would say just to be in

the situation like this, so I would rather not.

[THE STATE:] Well, one of the magic words, we

have to have you say on the record. If it would sub-

stantially impair you from doing your duty as a

juror, then you've met the qualification under the

law to be discharged.

Would it substantially impair you —

[ VENIREMEMBER:] Yes, it would.

Upon continued questioning by the parties and the court,

the veniremember continued to express her feelings that

she did not want to participate on this jury and that she

would be inclined to answer the punishment questions in

such a way that appellant would receive a life sentence.

Given the toiality of the voir dire, we cannot say that the

trial court abused its discretion in sustaining the State's

challenge for cause to the veniremember. Coleman,

Supra; see also Staley v. State, 887 S.W.2d 885 (Tex.

Crim. App. 1994). Point of error three is overruled.

16a

In his fourth point of error appellant claims the trial

court erred in overruling his Batson’ and Article 35.261°

challenges to the State's peremptory strike of venireper-

son R. Rodriguez. The record reveals that after the State

exercised its peremptory strike on the venireperson,

appellant stated, “we'll make a Batson challenge.”

Nowhere did appellant invoke the application of Article

35.261 or move for a dismissal of the array. Further-

more, appellant has not separately argued the protection

of 35.261 in his brief. Hence, we find any complaint as

to Article 35.261 has not been preserved for appellate

review. Camacho vy. State, 864 $.W.2d 524, 528 (Tex.

Crim. App. 1993), cert. denied, __ U.S. __, 114 S.Ct.

1339 (1994); Tex. R. App. Proc. 52(a).

With regard to appellant's Batson claim, we stated

in Satterwhite v. State, 858 S.W.2d 412, 423 (Tex.

Batson v. Kentucky, 476 U.S. 79 (1986).

. Article 35.261 prohibits the use of peremptory challenges on

racial grounds. It reads in pertinent part:

(a) After the parties have delivered their lists to the clerk

under Article 35.26 of this code and before the court has

impaneled the jury, the defendant may request the court to

dismiss the array and call a new array in the case. The court

shall grant the motion of a defendant for dismissal of the

array if the court determines that the defendant is a member

of an identifiable racial group, that the attorney representing

the state exercised peremptory challenges for the purpose of

excluding persons from the jury on the basis of their race,

and that the defendant has offered evidence of relevant. facts

that tend to show that challenges made by the attorney rep-

resenting the state were made for reasons based on race. If

the defendant establishes a prima facie case, the burden then

shifts to the attorney representing the state to give a racially

neutral explanation for the challenges. The burden of per-

suasion remains with the defendant to establish purposeful

discrimination.

17a

Crim. App.), cert. denied, ___ U.S. . 114 S.Ct. 455

(1993):

In order to invoke the protections set forth in Bar-

son, appellant must first raise an inference of pur-

poseful discrimination through the State's use of its

peremptory strikes. Once appellant has established

such purposeful discrimination, the burden of pro-

duction shifts to the prosecutor to come forward

with racially neutral explanations for the strikes.

Once the prosecutor has articulated racially neutral

explanations, the burden shifts back to the defendant

to persuade the trial court that the “neutral expla-

nation” for the strike is really a pretext for dis-

crimination. [Citations omitted.] This Court will

reverse the trial court's resolution of a Batson issue

only if the court's findings are found to be clearly

erroneous.

In the complained-of instance, appellant made a Batson

challenge and offered the veniremember’s questionnaire

as evidence. He noted that the veniremember stated that

he could basically look at both sides and was generally

in favor of the death penalty. After noting that this was

a Batson claim and not a Wainwright v. Witt claim,’ the

trial court held that a prima facie case had been estab-

lished. The prosecutor then gave the following race rea-

sons for striking Rodriguez:

My reason for striking Mr. Rodriguez is there was

a great deal of hesitation with his explanation on the

death penalty when he was speaking with you. He's

also for the death penalty without any compulsion

whatsoever if it happened to one of his relatives. I

still do not have a full understanding of his position

on the death penalty.

7 469 U.S. 412 (1985)

18a

With respect to the question I asked him, he gave

me a philosophical — he gave a theological and

Biblical and his own philosophy. One of the things

put me on edge, turning the cheek, you turning the

other cheek. That goes back to the philosophy if

you're slapped, you turn the other cheek.

I'm afraid he may be looking to turn the other

cheek in this case, and I don’t want it turned in my

favor.

The trial court accepted these reasons as race-neutral and

appellant made no attempt to rebut the explanations

given or otherwise explain why they \ ere only pretexts

for discrimination. A review of the eniirety of the

veniremember's voir dire reveals that the prosecutor's

reasons were supported by the record. Given this, we

cannot say that the judge’s ruling in this instance was

clearly erroneous. See Satterwhite, supra. Point of error

four is overruled.

In his eighth and ninth poinis of error, appellant

claims the trial court reversibly erred in granting school

exemptions for prospective jurors M. L. Lambeth and P.

S. Jolly. The August 11, 1994, voir dire of Lambeth

revealed that the venireperson had recently graduated

from Texas A & M University. However, she had also

completed one semester of Nursing School. Furthermore,

it was established that Lambeth was only on summer

break and had already enrolled in and paid for nine

hours of Nursing classes for the fall semester which

would commence on August 29, 1994. Because her

classes were scheduled to run every day of the week, and

because the trial was not scheduled to begin until

September 12, 1994, it was undisputed that the trial and

the classes would conflict.

19a

Tex. Gov't Code § 62.106 states that:

A person qualified to serve as a petit juror may

establish an exemption from jury service if he:

* +£

(4) is a person enrolled and in actual attendance at

an institution of higher education[.]

Even if Lambeth was not properly excused under this

section,* the judge properly excused her under Tex. Code

of Crim. Proc. Article 35.03.’ See Butler v. State, 830

S.W.2d 125, 131-132 (Tex. Crim. App. 1992); Harris v.

State, 784 S.W.2d 5, 18-19 (Tex. Crim. App.1989) , cert.

denied, 494 U.S. 1090 (1990).

Jolly’s voir dire also established that while she was

not in school at the time of her individual voir dire on

August 10, 1994, she had registered and paid for college

classes which she would attend, commencing August 29,

1994. Although Jolly testified that she might be able to

make up the classes she would miss due to the trial, she

was not sure about this and she did not want to get.

. Appeliant contends that she was not properly excused pur-

suant to this section because she was not attending classes at the time

of voir dire. However, we note that Gov't Code § 62.106 deals with

“jury service” and not voir dire. In the instant case, the venireperson

would be attending classes at the time of “jury service.”

Appellant also contends under this point that Nursing School is a

“technical” or “vocational” school and not an “institution of higher edu-

cation.” Given the disposition of the point of error, we need not address

this contention here.

% Article 35.03 states in pertinent part:

Sec. |. Except as provided by Sections 2 and 3 of this article,

the court shall then hear and determine excuses offered for

not serving as a juror, and if the court deems the excuse suf-

ficient, the court shall discharge the juror or postpone the

juror’s service to a date specified by the court.

20a

behind in her classwork. As with Lambeth, the trial

judge excused the potential juror pursuant to Tex. Gov't

Code § 62.106 as well as Tex. Code of Crim. Proc.

35.03. As with the previous point, we hold that, even if

the trial court erred in excusing the veniremember pur-

suant to Tex. Gov't Code § 62.106, she was properly

excused under Article 35.03. See Butler, supra; Harris,

supra. Points of error eight and nine are overruled.

II]. ADMISSION OF EVIDENCE

Appellant contends in his second point of error that

the trial court erred “in admitting into evidence the

appellant's written custodial statement obtained after his

unlawful arrest.” Appellant notes that he was arrested

pursuant to an arrest warrant. However, he states with-

out authority or analysis that the affidavit for the warrant

was insufficient on its face to provide probable cause to

arrest appellant. Hence, he concludes, appellant's state-

ment was the fruit of an illegal arrest and thus should not

have been admitted at trial. Appellant then proceeds to

argue why the taint from the arrest was not attenuated.'”

Appellant seems to be complaining that because the

affidavit on its face did not specifically tie appellant to

the two bodies found, it was insufficient to support prob-

able cause. We disagree. It is well-settled that, in deter-

mining the sufficiency of an affidavit for an arrest or

search warrant, a reviewing court is limited to the “four

corners of an affidavit.” Jones v. State, 833 S.W.2d 118,

123 (Tex. Crim. App. 1992), cert. denied, 507 U.S. 921

Because appellant has given us nothing more than his con-

clusory statement that the affidavit was insufficient to show proba-

ble cause, he has inadequately briefed this point of error. Tex. R. App.

Proc. 74(f). However, we have reviewed the affidavit in the interest

of justice.

we ee te ere ee oe te Cm

2la

(1993). However, this determination is not meant “to

place legalistic blinders on the process wherein a neutral

and detached magistrate must decide whether there are

sufficient facts stated to validate issuance of a proper

warrant.” /d. Rather, the warrant affidavit should be

interpreted in a common sense and realistic manner and

the reviewing magistrate is permitted to draw reasonable

inferences from the information contained therein. /d.

The affidavit in the instant cause reads as follows:

On June 28, [sic] 1993, your affiant [a homicide

investigator employed by the Houston Police

Department] personally went to a wooded area

within the vicinity of West 34th St. and T. C. Jester

in Houston, Harris County, Texas. At that location

your affiant observed the bodies of two females, one

of them was naked, and the other was partially

unclothed and both appearing to have been dead for

several days based upon the decomposition which

had taken place on their bodies. The amount of

decomposition which had taken place made the

identification of the bodies by physical features dif-

ficult, if not impossible. The bodies were removed

to the Harris County Morgue for complete autopsies

and for dental analysis and comparison with the

dental charts of two missing females, Jennifer Ert-

man and Elizabeth Pena.

Your affiant is personally aware that a report had

been made to the Houston Police Department that

Jennifer Ertman and Elizabeth Pena had been

reported missing since June 24, 1993. Your affiant

has personally read Houston Police Department

report number 66830993 which was prepared by R.

L. Curl of the Houston Police Department and

which states that on June 25, 1993, Randy Ertman

22a

called the Department to state that his daughter,

Jennifer Ertman and her friend, Elizabeth Pena were

last seen walking from a friends house at approxi-

mately 11:00 P.M. on June 24, 1993 and that they

said that they were going to take the short cut along

the railroad tracks which are near T. C. Jester and

West 34th and that they were going to go to Ert-

man’s apartment. He reported that his daughter nor

the other girl had been seen.

Your affiant is aware that an investigation had

begun by the Houston Police Department in order to

locate the two missing girls.

Your affiant is aware that on June 27, 1993 a man

called the Houston Police Department dispatcher

claiming to be Mr. Gonzalez [sic] and who told the

dispatcher a possible location where the bodies of

the two girls could be found. Your affiant is aware

that officers of the Houston Police Department were

sent to the location that “Mr. Gonzales” told them of

and the officers were unable to locate their bodies. ©

On June 24, [sic] 1993, the same person called back

claiming to be Mr. Gonzales and giving them a more

specific location where the bodies could be located.

He told the dispatcher that he had found the bodies

himself and wanted to let the police department

know. where the bodies were. On this occasion,

your affiant personally went to the location as given

to the dispatcher by “Mr. Gonzales” which was a

wooded area near the intersection of T. C. Jester and

West 34th St., Houston, Harris County, Texas. It

was at this time that your affiant observed the bod-

ies of the two girls. ~

23a

Later on June 24, [sic] 1993, your affiant received

information from officer Ken Weiner of the Houston

Police Department Crime Stopper Division. He told

your affiant that a female had called him telling him

that her sister told her that her husband's, the

caller's brother in law, brother had admitted to both

her sister and her sister's husband that he and sev-

eral other men had grabbed the two girls near the

railroad tracks which run near the intersection of T.

C. Jester and West 34th and that they raped and then

killed the two girls. Weiner told your affiant that the

caller left him her telephone number. Your affiant is

personally aware that Officer Todd Miller of the

Houston Police Department Homicide Division

called the telephone number and spoke with veron-

ica Barroso who told Miller that her sister and

brother in law are Christina and Joe Adam Cantu

and that they live at 1128 Ashland in Houston. She

further said that Christina told her that her brother

in law, Peter Cantu, and Joe Madellin both admitted

to both her and her husband Joe Adam Cantu that

they, along with some other men, saw the two girls

walking down the railroad tracks near T. C. Jester

and West 34th the night of June 24, 1993 and that

they all grabbed the girls, raped them and then

killed them.

Based upon the aforesaid, your affiant brought Joe

Adam Cantu to the offices of the Houston Police

Department Homicide Division on June 28, 1993 in

order to talk with him about this information. Cantu

gave a sworn affidavit to [Officer] Todd Miller in

which he states, under oath, that in the early morn-

ing hours of June 25, 1993, his brother, Peter Cantu,

who lives with him and his wife in the house on

Ashland St. came into the house along with Efrin

24a

Perez and another man whose name he did not

know. He said that Peter, Efrin, Jose Madellin and

the other man started telling him about two girls

that they raped and killed in the woods near the rail-

road tracks near West 34th and T. C. Jester. They

showed him jewelry that they had taken from the

girls and they admitted raping the two girls and then

killing them by strangling them and leaving the

bodies cut in the-woods. He then said that later a

black male who he knows as Derrick Shawn

O'Brien called his house and told him that he, too,

had participated in the rapes and the murder of the

two girls.

Your affiant has checked the records of the Houston

Police Department and learned that Joe Adam Cantu

has only one arrest for a Class C Misdemeanor

ticket but that he has no other arrests and is going to

school at this time and is close to graduating from

the school.

As of the making of this affidavit your affiant has

not learned from the Harris County Medical Exam-

iner’s Office as to the caused (sic] of death of either

of the two girls. Further, your affiant is not aware

that a positive identification has been made of the

two bodies but, based upon all of the information

that your affiant has gathered it is the opinion of

your affiant that the two bodies that were found this

morning are, in fact, the bodies of Jennifer Ertman

and Elizabeth Pena.

Based upon the admissions which were made by the

aforementioned Defendants to Cantu in which each

of the men stated that they each raped the two girls

and the fact that your affiant is personally aware,

based upon years of experience as a Homicide

25a

investigator for the Houston Police Department, it is

the opinion of your affiant that the DNA of each of

the men who raped, the girls will be present in fluid

samples extracted from the deceased girls during the

autopsies. Further, by taking blood and saliva sam-

ples from each of the Defendants upon their arrest it

will be possible for chemists to extract from those

samples the known DNA of each Defendant and to

then compare that with the DNA found from the

autopsies of the two dead girls which will be evi-

dence of the guilt of each defendant in these Capi-

tal Murder cases.

The affidavit contains facts which establish probable

cause. In short, the affidavit states that two girls had dis-

appeared on June 24, 1993, and were last known to be in

a specific area of Houston that evening. Pursuant to a tip

received by law enforcement personnel three days sub-

sequent to the girls’ disappearance, two female bodies

were discovered in the same area in which the girls were

last known to be. These bodies were determined to have

been deceased for several days. In calling the telephone

number left by the tipster, police officers located one Joe

Cantu who told them, under oath, that his brother, appel-

lant, and some others had come to his home in the early

morning hours of June 25, 1993, claiming to have just

raped and killed two girls in the precise area in which

the two girls had last been placed and the two female

bodies had been found.

