Barrientes v. Johnson

Decision Date07 August 2000
Docket NumberNo. 98-40348,98-40348
Parties(5th Cir. 2000) ANTONIO BARRIENTES Petitioner - Appellee-Cross-Appellant v. GARY L JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION Respondent - Appellant-Cross-Appellee
CourtU.S. Court of Appeals — Fifth Circuit

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Appeals from the United States District Court for the Southern District of Texas

Before KING, Chief Judge, and SMITH and STEWART, Circuit Judges.

KING, Chief Judge:

In this habeas case, the district court granted relief on six claims related to the penalty phase of Petitioner Antonio Barrientes's capital murder trial and vacated Barrientes's death sentence. The court denied all other claims and an application for a certificate of probable cause. Respondent Gary L. Johnson, Director, Texas Department of Criminal Justice, Institutional Division, appeals from that portion of the district court's order granting relief, and Petitioner applies for a certificate of probable cause to appeal ten claims upon which relief was denied. With regard to the Director's appeal, we reverse the district court as to one claim, vacate that portion of the district court's order granting relief on the remaining five claims, and remand for an evidentiary hearing. Treating Petitioner's application for a certificate of probable cause as an application for a certificate of appealability, we deny his application.


In 1985, Petitioner Antonio Barrientes and a co-defendant, David Gonzales, were convicted of the capital murder of Jose Arredondo, who, while working as a clerk at the Fina-Jamco convenience store in Brownsville, Texas, was shot in the head four times. Arredondo was found in the cooler of the store by a relative of the store's owner.

Felix Sanchez, who had known Barrientes for twenty-five years, testified during the guilt/innocence phase of the trial that he walked into the store on the afternoon of the murder to purchase gas. He did not see a clerk, so he banged his hand on the counter. Barrientes popped up from behind the counter and Sanchez asked him when he had started working there. Barrientes responded, "Be quiet. I'm in the middle of a robbery." Sanchez told Barrientes that he wanted no part of it, turned, and began walking toward the door. He heard Barrientes say that he, Barrientes, had to "shoot the son-of-a-bitch." As Sanchez was opening the front door, he saw Barrientes pushing a dark-haired individual from the stockroom into the cooler; he then heard two shots.

Sanchez got in his car and began to drive away. Remembering that his gas gauge was on empty, he made a U-turn and drove to another gas station across the street from the Fina-Jamco store. While there, he noticed a few people enter and leave the Fina-Jamco store. He then noticed Barrientes leaving with a cardboard box and watched him until he disappeared into an alley next to the store. Sanchez got in his car and began driving home. On his way, he saw Barrientes get into the passenger seat of Gonzales's car. Gonzales was at the wheel.

Sanchez testified that he returned to his mother's house, where he was living at the time, and that he saw Gonzales's car in the alley behind the house. Barrientes and Gonzales were in a neighbor's yard watching Sanchez until the neighbor called them away. Sanchez then left to take his mother to an appointment at a hospital in Galveston, an eight or nine hour drive from Brownsville. Along the way, he told his mother what he had seen, and she convinced him to tell the police. Later that night, he flagged down a highway patrolman and gave a videotaped statement at a police station about five hours from Brownsville. He gave another statement several weeks later.

On cross-examination, Barrientes's counsel and Gonzales's counsel attacked discrepancies between Sanchez's earlier statements and his testimony. Sanchez explained that he had been tired, confused, and nervous during his previous statements. Gonzales's counsel also attacked Sanchez's unwillingness to speak with the defense prior to the trial.

Two other witnesses testified that they went into the Fina-Jamco store on the afternoon of the murder and that Barrientes was working behind the counter, did not know how to operate the cash register, and appeared under the influence of drugs. Another State witness, David Meza, testified that while in county jail on a DWI charge, Barrientes confessed the murder to him on two separate occasions. The prosecutor elicited testimony that because of overcrowding Meza was on a floor of the jail reserved for murderers. On cross-examination, Barrientes's counsel inquired how the confession was brought to the attention of authorities, and Meza responded that he had only repeated the story to a friend of his, a man whom Barrientes had once shot in the leg.

