Cantu v. Collins
| Decision Date | 22 July 1992 |
| Docket Number | No. 91-5512,91-5512 |
| Citation | 967 F.2d 1006 |
| Parties | Ruben Montoya CANTU, Petitioner-Appellant, v. James A. COLLINS, Director, Texas Department of Corrections, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Nancy B. Barohn, San Antonio, Tex. (Court-appointed), for petitioner-appellant.
Charles A. Palmer, Asst. Atty. Gen., Jim Mattox, Atty. Gen., Austin, Tex., for respondent-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before GARWOOD, JONES, and DUHE, Circuit Judges.
Ruben Montoya Cantu challenges his murder conviction and death sentence. His application for a writ of habeas corpus was denied by the district court, but the court granted a certificate of probable cause.
A Bexar County, Texas grand jury convicted petitioner for the November 8, 1984 murder of Pedro Gomez during the commission of a robbery, in violation of § 19.03(a)(2) of the Texas Penal Code (Vernon Supp.1984). The murder took place at the house of Eusebio Moreno in San Antonio. The house was under construction, and because Moreno had been experiencing numerous incidents of theft from the building site, his brother, Juan Moreno, and brother-in-law, Pedro Gomez, were sleeping in the house to prevent any further loss. Some time after 10:30 p.m., Gomez and Juan Moreno were awakened by two intruders: a man who was poking Moreno with a rifle, whom he later identified as the petitioner, and an accomplice. 1 Cantu and his companion took wristwatches from Moreno and Gomez, as well as Gomez's wallet. Cantu then told Gomez to pull back the mattress on one of the beds, under which a pistol owned by Eusebio Moreno was wrapped in a rag. According to Moreno, as Gomez was handing the bundle to the petitioner, Cantu shot him once in the head. Gomez fell to the ground, and Cantu shot him eight more times. Petitioner next trained his rifle on Juan Moreno, shooting him eight or nine times.
Gomez died from multiple gunshot wounds to the body and head. Juan Moreno survived.
On November 14, two detectives from the San Antonio Police Department visited Juan Moreno at the intensive care unit at Wilford Hall Medical Center. The detectives showed him photographs of possible suspects. Cantu's photograph was not in the photo spread, and Moreno did not identify any of the photos.
On December 16, detectives again visited Juan Moreno at Wilford Hall and showed him a photo array, which this time included a photo of Cantu. Moreno did not identify Cantu and did not look at his photograph. The detectives later testified that Moreno avoided looking at petitioner's picture, adding that it was their opinion that he knew more than he was saying. According to one of the detectives, when asked if he was afraid to identify the assailant, Moreno replied, "Yeah." Both detectives who visited Moreno at Wilford Hall on that day testified that he appeared to be frightened as he looked through the photo spread. 2 Detective Garza added that Moreno did recognize some of the other men in the photo lineup, "but he advised me that these people were just from the neighborhood and they were not any of the individuals involved in the shooting of him or Pedro Gomez." Moreno also for the first time offered a general description of his assailants: two Hispanic males, one about 13 or 14 years old, the other about 19 and wearing blue jeans.