Additionally, each individual cited within the affidavit

is identified by name, and some are also identified by

address. The majority of the facts contained in the affi-

davit were told either directly to the affiant, or to other

law enforcement personnel. Earhart v. State, 823 S.W.2d

607, 631 (Tex. Crim. App. 1991), vacated on other

26a

grounds, ___ U.S. ___, 113 S.Ct. 3026 (1993)!'': Wilk-

erson v. State, 726 S.W.2d 542 (Tex. Crim. App. 1986),

cert. denied, 480 U.S. 940 (1987). Hence, we hold that

the affidavit contained sufficient information with which

a detached magistrate could have found probable cause.

ld.

Because appellant was arrested pursuant to a lawful

arrest warrant, the trial court did not err in denying

appellant's motion to suppress his custodial statement.'*

Point of error two is overruled.

In supplemental points of error two-(A) through two-

(E), «ppellant claims the trial court abused its discretion

in determining his custodial statement was given inten-

tionally, knowingly, and voluntarily, in violation of the

Fifth, Sixth, and Fourteenth Amendments to the United

States Constitution; Article 1, §§ 10 and 19 of the Texas

Constitution; and Articles 38.22 and 38.23. Appellant

briefs all of these contentions together. Appellate urges

that we abandon our previous standard of reviewing vol-

untariness of a statement in favor of the standard set

forth in Clewis v. State, 922 S.W.2d 126 (Tex. Crim.

App. 1996). Appellant says that under this standard, we

would have to conclude that the trial court abused its

discretion in concluding his statement was voluntarily

made.

‘| Earhart was vacated by the United States Supreme Court

and remanded to: this Court in light of Johnson v. Texas, 509

____ U.S. ___., 113 S.Ct. 2658 (1993). The case was then reaffirmed

by this Court. Earhart v. State, 877 S.W.2d 759 (Tex. Crim. App.),

cert. denied, __. U.S. ___, 115 S.Ct. 431 (1994),

se To the extent appellant may otherwise be complaining that

his statement was not voluntarily given, he has not adequately set out

the issue in a-separate point of error or properly briefed it. Therefore,

any further claim as to appellant's statement will not be entertained

here. Tex. R. App. Proc. 74(f).

en ee

27a

At a hearing on a motion to suppress a defendant's

statement, the trial court is the sole judge of the credi-

bility of witnesses and the weight to be given their tes-

timony. Penry v. State, 903 S.W.2d 715, 744 (Tex. Crim.

App. 1995); Romero v. State, 800 S.W.2d 539, 543 (Tex.

Crim. App. 1990). Therefore, if the record supports the

trial court's findings, we will not disturb those findings.

Id. On appeal, we only consider whether the trial court

applied the law to the facts properly. /d. In Clewis, we

held that courts of appeals have jurisdiction to review

questions of fact, and in reviewing factual sufficiency of

the elements of the offense, the court of appeals “should

set aside the verdict only if it is so contrary to the over-

wheiming weight of the evidence as to be clearly wrong

and unjust.” 922 S.W.2d at 134-36.

We leave for another day whether we will extend

Clewis.'* Even if Clewis were applied to the facts of this

case, appellant would not be entitled to relief. After giv-

ing his written statement, appellant gave a tape recorded

Statement to another officer. This tape recorded state-

ment was not admitted into evidence and appellant does

not question its leyality. But appellant says the record-

ing reflects that he asked for an attorney and that this is

evidence that he had wanted an attorney at the time of

his written statement. While the tape is not made a part

of the record on appeal, the trial court made the fol-

lowing findings of fact regarding the taped conversation:

Officer C.C. Abbondandolo . . . conducted an oral,

taperecorded interview with the defendant.

'S See German v. State, No. 10-94-192-CR slip op. (Tex. App.-

Waco July 5, 1995) (do not publish), reh'g denied (Aug. 2, 1995) (do

not publish) pet. granted (PDR No. 1036-95 granted to determine

whether great weight and preponderance of evidence standard for fac-

tual sufficiency applies to trial court's ruling on mixed questions of

fact and law).

28a

Abbondandolo provided cigarettes to the defendant

and arranged for him to be served a meal, but the

defendant stated that he did not like the food and

declined to eat it.

Abbondandolo warned the defendant of his rights

pursuant to art. 38.22, 5 2, supra, and Miranda vy.

Arizona, supra. The appellant asked if an attorney

could be appointed immediately, and Abbondandolo

responded that if he wanted an attorney at that time,

they would have to terminate the interview.

The defendant indicated that he desired to continue

with the interview, and he voluntarily discussed the

rape and murder .

The fact that appellant requested an attorney during his

tape recorded statement does not render the trial court's

conclusions as to the voluntariness of his previous writ-

ten statement “so contrary to the overwhelming weight

of the evidence as to be clearly wrong and unjust.” It

does not strain credibility to believe that a defendant

might provide a written statement without invoking his

right to an attorney, but change his mind while giving a

second statement and request an attorney at that time.

Appellant contends his request for an attorney during the

taped conversation clearly indicates that he did not

understand his rights at the time of the written statement.

This, without more, does not follow. Therefore, even if

a Clewis standard were applied here, which we expressly

do not decide, appellant's claim would have no merit.

Appellant's points of error two- (A) through two-(E) are

overruled.

In his fifth point of error, appellant alleges the trial

court erred in admitting into evidence scene and autopsy

photographs of the two deceased victims because their

probative value was far outweighed by their prejudicial

ee a

29a

value in violation of Tex. R. Crim. Evid. 403. Appellant

recognizes that this Court has held that a photograph ts

generally admissible where a verbal description of the

same is admissible. Long vy. State, 823 S.W.2d 259, 270

(Tex. Crim. App. 1991). cert. denied, 505 U.S. 1224

(1992). But, he maintains that, in the instant case, the

photographs’ prejudicial value substantially outweighed

any probative value they may have had thus rendering

them inadmissible. In his point of error, appellant refers

to thirty-nine (39) different photographs, three (3) of

which appear to be scene photographs with the remain-

der being autopsy photographs of the two different vic-

tims.

Of the three photographs depicting the crime scene,

one shows both victims as their bodies appeared in rela-

tion to the surrounding environment. One of the remain-

ing two photographs shows a close-up shot of one of the

victims in the position in which she was found while the

other photograph shows the second victim as she was

found. Although these photographs are gruesome, they

are highly probative in reflecting the nature and scene of

the crime and the extent of some of the victims’ injuries.

Barnes v. State, 876 S.W.2d 316, 326 (Tex. Crim. App.),

cert. denied, ___ U.S. __., 115 S.Ct. 174 (1994).

With regard to the autopsy photographs, the medical

examiner told the trial court that she needed all of the

phatographs to testify to the nature and extent of the

injuries inflicted. While these photographs are also

grotesque and depict extensive environmental deterio-

ration of the subject pictured, they are probative in

reflecting the nature of the crime in the context in which

it occurred and the extent of some of the injuries. This

visual evidence was also probative of the perpetrator’s

state of mind and intent during the commission of the

crime due to the nature and extent of the injuries

inflicted. Given the totality of the evidence, we cannot

say that the trial court abused its discretion in finding

that the prejudicial effect of the photographs, if any, did

not outweigh their probative value. Point of error five ts

overruled

Finding no reversible error, we affirm the judgment of

the trial court

MEYERS, J

Delivered March 19, 1997

Do Not Publish

En Banc

31a

Appeal from Harris County

No. 71.997

JOSE ERNESTO MEDELLIN,

Appellant

THE STATE OF TEXAS.

Appeliec

CONCURRING OPINION

I concur in the result as to appellant's supplemental

points of error, and otherwise join the opinion of the

Court. However, I would directly address the merits of

appellant's supplemental points of error and make clear

to the, bench and bar that Clewis v. State, 922 S.W.2d

126 (Tex.Cr.App. 1996), has no application in reviewing

a trial court's determination of a motion to suppress.

McCormick, Presiding Judge

(Delivered March 19, 1997)

En Banc

Do Not Publish

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

No. 50.191-0!

EX PARTE JOSE ERNESTO MEDELLIN

HABEAS CORPUS APPLICATION

FROM HARRIS COUNTY

The order was entered per curiam.

ORDER

This is an application for writ of habeas corpus filed

pursuant to the provisions of Art. 11.071, V.A.C.C.P.

On September 16, 1994, a jury found applicant guilty

of capital murder. The jury returned answers to the pun-

ishment phase special issues and the trial court assessed

punishment at death. This Court affirmed applicant's

conviction on direct appeal. Medellin v. State. No.

71,977 (Tex.Cr.App. delivered March 19, 1997).

In the instant cause, applicant presents five allegations

challenging the validity of his conviction and resulting

sentence. The trial court has entered findings of facts

33a

and conclusions of law recommending the relief sought

be denied.

This Court has reviewed the record. The trial court's

findings and conclusions are supported by the record and

upon such basis the relief sought by the applicant is

denied.

IT IT SO ORDERED THIS 3RD DAY OF OCTOBER.

2001

Do Not Publish

34a

IN THE 339TH DISTRICT COURT OF

HARRIS COUNTY, TEXAS

Cause No. 675430-A

EX PARTE

P JOSE ERNESTO MEDELLIN.

Applicant

RESPONDENT'S PROPOSED FINDINGS OF

FACT, CONCLUSIONS OF LAW AND ORDER

The Court, having considered the applicant's appli-

cation for writ of habeas corpus, the Respondent's Orig-

inal Answer, the evidence elicited at the applicant's

capital murder trial in cause no. 675430, affidavits sub-

mitted in cause no. 675430-A, and official court docu-

ments and records, makes the following findings of fact

and conclusions of law:

FINDINGS OF FACT

|. The applicant, Jose Ernesto Medellin, was indicted

and convicted of the felony offense of capital murder in

cause no. 675430 in the 339th District Court of Harris

County, Texas.

ae — oe wel

3Sa

2. The applicant was represented during trial by coun-

sel lack Millin, now deceased, and Linda Mazzagatti.

3. On September 20, 1994, the trial court assessed the

applicant's punishment at deain by lethal injection after

the jury affirmatively answered the first two special

issues and negatively answered the third special issue.

4. The Court of Criminal Appeals affirmed the appli-

cant’s conviction in an unpublished opinion delivered

March 19, 1997. Medellin v. State, No. 71,997 (Tex.

Crim. App. Mar. 19, 1997) (not designated for publica-

tion).

First Ground—ineffective assistance of appellate

counsel re Batson claim: Fourth Ground—Batson

claim:

5. The Court finds that, during the State's voir dire

examination of prospective juror Elizabeth Ann Berry,

she stated that both of her brothers had been arrested for

drug-related offenses; that both have had a “number of

cases;” that one was “serving time now,” that they had

been in and out of the prison system often in the last five

or Six years; and, that the cases were prosecuted in Har-

ris County (R. XX - 181-2).

6. The Court finds that, on the juror questionnaire,

prospective juror Elizabeth Berry described a defense

attorney as the underdog, always fighting, and a prose-

cutor as “on the attack” (R. XX - 184).

7. The Court finds that the State exercised a peremp-

tory strike at the conclusion of the voir dire examination

of prospective juror Elizabeth Berry, and the applicant

made a Batson challenge (R. XX - 226).

36a

8. The Court finds that the trial court requested that

the State, “regardless of a prima facie showing,” offer an

explanation for the strike of prospective juror Elizabeth

Berry, and that the State explained that the strike was

based upon Berry having two brothers involved in drugs

and serving time in prison; that one brother had been in

prison on numerous occasions; and, that one brother was

presently on parole and the other brother was presently

in custody (R. XX - 227-8).

9. The Court finds that the State, in explaining its

strike of prospective juror Elizabeth Berry, noted Berry's

characterization of the prosecution as on the attack and

the defense as the underdog and stated that, as a result,

the State would have the perception during the trial that

Berry viewed the applicant as the underdog and the

prosecutor as a “wild mongrel” on the attack (R. XX -

228).

10. The Court finds that the State, via prosecutor Mark

Vinson, stated that he had an appreciation of blacks serv-

ing On juries, because he was a black male who grew up

during the 1940's, 50°s, 60°s, 70°s, 80's, and 90°s (R. XX

- 229).

11. The Court finds that the trial court stated that it

did not believe that a prima facie showing had been

made at that time, but the trial court found that the

State's reasons for striking prospective juror Elizabeth

Berry were race-neutral based on Berry's demeanor and

her responses and her juror questionnaire (R. XX - 230).

12. The trial court denied the applicant's Batson

motion and informed the applicant that the court would

reconsider the motion if the applicant wanted to reurge

it at the end of jury selection (R. XX - 230).

ee eee

37a

13. The Court finds that the trial court noted, after

denying the applicant's Batson challenge, that the jury

was then composed of nine people, including a black

female, a black male, an Hispanic male, and an Hispanic

female; that there was no indication of gender bias; and,

that the jury composition at that time was a black

female, two white females, an Hispanic female, an His-

panic male, two white males, and a black male (R. XX -

230-1).

14. The Court finds that, during the State's voir dire

examination of prospective juror Rafael F. Rodriguez,

the State noted that there was hesitation on Rodriguez's

part regarding the death penalty when questioned by the

trial court and Rodriguez stated that he had not given the

death penalty much thought (R. XXI - 71).

15. The Court finds that, during the State's voir dire

examination of prospective juroz Rafael Rodriguez, his

responses concerning his thoughts on the death penalty

were unclear and ambiguous (R. XXI - 90, 92-6).

16. The Court finds that, at the conclusion of the voir

dire of prospective juror Rafael Rodriguez, the State

exercised a peremptory strike on Rodriguez and the

applicant made a Batson challenge, noting that the appli-

cant and Rodriguez are both Hispanic (R. XXI - 115-6).

17. The Court finds that, at the conclusion of the

State's voir dire of prospective juror Rafael Rodriguez

and after the applicant's Batson challenge, the trial court

made a finding of a prima facie case, and the State gave

the following explanations for the peremptory strike of

Rodriguez: that he had a great deal of hesitation when he

was talking about the death penalty with the trial court;

that the State still did not have a full understanding of

Rodriguez's position on the death penalty; and, that

38a

Rodriguez had stated that he was absolutely in favor of

the death penalty without any compunctions if the victim

were a relative of Rodriguez (R. XXI - 117).

18. The Court finds that the State also noted that

prospective juror Rafael Rodriguez's theological and

philosophical reply during voir dire examination con-

cerning “turning the other cheek” indicated that

Rodriguez would be “looking to turn the other cheek in

this case...” (R. XXI - 118).

19. The Court finds that the trial court found that the

State's explanation for the peremptory strike of prospec-

tive juror Rafael Rodriguez was a racially neutral expla-

nation and the trial court denied the applicant's Batson

challenge (R. XXI - 118).

