Opposition Brief — Valdez v. Cockrell

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FILED |

| |

Aug 19 2002

mK |

No. 02-99 c

Jn the

Supreme Court of the United States

ALBERTO VALDEZ,

Petitioner,

V.

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

BRIEF IN OPPOSITION

JOHN CORNYN JULIE CARUTHERS PARSLEY

Attorney General of Texas Solicitor General

HOWARD G. BALDWIN, JR. LISA R. ESKOW

First Assistant Attorney Assistant Solicitor General

General ; Counsel of Record

MICHAEL T. MCCAUL P.O. Box 12548

Deputy Attorney General Austin, Texas 78711-2548

for Criminal Justice (512) 936-1700

COUNSEL FOR RESPONDENT

TABLE OF CONTENTS

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ATQUMENE 0... ec es ccer rer cess seeeceseecsenerecens 7

I. The Procedural Posture of This Case Renders It an

Inappropriate Candidate for Review .............. 7

II. No Circuit Split Warrants the Court’s Attention ..... 9

II. The Fifth Circuit Correctly Construed the AEDPA .. 13

IV. The Court Should Decline to Review Valdez’s

Constitutional Challenges to the AEDPA, Which Were

Never Passed Upon by the Fifth Circuit and,

Regardless, Are Inconsistent with This Court’s

FRET A FOOTIE ooo cc iv cea vesevevens 18

RN eo id re a kw on Gh cai ok aa hae wae 20

APPENDIX

Trial Court’s Findings of Fact and Conclusions of Law .. la

Texas Court of Criminal Appeals’s Order ............ 19a

ii

INDEX OF AUTHORITIES

CASES

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) ...... 13,18

Barnett v. Hargett, 174 F.3d 1128 (CA10 1999) ......... 11,12

Beli v. Come, 122 SAX. FSS GORD ied decee vere viuxsss 19

Bell v. Jarvis, 236 F.3d 149 (CA4 2000) (en banc),

cert. denied, 172 BAX. FULRROR) 6h ads ovesennesascse 12

Bhd. of Locomotive Fireman & Enginemen v. Bangor

& Aroostook R.R. Co., 389 U.S. 327 (1967) .......... 8,9

Bragdon v. Abbott, 524 U.S. 624 (1998) .............005, 13

Doan v. Brigano, 237 F.3d 722 (CA6 2001) .............. 12

Duigan v. United States, 274 U.S. 195 (1927) ............. 18

Hameen v. Delaware, 212 F.3d 226 (CA3 2000),

cert. denied, 532 U.S. 924 (2001) .......2ceevecseees 12

Hennon v. Cooper, 109 F.3d 330 (CA7 1997) ............. iz

Mayes v. Gibson, 210 F.3d 1284 (CA10 2000) ......... 11-12

Miller v. Champion, 161 F.3d 1249 (CA10 1998) ........ 9-11

Miller v. Fenton, 474 U.S. 104 (1985) .................... 15

Nguyen v. Reynolds, 131 F.3d 1340 (CA10 1997) ......... 10

Pecoraro v Walls, 286 F.3d 489 (CA7 2002) ...... 11, 16, 18

Sellan v. Kuhlman, 261 F.3d 303 (CA2 2001)............. 12

Strickland v. Washington, 466 U.S. 668 (1984) ........... 19

Townsend v. Sain, 372 U.S. 293 (1963), overruled in part

by Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992) ..... 16, 17

ili

United States v. United Foods, Inc., 533 U.S. 405 (2001).... 18

Va. Military Inst. v. United States, 508 U.S. 946 (1993) .... 8,9

Valdez v. State, 776 S.W.2d 162 (Tex. Crim. App. 1989)

a ee ee ak oka ns eo ook a eRe 2

Williams (Terry) v. Taylor, 529 U.S. 362 (2000)....... passim

Wright v. West, 505 U.S. 277 (1992) (plurality) ........... 15

STATUTES AND RULES

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EO ee ee ee eee er ee ee 1, 7, 19

BRIEF IN OPPOSITION

The Court should deny the petition for writ of certiorari because

the Fifth Circuit correctly held that the AEDPA’s deference

requirements are not void when a federal court conducts its own

evidentiary hearing due to alleged defects in state habeas

proceedings. Additionally, the procedural posture of this case

makes it an inappropriate candidate for review because the Fifth

Circuit did not reach the merits of Petitioner’s habeas claims but

remanded the case to the district court for reconsideration under the

AEDPA’s deferential framework. Finally, contrary to Petitioner’s

assertion, there is no circuit split or unsettled and important

question of federal law that warrants the Court’s attention. See SUP.

CT. R. 10(a), (c). Accordingly, the Court should deny the petition

for writ of certiorari.

STATEMENT OF THE CASE -

Alberto Valdez murdered a sergeant of the Corpus Christi,

Texas Police Department during a traffic stop. On September 9,

1987, Sergeant J.D. Bock was issuing a traffic citation when a large

beige car driven by Valdez passed at a high rate of speed. When

Valdez failed to stop as directed, Bock returned to his patrol car,

turned on the lights and siren, and chased Valdez’s vehicle. Bock

eventually pulled Valdez over when the beige vehicle blew a tire.

Bock’s final radio transmission stated that Valdez’s vehicle had

been stopped.

A witness, Jerry Lee Wittner, had attempted to follow the police

car but lost sight of it for approximately 30 seconds. While Wittner

was pulling up, Valdez wrestled Sergeant Bock’s service revolver

away and shot Bock in tle chest. Wittner saw Valdez and Bock

wrestling, heard the shot, and saw Bock bend over and fall down.

Valdez shot Bock again as Wittner ran back to his truck, fired at

Wittner as he started to drive away, and then shot Bock twice more.

In all, Valdez shot Bock twice in the chest and twice in the head.

After fleeing the scene in his car, Valdez fired on another police

officer giving chase. That officer followed Valdez’s vehicle down

2

an isolated country road. Valdez turned into the driveway of a

small farmhouse, ran inside, and hid Sergeant Bock’s revolver

under some couch cushions. Uiiimately, police apprehended

Valdez lying in a grassy area of a field behind the farmhouse.

At trial, Valdez testified at length about his primary defense: a

passenger in his car, unseen by any of the witnesses to the crime

and known only as “Chico,” shot Sergeant Bock with a .38 special.

This lengthy testimony, which provided the jury a first-hand

opportunity to hear and observe Valdez, was full of unexplained

inconsistencies, and the jury rejected it. Valdez was convicted of

capital murder and given a sentence of death in connection with

Sergeant Bock’s shooting.

The Texas Court of Criminal Appeals affirmed the conviction.

Valdez v. State, 776 S.W.2d 162 (Tex. Crim. App. 1989) (en banc).

In its opinion, the court noted that on the day Valdez murdered

Sergeant Bock, Valdez had stolen property in his car and a warrant

had issued for his arrest due to violations of parole. Jd., at 167.'

Thus, the court, concluded,

“it is patently obvious appellant was in the course of a crime

spree at the time Officer Bock attempted to stop him. In

order to preclude apprehension, appellant killed Officer

Bock in a cold-blooded, deliberate manner by shooting him

twice in the chest at close range and twice in the head.” /d.

The court further determined that “[t]he evidence is clearly

sufficient to. support the inference that appellant was a career

criminal who would do anything necessary to avoid apprehension.”

Id.

1. Valdez had five previous felony convictions. Valdez, 776

S.W.2d, at 167.

3

Valdez filed an application for writ of habeas corpus in state

court. He alleged, inter alia, that his trial counsel rendered

ineffective assistance of counsel by failing to investigate and

present certain mitigating evidence—namely evidence of mental

retardation—during the punishment stage of the trial. The state

court conducted a two-day evidentiary hearing on Valdez’s claims,

with particular focus on his ineffective-assistance-of-counsel claim.

The court heard extensive testimony about trial counsel’s

performance before and during trial. It also admitted, and heard

testimony about, various exhibits Valdez alleged should have

alerted trial counsel that Valdez might be mentally retarded.

After two days, the hearing was recessed to permit both parties

to secure additional witnesses, if necessary. Approximately six

years later, on motion of both parties, the evidence was closed. The

court then held another hearing, permitting lengthy oral argument

on both sides’ proposed findings of fact and conclusions of law. At

that hearing, the judge indicated that some of the evidentiary

hearing exhibits were missing and that he had not read the transcript

of Valdez’s trial. He stated, however, that he would reread the

transcript of the two-day evidentiary hearing—at which exhibits

were discussed and Valdez’s trial counsel’s performance was

dissected.’

