Hernandez v. Johnson

• Decision Date: 12 March 1997
• Docket Number: No. 96-40091,96-40091
• Citation: 108 F.3d 554
• Parties: Rogelio Rangel HERNANDEZ, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 554

108 F.3d 554

Rogelio Rangel HERNANDEZ, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

No. 96-40091.

United States Court of Appeals Fifth Circuit.

March 12, 1997.

Mandy Welch, James William Marcus, Houston, TX, for Petitioner-Appellant.

Dana Emmert Parker, Assistant Attorney General, Austin, TX, for Respondent-Appellee.

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

Before GARWOOD, JONES and EMILIO M. GARZA, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Appellant Rogelio Hernandez was convicted of capital murder and sentenced to death for murdering Officer Jose Herrera during an attempted escape from the Webb County Jail in 1986. After appellant's conviction was affirmed on direct review and a last-minute petition for state habeas corpus was overruled, appellant sought a stay of execution and writ of habeas corpus in federal court. After an evidentiary hearing on appellant's most significant claims, the district court denied relief on each of appellant's forty-six alleged errors. The district court granted a certificate of probable cause ¹ and appellant now seeks reversal of the district court decision based on his counsel's alleged conflict of interest and ineffective assistance. We hold that Hernandez's attorney did not labor under an actual conflict of interest by having served as district attorney when Hernandez pled guilty to prior felonies, and there was no "adverse effect" on Hernandez's defense from the potential conflict. We affirm the district court's decision to deny relief on this and on the other ineffective assistance claims.

I. BACKGROUND

Hernandez and several co-conspirators attempted to escape from the Webb County jail in Laredo, Texas on February 3, 1986. In planning for the escape, appellant arranged for three handguns to be smuggled into the jail. Upon receipt of .25 caliber weapons, however, Hernandez informed his outside contact that he needed bigger guns, and subsequently two .38 caliber pistols were smuggled inside.

On the day of the murder, the lawyer for one of the co-conspirators visited the jail, purportedly to talk with Hernandez. Officer Herrera went to remove Hernandez from his cell to meet with the lawyer. The plan was to force Officer Herrera to release appellant and his co-conspirators. When Officer Herrera did not cooperate, Hernandez shot him three times, firing the fatal shot into his temple. The state court described what happened next:

Jose de Jesus Benavides and Merced Martinez, two other detention officers who came to investigate the sound of gunfire, were each shot several times by the appellant, who was then armed with a large caliber revolver in each hand. Ruben Reyes, another detention officer, was also shot. A narrow stairwell in the jail prevented law enforcement officers from reaching the second floor and allowed appellant to control that floor for most of the night. After threatening to shoot other inmates on the second floor, appellant finally surrendered and was taken into custody.

Hernandez v. State, 819 S.W.2d 806, 809 (Tex.Cr.App.1991), cert. denied, Hernandez v. Texas, 504 U.S. 974, 112 S.Ct. 2944, 119 L.Ed.2d 568 (1992).

Hernandez was first convicted and sentenced to death for this crime in 1987, but his conviction was overturned because of the improper exclusion of a prospective juror. Hernandez v. State, 757 S.W.2d 744 (Tex.Cr.App.1988).

Appellant was retried, convicted, and again sentenced to death in 1989. The evidence overwhelmingly pointed to his guilt. Hernandez's outside contact testified that appellant requested the weapons for the escape. The fatal shot struck Officer Herrera in the temple and was fired by a large caliber weapon. Hernandez had gunpowder residue on his hands when he was arrested and was seen shortly after the shots were fired with the only two large caliber weapons found in the jail. The jury also heard evidence that appellant shot the other officers and occupied the second floor for several hours before finally surrendering. Both during the standoff and after his arrest, appellant admitted to the detention officers that he had shot Officer Herrera.

At the penalty phase of trial, appellant's lengthy criminal record, including two prior murder convictions, was revealed. Local law enforcement officers testified to Hernandez's poor reputation as a peaceful and law-abiding citizen. A member of a prison gang also testified that Hernandez was a leader in the Texas Syndicate and performed criminal activities in prison on behalf of the gang. The state also introduced appellant's letters to his family, written shortly before the murder, indicating that he would "die trying to be free again."