20. The Court finds that the applicant, on August 17,

1994, presented a written motion to strike the jury panel

based, in part, on the State’s exercising thirteen pre-

emptory strikes against the following prospective jurors,

as noted by the applicant: (1) Kirven O'Neal Tillis,

black male; (2) Mary Freeman, white female; (3) Kathy

Felder, black female; (4) Bernard Richardson, black

male; (5) Walter Wynn Martin, white male; (6) Andra

McCoy, black male; (7) Marie Clark, white female; (8)

Vastine Dickie, black male; (9) Christine Rossi, white

female; (10) Raford Earl Gresham, white male; (11) Por-

firio Rodriguez, Jr., Hispanic male; (12) Elizabeth Ann

Berry, black female; and (13) Rafael Rodriguez, His-

panic male (R. I - 264-5) (R. XXVI - 11).

21. The Court finds that, on August 17, 1994, the

applicant presented the following argument in support of

its motion:

ee ee ee ee

39a

And the State exercised six of it’s (sic) peremptory

challenges against black venire members and eight

of it’s (sic) peremptory challenges against males and

the State exercised two of it’s (sic) peremptory chal-

lenges against Hispanic male venire members. And

this also includes a Batson Challenge. And, of

course, the Court — I agree that whatever Batson

challenges weré preserved during the proper objec-

tion at the time would be the Batson Challenges that

would be considered. But we are bringing to the

Court's attention that these persons have been struck

and that we would suggest to the Court that it’s a

prima facie case of discrimination for the State's use

of peremptory challenges and we would suggest to

the Court that the motion — that our Motion to Strike

the Panel be also granted on this premise.

[R. XXVI - 11-2).

22. The Court finds that the State, in response to the

applicant's August 17, 1994 argument in support of the

applicant's motion to strike the panel, informed the trial

court that the record reflected that the final jury was a

“melting jury” and that the thirteen noted peremptory

strikes were racially neutral (R. XXVI - 12-3).

23. The Court finds that the trial court denied the

applicant's motion to strike the jury panel by written

order on August 19, 1994 (R. I - 267).

24. The Court finds that the State exercised thirteen

peremptory strikes and that a review of the State's

peremptory strikes, as noted in the applicant's motion to

strike the jury panel, shows that the State struck three

white females and two white males, comprising almost

fifty percent of the State's thirteen total peremptory

strikes (R. I - 264-5) (R. XXVI - 11-2).

40a

25. The Court finds, based on personal recollection,

that the prosecutor in the applicant's case was also the

prosecutor in the 1993 Harris County capital murder trial

of Kenneth Wayne Morris; that the trial judge in the

applicant's case and the trial judge in Kenneth Wayne

Morris’ case was the same person; that the prosecutor

offered an explanation for a peremptory strike during

jury selection in Kenneth Wayne Morris’ case; that the

trial judge found the prosecutor's explanation to be

racially neutral in Kenneth Wayne Morris’ case; and,

that the trial judge noted in Kenneth Wayne Morris’ case

that the same prosecutor had tried a capital case three

months earlier and that there were either three or four

black jurors. See Volume 4, page 115, appellate record of

The State of Texas v. Kenneth Wayne Morris, cause no.

597997.

26. The Court finds that the Court of Criminal

Appeals, on direct appeal of the capital murder convic-

tion of Kenneth Wayne Morris, overruled Morris’ claim

that the trial court improperly based her ruling on the

absence of purposeful discrimination by the same pros-

ecutor in another criminal trial and stated, “A ruling on

a Batson objection is a credibility determination.

Because the trial judge determines the issue of the pros-

ecutor’s credibility, it is not error for the court to con-

sider its past experiences with a prosecutor in

determining his credibility.” Morris v. State, 940 S.W.2d

610, 612 (Tex. Crim. App. 1996).

Ne te ee el

4la

First Ground - ineffective assistance of appellate

counsel re Motion to Preclude State from Seeking

Death Penalty:

27. The Court finds that the applicant, prior to trial,

filed a written motion too preclude the State from seek-

ing the death penalty and that the clerk’s file-mark on

the face of the motion notes that the motion was filed at

2:00 p.m. on July 29, 1994 (R. 1 - 95-107).

28. The Court finds that the face of the applicant's

written motion to preclude the State from seeking the

death penalty shows the following stamp:

On The Record

Date: 9/9/94

Ct. Reporter: Wong Lee

(R. 1 - 108).

29. The Court finds that the written order accompa-

nying the applicant's motion to preclude the State from

seeking the death penalty is signed by the Honorable

Caprice Cosper, the presiding judge of the 339th District

Court and that there are initials placed on the line next to

“GRANTED” (R. 1 - 108).

30. The Court finds, based on the appellate record,

that the trial court ruled on pre-trial motions and ver-

bally denied the applicant's objection to preclude the

State from seeking the death penalty (R. XXVII - 9).

31. The Court finds, based on its personal recollection,

that the written order notation on the applicant's motion

to preclude the State from seeking the death penalty is

an inadvertent error.

32. The Court finds that the applicant's written motion

to preclude the State from seeking the death penalty and

its accompanying order were a request for the trial court

42a

to preclude the State from seeking the death penalty, not

a motion requesting that the State be precluded from car-

rying out a constitutionally valid death sentence after

such sentence is assessed.

33. The Court further finds, based on the applicant's

trial in which the State sought the death penalty and on

the applicant's resulting death sentence, that the inad-

vertent error on the written order accompanying the

applicant's motion to preclude the State from seeking the

death penalty was rendered moot by the applicant's trial

and subsequent sentence of death.

Second Ground—ineffective assistance of counsel re

contacting probation officer:

34. The Court finds that evidence was presented dur-

ing the guilt-innocence phase of the applicant's trial:

showing that the applicant and his co-defendants, Peter

Cantu, Efrain Perez, Derrick Sean O'Brien, and Raul

Villarreal, took turns sexually assaulting the complainant

and Jennifer Ertman (R. XXXII -948-9); that the appli-

cant participated in the strangulation deaths of the com-

plainant and Ertman after the repeated sexual assaults

(R. XXXII - 949); that the applicant afterwards laughed

and bragged about his part in the sexual assaults and

murders (R. XXIX - 389-90); that the applicant said that

he “fucked one of the girls in the pussy” and then

“fucked her in the ass ;” (R. XXIX - 391-2); that the

applicant said that he made one of the girls give him a

“blow job” and that he hit her on the top of her head

when she would not close her mouth (R. XXIX - 395,

425); and, that the applicant later showed Christina

Cantu his underwear with blood on it and stated that he

could not believe that one of the girls was telling the

truth when she said that she was a virgin; that the appli-

43a

cant, who admitted having sex with both girls, seemed

proud that he “opened” the girl who was a virgin, and

that he “dirtied” the inside of the girl when he was first

entering her; that the applicant said they had fun; and,

that the applicant took part of the property stolen from

the murdered girls (R. XXIX - 393-4, 397-401, 405, 422,

424-5) (R. XXX - 477-8, 533-4).

35. The Court finds that, during the punishment phase

of the applicant's trial, the State presented evidence that

the applicant was suspended from school at the age of

fourteen in 1990; that he was placed in an alternative

school for repeated misbehavior and misconduct; and,

that he was not able to function at the alternative school

and was expelled from the school district for the remain-

der of the school year (R. XXXIV - 76-8).

36. The Court finds that, during the punishment phase

of the applicant's trial, the State further presented evi-

dence that the applicant called a female teacher a whore,

used profanity and defied the rules (R. XXXIV - 7-13).

37. The Court finds that, during the punishment phase

of the applicant's trial, the State presented evidence that

the applicant made threats of physical violence toward

two adult principals when the applicant was a sixteen-

year old student in 1992; that he was confrontational,

aggressive, and physically resisted the principals when

they attempted to calm the applicant; that he screamed

profanities at another student; and, that the applicant

stated that life did not mean anything to him; he would

be on television or in the newspaper for killing someone

and jail did not scare him (R. XXXIV - 17-64).

38. The Court finds that, during the punishment phase

of the applicant's trial, the State presented evidence that

the applicant had been suspended several times from

44a

school by 1992; that he was expelled from school after

being in a gang-related fight; and, that the applicant

never altered his behavior while attending school before

he was permanently removed (R. XXXIV - 64-9).

39. The Court finds that, during the punishment phase

of the applicant's trial, the State presented evidence that

the applicant was referred as a juvenile on a weapons

charge after he was detained as a result of an auto theft

and after he was found in possession of a .38 revolver on

January 4, 1992 (R. XXIV - 110-54), and that the appli-

cant was charged with the offense of carrying a weapon

on July 18, 1992, after a .38 weapon was found partially

under the applicant's car seat on the floorboard of the

car next to two live rounds of .38 SP ammunition, a

more powerful round than a normal .38 round (R.

XXXIV - 179-81)

40. The Court finds that, during the punishment phase

of the applicant's trial, the State presented evidence that

the police talked to the applicant outside of the emer-

gency room at Memorial Northwest Hospital after the

applicant and Peter Cantu accompanied the gunshot

Efrain Perez to the hospital on June 6, 1993; that the

applicant and Cantu were uncooperative, belligerent,

abusive, sarcastic and vulgar; and, that the applicant

changed his story concerning the shooting several times

(R. XXXIV - 197, 216-8).

41. The Court finds that, during the punishment phase

of the applicant's trial, the State presented evidence that

a shank was found during a search of the applicant's

one-man cell in the Harris County Jail on July 1, 1993

(R. XXXIV - 84-90), and that an L-shaped metal pipe,

capable of causing serious bodily injury and death, with

a sharpened end was also found in the mattress in the

applicant's lock-down cell (R. XXXIV - 225-7).

45a

42. The Court finds, based on the appellate record,

that information, if any, that the applicant was punctual

for appointments with his juvenile probation officer and

did not cause his probation officer any problems is

inconsequential in light of the overwhelming evidence of

the applicant's prior history and in light of the brutality

of the offense which the applicant committed.

43. The Court finds, based on the appellate record,

that information, if any, that the applicant presented no

problems for his probation officer does not establish that

the applicant does well when supervised and does not

establish that such evidence is indicative of the appli-

cant’s expected behavior in prison if he received a life

sentence, in light of the extensive evidence showing the

applicant's repeated illegal activities and inability to

function in structured environments, including jail.

Second Ground—ineffective assistance of counsel re

parole eligibility instruction:

44. The Court finds that, during the applicant's trial,

trial counsel stated that counsel did not want the trial

court to inform the jury of the applicant's parole eligi-

bility in the event of a life sentence because counsel's

previous experience in capital cases showed that polled

jurors thought that a life sentence was truly a life sen-

tence (R. V. XXVII - 12-3).

45. The Court finds that the issue of parole eligibility

was not a matter for the jury's consideration at the time

of the applicant's September, 1994 capital murder trial,

and the trial court was not required to instruct the jury

concerning parole eligibility in a capital case. Martinez

v. State, 924 S$.W.2d 693 (Tex. Crim. App. 1996);

Rhoades v. State, 934 S.W.2d 113 (Tex. Crim. App.

46a

1996) (citing Smith v. State, 898 S.W.2d 838, 846 (Tex.

Crim. App. 1995)).

Third Ground—Vienna Convention:

46. The Court finds that the applicant did not object

pre-trial or during trial to any violation of the Vienna

Convention on Consular Relations which grants a for-

eign national who has been arrested, imprisoned or taken

into custody a right to contact his consulate and requires

the arresting government authorities to inform the indi-

vidual of this right “without delay.” Vienna Convention,

art. 36(1) (b), 21 U.S.T. at 100-101; 595 U.N.T.S. at 292.

47. The Court finds that testimony during the appli-

cant’s trial and the applicant's statement reflect that the

applicant was born in Mexico, but lived most of his life

in the United States; that he spoke, read and wrote the

English language; that he attended Houston public

schools beginning with elementary school; that he ini-

_ tially did well in elementary school; that his family and

friends lived in the United States; that his father had

been gainfully employed since his arrival in the United

States; that his mother was presently employed; and that

the applicant had been employed in the United States

while going to Houston schools (R. XXXV - 279-92) (R.

XXX - 652, 670).

48. The Court finds that the applicant's father testified

that they had lived in the United States for fifteen years

and that both he and the applicant's mother had a “green

card” (R. XXXV - 279-80, 288).

49. The Court finds that the applicant's school records

contain the notation “516396627” under social security

number for the applicant.

47a

50. The Court finds, based on the appellate record,

that there was no testimony presented during the appli-

cant’s trial that he was not a United States citizen; that

the applicant told anyone during his detention that he

was a Mexican national; that he requested assistance

from the Mexican consulate; or, that he was prevented

from requesting assistance from the Mexican consulate.

51. The Court finds that it is a reasonable inference

that the applicant was familiar with the laws and pro-

cedures of the country and state in which he had lived

almost his entire life and that the applicant was familiar

with the criminal justice system based on his prior crim-

inal history. ,

52. The Court finds that the applicant was informed of

his Miranda rights prior to giving a statement admitting

participation in the offense (R. XXX - 633-40) (R.

XXXII - 942-5).

53. The Court finds that the Court of Criminal Appeals

has held that a defendant does not have standing to

advance a claim that his death sentence violated the

United Nations Charter, stating that “...treaties operate

as contracts among nations. Therefore, it is the offended

nation, not an individual, that must seek redress for a

violation of sovereign interests.” Hinojosa v. State, No.

72,932 (Tex. Crim. App. Oct. 27, 1999).

54. The Court finds that the Court of Criminal Appeals

has also held that treaties do not constitute “laws” for

the purposes of TEX. CODE CRIM. PROC. art. 38.23;

specifically, that “the Vienna Convention Treaty illus-

trates well the proposition that Article 38.23 is not a

suitable enforcement mechanism for international

treaties.” Rocha v. State, 16 S.W.3d 1, 19 (Tex. Crim.

App. 2000).

48a

55. The Court finds that federal courts have found that

a violation of the provisions of the Vienna Convention

will not require reversal of a criminal conviction or other

judgment, in the absence of a showing that the defendant

was actually harmed by the violation. Faulder vy.

Johnson, 81 F.3d 515, 520 (Sth Cir. 1996), cert. denied,

__ U.S. _.. 117 S. Ct. 487 (1997); United States v.

$69,530.00 in United States Currency, 22 F.Supp.2d 593,

595 (W.D.Tex. 1998).

Fifth Ground—Brady issue:

56. The Court finds that, during the guilt-innocence

phase of the applicant's trial, the State presented testi-

mony from Joe Cantu, the brother of the applicant's co-

defendant Peter Cantu, and from Christina Cantu, Joe

Cantu’s wife, about the admissions the applicant made

concerning his part in the capital murder (R. XXIX -

366-373, 383-425) (R. XXX - 490-540).

57. The Court finds, according to the credible affidavit

of Gail Hays, Harris County District Attorney's Office

Investigator, that Hays was assigned as an investigator

to the 263rd District Court during 1994; that Assistant

District Attorney Marie Munier was the chief of the

263rd District Court and was the prosecutor in the trial

of the applicant's co-defendant Efrain Perez at that time;

that Hays talked with witnesses Christina and Joe Cantu;

that Hays made no deals or agreements with Christina

and Joe Cantu in exchange for their cooperation or tes-

timony as witnesses; that Hays did not promise the Can-

tus any reward money in exchange for their cooperation

or testimony; and, that Hays did not promise “protec-

tion” to either Christina or Joe Cantu.