The state habeas court issued 20 pages of findings of fact and

conclusions of law that did not merely “rubberstamp” the State’s

proposed findings and conclusions, as Valdez misrepresents. Resp.

2. Specifically, the court stated: “Let’s go ahead and—I told you up

front that | was not going to give you a ruling today. | want to make sure

that | go read this habeas corpus hearing again.” Tr. 2/28/97, at 144.

Valdez’s repeated assertions that the state habeas court “never

considered,” “admittedly and unapologetically refused to consider,” and

“effectively excluded from consideration” material evidence distorts the

proceedings in that court. See, e.g., Pet. i, 3, 5, 17, 28.

4

App. la-18a.’ For example, the State proposed 10 findings and

conclusions on Valdez’s ineffective-assistance-of-counsel-claim;

but the court included 20 findings of fact and conclusions of law on

this issue. Resp. App. 5a-7a. These addressed matters not included

in the State’s submission, such as the court’s determination that

Valdez’s trial counsel had asked one of the habeas witnesses to

testify during the punishment phase, but she declined; and that the

testimony of other character witnesses Valdez presented on habeas

corpus review duplicated testimony presented at trial on

punishment. Resp. App. 6a.*

The Texas Court of Criminal Appeals reviewed the state habeas

court’s findings of fact and conclusions of law and stated that they

were supported by the record. Resp. App. 19a. Therefore, that

court denied habeas relief. /d.

Valdez then filed his federal habeas corpus petition. The

district court granted Valdez an evidentiary hearing on his

ineffective-assistance-of-counsel claim, determining that the state

habeas hearing had not been full and fair because evidence “was

improperly (and, apparently, largely accidentally) excluded by the

state habeas judge.” Pet. App. 86 n.22. Additionally, the district

court stated that, even if Valdez was not “entitled” to a hearing on

that basis, “it was proper to exercise its discretion to grant one.”

Pet. App. 82 n.18.

3. Citations to Respondent’s Appendix will be designated “Resp.

App. [page #]” and citations to Petitioner’s Appendix will be designated

“Pet. App. [page #].”

4. Accordingly, Respondent objects to Valdez’s misstatement that

“rather than review the evidence, the state habeas court simply signed

findings of fact and conclusions of law that repeated virtually verbatim

the state’s proposed findings and conclusions.” Pet. 4.

5

At the hearing, the district court excluded several of Respondent

Cockrell’s exhibits offered to refute Valdez’s claim that his trial

counsel was ineffective for failing to investigate whether Valdez is

mentally retarded. These included: the results of a Wechsler Adult

Intelligence Scale test that was administered during Valdez’s 1974

incarceration with the Texas Youth Commission and revealed a

verbal 1.Q. of 76, a performance I.Q. of 90, and a full scale I.Q. of

81—scores above the classification of mental retardation; the

results of a doctor’s examination during that same period of

incarceration, in which the doctor concluded Valdez was not

mentally deficient; and evidence that Valdez passed an eighth grade

equivalency test and four out of five sections of the GED in 1986,

two years prior to his conviction for murdering Sergeant Bock. See

Pet. App. 33, 35-36.

Following the evidentiary hearing, the district court granted

Valdez’s petition for writ of habeas corpus. The court reasoned

that, because it conducted an evidentiary hearing, the deference

standards required by the Anti-Terrorism and Effective Death

Penalty Act (AEDPA) “largely did not apply.” Pet. App. 83-84, 86

n.22. The court independently determined that the writ should issue

because Valdez’s trial counsel provided ineffective assistance of

counsel at the sentencing phase of the trial by failing to make an

adequate investigation into Valdez’s background. Pet. App. 105.

Respondent Cockrell appealed to the Fifth Circuit, which

reversed the district court’s judgment. The Fifth Circuit assumed,

without deciding, that Valdez had not received a full and fair

hearing in state court. The court held, however, that the absence of

an adequate state-court hearing is not a prerequisite for applying

“the AEDPA’s deferential framework, as set out in 28 U.S.C.

§2254(d) and (e)(1).” Pet. App. 27, 37.

Rather than evaluate the merits of Valdez’s ineffective-

assistance-of-counsel claim under the AEDPA, the Fifth Circuit

remanded the case to the district court. The opinion made clear

6

that, on remand, the district court need not disregard evidence from

its previous hearing. Rather, that evidence could be used to assist

the district court in determining whether, applying the correct

deference standards under the AEDPA, Valdez established an

ineffective-assistance-of-counsel claim that entitled him to habeas

relief.

The Fifth Circuit also held that the district court abused its

discretion in excluding evidence of Valdez’s Wechsler scores and

doctor’s examination while incarcerated with the Texas Youth

Commission, as well as the results of his GED test and eighth grade

equivalency exam. The Fifth Circuit directed the district court, on

remand, to admit and consider these records, which “tend to

contravene Valdez’s contention that he is mentally retarded, which

bears on whether his trial counsel’s performance prejudiced him.”

Pet. App. 36-37.

SUMMARY OF ARGUMENT

The Court should deny the petition for writ of certiorari because

the Fifth Circuit correctly rejected Valdez’s argument that the

AEDPA’s deference requirements do not apply if a federal court

conducts its own evidentiary hearing due to alleged defects in state-

court habeas proceedings. The Fifth Circuit’s holding properly

balances a federal court’s decision to conduct an evidentiary

hearing with the respect for state-court habeas adjudications

required by both the plain text of the AEDPA and this Court’s

decision in Williams (Terry) v. Taylor, 529 U.S. 362 (2000).

Moreover, apart from the correctness of the Fifth Circuit’s

ruling, the procedural posture of this case renders it an

inappropriate candidate for review. The Fifth Circuit did not pass

upon the merits of Valdez’s ineffective-assistance-of-counsel claim

but merely remanded the case to the district court for

reconsideration under the AEDPA’s deferential framework. Thus,

as yet, no lower court has analyzed Valdez’s claim under the

aaa

7

AEDPA, and there is no ruling in that respect for this Court to

review. Nor, contrary to Valdez’s assertion, does the Fifth Circuit's

decision implicate a c.rcuit split or an important and unsettled

question of federal law that merits attention. See Sup. CT. R. 10(a),

(c). Finally, the Court should decline to review Valdez’s

constitutional challenges to the AEDPA, which were not passed

upon by the Fifth Circuit and, regardless, are inconsistent with this

Court’s AEDPA jurisprudence. Accordingly, the Court should

deny the petition for writ of certiorari.

ARGUMENT

Il. THE PROCEDURAL POSTURE OF THIS CASE RENDERS IT AN

INAPPROPRIATE CANDIDATE FOR REVIEW.

Although the Fifth Circuit held that the district court erred in

concluding that the AEDPA’s deference requirements “largely did

not apply” when, as here, there is a federal evidentiary hearing, the

Fifth Circuit declined to consider the merits of Valdez’s ineffective-

assistance-of-counsel claim. Pet. App. 13, 32. Rather, the Fifth

Circuit remanded the case to the district court for reconsideration

under the AEDPA’s deferential framework. Pet. App. 32, 37.

At this time, therefore, no federal court has analyzed whether,

for example, the state habeas court’s adjudication reflects an

unreasonable application of clearly established federal law or an

unreasonable determination of the facts in light of the evidence

presented. See 28 U.S.C. §2254(d)(1)-(2). Nor has a federal court

evaluated whether Valdez provided clear and convincing evidence

to rebut the presumption of correctness afforded to all of the state

habeas court’s factual findings—including facts implicit in mixed

law and fact conclusions—and not just the select findings of

historical fact to which the district court previously limited its

deference. See id. §2254(e)(1); see also Pet. App. 13-14 & n.11.

Without a lower-court decision on these questions, it would be

premature for this Court to address Valdez’s complaints about

8

applying the AEDPA’s deferential framework when a federal court

conducts its own evidentiary hearing. See Bhd. of Locomotive

Fireman & Enginemen v. Bangor & Aroostook R.R. Co., 389 U.S.

327, 328 (1967) (per curiam) (explaining, in denying the petition

for writ of certiorari, that “because the Court of Appeals remanded

the case, it is not yet ripe for review by this Court”); see also Va.

Military Inst. v. United States, 508 U.S. 946, 946 (1993) (Scalia, J.,

concurring in the denial of the petition for writ of certiorari) (noting

that prudence militates against granting the writ to review a

judgment remanding a case for further proceedings).

