Gonzales v. Quarterman

• Decision Date: 31 July 2006
• Docket Number: No. 03-50021.,03-50021.
• Citation: 458 F.3d 384
• Parties: Michael Dean GONZALES, Petitioner-Appellant, v. Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

458 F.3d 384 Michael Dean GONZALES, Petitioner-Appellant,
v.
Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee. No. 03-50021. United States Court of Appeals, Fifth Circuit. July 31, 2006.

[458 F.3d 386]

Adrienne Urrutia Wisenberg (argued), Solomon L. Wisenberg PLLC, Washington, DC, Andrew A. Hamel, San Antonio, TX, for Gonzales.

Woodson Erich Dryden, Asst. Atty. Gen. (argued), Austin, TX, for Quarterman.

Appeals from the United States District Court for the Western District of Texas.

Before JONES, Chief Judge, and JOLLY and GARZA, Circuit Judges.

PER CURIAM:

Michael Dean Gonzales was found guilty of capital murder and sentenced to death. During federal habeas proceedings, the State conceded that he is entitled to a new sentencing hearing. The issues here include an alleged Brady claim and two ineffectiveness allegations. Finding no error that meets the demanding AEDPA review standards, we AFFIRM.

I. BACKGROUND

A Texas jury convicted Gonzales of killing Manuel and Merced Aguirre. Gonzales stabbed the Aguirres to death in their home in Odessa, Texas on the night of April 21, 1994. Mr. Aguirre was stabbed eleven times and Mrs. Aguirre had stab wounds too numerous to count, including many defensive wounds. A blood spatter expert testified that Mr. Aguirre was overcome quickly, but Mrs. Aguirre fought even after falling to the floor in the attack. The medical examiner testified that she had been "basically butchered."¹

The police investigation of the crimes quickly focused on Gonzales, who, along with his mother, wife, and child, lived in the house next door to the Aguirres. Prior to the night of the murders, the Aguirres had complained to the police about being disturbed by Gonzales's late night activities. The Aguirres' son testified that their fear of Gonzales was one of the reasons why they had put bars on their windows.

Gonzales was taken into custody for questioning approximately sixteen hours after the murders, and he consented to a luminol test of his arms, hands, and shoes. Except for the site on Gonzales's arm

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where the police had drawn blood that day, the luminol test did not indicate the presence of blood on the portions of Gonzales's body that were tested. Gonzales was released from custody after being questioned.

The police found a "blood transfer" stain on a camper parked in the alley between the Aguirre and Gonzales houses. Police also noticed that the alley had recently been swept clean. An anonymous Crime Stoppers informant reported that Gonzales had swept the dirt in that alley the morning after the murders.

Police also found a red pepper on the floor underneath Mrs. Aguirre's body. The same type of pepper was found on Gonzales's back doorstep, and a bowl of the same peppers was found in his refrigerator. Detective Snow Robertson testified at trial that he had attempted, unsuccessfully, to locate such peppers in local stores. There was evidence that these peppers were not native to Texas and were unique to a certain area of Mexico.

Linda Olivarez testified that on the night of the murders, Gonzales and his wife and child came to her home around 10:15 p.m. Gonzales had brought with him a plastic bag that he left outside by Olivarez's front gate. Gonzales left with a man in a truck, and returned shortly thereafter. He asked his wife to pick up the plastic bag when they left. The State's theory was that the plastic bag contained the bloody clothing Gonzales had worn when he stabbed the Aguirres.

On the day after the murders, a neighbor found property belonging to the victims in front of the dumpster located on the route from Gonzales's house to the Olivarez home. Police later found more of the Aguirres' property in or around the dumpster.

Although there was no sign of forced entry, the Aguirres' son had identified a microwave, a VCR, a camera, a stereo, and a .22 pistol as missing from their house. Less than a week after the murders, Gonzales asked Olivarez and her husband, Julian, if they wanted to buy a microwave oven. Julian told Gonzales he would have to see it first. Julian, Linda, and Gonzales went to Gonzales's house, where Gonzales showed them a VCR, a camera, and a stereo for sale. The Olivarezes purchased the microwave, VCR, and stereo. Gonzales also showed Julian a .22 caliber pistol, but told him it was not for sale. Gonzales said, "They are on to me." When Julian asked what he meant, Gonzales replied, "No, I can't tell you."