His second conviction was affirmed by the Texas Court of Criminal Appeals. Hernandez, 819 S.W.2d at 820. After a petition for certiorari was denied by the U.S. Supreme Court, appellant was allegedly unable to obtain counsel for state habeas proceedings and did not seek state post-conviction relief except for an unsuccessful motion for a stay to obtain counsel. He was scheduled to be executed on August 21, 1992.

The day before that fatal deadline, Hernandez filed a motion for stay of execution and a petition for writ of habeas corpus in federal district court. The district court granted the stay of execution and conducted an evidentiary hearing. The district court denied appellant's petition for writ of habeas corpus with an extensive and careful memorandum and order issued August 3, 1995 and granted a certificate of probable cause on January 30, 1996, continuing the stay pending this appeal.

II. DISCUSSION

A. Applicable standard of review

The President signed the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) on April 24, 1996. Pub.L. No. 104-132, 110 Stat. 1214 (1996). This circuit has held that the AEDPA applies to appeals pending as of the effective date of the act. Drinkard v. Johnson, 97 F.3d 751, 764-66 (5th Cir.1996). In Drinkard, the panel determined that applying § 2254(d)(1) as amended by the AEDPA did not raise retroactivity problems since the amendment is a "change in procedural rules" involving "federal standards of review of state court decisions." Id. at 766. A habeas petitioner normally cannot demonstrate reliance on the "former federal standards of habeas review in making strategic, tactical, or other decisions during the state court litigation." Id. The amended § 2254(d) ² applies to the review of claims adjudicated on the merits in state court. However, Hernandez's ineffectiveness claims were not adjudicated on the merits in state court. ³

Section § 2254(e)(2), as amended by the AEDPA, identifies limited circumstances under which a federal court may hold an evidentiary hearing on a claim for which a state prisoner failed to develop the factual basis in state court. The amended section provides:

(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that--

(A) the claim relies on--

(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for the constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

AEDPA, § 104(4) (to be codified at 28 U.S.C. § 2254(e)(2)). This provision, like the amendments to § 2254(d), embodies a procedural change in federal habeas review of state decisions and raises no retroactivity concerns. See Drinkard, 97 F.3d at 766; Lindh v. Murphy, 96 F.3d 856 (7th Cir.1996); Hunter v. Vasquez, 1996 WL 612484, * 6 (N.D.Cal.1996). It could not apply in this case, of course, because the federal evidentiary hearing was held well before AEDPA was passed.

Application of § 2254 as amended is thus problematic for claims that were adjudicated in federal district court but not on the merits in state court before the passage of AEDPA. In this unusual situation, which will become even rarer as AEDPA's terms shift the focus of hearings to state courts where it belongs, ⁴ we will review the record including both the federal and, where applicable, state court hearings. See n. 3 supra. As Hernandez has been unable to prevail by means of the more liberal criteria, it is clear that, under AEDPA's more rigorous § 2254(d) standard, he would lose.

B. Appellant's claims

1. Conflict of interest

Appellant alleges that his attorney's prior service as the elected district attorney when Hernandez was tried created a conflict of interest that adversely affected his attorney's performance. For the second trial in 1989, the court appointed Charles Borchers and Teresa Hunter to represent appellant. Borchers served as Webb County district attorney from 1973 to 1980, during which time appellant was convicted of two felonies in Webb County: aggravated assault with a deadly weapon in 1976 and murder in 1978. Although Borchers was not the trial counsel for the state in appellant's cases, Borchers signed a motion requesting psychiatric evaluation of appellant in connection with the 1978 charge, signed a motion to dismiss a related indictment after Hernandez pled guilty, and probably approved Hernandez's plea bargain. ⁵ With respect to the 1976 felony, Borchers signed two applications for subpoenas and moved to dismiss related charges after appellant pled guilty.

In a pretrial hearing in the state court, the state objected to Borchers's service as appellant's attorney, making arguments similar to those now advanced by Hernandez. The state argued that Borchers would be in the position of...