Valdez erroneously protests that the district court, on remand,

will be compelled to disregard the federal record and accept the

state court’s findings and conclusions—rendering the federal

evidentiary hearing a futile exercise. See, e.g., Pet. 26.° But the

Fifth Circuit’s opinion makes clear that its remand is neither driven

by that purpose, nor should it have that effect. Rather, the federal

evidentiary hearing may, for example, “assist the district court in

ascertaining whether the state court reached an unreasonable

determination under either §2254(d)(1) or (d)(2).” Pet. App. 21.

Thus, although a federal evidentiary hearing does not wipe the slate

clean and permit a federal court to ignore a state habeas court’s

two-day evidentiary hearing and issuance of 20 pages of findings

of fact and conclusions of law—as Valdez hoped—it can facilitate

federal review of the state adjudication underlying a federal

petitioner's habeas claims. Consequently, as the Fifth Circuit

5. Similarly, Valdez’s second question presented misleadingly

suggests that the Fifth Circuit’s decision requires the district court to

“disregard its own conclusions” about ineffective assistance of counsel,

Pet. i, when, instead, it only precludes the district court from substituting

its opinion for that of the state habeas court without first determining if

the state court’s analysis was unreasonable, as required by the plain text

of the AEDPA and this Court’s precedent. See 28 U.S.C. §2254(d);

Williams, 529 U.S., at 410-13; see also infra Part Ill.

a

9

explained, “[a]n evidentiary hearing is not an exercise in futility just

because §§2254(d) and (e)(1) require deference.” Pet. App. 21-22.

Regardless, the proper interplay between a federal evidentiary

record and the deference requirements in §2254(d) and (e)(1) is best

tested through concrete application, not hypothesis. The Court

should decline to address Valdez’s claims at this procedural

juncture. See Va. Military Inst., 508 U.S., at 946; Bhd. of

Locomotive Fireman, 389 U.S., at 328. ” a

Il. No Circu!ItT SPLIT WARRANTS THE COURT’S ATTENTION.

Although the Fifth Circuit noted its disagreement with Miller v.

Champion, 161 F.3d 1249, 1254 (CA10 1998)—in which the Tenth

Circuit determined it owed no presumption of correctness to factual

findings of a state habeas court that did not conduct an evidentiary

hearing—there is no circuit conflict that warrants intervention by

this Court.°

As the Fifth Circuit explained, the Tenth Circuit made no

attempt in Miller to construe the AEDPA’s deference provisions in

§2254(d) and (e)(1). Pet. App. 25. Indeed, the Tenth Circuit did

not cite, much less analyze, these statutory requirements in its brief

deference discussion—even though the court acknowledged, in

general, that Miller’s claims were governed by the AEDPA. Miller,

161 F.3d, at 1252, 1254.’ Instead, without elaboration, the Tenth

6. Notably, the state court in Miller did not hold an evidentiary

hearing before dismissing Miller’s ineffective assistance of counsel

claim. 163 F.3d, at 1252, 1254. By contrast, the state habeas court in

Valdez’s case held a two-day evidentiary hearing on Valdez’s ineffective

assistance of counsel claim. Pet. App. 2, 5.

7. In the portion of the Tenth Circuit’s opinion preceding its

deference discussion, the court alluded to §2254(d)(1) but erroneously

stated that it required a federal habeas petitioner to prove that “his

conviction” —as opposed to the state habeas court’s adjudication of his

10

Circuit followed its pre-AEDPA precedent, which excused district

courts from affording a presumption of correctness to state-court

factual findings if a petitioner did not receive an adequate hearing

in state court. /d. (quoting Nguyen v. Reynolds, 131 F.3d 1340, -

1359 (CA10 1997)).°

The Fifth Circuit correctly noted that Miller’s deference

conclusion was based solely on pre-AEDPA precedent and, thus,

“the Tenth Circuit did nct ground its decision on a reading of the

statute.” Pet. App. 25. The Miller opinion, therefore, offers no

reasoning to counter the Fifth Circuit’s extensive analysis of the

AEDPA’s text and the manner in which it alters preeAEDPA

deference. As such, Miller creates no conflict with the Fifth

Circuit.

Tellingly, Miller did not address the question of deference to a

state court’s application of law to fact, see 28 U.S.C. §2254(d)(1),

or its determination of facts in light of the evidence presented, see

id., §2254(d)(2), because—under the pre-AEDPA precedent Miller

followed—the only deference standard was the presumption of

correctness afforded state-court factual findings now paralleled in

§2254(e)(1).? Thus, the Tenth Circuit never considered how a

claim—is contrary to, or involved an unreasonable application of, clearly

established federal law. Miller, 163 F.3d, at 1253 (emphasis added).

That misreading of the AEDPA may explain why the Tenth Circuit failed

to recognize that §2254(d)(1) requires reassessment of pre-AEDPA

deference precedent and why that court did not even cite §2254(d)(1) in

the course of its cursory deference discussion. See id., at 1254.

8. Although the Tenth Circuit decided Nguyen after the enactment

of the AEDPA, the court applied its pre-AEDPA precedent because

Nguyen filed his federal habeas petition prior to the Act’s effective date.

131 F.3d, at 1345, 1359.

9. The former §2254(d) required that state-court factual findings be

afforded a presumption of correctness, subject to enumerated exceptions.

— ee

11

federal evidentiary hearing conducted to cure alleged defects in a

state-court proceeding interacts with §2254(d)’s deference

requirements.

By contrast, the Fifth Circuit directly addressed this question

and logically reasoned that, for example, a federal evidentiary

hearing could “assist the district court in ascertaining whether the

state court reached an unreasonable determination under either

§2254(d)(1) or (d)(2).” Pet. App. 21. Nothing in Miller engages,

much less refutes, the statutory-construction analysis conducted by

the Fifth Circuit."°

In an unsuccessful attempt to suggest a meaningful

disagreement between the Fifth and Tenth Circuits, Valdez cites

two post-Miller Tenth Circuit decisions that also apply the same

pre-AEDPA precedent and state that a presumption of correctness

does not apply to state-court factual findings absent an adequate

state-court hearing. Pet. 12 (citing Mayes v. Gibson, 210 F.3d

1284, 1289 (CA10 2000), and Barnett v. Hargett, 174 F.3d 1128,

1135-36 (CA10 1999)). But, like Miller, these opinions contain no

textual or other discussion or analysis of the AEDPA deference

Pet. App. 15 (quoting former §2254(d)(6)). The AEDPA replaced that

factual presumption of correctness with the current presumption in

§2254(e)(1) and also created new deference requirements for questions

of law and mixed questions of law and fact in §2254(d). See 28 U.S.C.

§2254(d), (e)(1); Pet. App. 17-18; see also infra Part III (discussing the

AEDPA’s amendment of §2254).

10. The Seventh Circuit has similarly held that §2254(d)(1)’s

“standard is applicable even though the district judge held an evidentiary

hearing.” Pecoraro v. Walls, 286 F.3d 489, 443 (CA7 2002) (endorsing

the Fifth Circuit’s reasoning and noting that although “[t]he evidence

obtained in such a hearing is quite likely to bear on the reasonableness of

the state courts’ adjudication . . . we do not see why it should alter the

standard of federal review”) (emphasis in original).

12

provisions—particularly §2254(d)(1)-(2). See Mayes, 210 F.3d, at

1289; Barnett, 174 F.3d, at 1135-36.

As none of the Tenth Circuit decisions offer a statutory

construction contrary to that of the Fifth Circuit, Valdez identifies

no conflict that warrants intervention by this Court. Valdez’s

petition, at most, implicates a shallow disagreement between the

Fifth and Tenth Circuits. The Court should permit the issue to

percolate in the lower courts and wait for a legitimate conflict to

emerge before entertaining the tenuous argument that an inadequate

state habeas hearing voids the AEDPA’s statutory deference

scheme.

Finally, Valdez alludes to circuit disagreement over a different

AEDPA deference issue that was neither presented to, nor

considered by, the Fifth Circuit—whether an “‘adjudication on the

merits” entitled to deference under §2254(d) exists when a state

court provides no rationale for its decision (i.e., the opinion fails to

identify the petitioner’s federal claim or to discuss federal law).

Pet. 15.'' To the extent a conflict on that issue exists, it is irrelevant

to Valdez’s petition, which does not present that question.'”

11. To illustrate disagreement on this issue, Valdez cites Sedlan v.

Kuhlman, 261 F.3d 303 (CA2 2001), Doan v. Brigano, 237 F.3d 722

(CA6 2001), Bell v. Jarvis, 236 F.3d 149 (CA4 2000) (en banc), cert.

denied, 122 S.Ct. 74 (2001), Hameen v. Delaware, 212 F.3d 225 (CA3

2000), cert. denied, 532 U.S. 924 (2001), and Hennon v. Cooper, 109

F.3d 330, 335 (CA7 1997). Valdez misrepresents the Sixth Circuit’s

decision in Doan. Pet. 15. Although that court declined to apply

§2254(d)(1)’s “unreasonable application” prong to a state-court decision

that did not identify a federal claim, the Sixth Circuit did afford

deference under §2254(d)(1)’s “contrary to” prong. Doan, 237 F.3d, at

730-31.

