213 F.3d 243 (5th Cir. 2000), 99-10446, Hernandez v Johnson

Docket Nº:99-10446
Citation:213 F.3d 243
Case Date:May 30, 2000
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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213 F.3d 243 (5th Cir. 2000)

ADOLFO GIL HERNANDEZ, Petitioner-Appellant,



No. 99-10446

United States Court of Appeals, Fifth Circuit

May 30, 2000

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

Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.

DeMOSS, Circuit Judge:

Applicant-Appellant Adolfo Gil Hernandez, a Texas death row inmate, whose petition for habeas corpus relief and request for a Certificate of Appealability ("COA") were both denied by the federal district court, now seeks a COA from this Court pursuant to 28 U.S.C. § 2253(c)(2). For the reasons set forth below, we deny the request for a COA.


On the evening of September 30, 1988, at about 5:00 p.m., Hernandez and a friend, Mike Martinez, went to the home of Margarita Davila in Slaton, Texas, with an eight-pack of "pony" beers. The three shared the beers, with Davila drinking one and the two men consuming the rest. While at the residence, Hernandez played baseball with Davila's young son, teaching him how to swing a baseball bat. Around 7:30 p.m., Hernandez and Martinez decided to leave the residence to purchase more beer. Before leaving, Hernandez took the baseball bat despite Davila's request to leave the bat alone.

Upon purchasing a six-pack of beer, Hernandez and Martinez went to the home of Kenneth Hodges, where they shared the six-pack with Hodges and another adult male. Eventually, Hernandez and Martinez decided to leave Hodges' home. The two walked together for a short time before they separated. Martinez went to another friend's home to watch the Olympics. Hernandez still carried the bat from Davila's home.

Around 9:00 p.m., Hernandez approached the home of Ysidoro Maldonado, a young boy who lived with his grandmother in a house located in the same area of Slaton as the residence of Elizabeth Alvarado,

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who ultimately became Hernandez' victim. Upon hearing a knock, Ysidoro looked out the window to see who was on the porch. Unable to see who was there, Ysidoro opened both the front and screen doors. Recognizing Hernandez, Ysidoro asked what he wanted; whereupon, Hernandez swung the bat at the young boy. Ysidoro was able to close the door to avoid being struck by the bat, but the bat broke the screen door. Hernandez ran off in the general direction of Alvarado's home.

A short time later, Josie Vargas, who is Alvarado's daughter, and Reuben Alvarado ("Reuben"), Alvarado's great-grandson, saw Hernandez coming out of Alvarado's kitchen. Both Vargas and Reuben noticed that Hernandez was carrying Alvarado's purse. In addition, Vargas testified that Hernandez was carrying a baseball bat. When Hernandez saw the two individuals outside the house, he retreated back inside and then exited out the front door with the purse and bat in hand. Waiting outside the house, Vargas confronted Hernandez, who stared at her and asked if she was alone. When she replied that she was, Hernandez raised the bat as if he was about to strike her, whereupon Vargas grabbed hold of the bat and wrestled with Hernandez until she was able to get the bat away from him. Vargas then chased Hernandez, striking him with the bat, until he escaped.

Thereafter, Vargas and Reuben entered the home and checked on Alvarado. They found her with her right arm noticeably broken and beaten beyond recognition. Nevertheless, she was apparently alive as she was still breathing. Medical personnel attempted to revive Alvarado, but she was pronounced dead upon arrival at Lubbock General Hospital.

Alvarado was found to have both bones broken in her right wrist. Furthermore, she had lacerations on her head, a broken nose, as well as a depressed fracture of the skull. Alvarado had suffered a massive subdural hemorrhage and had endured eight blows to her head: three to the right side, two to the top, one to the side, and two to the left. According to the pathologist responsible for Alvarado's autopsy, the several hits about her head caused Alvarado's death.

Not more than an hour after the beating, Hernandez was apprehended, hiding behind a tree. After a jury trial, he was convicted of capital murder on January 31, 1990. On February 5, 1990, after a separate hearing on punishment, the jury affirmatively answered the two special issues submitted to it pursuant to former Texas Code of Criminal Procedure article 37.071.1 As a result, punishment was assessed at death.

Hernandez' conviction and sentence were automatically appealed to the Texas Court of Criminal Appeals, which affirmed both on June 29, 1994. The United States Supreme Court denied his petition for writ of certiorari on April 24, 1995. See Hernandez v. Texas, 115 S.Ct. 1798 (1995).

Thereafter, Hernandez filed an application for state writ of habeas corpus. On September 15, 1998, the state habeas court, which was also Hernandez' trial court, entered findings of fact and conclusions of law, recommending that habeas relief be denied. The Texas Court of Criminal Appeals adopted those findings and denied Hernandez' application for habeas relief on November 18, 1998. On November 23, 1998, Hernandez filed an

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application for federal writ of habeas corpus, which was denied on March 18, 1999. Furthermore, his application for a COA was denied by the district court on April 23, 1999. That application is now pending before this court.


Because Hernandez' application for writ of habeas corpus was filed on November 23, 1998, it is governed by the provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA"). See Lindh v. Murphy, 117 S.Ct. 2059 (1997); Clark v. Johnson, 202 F.3d 760, 763 (5th Cir. 2000), petition for cert. filed, (U.S. Apr. 25, 2000) (No. 99-9327). "Under AEDPA, before an appeal from the dismissal or denial of a § 2254 habeas petition can proceed, the petitioner must first obtain a COA, which will issue 'only if the applicant has made a substantial showing of the denial of a constitutional right.'" See id. (quoting 28 U.S.C. § 2253(c)(2)).

Recently, the Supreme Court ratified the standard to obtain a Certificate of Probable Cause, as announced in Barefoot v. Estelle, 103 S.Ct. 3383 (1983), as the appropriate standard to determine whether a habeas prisoner has made a substantial showing of the denial of a constitutional right. See Slack v. McDaniel, ___ U.S. ___, 120 S.Ct. 1595, 1603-04, ___ L.Ed.2d ___ (2000). Under that standard, an applicant makes a substantial showing when he demonstrates that his application involves issues that are debatable among jurists of reason, that another court could resolve the issues differently, or that the issues are suitable enough to deserve encouragement to proceed further. See Clark, 202 F.3d at 763 (citing Drinkard v. Johnson, 97 F.3d 751, 755 (5th Cir. 1996), overruled in part on other grounds, Lindh, 117 S.Ct. 2059). Specifically, where a district court has rejected a prisoner's constitutional claims on the merits, the applicant must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong. See Slack, 120 S.Ct. at 1604. "When the district court denies a habeas petition on procedural grounds without reaching the prisoner's...

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