Cardenas v. Dretke

• Decision Date: 29 March 2005
• Docket Number: No. 03-41425.,03-41425.
• Citation: 405 F.3d 244
• Parties: Ruben Ramirez CARDENAS, Petitioner-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

405 F.3d 244

Ruben Ramirez CARDENAS, Petitioner-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.

No. 03-41425.

United States Court of Appeals, Fifth Circuit.

March 29, 2005.

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Robin Norris, Hart & Norris, El Paso, TX, Charles August Banker, III, McAllen, TX, for Cardenas.

Margaret L. Schmucker, Austin, TX, for Dretke.

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

Before BARKSDALE, GARZA and DENNIS, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Petitioner Ruben Ramirez Cardenas ("Cardenas"), a Mexican national, was convicted of capital murder and sentenced to death. Cardenas filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of Texas pursuant to 28 U.S.C. § 2254. The district court denied the petition as well as Cardenas' request for a certificate of appealability ("COA"). Cardenas now requests a COA from this court on four issues pursuant to 28 U.S.C. § 2253(c)(2). He claims that: (1) the trial court violated his constitutional rights by excluding venire members opposed to the death penalty; (2) his counsel provided ineffective assistance by failing to oppose the exclusion of venire members opposed to the death penalty; (3) the trial court violated the Constitution by refusing to allow discussion of his parole eligibility during sentencing; and (4) the failure to advise him of his right to consular assistance under the Vienna Convention on Consular Relations ("Vienna Convention") requires review by the district court to determine if it prejudiced the fairness of his trial.

I

On the morning of February 22, 1997 the parents of Mayra Laguna reported to the police that their daughter was missing. In the course of investigating Mayra's whereabouts, the police spoke with Cardenas Mayra's first cousin, who voluntarily went to the police station. For more than ten hours, Cardenas remained at the police station and was interrogated by nine different law enforcement officers about Mayra's disappearance. Although a Mexican national, Cardenas was never advised by authorities of his right to consular access. Cardenas was thereafter arrested when his friend, and later co-defendant, implicated him in the crime. After his arrest, Cardenas gave a statement to authorities wherein he admitted that he had killed Mayra and led police to the scenes where he raped the victim and disposed of her body.¹

Cardenas was convicted of capital murder and sentenced to death. His conviction was affirmed by the Texas Court of Criminal Appeals and his habeas appeal was denied. Cardenas' federal habeas petition and subsequent application for COA were also denied.

II

To receive a COA, Cardenas must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). When a district court rejects a claim on the merits, "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). In capital cases, doubts about whether the petitioner has met the standard must be resolved in favor of the petitioner. Clark v. Johnson, 202 F.3d 760, 764 (5th Cir.2000). When a petition is dismissed on procedural grounds, the petitioner must show that "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack, 529 U.S. at 484, 120 S.Ct. 1595 (emphasis added).

At the COA stage, a court should "limit its examination to a threshold inquiry into the underlying merit of his claims." Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citing Slack, 529 U.S. at 481, 120 S.Ct. 1595). We do not fully consider "the factual or legal bases adduced in support of the claims," and a petitioner need not show that an appeal will succeed in order to be entitled to a COA. Id. at 336-37, 123 S.Ct. 1029. "The question is the debatability of the underlying constitutional claim, not the resolution of that debate." Id. at 342, 120 S.Ct. 1595.

The district court should evaluate the habeas petition to see if the state court's determination "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." 28 U.S.C. § 2254(d)(1). A decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless it "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. 2254(d)(2). In addition, a state court's findings of fact are entitled to a presumption of correctness unless the petitioner rebuts that presumption with "clear and convincing evidence." 28 U.S.C. § 2254(e)(1). Thus, when evaluating a COA petition, we consider only whether the district court's application of Antiterrorism and Effective Death Penalty Act ("AEDPA") deference to the petitioner's claim is debatable among jurists of reason. Miller-El, 537 U.S. at 341, 123 S.Ct. 1029.

New constitutional rules of criminal procedure are generally not applied retroactively to cases that become final before a new rule is announced. Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). "Teague remains applicable after the passage of the AEDPA." Robertson v. Cockrell, 325 F.3d 243, 255 (5th Cir.2003) (citing Horn v. Banks, 536 U.S. 266, 272, 122 S.Ct. 2147, 153 L.Ed.2d 301 (2002)).

III

A

Cardenas argues initially that the trial court improperly excused several potential jurors because they were categorically opposed to the death penalty, but failed to ascertain whether they could discharge their duties according to the trial court's instructions and their oath of office.

Cardenas' claim is procedurally barred from federal review because he failed to raise a contemporaneous objection to the jurors' exclusion. Fisher v. State, 169 F.3d 295, 300 (5th Cir.1999). Failure to object to the exclusion of a prospective juror waives any error. See Ladd v. State, 3 S.W.3d 547, 562 (Tex.Crim.App.1999). The doctrine of independent and adequate state ground applies not only when federal courts review a state court judgment, "but in deciding whether federal district courts should address the claims of state prisoners in habeas corpus actions. . . . The doctrine applies to bar federal habeas when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement. In these cases, the state judgment rests on independent and adequate state procedural grounds."² Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). The Texas contemporaneous objection rule constitutes an adequate and independent state ground that procedurally bars federal habeas review of Cardenas' claim. Fisher, 169 F.3d at 300. The state habeas court found that this claim was procedurally defaulted because Cardenas' attorney failed to object to the rulings excusing potential jurors and even made remarks agreeing with the prosecution's challenges in several cases, thus failing to preserve any alleged error in regard to these jury selection issues for review. We agree. Id.; Ex parte Gardner, 959 S.W.2d 189, 199 (Tex.Crim.App.1996). Cardenas has not shown that the district court's ruling on the procedural ground is debatable.

The state habeas court's discussion of the merits as an alternative reason for its holding does not nullify its procedural ruling. See Corwin v. Johnson, 150 F.3d 467, 473 (5th Cir.1998). Furthermore, even if this court were to address the merits of Cardenas' claim, he has not demonstrated that the state habeas court's finding that the exclusion of venire members because of their inability to consider the death penalty was objectively unreasonable. See 28 U.S.C. § 2254(d)(2). The general rule states that prospective jurors may be excluded if they "would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or. . . that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt." Witherspoon v. Illinois, 391 U.S. 510, 522 n. 21, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). A jury, however, may not be chosen by excluding veniremen for cause simply because they may be "hesitant in their ability to sentence a defendant to death." Morgan v. Illinois, 504 U.S. 719, 732, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992) (citing Witherspoon, 391 U.S. at 522, n. 21, 88 S.Ct. 1770). The trial court in this case first inquired into each juror's general opinion of capital punishment and then made more specific inquiries required by federal law. The trial court specifically examined whether this view would prevent or substantially impair each juror's performance given any instructions received. Potential jurors who were excluded expressed views that indicated their opposition to the death penalty was so strong that it would "prevent or substantially impair the performance of their duties as jurors at the sentencing phase of the trial." Lockhart v. McCree, 476 U.S. 162, 165, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986). The trial court's finding of juror bias is entitled to a presumption of correctness and the petitioner has the burden of rebutting these determinations by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Fuller v. Johnson, 114 F.3d 491, 500-01 (5th Cir.1997). Cardenas has not shown that the district court's ruling...