12. In a footnote, Valdez remarks that evidentiary problems in the

state habeas court rendered its rejection of his ineffective-assistance-of-

13

Because there is no circuit split on the actual AEDPA deference

issue raised by Valdez and decided by the Fifth Circuit, the Court

should deny the petition for writ of certiorari. See, ¢.g., Bragdon v.

Abbott, 524 U.S. 624, 638 (1998) (“It is our practice to decide cases

on the grounds raised and considered in the Court of Appeals and

included in the question on which we granted certiorari.”); Adickes

v. SH. Kress & Co., 398 U.S. 144, 147 n.2 (1970) (declining to

review issues “neither raised before nor considered by the court of

appeals”).

II]. THE FIFTH CIRCUIT CORRECTLY CONSTRUED THE AEDPA.

The Court also should deny the petition for certiorari because

the Fifth Circuit’s construction of the AEDPA’s deference

provisions is correct and consistent with this Court’s AEDPA

jurisprudence. As the Court explained in Williams, the AEDPA

“placed a new constraint on the power of a federal habeas court to

grant a state prisoner’s application for a writ of habeas corpus,” 529

U.S., at 412, and the Act precludes a federal court from issuing the

writ “simply because that court concludes in its independent

judgment that the relevant state-court decision applied clearly

established federal law erroneously or incorrectly. Rather, that

application must also be unreasonable.” Id., at 411. The Fifth

Circuit’s holding accurately reflects the new deference standards

created in the AEDPA and appropriately effectuates Congress’s

statutory vision for habeas reform.

counsel claim not only unreasonable, but also something other than an

“adjudication” entitled to deference. Pet. 22 n.8. However, Valdez does -

not—and could not—argue that the state court failed to provide any

rationale for its decision. See Resp. App. 5a-7a. Nor is the issue of

deference to summary state-court decisions a “question presented” in

Valdez’s petition. See Pet. i.

14

Specifically, the Fifth Circuit properly concluded that a full and

fair state-court hearing is not a prerequisite for application of the

AEDPA’s deferential framework. Pet. App. 27, 32, 37. Certainly,

the absence of an adequate state hearing may influence a federal

court’s decision to conduct a federal evidentiary hearing as a

procedural safeguard. Pet. App. 20 n.17. But it does not alter the

standards of review prescribed in 28 U.S.C. §2254(d) and (e)(1).

Id.

The Fifth Circuit’s reading of the AEDPA strikes an appropriate

balance between fairness and comity. And it is supported not only

by the Act’s plain text, but also its alteration of pre-eAEDPA

deference standards.

Prior to the AEDPA amendments, the former 28 U.S.C.

§2254(d) required that state-court factual findings—not legal

conclusions or findings of mixed fact and law—be afforded a

presumption of correctness unless a petitioner demonstrated one of

several statutory exceptions, including the absence of a “full, fair,

and adequate hearing in the State court proceeding.” Pet. App. 15

(quoting former §2254(d)(6)). The Fifth Circuit correctly observed,

however, that the AEDPA “jettisoned all references to a ‘full and

fair hearing’ from the presumption of correctness accorded state

court findings of fact” in favor of the “presumption of correctness

erected in its place at §2254(e)(1).” Pet. App. 17. Consequently,

to resurrect the “full and fair hearing” deference exception in former

§2254(d) “would have the untenable result of rendering the

amendments enacted by Congress a nullity.” Jd.

The Fifth Circuit’s construction of the AEDPA does not “break

new ground,” as Valdez erroneously states. Pet. 11. To the

contrary, the Fifth Circuit merely heeded this Court’s admonition

in Williams that the AEDPA’s new constraints on habeas relief

should not be interpreted in a manner that renders them “a nullity.”

529 U.S., at 407; see also id. at 403-04. And that is precisely what

would occur under Valdez’s proposed reading of the statute—which

15

reinserts a full and fair hearing requirement that Congress clearly

removed when it replaced former §2254(d)’s factual-deference

standard with the new factual presumption of correctness in

§2254(e)(1).

Additionally, Valdez’s attempt to rewrite the AEDPA is

untenable because it ignores the Act’s creation of a new deference

framework for questions of law and mixed questions of law and

fact. These questions were not covered by former §2254(d) or its

adequate-hearing requirement and, therefore, were subject to

plenary federal review. See Williams, 529 U.S., at 400 (O’Connor,

J., concurring) (citing Miller v. Fenton, 474 U.S. 104, 112 (1985));

cf. Wright v. West, 505 U.S. 277, 287-94 (1992) (plurality). Now,

however, the AEDPA expressly requires federal habeas courts to

defer to state-court adjudications of legal and mixed questions that

are “reasonable’—even if incorrect. Williams, 529 U.S., at 410-13

(discussing 28 U.S.C. §2254(d)(1) and highlighting that an

“unreasonable application of federal law”—for which the writ may

issue—“is different from an incorrect application of federal

law”—for which the writ may not issue). No comparable deference

requirement existed prior to the AEDPA, and certainly one was not

reflected in former §2254(d).

Nonetheless, Valdez inexplicably argues that former §2254(d)’s

adequate-hearing exception for factual deference should be not only

resurrected but imported into the AEDPA’s /egal deference scheme

currently codified in §2254(d)(1). This approach is ‘illogical.

Moreover, as the Fifth Circuit observed, “[t]he plain meaning of the

text simply will not bear such a reading.” Pet. App. 19."°

13. Indeed, all of Valdez’s statutory-construction arguments suffer

from the same flaw: dependence on an implied-hearing prerequisite that

lacks support in the AEDPA’s plain text.

16

Finally, Valdez erroneously argues that the Fifth Circuit’s

refusal to graft an implicit adequate-hearing requirement onto the

AEDPA’s deferential framework deprives him of his right to a

federal evidentiary hearing under Townsend v. Sain, 372 U.S. 293

(1963), overruled in part by Keeney v. Tamayo-Reyes, 504 U.S. 1

(1992). The Fifth Circuit, however, did not hold that it was

improper for the district court to conduct an-evidentiary hearing.

Nor did it order the district court to disregard any of the evidence

it heard during that hearing.'* Rather, the Fifth Circuit expressly

stated that the district court, on remand, may use evidence from the

hearing to facilitate its reevaluation of Valdez’s ineffective-

assistance-of-counsel claim under the correct AEDPA standards.

Pet. 20-22 & n.17. That is the proper accommodation of

-Townsend’s principles within the AEDPA framework. See

Pecoraro v. Walls, 286 F.3d 489, 443 (CA7 2002) (stating, in

approving the Fifth Circuit’s approach, that a federal evidentiary

hearing may bear on the reasonableness analysis under §2254(d}(1),

but “we do not see why it should alter the standard of federal

review’) (emphasis in original).

Because the Fifth Circuit’s remand does not negate the district

court’s evidentiary record, Valdez’s alleged right to a federal

hearing under Townsend remains unaffected by the Fifth Circuit’s

decision.'* And to the extent Valdez complains that the AEDPA

14. The Fifth Circuit did, however, order the district court to

consider several of Respondent Cockrell’s exhibits that improperly were

excluded at the hearing and “tend to undercut Valdez’s assertion that he

is mentally retarded.” Pet. App. 35-37.

15. Valdez claims he was entitled to a federal evidentiary hearing

under Townsend because the state habeas court denied him a full and fair

hearing. The Fifth Circuit never determined, however, whether this

deprivation actually occurred. Instead, it assumed, without deciding, that

the state court did not provide a full and fair hearing. Pet. App. 9-10.

Resolving this question was immaterial because the court held that a full

17

requires more deference to state habeas adjudications than

previously afforded under Townsend, the AEDPA controls the

federal disposition of Valdez’s claim. See Williams, 529 U.S., at

402-03, 412-13 (applying heightened deference under the AEDPA

to a habeas petition filed after the Act’s effective date).

In holding that an adequate state-court hearing is not a

prerequisite to the application of the AEDPA’s deferential scheme,

the Fifth Circuit reached a conclusion supported by both the

statutory text and the Act’s alteration of pre-AEDPA deference

and fair hearing is not a prerequisite for the AEDPA’s deference

requirements. Pet. App. 27. Thus, Valdez’s claims had to be remanded

for reconsideration under §2254(d) and (e)(1). Pet. App. 37.

