Garcia v. Stephens

Citation793 F.3d 513
Decision Date17 July 2015
Docket NumberNo. 14–70035.,14–70035.
PartiesGustavo Julian GARCIA, Petitioner–Appellant v. William STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Seth Kretzer, Law Offices of Seth Kretzer, Houston, TX, James Wesley Volberding, Esq., Tyler, TX, for PetitionerAppellant.

Fredericka Searle Sargent, Asst. Atty. General, Office of the Attorney General, Austin, TX, for RespondentAppellee.

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

Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.

Opinion

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Gustavo Garcia was convicted of capital murder by a Texas jury and sentenced to death. This is his second federal habeas petition. The district court denied relief on the merits, ordered the case dismissed with prejudice, and did not issue a certificate of appealability (COA). Garcia now requests a COA from this court pursuant to 28 U.S.C. § 2253(c)(1) to appeal the district court's denial of relief. Having carefully reviewed the record, we hold that Garcia failed to exhaust state court remedies with regard to one of the claims he now raises. To the extent Garcia's remaining claims might be barred by AEDPA's procedural strictures we invoke the statutory discretion afforded us to decline to address that possibility and proceed to deny those claims on the merits.1 We hold that reasonable jurists could not debate the district court's conclusions as to Garcia's remaining claims and accordingly DENY Garcia's request for a COA.

I. Procedural History

In 1991, a Texas jury found Garcia guilty of capital murder for shooting and killing Craig Turski in the course of committing a robbery at a liquor store where Turski worked.2 The jury sentenced Garcia to death. On automatic direct appeal, the Texas Court of Criminal Appeals (CCA) initially reversed Garcia's conviction and ordered a new trial, holding that a written confession signed by Garcia violated Texas Code of Criminal Procedure article 38.22 § 2(b), which “requires that no written statement made by the defendant be admitted into evidence unless, on its face, the statement contains a knowing, intelligent, and voluntary waiver of the rights set forth in [section 2(a), which operationalizes a standard Miranda warning].” 3

Although Garcia had initialed “G.G.” before numbered warnings mirroring the rights listed in section 2(a) and had signed his name adjacent to additional language reinforcing those warnings, the CCA concluded that the written confession did not include “on its face” an express waiver of those rights.4

The CCA subsequently granted a motion for rehearing and reversed course, affirming the trial court and holding, “though a close call,” that Garcia's individual initialing beside the warnings, taken in context with his signature adjacent to the additional reinforcing language, constituted sufficient evidence that Garcia “did, on the face of his voluntary statement, knowingly, voluntarily, and intelligently waive his [s]ection 2(a) rights in a manner sufficient to comply with the legislature's intent when it enacted [s]ection 2(b).”5 Garcia did not file a petition for certiorari with the Supreme Court.

Garcia filed his first application for a writ of habeas corpus in state court in 1997.6 In 1998, the state habeas court issued findings of fact and conclusions of law, recommending that the application be denied. In February 1999, the CCA adopted the state habeas court's findings and conclusions and denied habeas relief without written order.7 The state trial court set Garcia's execution date for March 31, 1999. In March 1999, the United States District Court for the Eastern District of Texas, Judge Schell, granted a motion to appoint new counsel and stayed Garcia's execution.

Garcia filed his first federal habeas petition in August 1999, which was supplemented in 2000.8 In response, the state confessed error as to Garcia's claim that the trial court allowed improper testimony by the state's expert witness during the punishment phase of the trial—so-called Saldano error.9 On September 6, 2000, the federal district court issued a conditional writ of habeas corpus, requiring the state to conduct a new sentencing hearing.

The state trial court held a second jury trial on sentencing in February and March of 2001, and the jury again sentenced Garcia to death.10 On automatic direct appeal, the CCA affirmed Garcia's sentence.11 The CCA denied Garcia's motion for rehearing. Garcia filed a petition for certiorari. The Supreme Court denied certiorari on October 4, 2004, and subsequently denied Garcia's motion for rehearing.12

Meanwhile, Garcia filed a second application for a writ of habeas corpus in state court. On February 12, 2008, the state trial court issued findings of fact and conclusions of law recommending that relief be denied.13 The CCA denied relief in a brief written order on October 15, 2008.14

Garcia began the instant proceedings on November 27, 2008 in United States District Court for the Eastern District of Texas; he sought and received appointment of counsel by Judge Heartfield. He filed his second federal habeas petition on October 11, 2009. The district court denied relief in a 163–page opinion on November 10, 2014, dismissing the case and declining to grant a certificate of appealability (COA).15 Garcia now requests a COA from this court pursuant to 28 U.S.C. § 2253.