After the Olivarezes took the items to their home, Gonzales retrieved the stereo because they had not paid for it yet and he had already sold it to someone else. During interrogation, Daniel Lugo, a member of Gonzales's gang, told the police that he had the Aguirres' stolen stereo, which he had gotten from Gonzales. Gonzales's fingerprint was found on the back of the stereo. The pistol was eventually recovered from Delia Sanchez, who testified that she purchased it from Gonzales. All of these items were later identified as those stolen from the Aguirres' home. Some empty shell casings found in a box at Gonzales's house were determined to have been fired from the Aguirres' gun.

Police also found a white Dexter & Russell kitchen knife in Gonzales's home. The medical examiner testified at trial that this type of knife could have caused both of the victims' wounds. On cross examination, the medical examiner stated that he could not rule out the possibility that Mrs. Aguirre was stabbed with more than one knife.

Gonzales was arrested fifteen days after the murders and charged with capital murder for the murder of more than one person during the same criminal transaction. Upon arrest, Gonzales had two teardrop

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tattoos on his face; at trial, an officer testified that these tattoos were a gang symbol signifying the number of people a person has killed. Gonzales was in a gang called "Homies Don't Play." No one else was charged in the murders.²

On the day Gonzales was arrested, Charles Kenimer, a guard at the local jail and Gonzales's relative, saw Gonzales leave a police station interrogation room with Detective Robertson and a Texas Ranger. Kenimer testified that Gonzales seemed upset and that he tried to calm Gonzales by stating, "Boy, you really got these officers upset. I don't know what you said." Kenimer testified that Gonzales responded, in Spanish, "They're trying to pin this rap on me, this murder rap on me. They can't do it. They don't have any evidence. Although I did it, you know, but they don't have anything to go on."³

During the guilt-innocence phase, the defense strategy was to highlight evidence of other parties' involvement in the offense, and to emphasize the State's burden of proof. The prosecution did not request a jury instruction on the law of parties. Thus, the jury was required to find that Gonzales intentionally caused the death of both victims by stabbing them. During closing argument, defense counsel argued that the evidence strongly suggested that other suspects were involved, and that there was no direct evidence that Gonzales murdered both victims. Defense counsel repeatedly reminded the jury that Gonzales could not be held responsible for an accomplice's criminal conduct. Nevertheless, during his final closing argument, the prosecutor argued, without objection, that Gonzales was guilty of capital murder even if he killed only one of the victims and aided and abetted someone else in the killing of the other victim. During deliberations, the jury asked the following question: "we need clarification on capital murder versus murder verdict. If Mr. Gonzales murdered one individual only, then does his association make him guilty of both." The trial judge responded by referring the jury to the charge.

The jury found Gonzales guilty of capital murder. Following the punishment phase, the jury answered the special issue on future dangerousness affirmatively and answered the special issue on mitigation negatively; thus, Gonzales was sentenced to death. The Texas Court of Criminal Appeals affirmed the conviction on direct appeal in June 1998. Gonzales v. State, No. 72,317 (unpublished). Gonzales's state habeas application was denied by the trial court and the Texas Court of Criminal Appeals. Ex Parte Michael Dean Gonzales, No. 72,317, Writ No. D-23,370.

Gonzales filed his federal habeas petition in January 2000, raising six claims for relief: (1) the prosecutor denied him due process by concealing the exculpatory negative result of a luminol test for blood; (2)

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he was denied effective assistance of counsel on direct appeal because his attorney did not appeal the denial of his motion for new trial; (3) he was denied effective assistance of counsel at the guilt and punishment phases of his trial (nine sub-claims); (4) his unwarned confession to Kenimer violated his Fifth Amendment right against self-incrimination; (5) he was denied due process because the prosecutor knowingly failed to correct Kenimer's false testimony that he spontaneously confessed to him; and (6) the prosecutor denied him due process by knowingly allowing a police officer to give the jury the false impression that his teardrop tattoos meant that he had killed two people.

Gonzales filed a supplemental petition in August, 2000, asserting that the State's psychological expert witness testified, unconstitutionally, that race is an indicator of future dangerousness. The State conceded that this claim is valid and entitled Gonzales to a new sentencing hearing. The district court so ordered, and neither party has appealed its ruling on this point.

In March 2001, the district court held a two-day evidentiary hearing on the Brady and ineffective assistance claims. The district court denied relief in a carefully written opinion and denied Gonzales's request for a certificate of appealability ("COA").

II. DISCUSSION

This court granted a COA for...