49a

58. The Court further finds, according to the credible

affidavit of Gail Hays, that Hays was aware that

Christina Cantu was pregnant, but Hays was not aware

of any miscarriage and was never informed of any

alleged beating of Christina Cantu; that Hays became

aware that Joe Cantu had been arrested prior to trial

when Christina Cantu telephoned Hays and gave her

such information; that Hays’ understanding was that Joe

Cantu made a statement about “blowing up” his place of

employment after having an argument at work and Joe

Cantu was subsequently arrested; that Hays informed

Assistant District Attorney Marie Munier of Joe Cantu’s

arrest either the night Hays learned he had been arrested

or the next business day; that Hays had no knowledge of

any events concerning Joe Cantu’s arrest after that time;

that Hays did not recommend a lawyer or give any

lawyer's name to either Joe or Christina Cantu; that

Hays made no promises concerning Joe Cantu's case;

and, that Hays was not aware of the disposition of Joe

Cantu’s arrest until December, 1999.

59. The Court finds, according to the credible affidavit

of Harris County Assistant District Attorney Marie

Munier, the prosecutor in the case of the applicant's co-

defendant Efrain Perez, that Munier learned that Joe

Cantu had been arrested prior to trial; that Munier has no

specific recollection of informing Assistant District

Attorneys Mark Vinson or Terry Wilson of Joe Cantu’s

arrest; that Munier made no deals or agreements with

Joe or Christina Cantu involving their testimony in the

trials or involving Joe Cantu’s arrest; that Munier took

no action involving Joe Cantu’s arrest or the disposition

of his case; that Munier was aware that Joe Cantu’s case

was dismissed prior to the trials of the applicant and co-

defendant Efrain Perez; that Munier made no promises

or assurances to either Joe or Christina Cantu concern-

50a

ing any reward money in exchange for their cooperation

or testimony; Munier was aware that Christina Cantu

was pregnant, but Munier was not aware of any miscar-

riage; and, that Munier was never told of any alleged

beating of Christina Cantu.

60. The Court finds, according to the credible affidavit

of Harris County Assistant District Attorney Mark Vin-

son, the prosecutor in the applicant's capital murder

trial, that, Vinson did not make any deals or agreements

with Joe-or Christina Cantu involving their testimony in

the trials; that Vinson did not promise or assure either

Joe or Christina Cantu that they would receive any

reward money in exchange for their cooperation and tes-

timony; that Vinson has no specific recollection of being

aware of either Joe Cantu’s 1994 arrest for a misde-

meanor offense or the disposition of Joe Cantu’s case;

that Vinson had nothing to do with the disposition of Joe

Cantu’s case; that Vinson has a slight recollection of

being aware that Christina Cantu was pregnant, but he

was never aware of any miscarriage; and, that Vinson

was never told of any alleged beating of Christina Cantu.

61. The Court finds, based on official court records,

that a complaint against Joe Cantu for the misdemeanor

offense of terroristic threat, cause no. 9425339, Harris

County Court at Law # 13, was dismissed on August 4,

1994, based on insufficient evidence; that trial testimony

began in the applicant's case on September 12, 1994 (R.

XXVIII - 34); and, that Joe Cantu testified in the appli-

cant’s case on September 14, 1994 (R. XXX - 490-577).

See attached complaint and motion to dismiss, cause no.

9425339,

62. The Court finds, based on the credible affidavit of

Harris County Assistant District Attorney Joni Vollman,

that Vollman was the chief prosecutor in Harris County

FO te EE ee Pe ee

Sla

Court at Law #13 in August, 1994; that Vollman signed

the motion to dismiss contained in the clerk's file in the

State of Texas v. Joe Cantu, cause no. 9425339, in which

Cantu was charged with the misdemeanor offense of ter-

roristic threat; that Vollman has no specific recollection

as to the facts of the case in cause no. 9425339; that

Vollman had some awareness that Joe Cantu was related

to the defendant Peter Cantu, one of the defendant's in

Elizabeth Pena and Jennifer Ertman’s murders; that Voll-

man’s vague awareness about this relationship did not

influence Vollman’s dismissal of the charges against Joe

Cantu in cause no. 9425339; that Vollman would have

specifically remembered if anyone in the Harris County

District Attorney's Office had approached her, request-

ing, suggesting, or ordering that charges be dismissed

against Joe Cantu; that Vollman states with certainty that

she has no such recollection; and, that the charges

against Joe Cantu in cause no. 9425339 were dismissed

based on insufficient evidence. See attached March 1,

2000 affidavit of Joni Vollman.

CONCLUSIONS OF LAW

First Ground—ineffective assistance of appellate

counsel re Batson claim: Fourth Ground—Batson

issue:

1. The trial court properly found that the State's

explanations that the State exercised a peremptory strike

against prospective juror Elizabeth Berry based on her

two brother's criminal history, including one of the

brother's being on parole and the other brother being

incarcerated, and based on Berry's perception of the

applicant being the underdog and the prosecutor being

the attacker were racially neutral explanations logically

S2a

related to the instant case. See Harris v. State, 827

S.W.2d 945, 955 (Tex. Crim. App. 1992) (holding that

prosecutor's explanation in capital case that he struck

venireperson because her brother was on probation for

burglary was racially neutral).

2. The trial court properly found that the State's expla-

nation that the State struck prospective juror Rafael

Rodriguez, in part, because the State still did not have a

full understanding of Rodriguez's position on the death

penalty is supported by the ambiguity of Rodriguez's

cited voir dire statements about the death penalty, and

the State’s explanation that the State feared that

Rodriguez believed in “turning the other cheek” was a

racially neutral explanation which does not violate the

precepts of Batson vy. Kentucky, 476 U.S. 79, 106 S.Ct.

1712 (1986); see Cantu v. State, 842 S.W.2d 667, 688-9

(Tex. Crim. App. 1992) (holding that trial court's find-

ing that prosecutor’s reasons for striking prospective

juror were racially neutral where prosecutor stated that

strike was based, in part, on prospective juror’s volun-

teer work indicating that she would be “kind-hearted” );

see also Lewis v. State, 911 S.W.2d 1, 4 (Tex. Crim. App.

1995) (holding that prosecutor could exercise peremp-

tory strikes against two prospective jurors who were not

in favor of death penalty as long as strikes not made in

racially discriminatory manner).

3. The applicant, in his written motion to strike the

jury panel, fails to establish a prima facie case of pur-

poseful discrimination in the State's peremptory strikes.

Harris, 827 S.W.2d at 955 (holding that defendant, in

order to establish prima facie case, may rely on fact that

peremptories constitute jury selection practice that

allows those to discriminate who are of mind to dis-

criminate, and defendant must show this fact and other

53a

relevant circumstances raise inference that peremptories

were exercised to exclude prospective jurors on basis of

race).

4. In the alternative, the trial court properly found that

the State's explanations for striking specific jurors were

racially neutral. Wheatfall v. State, 882 S.W.2d 829, 835

(Tex. Crim. App. 1994) (holding State has burden to pre-

sent neutral explanation for strike); see also Trevino v.

State, 864 S$.W.2d 499, 500 (Tex. Crim. App. 1993)

(holding State's explanation for strike does not have to

rise to level needed to justify challenge for cause).

5. The applicant fails to show that the trial court's

decision that the State's strikes were racially neutral was

clearly erroneous. /d. (holding appellate court may not

reverse trial court's decision that State's strike is racially

neutral unless trial court’s decision is clearly erroneous

and trial court's choice of interpretation may not be

found to be clearly erroneous when evidence is suscep-

tible to two reasonable interpretations and trial court's

decision is in accord with one of these two interpreta-

tions).

6. The applicant fails to show that the trial court erred

in allegedly failing to grant a Batson hearing, and the

applicant fails to show that his rights under the equal

protection clause, U.S. CONST. amend. XIV, were vio-

lated.

7. The applicant fails to show that appellate counsel is

ineffective for not presenting on direct appeal the claim

that the trial court allegedly erred in finding that the

State gave race neutral reasons for peremptory strikes

and in allegedly not granting a Batson hearing. The

applicant fails to show that, but for appellate counsel's

alleged error, the results of the proceeding would have

S4a

been different. Ex parte Butler, 884 S.W.2d 782, 783

(Tex. Crim. App. 1994) (holding that Strickland standard

applies to appellate counsel as well as trial counsel).

First Ground—ineffective assistance of appellate

counsel re Motion to Preclude State from Seeking

Death Penalty:

8. The applicant fails to show that appellate counsel is

ineffective for not advancing the meritless claim that the

trial court allegedly erred in orally denying the appli-

cant’s Motion to Preclude State from Seeking the Death

Penalty when the trial court allegedly granted the same

written motion. See Butler, 884 S.W.2d at 783; see also

Kinnamon vy. State, 791 S.W.2d 84, 97 (Tex. Crim. App.

1990) (counsel not ineffective for failing to request jury

charge on lesser-included of murder when the evidence

did not support such charge).

Second Ground—ineffective assistance of counsel re

contacting probation officer:

9. The applicant fails to show deficient performance,

much less harm, in trial counsel's not contacting pro-

bation officer Guerra and not presenting punishment evi-

dence that the applicant was allegedly punctual for

appointments with his probation officer and that the

applicant allegedly presented no problems for his pro-

bation officer, in light of the overwhelming evidence of

the brutality of the applicant's crime, the applicant's past

illegal activities, and the applicant's inability to function

in the structured environments of school and jail. Strick-

land v. Washington, 466 U.S. 668, 104 S.Ct. 2052

(1984).

5Sa

Second Ground—ineffective assistance of counsel re

parole eligibility instruction:

10. The trial court properly did not instruct the jury as

to parole eligibility and defense counsel properly did not

voir dire on the issue of parole eligibility. See Martinez

v. State, 924 S.W.2d 693 (Tex. Crim. App. 1996) (hold-

ing issue of parole eligibility not a matter for jury's con-

sideration in capital murder trial); Rhoades v. State, 934

S.W.2d 113 (Tex. Crim. App. 1996) (citing Smith vy.

State, 898 S.W.2d 838, 846 (Tex. Crim. App. 1995)).

11. Trial counsel are not ineffective for making the

reasonable, strategic decision, based on prior experience,

not to request that the jury be informed and instructed

concerning parole eligibility, an instruction which would

make the jury aware that the eighteen-year old applicant

would be eligible for parole at the relatively young age

of forty-three. Ex parte Ewing, 570 S.W.2d 941 (Tex.

Crim. App. 1978) (appellate court will review trial strat-

egy only when it is without a plausible basis).

12. The applicant fails to show deficient performance,

much less harm, based on trial counsels’ reasonable trial

strategy of not informing the jury concerning parole eli-

gibility; thus, the applicant fails to show that his rights,

pursuant to U.S. CONST. Amends. VI and XIV, were vio-

lated.

Third Ground—Vienna Convention:

13. Based on the applicant's lack of objection at trial

to the alleged failure to inform him of his rights under

the Vienna Convention, the applicant is procedurally

barred from presenting his habeas claim that the alleged

violation of the Vienna Convention violated his consti-

tutional rights. Hodge v. State, 631 S.W.2d 754, 757

56a

(Tex. Crim. App. 1982); Williams vy. State, 549 S.W.2d

183, 187 (Tex. Crim. App. 1977).

14. In the alternative, the applicant fails to show for-

eign nationality which requires notification of a foreign

consulate when a “national” of the “sending state” is

detained in custody. See Maldonado vy. State, 998 S.W.2d

239, 246-7 (Tex. Crim. App. 1999) (holding that defen-

dant not entitled to art. 38.23 instruction where defen-

dant not informed of his right to consult consulate but

evidence showed that defendant lived in United States

many years, spoke English, had Texas driver's license,

and bought car in United States and evidence did not

show that defendant was a Mexican citizen).

15. In the alternative, the applicant, as a private indi-

vidual, lacks standing to enforce the provisions of the

Vienna Convention. Hinojosa v. State, No. 72,932 (Tex.

Crim. App. Oct. 27, 1999) (holding that treaties operate

as contracts among nations; thus, offended nation, not

individual, must seek redress for violation of sovereign

interests).

16. In the alternative, the applicant fails to show that

he was harmed by any lack of notification to the Mexi-

can consulate concerning his arrest for capital murder;

the applicant was provided with effective legal repre-

sentation upon the applicant's request; and, the appli-

cant’s constitutional rights were safeguarded. See and cf.

Rocha y. State, 16 §.W.3d 1, 19 (Tex. Crim. App. 2000)

(holding that treaties do not constitute “laws” for pur-

pose of TEX. CODE CRIM. PROC. art. 38.23, and Vienna

Convention Treaty illustrates proposition that art. 38.23

is not suitable enforcement mechanism for international

treaties).

S7a

17. The applicant fails to show that his rights, pur-

suant to U.S. CONST. amends. V, VI, and XIV, were vio-

lated and fails to show that any non-notification of the

Mexican authorities impacted on the validity of his con-

viction or punishment. Ex parte Barber, 879 S.W.2d 889,

891-92 (Tex. Crim. App. 1994) (holding that, in order to

be entitled to habeas relief, defendant must plead and

prove that complained-of error did, in fact, contribute to

his conviction or punishment).

Fifth Ground—Brady issue:

18. The applicant fails to show that there was any deal

between the State and Joe and Christina Cantu; thus, the

applicant fails to show that the State did not disclose

material evidence, i.e., a non-existent agreement

between Joe and Christina Cantu in exchange for their

testimony during the applicant's trial. The applicant fails

to show that the State did not disclose a non-existent

agreement or any alleged favorable and material infor-

mation in the instant case. United States v. Agurs, 427

U.S. 97, 96 S. Ct. 2392 (1976); United States v. Bagley,

473 U.S. 667, 105 S.Ct. 3375 (1985) (holding evidence

is material where there is a reasonable probability that,

if disclosed, result of the proceeding would have been

different). The applicant fails to show that he was denied

due process under U.S. CONST. amend. XIV and TEx.

CONST. art. 1, § 10.

19. The applicant fails to demonstrate that his con-

viction was unlawfully obtained. Accordingly, it is rec-

ommended to the Texas Court of Criminal Appeals that

relief be denied.

58a

BY THE FOLLOWING SIGNATURE, THE COURT

ADOPTS THE RESPONDENT'S PROPOSED FIND-

INGS OF FACT AND CONCLUSIONS OF LAW IN

CAUSE NO. 675430-A.

Signed this 22nd day of January, JOG].

CAPRICE COSPER __

CAPRICE COSPER

Presiding Judge

339th District Court

59a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

Civil Action No. H-01-4078

JOSE ERNESTO MEDELLIN,

; Petitioner.

—

JANIE COCKRELL, Director, Texas Department of

Criminal Justice, Institutional Division,

Respondent.

ORDER

Petitioner Jose Ernesto Medellin (“Medellin”) filed a

federal petition for writ of habeas corpus pursuant to 28

U.S.C. § 2254 challenging his capital conviction and

death sentence. (Docket Entry # 12). Pending before the

Court is Respondent Janie Cockrell’s (“Respondent”)

motion for summary judgment. (Docket Entry # 16).

Having considered the record, the pleadings, and the

applicable law, particularly the application of the Anti-

Terrorism and Effective Death Penalty Act (“AEDPA”),

the Court grants respondent's motion for summary judg-

ment, denies Medellin’s petition, and denies a Certifi-

cate of Appealability.