II. Facts of the Offense

We rely on the CCA's factual recitation,16 which summarized the facts of the offense as follows:

The evidence at trial established that on December 9, 1990 [Garcia] and Christopher Vargas entered a liquor store, Beverage Warehouse, in the city of Plano. [Garcia] was armed with a single shot .20 gauge sawed-off shotgun and had additional shells in his possession. [Garcia] ordered the clerk, Craig Turski, to give him the money from the cash register. At the same time, Vargas took beer from the store and put it in their car. A female customer walked in the store, saw [Garcia], and immediately left.
[Garcia] shot Turski at close range in the abdomen. Turski fled outside the store, pursued by [Garcia]. [Garcia] then reloaded the shotgun and shot Turski in the back of the head. The female customer, Donna Delozier Sawtelle, subsequently returned to the store with her husband. Finding the store deserted, they called the police. Turski was found and was transported to the hospital, where he later died from gunshot wounds

.

On January 5, 1991 at about 12:30 a.m., Vargas, [Garcia] and [Garcia's] girlfriend (Sheila Phanae Loe) stopped at a Texaco station in Plano. While Loe pumped gas, [Garcia] and Vargas entered the station with the same .20 gauge shotgun used to kill Turski. The clerk, Gregory Martin, was on the phone with his girlfriend. As he saw them enter, he informed her he thought he was about to be robbed and asked her to call the police. Martin was taken into a back room and shot at point blank range in the back of the head. He died at the scene.
[Garcia] claimed Vargas shot Martin. Evidence introduced at trial, however, indicated Vargas was carrying beer to their car (as he did in the earlier robbery) while [Garcia] shot the clerk. In addition, the shotgun was found near the freezer in close proximity to [Garcia] at the time of his capture. Two firearms experts testified at trial that the shotgun found at the scene of Martin's murder was the same weapon used in Turski's murder.
Alerted by Martin's girlfriend, the police arrived at the scene to find [Garcia], Vargas and Loe still present, Vargas was found, unarmed, standing over Martin's body. He claimed to have just entered the store and found Martin lying there. [Garcia] was found hiding in the freezer area close to where the shotgun was found.
[Garcia] was transported to the Plano Police Department. He was read his “Miranda” warnings repeatedly. He subsequently confessed, both orally and in writing, to the murders of both Turski and Martin. His confessions were videotaped, and a separate written confession was prepared for each offense.
[Garcia's] written statement regarding the killing of Turski in its entirety reads as follows:
Det. Wilson is writing my statement. Approx. 3–4 weeks from today's date, Chris Vargas & I robbed a liquor store & I killed the clerk. The liquor store was behind a 7–11 store at Plano Pkwy. & Ave. K. I was driving Sheila's Chev. Monza. We waited in the liquor store parking lot until the customers all left. Both Chris & I pulled a 20 ga. sawed-off shotgun on the clerk. I had the clerk give me the money out of the cash register & it was about $500. Chris was grabbing up beer. Chris went outside to pull the car up to the front door. I had the clerk go into a little room next to the cash register & I had him get on his knees. A customer, a white woman walked in the store & saw me & she walked back out. I then panicked and I shot the clerk with the shotgun. The clerk started coming at me & threw a chair at me and then he ran outside. I loaded the shotgun & shot the clerk again outside the store. The clerk had jumped over the fence & was in some grass when I shot him the 2nd time. I then ran to the car & we drove off. I told Sheila my common-law wife about the robbery after we did it. End—G.G.17
The statement was completed at 9:05 a.m. on January 5, 1991. Each page is signed by [Garcia] and two witnesses. The statement was taken by Det. David Wilson of the Plano Police Department....
At trial, an acquaintance of [Garcia], Bobby Flores, testified he was at Vargas' house the night of the Turski murder. Flores testified that Vargas and [Garcia] left the house and subsequently returned with beer and a lot of money. Flores asked [Garcia] where he got the beer and money. [Garcia] in response stated he went into a store, took the beer and money, shot the clerk and left.18
III. Standard of Review

Pursuant to the Antiterrorism and Effective...

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