The defense presented only two witnesses. The first was an employee from the county jail who testified that Meza's booking card showed that he was assigned to a floor separate from the floor where suspected murderers were housed. On cross-examination, the witness admitted that, due to overcrowding, Meza could have been switched to a different floor from that noted on his booking card, and that his booking card might not have been changed to reflect the switch.

The second witness was Barrientes. He admitted to being in the Fina-Jamco store on the day of the murder, but explained that he had gone there to buy beer and had discovered Felix Sanchez in the store holding a cardboard box with beer, cigarettes, and a money bag in it. Sanchez left and Barrientes stayed behind at Sanchez's request to open the cash register and steal money from it. While attempting to do this, two customers came in and he waited on them.

During the penalty phase of the trial, several police officers testified in summary fashion that the defendants' reputations in the community for being peaceful and law-abiding citizens were bad. Two witnesses, including an investigator for the district attorney's office, Joe Garza, testified that during the trial, Barrientes threatened to "take care" of Felix Sanchez. Garza further testified that he had arrested Barrientes for capital murder in 1979, that the case was still pending, and that a witness in the case had disappeared (the "1979 Unadjudicated Murder").1

During closing, the prosecutor commented on the 1979 Unadjudicated Murder as follows:

Well, you heard Mr. Garza get up and testify that he arrested Barrientes back in '79 for another capital murder but that the witness disappeared in that. I'll leave that to your thoughts. Another capital murder in 1979.

Here we are again with another capital murder. What's next? A witness disappeared. I wonder where the witness is. I wonder. He knows. He knows where the witness is as he sits there right now. He knows. He knows.

. . . .

. . . You tell me what justice is. We've got one capital murder in 1979 where the witness disappeared.

God knows where the witness is in that case. He may be in a cooler somewhere, although not in a store. He may be somewhere where no one would ever find him.

State Record Vol. IX, at 41. The prosecutor continued during surrebuttal:

Mr. Davidson talked to you about the only witness [to the 1979 Unadjudicated Murder], that I'd like you to believe he's dead and buried. Since he brought it up he probably is dead and buried. Probably is.

Innuendo? He was arrested for capital murder and the witness is gone. I'm not going to yell and scream about that. You believe what you want to about that. That's up to you. You saw what he's done. You saw what he did to Joe Arredondo.

What's he going to do to Felix Sanchez? What's he going to do to Felix Sanchez, the one who identified him? He was so high on heroin that he didn't know enough to go ahead and kill Felix Sanchez.

Thank God he was high on heroin, otherwise Sanchez would probably be dead now. He would be another witness that would be dead, and then I guess at that point the State would have some more innuendo, as Mr. Davidson says, because we'd not have the witness.

Id. at 53. After the penalty phase concluded, Barrientes was sentenced to death and Gonzales was sentenced to life in prison.


Barrientes appealed from his conviction, and the Texas Court of Criminal Appeals affirmed. See Barrientes v. State, 752 S.W.2d 524 (Tex. Crim. App. 1987). His subsequent petition for writ of certiorari was denied by the United States Supreme Court. See Barrientes v. Texas, 487 U.S. 1241 (1988).

Barrientes filed a state post-conviction petition for a writ of habeas corpus in August 1988 (the "First State Petition"). The petition raised a multitude of claims including prosecutorial misconduct, ineffective assistance of counsel, insufficient evidence at the penalty phase of the trial, improper jury consideration of facts not presented at trial, and various attacks on the Texas capital sentencing statute. The Court of Criminal Appeals stayed his execution and ordered an evidentiary hearing on the ineffective assistance of counsel claims. The evidentiary hearing was held before the same state district judge who had presided at Barrientes's capital murder trial. After entering findings of fact and conclusions of law, the state district court recommended denial of relief. In early 1989, the Texas Court of Criminal Appeals denied relief on all grounds, with two judges dissenting. See Ex parte Barrientes, No. 19,007-01, order at 2 (Tex. Ct. Crim. App. Feb. 1, 1989).

On March 8, 1989, Barrientes filed his first federal petition for habeas corpus in the United States District Court for the Southern District of Texas. The claims raised in this petition were substantially the same as the claims raised in his First State Petition. The petition was amended in April 1992 (the "Amended First Federal Petition"), based upon...

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