60a

BACKGROUND

On September 23, 1993, a Texas grand jury indicted

Medellin for his role in the capital murder of Elizabeth

Pena. The evidence in the guilt/innocence phase of trial

showed that on June 24, 1993, Medellin and his fellow

gang members raped and killed sixteen-year-old Eliza-

beth Pena and her fourteen-year-old friend, Jennifer Ert-

man. The evidence at trial, briefly summarized, showed

that, after participating in a gang initiation, Medellin and

other gang members encountered the victims walking

along railroad tracks at approximately 11:30 p.m. Over

the next hour, the gang repeatedly and viciously raped

the two girls. The testimony at trial established that

Medellin participated in the rape of both victims. The

gang members then strangled the two girls to death. Trial

testimony established that Medellin helped strangle Eliz-

abeth Pena with one of his shoestrings. In describing the

attacks later, Medellin appeared “hyper, giggling and

laughing” as he recounted his role. Medellin also

bragged about deflowering one of the young girls. The

only remorse Medellin showed was that he did not have

a gun so that the killing would have been quicker. '

The jury found Medellin guilty of capital murder.* In

a separate punishment phase, the State presented evi-

dence of Medellin’s violent character and criminal

offenses. Medellin had a long history of violent threats

' Medellin confessed to his participation in the rape and mur-

der of the two girls. Medellin’s confession portrays a more limited

involvement in the crimes than he bragged about immediately after

the killings. Medellin’s confession, however, indicates that he par-

ticipated in the rape of Elizabeth Pena and then helped another gang

member strangle her.

The State indicted Medellin under three different theories:

capital murder of Elizabeth Pena in the course of a kidnaping: capi-

6la

and misbehavior, often associated with the possession of

firearms. The State also presented evidence that

Medellin had been discovered with a “shank” in his cell

while incarcerated pending trial. The defense’s punish-

ment phase case focused on testimony that Medellin had

a good character and on an expert's opinion that he

would not be a future danger to society. The jury

answered Texas’ special issues in a manner requiring the

imposition of a death sentence.

The Court of Criminal Appeals denied Medellin’s

direct appeal from his conviction and sentence on March

19, 1997. Medellin v. State, No. 71, 997 (Tex. Crim.

App. Mar. 19, 1997) (unpublished). Medellin did not

seek certiorari review in the United States Supreme

Court.

Medellin filed a state application for habeas corpus

relief. The trial habeas court held that no controverted,

previously unresolved issues existed and found it unnec-

essary to hold an evidentiary hearing. State Habeas

Record at 177.* On January 22, 2001, the trial court

signed the State's proposed findings and conclusions

recommending that habeas relief be denied. State Habeas

Record at 198-218. The Court of Criminal Appeals found

that the record supported the lower court's findings and

conclusions and, on that basis, denied relief. Ex parte

Medellin, No. 50, 191-01 (Tex. Crim. App. Oct. 3, 2001).

tal murder of Elizabeth Pena in the course of a robbery; and capital

murder of Elizabeth Pena in the course of aggravated sexual assault.

Tr. Vol. I at 6. The jury instructions provided for his conviction under

any of those theories. Tr. Vol. I at 285-86. The jury returned a general

verdict of guilty without specifying under which theory it convicted

Medellin. Tr. Vol. I at 294.

* Judge Caprice Cosper presided over Medellin’s trial and his

state habeas proceedings.

62a

On November 28, 2001, Medellin filed a preliminary

federal petition for a writ of habeas corpus through

appointed counsel. (Docket Entry # 5). On July 18, 2002,

Medellin amended his habeas petition. (Docket Entry

#12). Medellin’s amended petition raises five grounds

for habeas relief:

|. Medellin’s Sixth Amendment right to effective

assistance of counsel was violated by trial coun-

sel’s* failure to present evidence of his good

behavior while on juvenile probation, trial coun-

sel’s failure to present evidence of the parole eli-

gibility accompanying a life sentence, and

appellate counsel’s® failure to seek enforcement

of a trial court order allegedly precluding the

State from seeking a death sentence;

. The State violated Medellin’s rights under the

Vienna Convention by not protecting his right to

consular access;

3. The State violated the Fourteenth Amendment by

exercising its peremptory challenges in a dis-

criminatory manne;

4. The State failed to disclose material exculpatory

information to the defense; and

5. The trial court denied Medellin an impartial jury

by excluding a potential juror for her opposition

to capital punishment.

Respondent seeks summary judgment on the merits of

Medellin’s claims. (Docket Entry # 16). Medellin has

Jack Millin and Linda Mazzagatti represented Medellin at

trial. For the sake of clarity, the Court will generally refer to these

attorneys conjunctively as “trial counsel.”

Randy McDonald represented Medellin on appeal. This Court

will refer to him as “appellate counsel.”

63a

filed a response to the summary judgment motion.

(Docket Entry # 24).

STANDARDS OF REVIEW

Respondent seeks summary judgment in this case. In

ordinary civil cases, summary judgment is appropriate if

“there is no genuine issue as to any material fact” and

“the moving party is entitled to judgment as a matter of

law.” FED. R. Civ. P. 56(c); Rojas v. TK Communica-

tions, Inc., 87 F.3d 745, 747 (Sth Cir. 1996). A petition

for writ of habeas corpus is a civil action in federal

court. See Archer v. Lynaugh, 821 F.2d 1094, 1096 (Sth

Cir. 1987). “As a general principle, Rule 56 of the Fed-

eral Rules of Civil Procedure, relating to summary judg-

ment, applies with equal force in the context of habeas

corpus cases.” Clark v. Johnson, 202 F.3d 760, 764 (Sth

Cir.), cert. denied, 531 U.S. 831 (2000). However, “[t]he

Federal Rules of Civil Procedure apply in the context of

habeas suits to the extent that they are not inconsistent

with the Habeas Corpus Rules.” Woodford v. Garceau, __

U.S. __, 123 S. Ct. 1398, 1402 (2003); see also Rule 11

of the Rules Governing Section 2254 Cases in the United

States District Courts. In habeas proceedings, a court's

summary judgment review is circumscribed by the

AEDPA. See Proctor v. Cockrell, 283 F.3d 726, 729-30

(Sth Cir. 2002).

The intent.of the AEDPA is “to prevent federal habeas

‘retrials’ and to ensure that state-court convictions are

given effect to the extent possible under law.” Be/l/ v.

Cone, 535 U. S. 685, 693 (2002); see also Woodford __

U.S. at _., 123 S. Ct. at 1401 (“Congress enacted

AEDPA to reduce delays in the execution of state and

federal criminal sentences, particularly in capital

cases.”). The AEDPA “embodies the principles of fed-

64a

eralism, comity, and finality of judgments,” Evans vy.

Cockrell, 285 F.3d 370, 374 (Sth Cir. 2002), “substan-

tially restrict{ing] the scope of federal review of state

criminal court proceedings.” Montoya v. Johnson, 226

F.3d 399,404 (Sth Cir. 2000), cert. denied, 532 U.S. 1067

(2001); see also Woodford vy. Visciotti, _. U. S. __ , 123

S. Ct. 357, 360 (2002) (“[Section] 2254(d)'s highly def-

erential standard for evaluating state-court rulings. . .

demands that state court decisions be given the benefit

of the doubt.”). In essence, the “AEDPA was enacted, at

least in part, to ensure comity, finality, and deference to

state court habeas determinations by limiting the scope

of collateral review and raising the standard for federal

habeas relief.” Robertson v. Cockrell, 324 F.3d 297, 306

(Sth Cir. 2003).

The AEDPA provides that a federal habeas petition

shall not be granted with respect to any claim adjudi-

cated on the merits in state court unless the adjudication:

(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 proceed-

ing.

28 U.S.C. § 2254 (d)(1)-(2). Deference under the AEDPA

differs depending on whether the state court engaged in

a legal, factual, or mixed inquiry. See Gachot v. Stalder,

298 F.3d 414,417-18 (Sth Cir. 2002).

Federal courts analyze questions of law and mixed

questions of law and fact under 28 U.S.C. § 2254(d)(1)

to determine whether the state court decision was either

“contrary to” or an “unreasonable application” of

65a

Supreme Court precedent. See DiLosa v. Cain, 279 F.3d

259, 262 (Sth Cir. 2002); Martin v. Cain, 246 F.3d 471,

475 (Sth Cir.), cert. denied, 534 U.S. 885 (2001). The

Supreme Court holds that a state court decision is “con-

trary to” federal precedent if: (1) the state court's con-

clusion is “opposite to that reached by [the Supreme

Court] on a question of law” or (2) “the state court

decides a case differently than [the Supreme Court] has

on a set of materially indistinguishable facts.” Williams

v. Taylor, 529 U.S. 362, 413 (2000); see also Bell, 535

U.S. at 698; Early v. Packer, __ U.S, __, 123 S. Ct. 362,

365 (2002). A state court may unreasonably apply fed-

eral law if it “identifies the correct governing legal rule

from [the Supreme Court] cases but unreasonably applies

it to the particular facts of the particular state prisoner's

case” or “if the state court either unreasonably extends

a legal principle from [Supreme Court] precedent to

anew context where it should not apply or unreasonably

refuses to extend that principle to a new context where

it should apply.” Williams, 529 U.S. at 407.°

A federal habeas court's review under 28 U.S.C.

§ 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 evi-

® An unreasonable application of federal law “is different from

an incorrect application of federal law.” /d. at 410. To provide relief,

a federal habeas court must not only conclude that “the relevant state-

court decision applied clearly established federal law erroneously or

incorrectly. Rather, that application must also be unreasonable.” /d.

at 411; see also Woodford, __ U.S. at __, 123 S. Ct. at 361 (differ-

entiating between an incorrect state determination and an “unrea-

sonable application of federal law”); Valdez v. Cockrell, 274 F.3d 941,

947 (Sth Cir. 2001) (“Thus, a state court application maybe incorrect

in our independent judgment and, yet, reasonable.”), cert. denied, __

U.S. __, 123 S. Ct. 106 (2002).

66a

dence.” Neal v. Puckett, 286 F.3d 230, 246 (Sth Cir.

2002), cert. denied, __ U.S. __, 123 S. Ct. 963 (2003). In

reviewing the state court's substantive decision under

the AEDPA, this court focuses on “ ‘determining the rea-

sonableness of the state court's ‘decision,’ . . . not grad-

ing their papers.” * Santellan v. Cockrell, 271 F.3d 190,

193 (Sth Cir. 2001) (quoting Cruz v. Miller, 255 F.3d 77,

86 (2d Cir. 2001)), cert. denied, 535 U.S. 982 (2002); cf.

Dillard v. Blackburn, 780 F.2d 509, 513 (Sth Cir. 1986)

(observing that “federal courts do not sit as courts of

appeal and error for state court convictions”). Thus, this

Court bases its analysis on “the state court's ultimate

conclusion, not on its reasoning process.” DiLosa, 279

F.3d at 262; Neal, 286 F.3d at 246.

The AEDPA affords deference to a state court's reso-

lution of factual issues. Under 28 U.S.C. § 2254(d)(2) “a

decision adjudicated on the merits in a state court and

based on a factual determination will not be overturned

on factual grounds unless objectively unreasonable in

light of the evidence presented in the state-court pro-

ceeding[.]” Miller-El v. Cockrell, _ U.S. __, 123 S. Ct.

1029, 1043 (2003). A federal habeas court must presume

the underlying factual determinations of the state court

to be correct, unless the petitioner “rebut[s] the pre-

sumption of correctness by clear and convincing evi-

dence.” 28 U.S.C. § 2254(e)(1); see also Miller-El, __

U.S. at__ , 123 S. Ct. At 1036.’

Notwithstanding a petitioner's ability to show that a

state court decision is erroneous under 28 U.S.C.

§ 2254(d), that does not guarantee that a petitioner is

entitled to habeas relief. The language of 28 U.S.C.

’ The AEDPA also established strict standards limiting the

availability of evidentiary hearings in federal court. See 28 U.S.C.

§ 2254(e)(2). Medellin requests a hearing but has not shown that such

a hearing is necessary to the adjudication of his claims. As the avail-

67a

§ 2254(d) “does not require federal habeas courts to

grant relief reflexively.” Robertson, 324 F. 3d at 306;

see also Aleman vy. Sternes, 320 F.3d 687, 690-91 (7th

Cir. 2003) (finding that 28 U.S.C. § 2254(d) does not

entitle a petitioner to habeas relief). No Supreme Court

case “hat[s] suggested that a writ of habeas corpus

should automatically issue if a petitioner satisfies the

AEDPA standard[.]” Horn v. Banks, 536 U.S. 266, 272

(Sth Cir. 2002). A habeas corpus petitioner meeting his

burden under 28 U.S.C. § 2254(d) must still comply

with 28 U.S.C. § 2254(a): he must show that “he is in

custody in violation of the Constitution or law and

treaties of the United States.” This includes a showing

that any constitutional error at trial “had a ‘substantial

and injurious effect or influence in determining the

jury's verdict.’” Robertson, 324 F.3d at 304 (quoting

Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)); see

also Aleman, 320 F.3d at 690 (“Nothing in the AEDPA

suggests that it is appropriate to issue writs of habeas

corpus even though any error of federal law that may

have occurred did not affect the outcome”). Habeas

relief is also unavailable if it would require the creation

of a new constitutional rule. See Horn, __ U.S. at _,

122 S. Ct. at 2151 (relying on Teague v. Lane, 489 U.S.

288 (1989)).

ability of an evidentiary hearing is within the discretion of this Court,

see Williams v. Taylor, 529 U.S. 420, 436 (2000) (stating that it was

“Congress’ intent to avoid unneeded evidentiary hearings in federal

habeas corpus”); Rule 8 of the Rules Governing Section 2254 Cases

(“If it appears that an evidentiary hearing is not required, the judge

shall make such disposition of the petition as justice shall require.”),

this Court holds that there is no need for an evidentiary hearing in

this case.

68a

ANALYSIS OF THE CASE

l. Effective Assistance of Counsel

Medellin raises three claims criticizing his trial and

appellate legal representation. Medellin first argues that

trial counsel's representation in the punishment phase

fell below constitutional norms when counsel failed to

present evidence of his good probation history. Also,

Medellin faults trial counsel for not alerting the jury to

the fact that he would not be eligible for parole for at

least thirty-five years if given a life sentence. Medellin

finally faults appellate counsel for not seeking enforce-

ment of an apparently erroneous order precluding the

State from seeking the death penalty. The Texas courts

rejected each of those claims. This Court will consider

their merits under the relevant legal standards.

A. Strickland standard

The proper standard for evaluating the effectiveness of

counsel is reasonable performance under prevailing pro-

fessional norms. See Strickland v. Washington, 466 U.S.

668, 688 (1984). In Strickland, the Supreme Court estab-

lished a two-prong test for resolving ineffective assis-

tance claims. Under that test, a defendant must show that

counsel's performance was deficient and prejudicial to

the defense. /d. at 687. “Failure to make the required

showing of either deficient performance or sufficient

prejudice defeats the ineffectiveness claim.” /d. at 700.

Both the performance and prejudice components of the

ineffective assistance of counsel inquiry are mixed ques-

tions of law and fact. See Motley v. Collins, 18 F.3d

1223, 1226 (Sth Cir.), cert. denied, 513 U.S. 960 (1994).

