168 F.3d 173 (5th Cir. 1999), 97-11372, Trevino v. Johnson

Docket Nº:97-11372.
Citation:168 F.3d 173
Party Name:Joe Mario TREVINO, Jr., Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
Case Date:February 19, 1999
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 173

168 F.3d 173 (5th Cir. 1999)

Joe Mario TREVINO, Jr., Petitioner-Appellant,

v.

Gary L. JOHNSON, Director, Texas Department of Criminal

Justice, Institutional Division, Respondent-Appellee.

No. 97-11372.

United States Court of Appeals, Fifth Circuit

February 19, 1999

Page 174

[Copyrighted Material Omitted]

Page 175

Arthur John Brender, Jr., Law Office of Art Brender, Fort Worth, TX, for Petitioner-Appellant.

Gena A. Blount, Asst. Atty. Gen., Austin, TX, for Respondent-Appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before KING, Chief Judge, and JOLLY and DeMOSS, Circuit Judges.

KING, Chief Judge:

Joe Mario Trevino, a Texas death row inmate, filed a habeas petition in federal district court, and the district court denied habeas relief. Trevino argues that the district court judge, Judge John McBryde, abused his discretion in denying Trevino's recusal motion, and Trevino requests this court to vacate Judge McBryde's order denying habeas relief and to remand the matter to a different district court judge. In addition, Trevino requests a certificate of appealability in order to appeal issues relating to his state habeas proceeding and his underlying state-court conviction. We find that Judge McBryde did not abuse his discretion in denying the recusal motion and we deny Trevino leave to appeal all issues relating to his state habeas proceeding and his underlying state-court conviction.

I. FACTS AND PROCEDURAL HISTORY

In 1984, Trevino was convicted of capital murder and sentenced to death. The Texas Court of Criminal Appeals affirmed his conviction seven years later. See Trevino v. State, 815 S.W.2d 592 (Tex.Crim.App.1991). The United States Supreme Court granted certiorari and remanded to the Texas Court of Criminal Appeals for further proceedings in light of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). See Trevino v. Texas, 503 U.S. 562, 112 S.Ct. 1547, 118 L.Ed.2d 193 (1992). The Texas Court of Criminal Appeals remanded the case to the trial court for a Batson hearing, see Trevino v. State, 841 S.W.2d 385 (Tex.Crim.App.1992), and later affirmed Trevino's conviction following the trial-court hearing, see Trevino v. State, 864 S.W.2d 499 (Tex.Crim.App.1993). The Supreme Court denied certiorari. See Trevino v. Texas, 510 U.S. 1185, 114 S.Ct. 1237, 127 L.Ed.2d 580 (1994).

Trevino filed a petition for a writ of habeas corpus in the state district court in 1994. The district court issued proposed findings of fact and conclusions of law, which the Texas

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Court of Criminal Appeals adopted in 1996, denying Trevino's habeas petition. The Supreme Court again denied certiorari. See Trevino v. Texas, 520 U.S. 1129, 117 S.Ct. 1275, 137 L.Ed.2d 352 (1997).

On June 4, 1997, Trevino filed a federal habeas corpus petition pursuant to 28 U.S.C. § 2254 in the Northern District of Texas, Judge John McBryde presiding. Trevino also filed a motion asking Judge McBryde to recuse himself under 28 U.S.C. § 455(a). He brought the recusal motion based on the fact that his attorney, Art Brender (Brender), was subpoenaed by a special investigatory committee of the Fifth Circuit Judicial Council to testify regarding Judge McBryde. Judge McBryde denied the motion to recuse on September 24, 1997, and on November 12, 1997, he denied the habeas petition. On December 4, 1997, Judge McBryde denied Trevino's request for a certificate of appealability (COA).

Trevino timely appealed to this court. Trevino asserts that Judge McBryde abused his discretion in denying Trevino's recusal motion based on McBryde's potential bias and prejudice against Trevino's attorney. Trevino also requests a COA to appeal alleged errors in his state habeas proceeding and his underlying state-court conviction. We address these issues in turn.

II. DISCUSSION

  1. The Recusal Motion

    Trevino first argues that Judge McBryde should have recused himself from considering Trevino's federal habeas petition due to his attorney's involvement in Fifth Circuit Judicial Council proceedings relating to Judge McBryde. Brender had been subpoenaed by a special investigatory committee of the Judicial Council to testify regarding Judge McBryde. The special investigatory committee held two evidentiary hearings relating to the McBryde proceedings; one took place before Judge McBryde ruled on Trevino's recusal motion and the second occurred shortly after his recusal ruling. Brender did not testify at the first hearing, and, although the subpoena would have extended to the second hearing, he did not testify at that hearing either.