Even if the Fifth Circuit’s statutory deference analysis is

incorrect—which it is not—the remand was still appropriate because, as

Respondent Cockrell argued in the Fifth Circuit, the state court afforded

Valdez an adequate two-day hearing. Although Valdez claims the state

court did not read the trial transcript or review missing hearing exhibits

immediately prior to making its determination, those allegations do not

render the two-day hearing a nullity. The state court afforded Valdez an

adequate opportunity to present evidence on his ineffective assistance of

counsel claim. That court heard testimony about, and admitted into

evidence, the mitigation-related exhibits Valdez claims were lost post-

hearing; permitted lengthy oral argument pertaining to the findings of

fact and conclusions of law after the hearing; confirmed that it would

reread the transcript of the two-day habeas hearing, at which all evidence

relating to Valdez’s ineffective-assistance-of-counsel claim was

extensively discussed; made detailed findings and conclusions

that—contrary to Valdez’s cliaracterization—differed materially from the

State’s proposed findings; and provided a detailed rationale for its

decision. See Resp. App. 5a-7a. Because there was an adequate state-

court hearing, the federal district court had no basis to disregard the

AEDPA’s deferential framework. The Court should deny the petition for

writ of certiorari because the Fifth Circuit’s remand was proper for that

reason as well.

18

standards. Additionally, the Fifth Circuit’s reading of the AEDPA

is bolstered by the Seventh Circuit’s decision in Pecoraro. 286

F.3d, at 443. It is also consistent with this Court’s analysis in

Williams, which emphasized the importance of effectuating the

AEDPA’s “new constraint” on federal habeas courts and

Congress’s new vision for habeas reform. See 529 U.S. at 403-04,

412-13. Because the Fifth Circuit correctly construed the AEDPA’s

deference requirements, this case does not warrant review.

IV. THE COURT SHOULD DECLINE TO REVIEW VALDEZ’S

CONSTITUTIONAL CHALLENGES TO THE AEDPA, WHICH

WERE NEVER PASSED UPON BY THE FIFTH CIRCUIT AND,

REGARDLESS, ARE INCONSISTENT WITH THIS COURT’S

AEDPA JURISPRUDENCE.

In the Fifth Circuit, Valdez argued for the first time in the final

pages of his petition for rehearing en banc that the AEDPA would

violate Article III, the Supremacy Clause, and the Sixth and

Fourteenth Amendments if—as the Fifth Circuit held—an adequate

state-court hearing is not a prerequisite for deference. Valdez could

have made and developed these arguments in his briefing to the

panel, since Respondent Cockrell’s briefs advocated the

construction of the AEDPA ultimately adopted by the Fifth Circuit.

But Valdez did not. And, because the Fifth Circuit declined to

rehear the case en banc, the court never addressed these issues.

Accordingly, this Court should follow its practice of not

considering constitutional questions that are not “pressed or passed

upon below”. and decline to entertain Valdez’s challenges to the

. AEDPA. Duigan v. United States, 274 U.S. 195, 200 (1927); see

also, e.g., United States v. United Foods, Inc. ,533 U.S. 405, 416-17

(2001); Adickes, 398 U.S., at 147 n.2."°

16. Even assuming Valdez’s petition for rehearing en banc

sufficiently “pressed” these issues, they were never “passed upon” by the

Fifth Circuit.

19

Regardless, Valdez’s arguments do not warrant review because

they lack merit. Valdez contends, for example, that the Fifth

Circuit’s reading of the AEDPA causes a “constitutional problem”

under the Sixth Amendment because it “forces Valdez to show

more than what Strickland [v. Washington, 466 U.S. 668 (1984)]

requires to establish an ineffective assistance of counsel claim.”

Pet. 28. But this Court recently confirmed that this is: precisely

what the AEDPA demands:

“For respondent to succeed, however, he must do more than

show that he would have satisfied Strickland’s test if his

claim were being analyzed in the first instance, because

under §2254(d)(1), it is not enough to convince a federal

habeas court that, in its independent judgment, the state-

court decision applied Strickland incorrectly.” Bell v. Cone,

122 S.Ct. 1843, 1852 (2002).

Rather, a federal court may issue the writ only if the state court’s

adjudication of a Strickland claim is unreasonable. Id.; see also

Williams, 529 U.S., at 412-13.

Similarly, Valdez protests that the Fifth Circuit’s construction

of the AEDPA impermissibly conflicts with the Supremacy Clause

because it forces federal courts to defer to state adjudications that

are “erroneous.” Pet. 30. This argument also is inconsistent with

the Court’s AEDPA precedent—under which the Fifth Circuit

properly concluded that a federal court cannot substitute its

judgment for that of a state court that adjudicates a federal question

erroneously, but not unreasonably. Williams, 529 U.S., at 411; see

also Bell, 122 S.Ct., at 1852.

Accordingly, even if Valdez’s constitutional arguments are

properly before the Court, no “constitutional problem” warrants

review. Valdez has not raised an important and unsettled federal

question that merits attention or requires reevaluation of the Court’s

AEDPA jurisprudence. . See Sup. CT. R. 10(c).

20

CONCLUSION

The Court should deny the petition for writ of certiorari.

Respectfully submitted,

JOHN CORNYN

Attorney General of Texas

HOWARD G. BALDWIN, JR.

First Assistant Attorney General

MICHAEL T. MCCAUL

Deputy Attorney General

for Criminal Justice

JULIE CARUTHERS PARSLEY

Solicitor General

LISA R. ESKOW

Assistant Solicitor General

Counsel of Record

P.O. Box 12548

Austin, Texas 78711-2548

August 19, 2002 (512) 936-1700

la

CAUSE NO. 87-CR-1459-B

WRIT NO. 31,184-01

EX PARTE )( IN THE DISTRICT COURT

)(

)( OF NUECES COUNTY, TEXAS

d(

ALBERTO VALDEZ )( 117TH JUDICIAL DISTRICT

TRIAL COURT’S FINDINGS OF FACT AND

CONCLUSIONS OF LAW

On the 28th day of February 1997, came on to be heard

arguments on the parties’ proposed findings of fact and conclusions

of law in reference to the evidentiary hearing on Albert Valdez’s

Application for Post-Conviction Writ of Habeas Corpus and

pursuant to the Court of Criminal Appeals’s order dated June 26,

1996.

Came on November 26 and 27, 1990, and was conducted an

evidentiary hearing on Applicant Alberto Valdez’s Application for

Post-Conviction Writ of Habeas Corpus, the Honorable Judge

Joaquin Villareal sitting by special assignment.

Evidence was presented by the Applicant and by the State.

Presented by Applicant were: Carl Lewis, Ernestine Vasquez.

Ms. Valeda Farmer, Olga Quintanilla, David Valdez, Mary Jane

Barrientes, Shirley Lopez, Monica Lopez. Wayne Huff, Julio

Garcia, Dr. Randy Price, Ms. Johnnie Grossman Bateman, Ms.

Alexandra Banuelos, Ms. Jo Anna Banuelos, Dr. James Dyer, and

Larry Bates.

Presented by the State were: Dr. Christopher Klaas and Ezekiel

(Kiki) Rodriguez.

2a

The hearing was recessed on November 27, 1990, to allow both

parties to secure additional witnesses, if necessary. On September

24, 1996, on a motion by both parties, the evidence was closed.

The trial judge, accordingly, having all the evidence presented

by the parties before him, makes the following findings:

1. Applicant was convicted of the offense of Capital Murder on

May 16, 1988.

2. The Court of Criminal Appeals affirmed Applicant’s conviction

on May 24, 1989; his petition for writ of certiorari was denied on

September 13, 1989.

3. On June 20, 1990, Applicant filed an application for post-

conviction writ of habeas corpus raising the following twenty-four

grounds of complaint.

I. Valdez was deprived of effective assistance of trial counsel

in the sentencing phase in violation of the sixth and fourteenth

amendments and Texas Law.

Il. Trial Counsel’s failure to investigate and present a complete

case in mitigation violated the Eighth and Fourteenth Amendments

by creating an unacceptable risk that Valdez was sentenced to death

despite factors that called for a less severe penalty.

III. The second special issue of the Texas death penalty statute,

as interpreted and applied by the Texas Court of Criminal Appeals,

is unconstitutionally vague under the Eighth and Fourteenth

Amendments.

IV. The admission of irrelevant unadjudicated extraneous

offenses violated Valdez’s right to a fair and reliable sentencing

determination required by the Fifth, Sixth, Eighth, and Fourteenth

Amendments and Texas law.