To establish deficient performance, the petitioner must

show that “counsel made errors so serious that counsel

was not functioning as the ‘counsel’ guaranteed. . . by

69a

the Sixth Amendment.” Strickland, 466 U.S. at 687. In

reviewing ineffectiveness claims “judicial scrutiny of

counsel's performance must be highly deferential,” and

every effort must be made to eliminate “the distorting

effect of hindsight.” /d. at 689.

A petitioner must also show that counsel's deficient

performance resulted in a reasonable probability of a dif-

ferent result. A reasonable probability is one that is suf-

ficient to undermine confidence in the outcome. See id.

However, “an analysis focusing solely on mere outcome

determination, without attention to whether the result of

the proceeding was fundamentally unfair or unreliable,

is defective.” Lockhart v. Fretwell, 506 U.S. 364, 369

(1993). Thus, in addition to establishing a reasonable

probability of a different result, a petitioner must

demonstrate that counsel's deficient performance ren-

dered the result of the proceeding fundamentally unfair

or unreliable. See Vuong v. Scott, 62 F.3d 673, 685 (Sth

Cir.) (citing Lockhart, 506 U.S. at 372), cert. denied,

516 U.S. 1005 (1995).

The burden of proof in a habeas corpus proceeding

attacking the effectiveness of trial counsel is on the peti-

tioner. See Montoya, 226 F.3d at 408; Jernigan vy.

Collins, 980 F.2d 292, 296 (Sth Cir. 1992), cert. denied,

508 U.S. 978 (1993). A petitioner’s conclusory and spec-

ulative allegations will not suffice in this regard. See

Kinnamon vy. Scott, 40 F.3d 731, 734-35 (Sth Cir.), cert.

denied, 513 U.S. 1054 (1994); Barnard vy. Collins, 958

F.2d 634, 643 n.11(S5th Cit. 1992), cert. denied, 506 U.S.

1057 (1993). The Fifth Circuit has cautioned that

[a] claim of ineffective assistance of counsel must

be judged with eyes directly upon the reality of the

Situation facing defense counsel at the time of the

acts and not years later. This discipline best assures

faithful application of the objective measure of

70a

whether the decisions of defense counsel are within

the range of those a reasonably competent lawyer

might have made under those same facts and cir-

cumstances. It also takes us far along in judging its

prejudice, if that inquiry is required.

Black v. Cockrell, 314 F.3d 752, 754-55 (Sth Cir. 2002),

cert. denied, __U.S.__, __ 8. Ct. __, 2003 WL 1235155

(April 21, 2003).* The Court will apply the above-stated

standards to Medellin’s ineffective-assistance-of-coun-

sel claims.

B. Failure to present evidence of good behavior

while on juvenile probation

During the punishment phase, trial counsel called sev-

eral witnesses to present testimony that would support a

. The Fifth Circuit's language echos the Strickland decision:

A fair assessment of attorney performance requires that every

effort be made to eliminate the distorting effects of hindsight,

to reconstruct the circumstances of counsel's challenged con-

duct, and to evaluate the conduct from counsel's perspective

at the time... . There are countless ways to provide effective

assistance in any given case. Even the best criminal defense

attorneys would not defend a particular client in the same way.

* ee *

Thus, a court deciding an actual ineffectiveness claim must

judge the reasonableness of counsel's challenged conduct on

the facts of the particular case, viewed as of the time of

counsel's conduct.... The court must then determine

whether, in light of all the circumstances, the identified acts

or omissions were outside the wide range of professionally

competent assistance. ... [T]he court should recognize that

counsel is strongly presumed to have rendered adequate

assistance and made all significant decisions in the exercise

of reasonable professional judgment.

Strickland, 466 U.S. at 689-90: see also Williams v. Collins, 16 F.3d

626.631 (5th Cir.), cert. denied, 512 U.S. 1289 (1994).

Tila

life sentence. These witnesses included former employ-

ers, friends, and family members. Medellin also called a

psychologist whose testimony suggested that Medellin

would not be a future danger to society. Medellin now

argues that trial counsel provided ineffective assistance

by not calling his former juvenile probation officer as a

witness. Medellin contends that trial counsel should have

presented his probation officer's testimony to show that

he would not be a danger when placed under supervi-

sion, thus encouraging the jury to answer the special

issues in a manner favoring a life sentence.

Medellin fails to support this claim with competent

evidence. Claims of uncalled witnesses are not favored

on habeas review because they are “largely speculative.”

Evans, 285 F.3d at 377. A petitioner raising such claims

generally leaves a court to speculate on the exact nature

of an uncalled witness’ putative testimony. Here,

Medellin has failed to provide this Court with any reli-

able indication of what testimony Medellin’s former pro-

bation officer would have given if called as a witness.

Medellin relies on an affidavit from his state habeas

investigator stating that his probation officer, Maria

Guerra, told her that Medellin “came on time” and that

she “never had a problem” with him. (Docket Entry # 12,

Exhibit F). Essentially, Ms. Guerra allegedly told the

investigator that Medellin “did what he was supposed to

do.” (Docket Entry # 12, Exhibit F). What Medellin’s

former probation officer allegedly told his habeas inves-

tigator is hearsay, and Medellin has not shown that it

falls under any exception to the hearsay rule. Cf. FED R.

EviD. 802; see also Herrera v. Collins, 506 U.S. 390,

417-18 (1993) (holding on the facts of the case that affi-

davits containing hearsay statements obtained eight

years after the habeas petitioner's trial were not suffi-

cient to grant habeas relief). Absent the hearsay state-

72a

ments in his investigator's affidavit, this Court is left

with nothing but speculation concerning what a former

probation officer may have added to Medellin’s defense.

This claim could be rejected on that basis alone.

Even assuming that the hearsay statements are reli-

able, Medellin fails to show an entitlement to habeas

relief. The state habeas court issued several factual find-

ings commenting on the potential impact of the putative

evidence:

42. The Court finds, based on the appellate record,

that information, if any, that the applicant was

punctual for appointments with his juvenile pro-

bation officer and did not cause his probation

officer any problems is inconsequential in light

of the overwhelming evidence of the applicant's

prior history and in light of the brutality of the

offense which the applicant committed.

43. The Court finds, based on the appellate record,

that information, if any, that the applicant pre-

sented no problems for his probation officer

does not establish that the applicant does well

when supervised and does not establish that

such evidence is indicative of the applicant's

behavior in prison if he received a life sentence,

in light of the extensive evidence showing the

applicant's repeated illegal activities and inabil-

ity to function in structured environments,

including jail.

State Habeas Record at 207, 99.42, 43. The state habeas

court concluded that the absence of the probation evi-

dence did not meet either prong of the Strickland anal-

ysis. State Habeas Record at 215, 49. That decision was

neither contrary to, nor an unreasonable application of,

federal law.

73a

Trial evidence portrayed Medellin as an extremely

violent and depraved individual. The State presented

extensive evidence that Medellin consistently broke the

law, often in a violent manner. Medellin participated in

the brutal gang rape and murder of two young girls. As

noted by the Court of Criminal Appeals on direct review,

“(t]he facts of the case are brutal and barbaric enough to

alone support the jury’s answer to the [future dangerous]

special issue.” Opinion on Direct Review (“Opinion”) at

7. The mere fact that Medellin was prompt at his pro-

bation appointments and never caused his probation offi-

cer problems would not overcome the substantial, nearly

overwhelming, evidence of his future dangerousness.

The punishment phase evidence rebuts Medellin’s

insistence that the probation officer's testimony could

have shown that he would not be a threat in a structured

environment. The State presented evidence that, while

incarcerated pending trial, Medellin secreted weapons in

his cell. Medellin’s own actions refute any inference that

he would not be violent in prison. In light of the

depraved nature of the offense, his highly violent char-

acter, and his poor behavior while incarcerated, the fact

that Medellin was not tardy at his probation meetings

does not create a reasonable probability that the jury

would not find him to be a future danger. The state

court's decision was not contrary to, or an unreasonable

application of, federal law. See 28 U.S.C. § 2254(d)(1).

This claim is denied.

C. Failure to emphasize the parole eligibility

accompanying a life sentence

Medellin also faults counsel for not making the jury

aware, either through voir dire questioning or through a

jury instruction, that Texas law provided for parole only

aiter thirty-five years incarceration if the jury returned

74a

a life sentence. The trial court indicated to the defense

that it would be willing to allow parole eligibility infor-

mation to come before the jury. Tr. Vol. 27 at 12. Trial

counsel Ms. Mazzagatti told that court that her co-coun-

sel Mr. Millin

has already articulated to the Court his reasons for

not wanting to pursue the basis of informing the

jurors of the 35 years because he had previously,

based on his experience in six other capital murder

trials, polled jurors and found that they believe that

it was truly a life sentence. And so he thought as a

strategy he would not proceed with the advising

people on the 35 years.

Tr. Vol. 27 at 12-13. Medellin now argues that trial coun-

sel’s failure to present evidence of parole eligibility

meets both prongs of the Strickland analysis.

The state habeas court held that trial counsel made a

strategic decision not to inform the jury about parole eli-

gibility. The state habeas court concluded that “(trial

counsel are not ineffective for making the reasonable,

strategic decision, based on prior experience, not to

request that the jury be informed and instructed con-

cerning parole eligibility, an instruction which would

make the jury aware that the eighteen-year old applicant

would be eligible for parole at the relatively young age

of forty-three.” State Habeas Record at 215-16, 411.”

The state habeas court's decision was not contrary to, or

an unreasonable application of, federal law.

° The Court notes that the state habeas court erred in its math-

ematical computation of at what age Medellin would be eligible for

parole. Nonetheless, the same principle applies whether Medellin

would be released in his forties or his fifties—he could still commit

a violent crime.

75a

Trial counsel apparently hoped to leave the jury with

the impression that a life sentence meant just that—life-

long incarceration. The integrity of trial counsel's choice

is reflected in concerns raised by the Fifth Circuit in

other cases: that a jury's knowledge that the defendant

could one day return to society may “ ‘predispose[ }

them to impose a death penalty *” Woods v. Johnson, 75

F.3d 1017, 1037 (Sth Cir.) (quoting King v. Lynaugh, 850

F.2d 1055, 1060 (Sth Cir. 1988)), cert. denied, 519 U.S.

854 (1996). Indeed, as noted by the Fifth Circuit in

another case, the petitioner's

crime, and his revelry in it, leave no room for

hypothesizing that a jury, faced with the information

about parole for which [the petitioner] contends,

would have been more lenient. If anything, given

the egregious nature of this case, a suggestion to

prospective jurors that [the petitioner] might return

to society in [thirty-five] years could very easily

have predisposed them to impose a death sentence.

King, 850 F.2d at 1061. This concern is amplified in this

case due to Medellin’s youth at the time of the murders.

Trial counsel made a choice not to risk the chance that a

jury would not view thirty-five years as an appropriate

amount of time before parole, and thus return a death

sentence.

The Supreme Court has recognized that “[i]n a State in

which parole is available, how the jury's knowledge of

parole availability will affect the decision whether or not

to impose the death penalty is speculative, and we shall

not lightly second-guess a decision whether or not to

inform a jury of information regarding parole.” Simmons

v. South Carolina, 512 U.S. 154, 168 (1994). Trial coun-

sel based his decision not to inform the jury of parole

eligibility on his prior experience and on objectively

76a

defensible strategy. As Medellin failed to show that the

state habeas court’s decision was contrary to or an

unreasonable application of federal law, this claim is

denied. See 28 U.S.C. § 2254(d)(1).'°.

D. Failure to seek enforcement on appeal of the

trial court's order allegedly precluding the

State from seeking a death sentence

Prior to trial, Medellin filed a “Motion to Preclude

Prosecution from Seeking the Death Penalty.” Tr. Vol. I

at 95-107. Medellin’s motion argued that Texas should

not be permitted to seek the death penalty against him

because of various perceived deficiencies in the capital

sentencing statute. On September 9, 1994, the trial court

held a hearing to address various pre-trial motions.

There, the following interchange occurred:

Trial counsel: Your Honor, could we start with the

Motion to Declare the Texas Capital

Sentencing Scheme Unconstitu-

tional and Motion to Preclude the

Imposition of the Death Penalty

because these will probably be—

10 The state habeas court also found that Medellin failed to

show that he was prejudiced by trial counsel's failure to offer evi-

dence or question about parole eligibility. State Habeas Record at

216, 912. Medellin’s response to the summary judgment motion relies

on studies showing that a jury's correct knowledge of parole eligi-

bility increases the likelihood of them imposing a life sentence. Con-

sidering the overwhelming evidence that supported a death sentence

in this case, and the brutal nature of the murders, there is no rea-

sonable probability that a jury would return a life sentence had it

known about the lengthy time before Medehin would be eligible for

parole.

77a

Trial court: That will be denied. All right. What

else?

Trial counsel: Then the next one, Your Honor, will

be the Motion to Preclude the Pros-

ecution from Seeking the Death

Penalty.

Trial court: That will be denied.

Tr. Vol. 27 at 9. When the trial court signed the defense’s

proposed order that day, however, the trial judge ini-

tialed the line indicating that the motion to preclude the

death penalty had been granted. Tr. Vol. I at 108. Neither

trial nor appellate counsel seized on the written order as

an opportunity to avoid a capital conviction.

Medellin argues that the written order of the trial court

was enforceable and should have prevented his capital

prosecution. Medellin faults his appellate counsel for not

identifying the existence of the challenged order in the

record. Medellin contends that appellate counsel ren-

dered ineffective assistance by not asking the Court of

Criminal Appeals to vacate his death sentence because

the trial court initialed the portion of his written order

that would prevent his capital prosecution, even when

the trial court clearly evinced on the record the intent to

deny the motion.

Medellin raised this claim on state habeas review.

There, the same court which presided over his trial

issued the following factual finding: “The Court finds,

based on its personal recollection, that the written order

notation on the applicant's motion to preclude the State

from seeking the death penalty is an inadvertent error.”

State Habeas Record at 204, 9431.'' On that basis, the

The trial court additionally found “based on the applicant's

trial in which the State sought the death penalty and on the applicant's

78a

court denied habeas relief. State Habeas Record at 215,

98. This conclusion is neither contrary to, nor an unrea-

sonable application of, federal law. See 28 U.S.C.

§ 2254(d)(1).

The state habeas court explicitly found its notation on

the written order was inadvertent. This Court must pre-

sume that finding to be correct unless Medellin shows

clear and convincing evidence to the contrary. See 28

U.S.C. § 2254(e)(1). Medellin has not produced any evi-

dence that would suggest that the trial court intended to

prevent the State from seeking a death sentence. The

record itself, most particularly the interchange where the

trial court orally denied the motion, supports the con-

clusion that the written order reflects an inadvertent

error. Nothing would indicate that the trial court meant

to prevent the State from seeking a death sentence.

An appellate attorney cannot be faulted for not raising

meritless claims. See United States v. Kimler, 167 F.3d

889, 893 (Sth Cir. 1999) (“An attorney's failure to raise

a meritless argument thus cannot form the basis of a suc-

cessful ineffective assistance of counsel claim because

the result of the oroceeding would not have been dif-

ferent had the attorney raised the issue.”); Williams v.