Four months later, on March 1, 1985, petitioner was involved in a bar shooting with an off-duty San Antonio police officer, Joe De La Luz. At the time of the De La Luz shooting, Cantu was already a suspect in the murder of Pedro Gomez. Because Cantu was a suspect in both cases, San Antonio police renewed their efforts to obtain a positive identification in the Gomez murder investigation. Accordingly, the day after the De La Luz shooting, an officer was assigned to interview Juan Moreno at his home. The officer, Detective Ballesa, showed Moreno five photographs different from those which he had viewed on December 16, except for the photo of Cantu, which appeared in both arrays. Once again, Moreno did not identify anyone in the photographs. Detective Ballesa then engaged Moreno in a discussion, advising him that he had to identify the assailants if he knew their identity. Moreno then provided the name of Ruben Cantu when viewing his picture but did not identify him as Gomez's murderer. 3
The next day, on March 3, 1985, a different officer, Detective Quintanilla, went to the home of Eusebio Moreno for the specific purpose of taking Juan Moreno to the police station to show him the photo spread once more. At the station, Detective Quintanilla showed Juan Moreno the same photo spread containing the picture of petitioner that had been shown to him the day before by Detective Ballesa. This time, Moreno identified Cantu's photo as representing the man who had shot him and Gomez. Quintanilla testified that when he asked Juan Moreno why he had failed to identify Cantu previously, Moreno replied that "he had recognized the photo the day before; he just was afraid, scared." 4 At trial, Juan Moreno identified Cantu in court, adding that he had recognized him in the photo line-ups he viewed on December 16, 1984, and March 2, 1985, but did not identify his photo on those occasions because, "I didn't want to get into any problems." 5
In addition to Juan Moreno's trial testimony, the state's witnesses included Dr. Suzana Dana, a forensic pathologist and the deputy chief medical examiner of Bexar County. Dr. Dana testified that she performed the autopsy on Pedro Gomez, who had nine gunshot wounds to the body, including a "defensive" wound to the left forearm that was consistent with the victim attempting to shield his face or body with his hands. Gomez was killed by shots from a rifle, Dr. Dana continued, because there was no powder tattooing as would typically have been present had the shots been fired by a weapon with a shorter muzzle, such as Cantu did not testify at the guilt-innocence phase of the trial. Other than recall Juan Moreno and the police officers who conducted the photographic lineups in an attempt to discredit Moreno's identification testimony, the only other witness offered by the defense provided an alibi for Cantu. At the punishment phase of the trial, the prosecution presented five witnesses who testified to Cantu's bad reputation in the community. Officer De La Luz also testified that he was in the Scabaroo Lounge in San Antonio on the night of March 1, 1985, when Cantu shot him several times without provocation. Cantu then offered the testimony of six San Antonio police officers in an attempt to discredit De La Luz's testimony. The defense also recalled De La Luz to the stand and questioned him further about the shooting at the Scabaroo Lounge. At this point, the defense sought to have Cantu testify for the limited purpose of rebutting De La Luz's version of Cantu's assault on him. The trial court sustained the government's objection to this proposal, ruling that "when Ruben Cantu takes the stand, he is subject to the same grounds, the same areas of cross-examination as any other witness." In response to questions from defense counsel, the trial court added:
The defense declined to put Cantu on the stand under the conditions set by the court but did perfect a bill of exception at which Cantu testified outside the presence of the jury. Cantu essentially claimed that De La Luz provoked the confrontation which led to the Scabaroo Lounge shooting, adding that he shot De La Luz with a pistol Cantu had purchased outside the bar earlier that evening.
Cantu was convicted of capital murder and sentenced to death on July 30, 1985. He appealed to the Texas Court of Criminal Appeals, which on February 4, 1987 affirmed his conviction and sentence. Cantu v. State, 738 S.W.2d 249 (Tex.Crim.App.1987). That court later denied Cantu's motion for rehearing, and the Supreme Court denied certiorari. Cantu v. Texas, 484 U.S. 872, 108 S.Ct. 203, 98 L.Ed.2d 154 (1987). Cantu was slated to be executed on or before sunrise on January 8, 1988. He filed a post-conviction habeas application, which the Texas Court of Criminal Appeals denied. Cantu then filed a federal habeas application and motion for stay of execution, which was granted on January 7, 1988. After an evidentiary hearing, a federal In his brief, petitioner raises seven challenges to his conviction and death sentence, framing them as follows:
magistrate recommended that habeas corpus relief be denied. The district court later accepted the magistrate's report and denied the writ, prompting this appeal
I. The Texas capital sentencing statutes precluded the jury from giving full effect to Mr. Cantu's mitigating...
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