V. The trial court violated the Eighth and Fourteenth

Amendments by instructing the jury on parole and then precluding

: Aa

3a

the jury from considering relevant evidence regarding parole

eligibility.

VI. The Texas death penalty statute and the punishment charge

precluded the jury from considering or giving effect to mitigating

evidence presented on behalf of Valdez in violation of the Eighth

and Fourteenth Amendments.

Vil. The Texas death penalty statute and its consistent

interpretation by the Court of Criminal Appeals, as applied to this

case, precluded the jury from considering or giving effect to

available mitigating evidence in violation of the Eighth and

Fourteenth Amendments.

Vill. The Texas death penalty statute, on its face and as

applied in this case, provides inadequate guidance to the jury on the

meaning of critical terms in the special issues in violation of the

Fifth, Eighth, and Fourteenth Amendments and Texas law.

IX. The instructions given at the penalty phase misled the jury

regarding the effect of a “no” vote by a single juror in violation of

the Fifth, Eighth, and Fourteenth Amendments and Texas law.

X. The Texas death penalty statute, as construed by the Texas

Court of Criminal Appeals, violates the Eighth and Fourteenth

Amendment prohibitions against mandatory sentences for any class

of capital murderers.

XI. The Texas death penalty statute violates the Eighth and

Fourteenth Amendments by failing to give the jury an option of

imposing a sentence of life without parole.

XII. The State failed to disclose material exculpatory and

mitigating evidence in violation of the Fifth, Sixth, Eighth, and

Fourteenth Amendments and Texas law.

XIII. Valdez’s death sentence was based upon an invalid

conviction in violation of the Eighth and Fourteenth Amendments.

4a

XIV. Valdez’s death sentence was based upon invalid

confessions in violation of the Eighth and Fourteenth Amendments.

XV. State’s closing argument in the sentencing phase

violated the Eighth and Fourteenth Amendments by focusing on the

victim.

XVI. The introduction in evidence of six techniques used in

disarming a police officer, without any showing that Valdez either

knew or used such techniques, violated Valdez’s rights to a reliable

sentencing determination under the Eighth and Fourteenth

Amendments by suggesting unfairly that he acted deliberately and

is likely to be dangerous in the future.

XVII. The Texas court’s admission of a gruesome, blood-

soaked shirt worn by the victim inflamed the jury and violated the

Eighth and Fourteenth Amendments.

XVIII. The trial court’s denial of Valdez’s Motion for Change

of Venue violated his rights to a fair trial under the Fifth, Eighth,

and Fourteenth Amendments and Texas law.

XIX. The trial court’s denial of Valdez’s Motion to Recuse

violated Valdez’s rights to a fair trial under the Fifth, Eighth, and

Fourteenth Amendments and Texas law.

XX. The misconduct of the jury in considering evidence not

properly admitted at trial violated Valdez’s rights under the Sixth,

Eight, and Fourteenth Amendments.

XX]. The trial court’s failure to exclude for cause four jurors

constitutionally unqualified to serve violated Valdez’s Sixth and

Fourteenth Amendment rights to a trial by an impartial jury.

XXII. The trial court’s instructions at the punishment phase

failed to inform the jury of the consequences of its “yes” answers

to the special issue questions, and thus undermined its sense of

Sa

responsibility for the consequences of its verdict in violation of the

Eighth and Fourteenth Amendments.

XXIII. It is cruel and unusual punishment, in violation of the

Eighth and Fourteenth Amendments, to execute mentally retarded

persons like Valdez.

XXIV. The totality of the trial court’s constitutional errors in

this case undermined the reliability of the jury’s capital sentencing

decision in violation of the Eighth and Fourteenth Amendments.

Relative to the above-listed allegations. the trial court makes the

following specific findings of facts and conclusions of law.

I.

1. The standard for ineffective assistance of counsel is set forth in

the following cases: Strickland v. Washington, 466 U.S. 668, 687.

104 S.Ct. 2052, 2064 (1984), Hernandez v. State. 726 S.W.2d 53.

57 (Tex. Crim. App. 1986) and Ex Parte Kunkle, 852 S.W.2d 499.

504-506 (Tex Crim. App. 1993), cert. denied, 114 S.Ct. 122 (1993).

2. Review of alleged ineffective assistance of counsel is whether.

but for the unprofessional errors of counsel, there is a reasonable

probability that the outcome of the case would have been different.

3. Trial counsel’s performance is to be evaluated in light of the

representation as a whole, as of the time of trial. See Kunkle. 852

S.W.2d at 504-505.

4. Carl Lewis's performance at applicant's trial cannot be judged

in hindsight.

5. There is insufficient evidence to show that Applicant's trial

counsel rendered ineffective assistance of counsel.

6. There is insufficient evidence to show that there is a reasonable

probability that, but for the alleged unprofessional errors of counsel.

applicant would not have been sentenced to death.

6a

7. The case of Penry v. Lynaugh, 492 U.S. 302, 338-340, 109

S.Ct. 2934 (1989), was decided after applicant’s case was tried.

8 There is insufficient evidence that Car] Lewis gave ineffective

assistance of counsel in applicant’s case.

9. Itis common in the Corpus Christi, Nueces County, Texas area

for Hispanic males to drop out of school.

10. The fact that applicant had dropped out of school did not put

Carl] Lewis on notice of any potential mental problem of applicant,

if any.

11. Carl Lewis’s decision not to investigate more thoroughly

applicant's background was a decision based upon reasonable

professional judgment at the time of the case.

12. Carl Lewis's failure to request the entire court jacket regarding

applicant’s burglary charge in Hockley County did not fall below

the professional standard of conduct for defense attorneys.

13. There is insufficient evidence that counsel did not adequately

investigate applicant's case.

14. The record as a whole shows that Carl Lewis interviewed and

presented punishment witnesses on Applicant's behalf.

15. Mary Jane Barrientess, a witness presented on habeas corpus,

was also a witness at the punishment phase of Applicant's trial.

16. Shirley Lopez, a witness presented on habeas corpus, was asked

to testify by Carl Lewis, but she declined to testify on Applicant's

behalf at the punishment phase of trial.

17. The testimony of the character witnesses presented on habeas

corpus review was cumulative of testimony presented at trial on

punishment.

7a

18. Counsel was not ineffective in that there is no reasonable

probability that, but for the evidence presented at the habeas corpus

hearing, the outcome of sentencing would have been different

19. Cari Lewis exercised reasonable and sound professional

judgment in deciding which individuals to present as punishment

witnesses.

20. The court finds that Applicant received effective assistance of

counsel.

I].

1. Applicant's second complaint reiterates the claim under point

I. Applicant attempts to apply the Eighth and Fourteenth

Amendments, which prohibit governments from taking certain

actions, to the alleged misdeeds of trial counsel. There is no

evidence in the record for the proposition that trial counsel's actions

created an “unacceptable risk”.

II.

|. The issue presented by point three has already been settled in

Texas law against Applicant in Jurek v. Texas, 428 U.S. 262. 275-

277, 96 S.Ct. 2950 (1976), which upheld the Texas statutory

scheme for submitting special issues to the jury in capital cases

2. The following Texas cases control this issue, holding that terms

such as “deliberately” need not be defined in the special capital

punishment issues. Johnson v. State, 853 S.W.2d 527. 537

rehearing denied, cert. denied. 510 U.S. 852. 114S. Ct. 154. (1993):

Camacho v. State, 864 S.W.2d 524 (Tex. Crim. App. 1993), cert.

denied, 114S.Ct. 1339 (1994): Corwin v. State, 870 S.W.2d 23, 36

(Tex. Crim. App. 1993), rehearing denied, cert. denied, 115 S.Ct

95 (1994); Ex parte Kunkle, 852 S.W.2d 499, 507 (Tex. Crim. App

1993).

~

3. The trial court did not err in failing to define specific terms in

the special issues on punishment.

8a

IV.

1. The issue of the admission of unadjudicated offenses at the

punishment phase has been determined adversely to applicant. See

Williams v. Lynaugh, 814 F.2d 205, 207 Cir. 1987), cert. denied,

108 S.Ct. 311 (1987); Smith v. State, 676 S.W.2d 379, 390 (Tex.

Crim. App. 1984), cert. denied, 471 U.S. 1061, 105 S.Ct. 2173

(1985).

2. Any matter relevant to sentencing, including unadjudicated

extraneous offenses, is admissible. Tex. Code Crim. Proc. Ann.

art. 37.071 (Vernon 1981 & Supp. 1997).