Collins, 16 F.3d 626, 634 (Sth Cir.), cert. denied, 512

U.S. 1289 (1994). “Failure to raise meritless objections

is not ineffective lawyering; it is the very opposite.”

Clark v. Collins, 19 F.3d 959, 966 (Sth Cir.), cert.

denied, 513 U.S. 966 (1994); see also Green v. Johnson,

160 F.3d 1029, 1037 (Sth Cir. 1998) (“[F)ailure to make

a frivolous objection does not cause counsel's perfor-

mance to fall below an objective level of reasonableness

resulting death sentence, that the inadvertent error on the written

order accompanying the applicant's motion to preclude the State from

seeking the death penalty was rendered moot by the applicant's trial

and subsequent sentence of death.” State Habeas Record at 204, 433.

a el Sait esti RC Cates rah 0 ey ait ay la Wn Le ie

79a

.”), cert. denied, 525 U.S. 1174 (1999). The trial

court obviously made an inadvertent mistake in signing

the order upon which Medellin now relies. Appellate

counsel had no chance of crafting that into a viable, mer-

itorious appellate argument. The state habeas court's

rejection of this claim was not contrary to, or an unrea-

sonable application of, federal law. See 28 U.S.C.

§ 2254(d)(1). This claim is denied.

Il. Vienna Convention

Medellin is a citizen of Mexico. Medellin contends

that he was never given consular access before, during,

or after his trial. Medellin maintains that this denial of

consular assistance violated his rights under the Vienna

Convention on the Law of Treaties, May 22, 1969, art.

31(1), 8 LL.M. 4 (1969) (“Vienna Convention”).

Because of this denial, Medellin asks this Court to order

that a new trial be held.

Medellin presented this claim on state habeas review.

The state habeas court held that Medellin failed to object

to the violation of the Vienna Convention at trial. On

that basis, the state habeas court concluded that his fail-

ure to properly preserve the claim waived his right to

assert the claim on post-conviction review. State Habeas

Record at 210, 4. 13.'° Respondent argues that the state

habeas court's reliance on an independent and adequate

state procedural rule, i.e., Texas’ contemporaneous

I The state habeas court also considered the merits of Peti-

tioner’s Vienna Convention claim. A state court's alternative adju-

dication of a claim on the merits does not vitiate the validity of its

procedural bar. See Corwin v. Johnson, 150 F.3d 467, 473 (Sth Cir.)

(“It is clear in this Circuit that alternative rulings do not operate to

vitiate the validity of a procedural bar that constitutes the primary

holding.”), cert. denied, 525 U.S. 1049 (1998).

80a

objection rule, bars federal consideration of Medellin’s

Viena Convention claim.

The Fifth Circuit “has consistently held that the Texas

contemporaneous objection rule constitutes an adequate

and independent state ground that procedurally bars fed-

eral habeas review of a petitioner’s claims.” Fisher v.

State, 169 F.3d 295, 300 (Sth Cir. 1999); see also Sharp

v. Johnson, 107 F.3d 282, 285-86 (Sth Cir. 1997);

Nichols v. Scott, 69 F.3d 1255, 1280 n.48 (Sth Cir. 1995),

cert. denied, 518 U.S. 1022 (1996); Amos v. Scott, 61

F.3d 333, 345 (Sth Cir.), cert. denied, 516 U.S. 1005

(1995). Medellin, however, argues that Vienna Con-

vention claims are exempt from the constrains of the

procedural default doctrine.

In Breard v. Greene, 523 U.S. 371 (1998), the

Supreme Court considered the effect of the procedural

default doctrine on a prisoner's Vienna Convention

claim. Recognizing that federal courts “should give

respectful consideration to the interpretation of an inter-

national treaty rendered by an international court,” the

Supreme Court nonetheless found that, “absent a clear

and express statement to the contrary, the procedural

rules of the forum State govern the implementation of

the treaty in that State.” /d. at 375.'* The Supreme Court

held that the procedural default doctrine could bar con-

sideration of a Vienna Convention claim. See id. at 375-

76. The Supreme Court supported this finding by

recognizing that the procedural default doctrine applied

'S The Supreme Court noted that “[t}his proposition is embod-

ied in the Vienna Convention itself, which provides that the rights

expressed in the Convention ‘shall be exercised in conformity with the

laws and regulations of the receiving State,’ provided that ‘said laws

and reguiations must enable full effect to be given to the purposes for

which the rights accorded under this Article are intended.’ ” Breard,

523 U.S. at 375 (quoting Article 36(2), [1970] 21 U.S. T., at 101)).

Sla

even to claims brought under the United States Consti-

tution—a document “ ‘on full parity with a treaty.” ” /d.

ay 376 (quoting Reid v. Covert, 354 U.S. 1, 8 (1957)).

The Supreme Court also expressed doubt that any Vienna

Convention claim could be successful absent “some

showing that the violation had an effect on the trial.”

Breard, 523 U.S. at 377 (citing Arizona v. Fulminate,

499 U.S. 279 (1991)). The Breard decision would allow

Medellin’s failure to comply with Texas’ contempora-

neous objection rule to bar federal review of this claim.

Medellin, however, argues that a case decided in the

International Court of Justice (“ICJ”) abrogates reliance

on a procedural bar in rejecting Vienna Convention

claims. In the LaGrand Case (Germany vy. United States),

2001 1.C.J. 104, the ICJ found that the procedural

default rule itself did not violate the Vienna Convention.

See LaGrand Case, 2001 1.C.J. 104, at 990.'* The ICJ,

however, condemned the application of the procedural

default rule when “it prevent(ed] ‘full effect [from

being] given to the purposes for which the rights

accorded under [the Vienna Convention] are intended.”

Id. at9¥91. The ICJ held that, because of “the failure of

the American authorities to comply with their obliga-

tion” under the Vienna Convention, “the procedural

default rule prevented [LaGrand] from attaching any

legal significance” to the State's violation of the Vienna

Convention /d. According to Medellin, the effect of the

LaGrand Case is that “procedural default rules may not

be invoked to deny merits-based review of [a Vienna

Convention] violation.” (Docket Entry # 24 at 21).

‘4 The ICJ previously entered an order requiring the United

States to ensure that LaGrand was not executed. Arizona executed

LaGrand in 1999. The ICJ did not enter its final judgment in the

LaGrand Case until 2001.

82a

Medellin forfeited consideration of his Vienna Con-

vention claim by failing to comply with an adequate and

independent state procedural rule. The Supreme Court

has long held that such procedural rules bar federal con-

sideration of defaulted claims, except under narrow

exceptions. Medellin’s reliance on the LaGrand Case

would create a wholesale exception to procedural limi-

tations when a petitioner raises Vienna Convention

claims—potentially invalidating well-settled law such as

the AEDPA’s insistence on the exhaustion of remedies

and the timely presentation of claims. The concerns of

comity, federalism, and finality of state judgements sug-

gest that this Court refrain from jettisoning the proce-

dural bar doctrine until the Supreme Court reconciles its

caselaw with the ICJ action in the LaGrand Case. This

Court is simply wary of finding that the ICJ overruled

entrenched Supreme Court precedent.'°

Even if this Court were to consider the merits of the

claim, Medellin is not entitled to federal habeas relief

The state habeas court found that Medellin “as a private

individual, lacks standing to enforce the provisions of

the Vienna Convention.” State Habeas Record at 216,

415. Federal law supports the state habeas court's rejec-

tion of this claim. The preamble to the Vienna Conven-

tion explains that it is “not to benefit individuals but to

ensure the efficient performance of functions by consular

posts on behalf of their respective States ....” On that

basis, the Fifth Circuit has refused to recognize that the

as The wisdom in this approach is suggested by the fact that the

Supreme Court refused to stay LaGrand’s execution, notwithsianding

the fact that the ICJ ordered the United States to “take all measures

at its disposal to ensure that [LaGrand] is not executed pending the

final decision in these proceedings.” LaGrand Case, 2001 1.C.J. 104,

at 32. The Supreme Court's refusal to stay LaGrand’s execution raises

substantial questions concerning its own view of the ICJ's ability to

intrude in American legal proceedings.

OO ee A ttn ee heer te

83a

Vienna Convention “creates judicially enforceable rights

of consultation between a detained foreign national and

his consular office.” United States v. Jimenez-Nava, 243

F.3d 192, 198 (Sth Cir.), cert. denied, 533 U.S. 962

(2001).'° If this Court were to recognize that the Vienna

Convention created a personally-enforceable right, such

a finding would create a new rule of law, violating the

non-retroactivity principle of Teague v. Lane. See Flores

v. Johnson, 210 F.3d 456, 457-58 (Sth Cir. 2000) (find-

ing that any recognition of enforceable, individual rights

under the Vienna Convention would amount to a new

rule of law in violation of Teague’s non-retroactivity

principle), cert. denied, 531 U.S. 987 (2000). The ICJ's

rejection of the procedural default doctrine in Vienna

Convention cases did not purport to overrule the

Convention provided a private, enforceable right. Finding the claim

procedurally barred, the Supreme Court did not directly rule on the

claim. While the Supreme Court noted that the Vienna Convention

“arguably confers on an individual the right to consular assistance

following arrest{,]" the Supreme Court left the resolution of that issue

to the lower courts. 523 U.S. at 376. Since 1970, the United States

Department of State has interpreted the Vienna Convention as not cre-

ating enforceable individual rights. See United States v. Li, 206 F.3d

56, 63 (Ist Cir.), cent. denied, 531 U.S. 956 (2000). The federal cir-

cuit courts that have considered the issue have generally refused to

address the merits of the question, instead finding that the defendant

failed to demonstrate prejudice or sought an unavailable remedy. See

United States v. De La Pava, 268 F.3d 157, 164-66 (2nd Cir. 2001);

United States v. Minjares-Alvarez, 264 F.3d 980, 986-88 (10th Cir.

2001); United States v. Page, 232 F.3d 536, 540 (6th Cir.), cert.

denied, 532 U.S. 935 (2001); United States v. Lawal, 231 F.3d 1045,

1048 (7th Cir. 2000), United States v. Chanthadara, 230 F.3d 1237,

1255 (10th Cir. 2000), cert. denied, 122 S. Ct. 457 (2001); United

States v. Cordoba-Mosquera, 212 F.3d 1194, 1196 (11th Cir. 2000),

cert. denied, 531 U.S. 1131 (2001). No circuit court has held that the

Vienna Convention creates valid, enforceable individual rights.

84a

Supreme Court's weighty Teague jurisprudence. This

Court, therefore, cannot grant habeas relief on Peti-

tioner’s Vienna Convention claim.

Even if procedural law and non-retroactivity princi-

ples did not mandate the denial of this claim, and the

Court were to assume that the Vienna Convention cre-

ated an enforceable right, Petitioner would have to show

concrete, non-speculative harm for the denial of his con-

sular rights. See Breard, 523 U.S. at 377; Faulder v.

Johnson, 81 F.3d 515, 520 (Sth Cir. 1996), cert. denied;

519 U.S. 995 (1996). When a Vienna Convention claim

is “properly raised and proven, it is extremely doubtful

that the violation should result in the overturning of a

final judgment of conviction without some showing that

the violation had an effect on the trial.” Breard, 523 U.S.

at 377. Medellin contends that the Mexican Consular

would have taken immediate steps to secure represen-

tation for him and would have advised him not to con-

fess to the rape and murder of the two young girls.

The state habeas court, however, found that Petitioner

“fail[ed] to show that he was harmed by any lack of noti-

fication to the Mexican consulate concerning his arrest

for capital murder; [Medellin] was provided with effec-

tive legal representation upon [his] request; and, [his]

constitutional rights were safeguarded.” State Habeas

Record at 217, 416. Petitioner has not shown that this

determination was contrary to, or an unreasonable appli-

cation of, federal law. See 28 U.S.C. § 2254(d)(1).

Medellin’s allegations of prejudice are speculative. The

police officers informed Medellin of his right to legal

representation before he confessed to involvement in the

murders. Medellin waived his right to advisement by an

attorney. Medellin does not challenge the voluntary

nature of his confession. There is no indication that, if

informed of his consular rights, Medellin would not have

85a

waived those rights as he did his right to counsel.

Medellin fails to establish a “causal connection between

the [Vienna Convention] violation and [his] statements.”

United States v. Ortiz, 315 F.3d 873, 886 (8th Cir. 2002).

Petitioner has failed to show prejudice for the Vienna

Convention. violation.'’ This claim is denied.

Ill. Batson Claim

Medellin claims that the State violated his constitu-

tional rights through the discriminatory use of peremptory

challenges. Medellin first raised the issue of discrimina-

tion when the State used a peremptory challenge to excuse

potential juror Elizabeth Ann Berry. Medellin raised a

Batson“ challenge, contending that the State only struck

Ms. Berry because she was an African-American woman.

Tr. Vol. 20 at 227. After Medellin raised the Batson chal-

lenge, the following exchange occurred:

uv Furthermore, Petitioner has not demonstrated that a new trial

would bean appropriate remedy under the Vienna Convention. The

Vienna Convention does not articulate a specific remedy for its vio-

lation. See Jimenez-Nava, 243 F.3d at 199. Federal courts generally

hold that Vienna Convention violations do not require the dismissal

of an indictment or the suppression of evidence. See De La Pava, 268

F.3d at 164-66; Page, 232 F.3d at 540-41; Cordoba-Mosquera, 212

F.3d at 1195-96; Li, 206 F.3d at 61-62. The Fifth Circuit has held that

reversal is not an appropriate remedy when trial counsel had access

to the same information as consular officials. See Faulder, 81 F.3d at

520. The Fifth Circuit has also rejected the suggestion that the exclu-

sionary rule should prevent the introduction of confessions taken in

violation of the Vienna Convention. See J/imenez-Nava, 243 F.3d at

197-98. No court has reversed a capital conviction or set aside a death

sentence on the basis of a Vienna Convention violation. This Court

questions its ability to overturn Medellin’s conviction and sentence

under the Vienna Convention, especially in light of his failure to

demonstrate prejudice.

‘8 Batson vy. Kentucky, 476 U.S. 79 (1986).

Trial court:

The State:

86a

Mr. Millin, that’s plenty. If you

want to put something in rebuttal,

that’s fine. But there’s a Batson

challenge on the table. Mr. Vinson,

do you want to go ahead and—I will

ask that the State, regardless of a

prima facie showing, put its expla-

nation on the record at this time

because its fresh in everybody's

mind. Mr. Millin, if you want to

reurge your Batson motion at a later

time. The jury (sic) is not clearly

the reason of selecting a capital

murder jury.

I guess the main issue and problem

that I have with Ms. Berry is that

she has two brothers of which both

have been involved in drugs. Both

have been to the penitentiary. One, I

think, has been on numerous occa-

sions, she testified to. And I think

one is released on parole at this

time and one is in custody at the

penitentiary at this time as well.

Moreover, I did not feel comfort-

able with Mrs. Berry’s characteri-

zation of the prosecutors as on the

attack and defense attorneys as

being the underdog. And throughout

this trial, 1 would have a perception

in my mind to present my case to

Mrs. Berry, she’s looking at the

defendant as the underdog and I'm

the one on attack, like a wild mon-

grel.