    After completion of the McBryde proceedings, the Fifth Circuit Judicial Council issued an order (the Judicial Council Order) reprimanding Judge McBryde. See In re: Matters Involving United States District Judge John H. McBryde, Under the Judicial Conduct and Disability Act of 1980, Nos. 95-05-372-0023 et al. (Jud. Council 5th Cir. Dec. 31, 1997), aff'd, No. 98-372-001 (Jud.Conf.U.S. Sept. 21, 1998). One portion of that order barred Judge McBryde from hearing any cases in which certain attorneys who had testified in the Judicial Council proceedings (Attachment A attorneys) were involved for a period of three years. See Id. at 2. Although Brender did not actually testify in front of the special investigatory committee, the Fifth Circuit Judicial Council included him on its list of Attachment A attorneys. See Judicial Council Order at Attachment A. The Judicial Conference of the United States affirmed the portion of the Fifth Circuit Judicial Council order relating to this ban, finding "plenty of evidence in the record to support the judicial council's implicit conclusion that there was a significant risk that Judge McBryde might attempt to retaliate in some fashion against witnesses who had testified against him, or at least that witnesses reasonably perceived such risk." In re: Complaints of Judicial Misconduct or Disability, No. 98-372-001, at 24 (Jud.Conf.U.S. Sept. 21, 1998).

    The Judicial Council Order did not affect Judge McBryde's power to adjudicate Trevino's case directly because the portion of the Judicial Council Order barring Judge McBryde from hearing cases involving Attachment A attorneys did not go into effect until February 9, 1998, after Judge McBryde had already denied Trevino's habeas petition and his COA application. Trevino argues, however, that a reasonable person would question Judge McBryde's impartiality in deciding his habeas petition, and that the judge therefore abused his discretion in denying the recusal motion brought under 28 U.S.C. § 455(a). Before we can evaluate the merits of this issue we must address the respondent's contention that we lack jurisdiction to

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    consider issues unrelated to a habeas petitioner's underlying state-court conviction.

    Trevino filed his habeas petition in the federal district court in June 1997; therefore, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) applies to his case. See Green v. Johnson, 116 F.3d 1115, 1119-20 (5th Cir.1997). Under AEDPA, "[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from ... the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court." 28 U.S.C. § 2253(c)(1)(A). A COA can only issue if a habeas petitioner makes a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "A 'substantial showing' requires the applicant to 'demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues (in a different manner); or that the questions are adequate to deserve encouragement to proceed further.' " Drinkard v. Johnson, 97 F.3d 751, 755 (5th Cir.1996) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)), cert. denied, 520 U.S. 1107, 117 S.Ct. 1114, 137 L.Ed.2d 315 (1997). The COA requirement is jurisdictional in nature--before an appellate court can address the merits of an order denying federal habeas relief, the court (or the federal district court) must grant a COA. See Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir.1998) (stating that AEDPA's COA requirement is jurisdictional); Carter v. Johnson, 131 F.3d 452, 457 n. 3 (5th Cir.1997) (stating that AEDPA "imposed a jurisdictional prerequisite on appeal from a final order in a federal habeas proceeding, prohibiting the appeal unless a circuit justice or judge issues a 'certificate of appealability' "), cert. denied, --- U.S. ----, 118 S.Ct. 1567, 140 L.Ed.2d 801 (1998). The district court denied Trevino a COA to appeal his denial of habeas relief on November 12, 1997. Therefore, the respondent argues, unless we find that Trevino has made a substantial showing of the denial of a constitutional right in connection with his state-court conviction, we lack jurisdiction to consider issues relating to the district court's adjudication of Trevino's federal habeas petition.

    There is some force to this argument. The AEDPA language does preclude an appeal from a district court's order denying habeas relief until either the district court or the court of appeals grants a COA. We assume arguendo, without deciding, that a court can only issue a COA upon a finding that the applicant has made a substantial showing of the denial of a constitutional right with respect to his underlying state-court conviction. Therefore, the reasoning goes, because Trevino's contention that Judge McBryde abused his discretion in failing to stand recused is unrelated to his underlying state-court conviction, we lack jurisdiction to consider the issue.

    However, we find that we have jurisdiction to consider whether Judge...

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