3. The trial court did not err or abuse its discretion in admitting

unadjudicated extraneous offenses.

V.

1. There is no evidence that the jury considered parole laws in

sentencing.

~

2. The punishment phase charge admonishing the jury not to

consider parole in their deliberations did not constitute and

impermissible “instruction on parole.”

V1.

1. The question of whether a separate special issue is required in

order to assure that effect is given to mitigating evidence has been

determined in the following cases: Graham v. Collins. 113 S.Ct.

892, 897, 902-903 (1993) (requiring no special issue on mitigating

factors such as acts of kindness, religious devotion, redeeming

character traits, troubled family background), Richardson v. State.

879 S.W.2d 874, 884-885 (Tex. Crim. App. 1993), cert. denied, 115

S.Ct. 741 (1995) (religious devotion, artistic talent are mitigation

factors covered by the special issues), Ex parte Baldree, 810S.W.2d

213,216-217 (Tex. Crim. App. 1991) (evidence of non-violent past

properly covered by statutory special issues).

9a

2. The trial court followed the requirements of Texas law in its

instructions to the jury on capital murder special issues.

3. The statutory special punishment issues provide appropriate

constitutional means for the jury to consider and give effect to

mitigating evidence.

4. The statutory special punishment issues submitted to

Applicant’s jury allowed Applicant’s jury to consider and give

effect to mitigating evidence.

VII.

1. The evidence of drug use, childhood hardship and abuse,

creativity, artistic talent, and kindliness towards family was known

and available to the applicant at the time of trial.

2. Evidence of kindness and family assistance was presented at

punishment by the testimony of applicant’s brother Daniel Valdez,

Mary Jane Barrientes, Julie Saldana, and Maria Saldana.

3. The testimony of the character witnesses presented on habeas

corpus review was cumulative of testimony presented at trial on

punishment.

4. Applicant made no contemporaneous offer of proof of further

evidence on childhood hardship, child abuse, creativity, artistic

talent, and family and religious devotion at trial.

5. Under Ex Parte Kunkle, 852 S.W.2d 499, 504 (Tex. Crim. App.

1993), cert. denied, 114 S.Ct. 122 (1993), Applicant was required

to present mitigating evidence via a bill of exceptions in order for

such evidence to be considered on habeas review.

6. Carl Lewis’s failure to present more of this type of evidence

was a decision of trial strategy which was sound and reasonable as

judged at the time of trial.

7. Texas law at the time of trial required no separate special issue

on mitigation evidence.

10a

8. The mitigating evidence advanced by Applicant could be given

effect by the special issues as forumulated under Texas law at that

time, and which were submitted to Applicant's jury. Graham v.

Collins, .13 S.Ct. 892, 901-902 (1993).

VIII.

1. The Court finds that the issue of definition of certain terms in

the special punishment issues has already been resolved adversely

to applicant under case law which has determined that the trial court

is not required to define terms such as “deliberately,” under

Johnson v. State, 853 S.W.2d 527, 537 (Tex. Crim. App. 1992) .

rehearing denied, cert. denied, 510 U.S. 852, 114S.Ct. 154, (1993),

nor terms such as “criminal acts of violence,” “probability,”

“society,” “future dangerousness,” under Camacho v. State, 864

S.W.2d 524 (Tex. Crim. App. 1993), cert. denied, 114 S.Ct. 1339

(1994); Corwin v. State, 870 S.W.2d 23, 36 (Tex. Crim. App.

1993), rehearing denied, cert. denied, 115 S.Ct. 95 (1994).

2. The case of Ex Parte Kunkle, which held that the trial court

correctly declined to define the terms contained in the statutory

special issues of Art. 37.071, controls the issue and is adverse to |

applicant. Ex Parte Kunkle, 852 S.W.2d 499, 506-507 (Tex. Crim.

App. 1993), cert. denied, 114 S.Ct. 122 (1993).

3. The United States Supreme Court approved of the Texas

statutory scheme of special issues in Jurek v. Texas, 428 U.S. 262

(1976).

IX.

1. Arnold v. State, 873 S.W.2d 27, 37-38 (Tex. Crim. App. 1993),

cert. denied, 115 S.Ct. 103 (1994), which held that the trial court

did not err in failing to instruct the jury about the affect of a no vote

by a single juror, controls this issue, and is adverse to applicant.

2. The instructions given the jury in this case at the punishment

phase complied with those mandated by Texas law under art.

37.071 of the Texas Code of Criminal Procedure.

lla

3. The Court finds that this issue has been determined adversely

to Applicant in Jurek v. Texas. 428 U.S. 262, 275-277, 96 S.Ct.

2950 (1976), which upheld the Texas Statutory scheme for special

issues in capital cases.

4. There is no evidence that the jury was misled by the instructions

given.

X.

1. The statutory scheme for punishment in Texas does not mandate

a sentence for any class of capital murderers.

2. This issue has been decided against Applicant in Jurek v. Texas.

428 U.S. 262 (1976) and Amold v. State, 873 S.W.2d 27, 37-38

(Tex. Crim. App. 1993), cert. denied, 115 S.Ct. 103 (1994).

XI.

1. The instructions given the jury at the punishment phase in this

case complied with those mandated by Texas law under art. 37.017

of the Texas Code of Criminal Procedure.

2. This issue has been decided against Applicant in Amold v.

State, 873 S.W.2d 27, 39-40 (Tex. Crim. App. 1993), cert. denied,

115 S.Ct. 103 (1994).

3. The point presents no fact issue to be determined. as the

availability of a life-without-parole sentence option is a question for

the Legislature. A judicial mandate for such a sentence would

violate the separation of powers doctrine.

XII.

1. There is no evidence that Applicant did not receive information

requested and listed as “complete” by the trial court on the

discovery motions.

2. There is no evidence that a member of the prosecution team had

actual possession, control of, or knowledge of, any exculpatory or

l2a

mitigating evidence which it failed to produce as required by Brady

v. Maryland, 393 U.S. 83, 83 S.Ct. 1194 (1963).

3. The court finds that knowledge of psychological testing and

evaluations was known to the applicant, and no duty inured to the

State to produce such evidence under Havard v. State, 800 S.W.2d

195, 204-205 (Tex. Crim. App. 1989).

XIII.

1. There is no evidence that any of applicant’s prior convictions

were void.

2. Applicant’s point is an attack on the trial court’s decision to

admit evidence of the federal conviction, and as such, is a question

of trial error.

3. There is no evidence that the trial court abused its discretion in

admitting such evidence.

XIV.

1. The Court finds that the claim of invalid confessions is more

properly addressed by direct appeal, but was not raised there.

2. This is not a proper ground for a writ of habeas corpus, as it

constitutes an attack on trial error which would merely render the

judgment voidable rather than void. See Ex Parte Sadberry, 864

S.W.2d 541, 542 (Tex. Crim. App. 1993); Ex Parte Truong. 770

S.W.2d 810, 813 (Tex. Crim. App. 1989), Ex Parte Shields, 550

S.W.2d 670, 675 (Tex. Crim. App. 1976) (Opinion on State's

Motion for Rehearing).

3. This is not a proper ground for a writ of habeas corpus, as

applicant's sentence was not based on an invalid confession.

4. There is no evidence that trial court abused its discretion in

denying applicant's motion to suppress.

l3a

XV.

1. The allegation of improper closing argument is not a proper

ground for a writ of habeas corpus. Alleged impropriety in

arguments is an issue which should be raised on direct appeal, but

was not raised in this case. This is not a proper ground for a writ of

habeas corpus, as it constitutes an attack on trial error which would

merely render the judgment voidable rather than void. See Ex Parte

Sadberry, 864 S.W.2d 541, 542 (Tex. Crim. App. 1993); Ex Parte

Truong. 770 S.W.2d 810, 813 (Tex. Crim. App. 1989), Ex Parte

Shields, 550 S.W.2d 670, 675 (Tex. Crim. App. 1976) (Opinion on

State’s Motion for Rehearing).

2. The Court finds that the argument on Bock’s feelings at death

does not constitute a “victim impact statement.”

3. Assuming without deciding that prosecutorial argument focused

on the victim, the Court finds that the opinions in South Carolina v.

Gathers, 490 U.S. and Booth v. Maryland, 482 U.S. 496 (1987),

have been overruled by Payne v. Tennessee, 111 S. Ct. 2597, 2604-

2611 (1991), which now allows victim impact evidence in capital

sentencing.

XVI.

1. The Court finds that the claim of error in the admission of

demonstrative evidence on weapons disarming techniques was

determined adversely on direct appeal in Valdez v. State, 776

S.W.2d 162, 168 (Tex. Crim. App. 1989). cert. denied, 495 U.S.