87a

Tr. Vol. 20 at 227-28. The prosecutor also provided rel-

evant personal information relating to his choice of

strikes:

The State:

Trial court:

The State:

Trial court:

The State:

Trial court:

Moreover, your Honor, the record as

been silenced on my color. The

prosecutor in this case, I would like

the record to reflect is a black pros-

ecutor and has an appreciation of

blacks serving on juries, having

grown up during the 40's, 50°s,

60's, 70°s, 80°s, and 90—

Are you saying you're an old black

prosecutor?

That's right.

Let the record reflect that Mr. Vin-

son is African American and he is

old. However, he is—

And youthful in appearance.

However, he looks much younger

than his years.

Tr. Vol. 20 at 228-29. In rebuttal, the defense argued that

Mrs. Berry expressed an ability to be impartial notwith-

standing her brothers’ criminal record. Tr. Vol. 20 at

229. The trial court then denied the Batson challenge to

Mrs. Berry as follows:

Trial court:

Let me state that I do not believe

that there's a prima facie showing

that’s been made at this time. How-

ever, I find based on observing Ms.

Berry's demeanor and her responses

and viewing her questionnaire, that

_ Mr. Vinson’s reason[s] proffered are

88a

racial, neutral reasons. At this time,

I will deny any Batson motion. If

you'd like to, Mr. Millin, reurge

your Batson challenge at the end of

the jury selection, I will reconsider

it at that time as well. However, let

the record reflect at this time-still at

this time, our nine-man jury is com-

prised of a black female, a Hispanic

male, a Hispanic female, a black

male.... And so there’s no indica-

tion of gender bias. There are—the

composition of males to females are

a black female, a white female, a

Hispanic female, a white female;

and with regard to men, Hispanic

male, a white male, a black male,

and a second white male.

Tr. Vol. 20 at 230-3 1.

Medellin next raised a peremptory challenge when the

State excused potential juror Rafael Rodriguez with a

peremptory strike. The trial court found that Medellin

made a prima facie case for the purposes of Batson by

noting that the potential juror was Hispanic and had gen-

erally stated that he could be impartial. Tr. Vol. 21 at

117. The State then explained the motivation for striking

Mr. Rodriguez:

The State: My reason for striking Mr.

Rodriguez is there was a great deal

of hesitation with his explanation on

the death penalty when he was

speaking with you. He’s also for the

death penalty without any compul-

sion whatsoever if it happened to

—s

be a

89a

one of his relatives. I still do not

have a full understanding of his

position on the death penalty. With

respect to the question I asked him,

he gave me a philosophical—he

gave a theological and Biblical and

his own philosophy. One of the

things put me on edge, turning the

cheek, you turning the other cheek.

That goes back to the philosophy if

you're slapped, you turn the other

cheek. I'm afraid he may be looking

to turn the other cheek in this case,

and I don’t want it turned in my

favor.

Tr. Vol. 21 at 117-18. The trial court found that to be a

race-neutral explanation and denied the Batson chal-

lenge. Tr. Vol. 21 at 118.

After the parties selected the jury panel, Medellin

filed a “Motion to Strike Jury Panel.” Tr. Vol. I at 260.

According to Medellin’s count, the State struck eight

men and five women. Five of those excluded white, six

were black, and two were Hispanic.'’ Medellin argued

that the State based its voir dire strategy on removing

minorities and men from the jury panel.

19 In his motion, Medellin noted that the State exercised its

peremptory challenges against the following prospective jurors: Kir-

ven O'Neal Tillis, a black male; Mary Freeman, a white female;

Kathy Felder, a black female; Bernard Richardson, a black male. Wal-

ter Wynn Martin, a white male; Andra McCoy, a black male; Marie

Clark, a white female; Vastine Dickie, a black male; Christine Rossie,

a white female; Raford Earl Gresham, a white male;—Perfirio

Rodriguez, a hispanic male; Elizabeth Ann Berry, a black female, and

Rafael Rodriguez, a hispanic male. Tr. Vol. I at 264.

90a

On August 17, 1994, the trial court discussed

Medellin’s motion to strike the panel in a pretrial hear-

ing. In that hearing, the defense asked the court to quash

the entire panel because the State allegedly used its

peremptory challenges in a discriminatory manner. Tr.

Vol. 26 at 11-12. The State responded to that allegation:

The State: Your Honor, I think the record will

reflect too the final disposition of

that jury again is a melting pot jury.

And while the State exercised those

strikes, I think it was 13—I don't

have mine with me right now. But

those are all race neutral strikes.

Tr. Vol. 26 at 12-13. At that point, the trial court went

off the record. The record from that hearing does not

reflect any further on-the-record discussion of the Bat-

son issue. On August 19, 1994, the trial court entered a

written order denying Medellin’s motion to strike the

jury panel. Tr. Vol. I at 267.

A. Claim raised on direct review

On direct appeal, Medellin raised a single Batson

claim. Medellin argued that the State violated the equal

protection clause with respect to the peremptory strike of

Mr. Rodriguez.*’ The Court of Criminal Appeals recog-

20 Medellin raised this claim under Batson and under the rele-

vant state statute prohibiting the use of race-based peremptory chal-

lenges. While the Court of Criminal Appeals found that Medellin

failed to preserve error on his state law claim, the Court of Criminal

Appeals considered the merits of his Batson argument. Apparently

anticipating that Respondent would rely on the procedural default

doctrine to bar this claim, Medellin now argues that appellate coun-

sel rendered ineffective assistance by failing to present a broad Bar-

son Claim on direct review. Medellin has not shown that he was

prejudiced by this failure. Aside from the fact that he fails to show

9la

nized that the trial court found that Medellin made a

prima facie case for discrimination. Opinion at 12. The

Court of Criminal Appeals then noted that the State gave

a race-neutral explanation for the challenge to Mr.

Rodriguez: that his opinion on the death penalty would

not make him an attractive juror for the State. Opinion at

12. The Court of Criminal Appeals found that

[t]he trial court accepted these reasons as race-neu-

tral and appellant made no attempt to rebut the

explanations given or otherwise explain why they

were only pretexts for discrimination. A review of

the entirety of the veniremember's voir dire reveals

that the prosecutor's reasons were supported by the

record. Given this, we cannot say that the judge's

ruling in this instance was clearly erroneous.

Opinion at 12.

Medellin renews his Batson claim against Mr.

Rodriguez. in his federal petition. Medellin argues that

the lack of clarity in Mr. Rodriguez's opinion on the

death penalty does not provide a race-neutral basis for a

peremptory strike. Medellin argues that the trial court

should have required additional questioning of Mr.

Rodriguez. The record indicates, however, that the

peremptory strike of Mr. Rodriguez complied with the

Supreme Court's Batson jurisprudence.

Under Batson v. Kentucky, 476 U.S. 79 (1986), the

State violates the equal protection clause when it chal-

that a Batson violation actually existed, Medellin presented the Bar-

son Claim on state habeas review where it received full consideration

by the Court of Criminal Appeals. The state habeas court rejected that

claim. There is no reason to suppose that the claim would have tared

better on direct review. Medellin fails to show Strickland prejudice

with respect to the ineffective-assistance-of appellate counsel nuance

of his Batson claim.

lenges potential jurors solely on the basis of race. A

court addresses Batson claims under a three-step burden

shifting scheme:

[t]he process for evalnating an objection under Bar-

son requires that (1) a defendant make a prima facie

showing that the prosecutor has exercised his

peremptory challenges on the basis of race, (2) the

burden then shifts to the prosecutor to articulate a

race-neutral reason for excusing the juror in ques-

tion, and (3) the trial court must determine whether

the defendant has carried his burden of proving pur-

poseful discrimination.

Thompson y. Cain, 161 F.3d 802, 810-11 (Sth Cir. 1998);

see also United States v. Montgomery, 210 F.3d 446, 453

(Sth Cir. 2000); United States v. Bentley-Smith, 2 F.3d

1368, 1373 (Sth Cir. 1993). “*The ‘shifting burden’

described in the Batson framework is one of production

only.’ The party asserting the claim of purposeful dis-

crimination always shoulders the ultimate burden of per-

suasion.” Soria v. Johnson, 207 F.3d 232, 239 (Sth Cir.)

(quoting Bentley-Smith, 2 F.3d at 1373), cert. denied,

530 U.S. 1286 (2000); see also Lockett, 230 F.3d at 707

(citing Batson and stating that “(t]he burden of demon-

strating that a constitutional violation occurred is, or

course, on a habeas petitioner.”).

In the instant case, the trial court called on the State to

provide a race-neutral explanation for the use of the

peremptory strike against Mr. Rodriguez. “Once a court

has taken that step, we no longer examine whether a

prima facie case exits.” United States v. Webster, 162

F.3d 308, 349 (Sth Cir. 1998), cert. denied, 528 U.S. 829

(1999). This Court's “decision, then, must rest on (1)

whether the government articulated race-neutral expla-

nations for the exercise of its challenges and (2) whether

ill Bw tc

Pe ee ee ee ee re ee 2

93a

[the petitioner] has demonstrated that those justifications

are pre-textual and that the government engaged in pur-

poseful discrimination.” /d.

As previously noted, the State offered several reasons

for its peremptory strike of Mr. Rodriguez that were not

based on his race. Under the second part of the Batson

burden-shifting scheme, “[u]nless a discriminatory intent

is inherent in the prosecutor's explanation, the reason

offered will be deemed race neutral.” Pur/ert v. Elem,

514 U.S. 765, 768 (1995) (finding the prosecution's

explanation that the potential juror had long hair and a

beard to be a sufficient race-neutral explanation for the

purposes of the second step of the Batson analysis); see

also Hernandez v. New York, 500 U.S. 352, 359-60

(1991).*! “In such cases, a ‘legitimate reason* is not a

reason that makes sense, but a reason that does not deny

equal protection.” /d.; see also Miller-El, __ U.S. at __,

123 S. Ct. at 1040 (“In that instance the issue comes

down to whether the trial court finds the prosecutor's

race-neutral explanations to be credible.”’).

Medellin now disputes the reasons proffered by the

State, pointing to Mr. Rodriguez's testimony in an

attempt to show that the State's reasons were baseless or

warranted further questioning. “[T]he ultimate inquiry

for the judge is not whether counsel's reason is suspect,

or weak, or irrational, but whether counsel is telling the

21 “ . .

- Under Batson, a prosecutor's explanation for a peremptory

strike need not rise to the level of a challenge for cause; rather, it

merely must contain a clear and reasonably specific articulation of

legitimate reasons for the challenge.” United States v. Clemons, 941

F.2d 321, 325 (Sth Cir. 1991). At the second step, the “race-neutral

explanation tendered by the proponent need not be persuasive, or

even plausible.” United States v. Huey, 76 F.3d 638, 641 (Sth Cir.

1996). Indeed, the explanation “simply must be race-neutral and hon-

est.” Webster, 162 F.3d at 349.

94a

truth in his or her assertion that the challenge is not

race-biased.” Bentley-Smith, 2 F.3d at 1375. In Batson

the Supreme Court noted that the finding of intentional

discrimination is a factual finding that “largely will turn

on evaluation of credibility.” Batson, 476 U.S. at 98

n.2!. In making such determinations, the trial court eval-

uates the State's explanation, but also observes the

demeanor of the prosecutor and the prospective jurors.

See Jones v. Butler, 864 F.2d 348, 369 (Sth Cir. 1988),

cert. denied, 490 U.S. 1075 (1989); Hernandez, 500 U.S.

at 365 (stating that “the best evidence often will be the

demeanor of the attorney who exercises the challenge”).

“Credibility can be measured by, among other factors,

the prosecutor's demeanor; by how reasonable, or how

improbable, the explanations are; and by whether the

proffered rationale has some basis in accepted trial strat-

egy.” Miller-El, _. U.S. at __, 123 S. Ct. at 1040. In

essence, “the decisive question will normally be whether

a proffered race-neutral explanation should be believed.”

Bently-Smith, 2 F.3d at 1373.

A state court's credibility determinations are afforded

“significant deference” on federal review, especially in

light of the AEDPA. See Miller-El, __ U.S. at__, 123 S.

Ct. at 1041.*° Under the AEDPA, a petitioner bears the

substantial burden of showing that a state court erred in

its credibility determination. See id. at__, 123 S. Ct. at

1041-42. This Court is bound by the factual findings of

the Court of Criminal Appeals unless Medellin can

demonstrate by clear and convincing evidence that the

*2 “This deference does not suggest an abdication of judicial

review. See Miller-El, __ U.S. at __, 123 S. Ct. at 1041. A federal

court may reject a state credibility finding so long as a petitioner

complies with the AEDPA’s stringent standards. See id at __, 123 S.

Ct. at 1041.

95a

presumption of correctness should not apply. See 28

U.S.C. § 2254(e)(1).

Under Batson’s final step, Medellin ultimately bears

the burden of establishing that the government engaged

in “purposeful discrimination” based on race. Purkett,

514 U.S. at 767; Bentley-Smith, 2 F.3d at 1373. Here,

Medellin “offers no direct evidence of purposeful dis-

crimination, but rather argues that the government's

proffered reasons are pretextual. . . .” /d. Medellin

attempts to prove his case by demonstrating an absence

of record support for the reasons offered by the State;

however, even if the reasons advanced by the State are

only weakly supported by the record, the thrust of this

Court's analysis concerns the State's intent in seeking

the peremptory strike. See Bently-Smith, 2 F.3d at 1373-

74 (stating that as a general rule, “[t}here will seldom be

any evidence that the claimant can introduce—beyond

arguing that the explanations are not believable or point-

ing out that similar claims can be made about non-

excluded jurors who are not minorities”). While

Medellin now asks this Court to find that the reasons

advanced by the State during jury selection were pre-

textual, he must also demonstrate that the State engaged

in purposeful discrimination on the basis of race or gen-

der. The record supports a finding that the State did not

exercise its peremptory challenge on account of race or

gender. The State struck Mr. Rodriguez for his opinion

on the death penalty. That excuse is sufficiently race-

neutral to survive a Batson challenge.

After a review of the record, this Court finds Medellin

has not demonstrated why the deference to the trial

judge's implicit determination concerning the prosecu-

tion’s intent should be called into doubt. Accordingly,

Medellin has not provided clear and convincing evidence

that the state court findings were incorrect. See 28

96a

U.S.C. § 2254(e)( 1). Medellin has also failed to demon-

strate that the state court's decision rejecting the Batson

claim against Mr. Rodriguez was “an unreasonable deter-

mination of the facts in light of the evidence. . . .” 28

U.S.C. § 2254 (d)(2).

B. Claim raised on state habeas review

On state habeas review, Medellin raised the expansive

Batson claim which he now presents in his federal peti-

tion. As opposed to the challenge to Mr. Rodriguez's dis-

missal raised on direct review, Medellin’s state habeas

claim broadly challenged the State's motive in exercis-

ing all of its peremptory challenges. Medellin argued

that he made a prima facie showing that the State's prac-

tice in jury selection was to remove all African Ameri-

can and male jurors. To establish the alleged pattern of

discriminatory strikes, Medellin relied only on the fact

that the State used six of its thirteen peremptory strikes

to remove minority potential jurors and also used eight

to excuse men, resulting in a pattern of discriminatory

strikes. Medellin als

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.