963 (1989). As such, this is not a proper ground for a writ of

habeas corpus, as it constitutes an attack on trial error which would

merely render the judgment voidable rather than void. See Ex Parte

Sadberry, 864 S.W.2d 541, 542 (Tex. Crim. App. 1993); Ex Parte

Truong, 770 S.W.2d 810, 813 (Tex. Crim. App. 1989), Ex Parte

Shields, 550 S.W.2d 670, 675 (Tex. Crim. App. 1976) (Opinion on

State’s Motion for Rehearing).

l4a

2. Applicant is not entitled to relitigate direct appeal issues on

habeas corpus. See generally Ex Parte Drake, 883 S.W.2d 213

(Tex. Crim. App. 1994).

3. There is no evidence that the trial court abused its discretion in

allowing the demonstrated techniques.

XVII.

1. The claim of trial error in the admission of the bloody police

shirt was determined adversely on direct appeal in Valdez v. State,

776 S.W.2d 162, 168 (Tex. Crim. App. 1989). As such, this is not

a proper ground for a writ of habeas corpus, as it constitutes an

attack on trial error which would merely render the judgment

voidable rather than void. See Ex Parte Sadberry, 864 S.W.2d 541,

542 (Tex. Crim. App. 1993); Ex Parte Truong, 770 S.W.2d 810,

813 (Tex. Crim. App. 1989), Ex Parte Shields, 550 S.W.2d 670,

675 (Tex. Crim. App. 1976) (Opinion on State’s Motion for

Rehearing).

2. Applicant is not entitled to relitigate matters already addressed

on appeal. See generally Ex Parte Drake, 883 S.W.2d 213 (Tex.

Crim. App. 1994).

3. There is no evidence that the trial court abused its discretion in

allowing evidence of the bloody shirt.

XVIII.

1. Acomplaint about the denial of the Motion to Transfer Venue

is more properly addressed by direct appeal, but was not raised

there.

2. This is not a proper ground for a writ of habeas corpus, as it

constitutes an attack on trial error which would merely render the

judgment voidable rather than void. See Ex Parte Sadberry, 864

S.W.2d 541, 542 (Tex. Crim. App. 1993); Ex Parte Truong, 770

S.W.2d 810, 813 (Tex. Crim. App. 1989), Ex Parte Shields, 550

l5a

S.W.2d 670, 675 (Tex. Crim. App. 1976) (Opinion on State's

Motion for Rehearing).

3. Denial of a motion to change venue is reversible only upon a

showing of abuse of discretion. Hathorn v. State, 848 S.W.2d 101,

109 (Tex. Crim. App. 1992), cert. denied, 113 S.Ct. 3062 (1993).

4. There is no evidence that the trial court abused its discretion in

denying the motion to change venue.

XIX.

1. The denial of a motion to recuse is not properly cognizable on

habeas corpus review. This claim is more properly addressed by

direct appeal, but was not raised there.

2. This is not a proper ground for a writ of habeas corpus, as it

constitutes an attack on trial error which would merely render the

judgment voidable rather than void. See Ex Parte Sadberry, 864

S.W.2d 541, 542 (Tex. Crim. App. 1993); Ex Parte Truong, 770

S.W.2d 810, 813 (Tex. Crim. App. 1989), Ex Parte Shields, 550

S.W.2d 670, 675 (Tex. Crim. App. 1976) (Opinion on State’s

Motion for Rehearing).

3. There is no evidence that the trial court was biased against

applicant.

4. There is no evidence that the trial court abused its discretion in

denying applicant’s motion to recuse.

XX.

1. There is no evidence that juror Bateman in fact viewed the

actual crime scene.

2. There is no evidence that juror Bateman discussed any of her

field observations with the others on the jury.

3. There is no evidence that the jury received any outside

evidence.

16a

4. There is no evidence of any juror misconduct.

5. There is no evidence the jury’s verdict was influenced by any

extrinsic evidence.

6. Applicant could not have suffered any harm due to the fact that

the jury did not receive any outside information.

XXI.

1. This is not a proper ground for a writ of habeas corpus, as it

constitutes an attack on trial error which would merely render the

judgment voidable rather than void. See Ex Parte Sadberry, 864

S.W.2d 541, 542 (Tex. Crim. App. 1993); Ex Parte Truong, 770

S.W.2d 810, 813 (Tex. Crim. App. 1989), Ex Parte Shields, 550

S.W.2d 670, 675 (Tex. Crim. App. 1976) (Opinion on State’s

Motion for Rehearing).

2. There is no evidence that the trial court erred or abused its

discretion in failing to grant applicant’s challenges for cause.

XXII.

1. The trial court followed the mandates of Texas law in its

instruction.

2. The claim that the trial court should be required to instruct

jurors on the effect of “yes” answers to special issues has been

substantially decided against Applicant in Jones v. State, 843

S.W.2d 487 (Tex. Crim. App. 1992), rehearing denied, cert. denied

507 U.S. 1035, 113 S. Ct. 1858; (see_also Arnold v. State, 873

S.W.2d 27, 37-38 (Tex. Crim. App. 1993), cert. denied, 115 S.Ct.

103 (1994); which held that the trial court did not err in failing to

instruct the jury about the affect of a no vote by a single juror).

XXIII.

1. Pursuant to Penry v. Lynaugh, 492 U.S. 302, 338-340, 109S.Ct.

2934 (1989), the Court finds, without deciding the issue of Valdez’s

mental retardation, if any, that the execution of mentally retarded

17a

individuals does not per se violate the Eighth and Fourteenth

Amendments.

2. The fate of mentally retarded individuals with regard to capital

punishment is an issue for legislative determination, as a strict

mandate by the Courts would violate the separation of powers

doctrine.

XXIV.

1. This is not a proper ground for a writ of habeas corpus, as it is

vague, conclusory, and constitutes an attack on trial error which

would merely render the judgment voidable rather than void. See

Ex Parte Sadberry, 864 S.W.2d 541, 542 (Tex. Crim. App. 1993);

Ex Parte Truong, 770 S.W.2d 810, 813 (Tex. Crim. App. 1989), Ex

Parte Shields, 550 S.W.2d 670. 675 (Tex. Crim. App. 1976)

(Opinion on State’s Motion for Rehearing).

The Court accordingly finds that there is no need for any further

evidentiary hearing.

The Court finds that the assertions contained in the application

for writ have not been proven by the applicant, and are without

merit. Having found the that the petition is without merit and

should be denied, the Court recommends that the relief requested in

the petition be, in all respects, denied.

/s/_ Joaquin Villarreal

Joaquin Villarreal

JUDGE PRESIDING

18a

CAUSE NO. 87-CR-1459-B

WRIT NO. 31,184-01

EX PARTE )( IN THE DISTRICT COURT

)( OF NUECES COUNTY, TEXAS

ALBERTO VALDEZ )( 117TH JUDICIAL DISTRICT

1. The court directs the clerk of this court to file these findings

and transmit them along with the Writ Transcript to the Clerk of the

Court of Criminal Appeals as required by law.

2. The clerk of this court is ordered to send a copy of this

Memorandum and Order to the petitioner and to the appellate

section of the District Attorney’s office.

SIGNED AND ORDERED ENTERED this _31"_ day of

March , 1996.

/s/ Joaquin Villarreal

Joaquin Villarreal

JUDGE PRESIDING

194

IN THE COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

EX PARTE ALBERTO VALDEZ

Habeas Corpus Application

WRIT NO. 31, 184-01 from NUECES County

ORDER

This is a post conviction application for writ of habeas corpus

filed pursuant to the provisions of Art. 11.07, V.A.C.C.P.

On May 13, 1998, applicant was convicted of the offense of

capital murder. After the jury returned affirmative answers to the

special issues submitted under Art. 37.071, V.A.C.C.P., punishment

was assessed at death. This Court affirmed applicant's conviction

on direct appeal. Valdez v. State, 776 S.W.2d 162 (Tex.Cr.App.

1989).

In the instant cause, applicant presents twenty-four allegations

in which he challenges the validity of his conviction and resulting

sentence. The trial court held an evidentiary hearing. Ultimately,

the trial court entered findings of fact and conclusions of law and

recommended the relief sought be denied.

This Court has reviewed the record. The findings and

conclusions entered by the trial court are supported by the record.

and upon such basis, the relief sought is denied.

IT IS SO ORDERED THIS THE _13"_ DAY OF #44¥

AUGUST, 1997.

PER CURIAM

En banc

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