Leal v. Dretke

• Decision Date: 13 October 2005
• Docket Number: No. 04-70052.,04-70052.
• Citation: 428 F.3d 543
• Parties: Humberto LEAL, Petitioner-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 543

428 F.3d 543

Humberto LEAL, Petitioner-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.

No. 04-70052.

United States Court of Appeals, Fifth Circuit.

October 13, 2005.

COPYRIGHT MATERIAL OMITTED

Mark Stevens, San Antonio, TX, Michael B. Charlton, Law Office of Michael B. Charlton, El Prado, NM, for Leal.

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

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

Before GARZA, DeMOSS and CLEMENT, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Convicted of capital murder and sentenced to death, Humberto Leal, Jr. petitions for a Certificate of Appealability ("COA") from the denial of his petition for federal habeas corpus relief. Leal claims that his trial counsel rendered ineffective assistance and that the Texas capital sentencing scheme's special issues are unconstitutionally vague.

I

The tragic final hours of sixteen-year-old Adrea Sauceda's life started at an outdoor party in San Antonio, Texas. A witness observed Sauceda, apparently intoxicated and partially undressed, in the middle of a circle of men who were taking turns "on top of her." Another witness testified that an unidentified male invited him to have intercourse with Sauceda. The same witness testified that he later observed another man carrying a disoriented Sauceda to a truck, where he "had his way with her." On direct appeal, the Texas Court of Criminal Appeals summarized the evidence of the events that followed:

The twenty-three-year-old appellant [Leal] was also at the party. At some point the intoxicated but conscious victim was placed in appellant's car. Appellant and the victim left together in appellant's car.

About thirty minutes later, appellant's brother arrived at the party in a car which came to a screeching halt. Appellant's brother was very excited or hysterical. Appellant's brother started yelling to the people left at the party, "What the hell happened!" Appellant's brother was yelling that appellant came home with blood on him saying he had killed a girl. Witnesses Torres and Ortega were present when appellant's brother made these statements. Shortly thereafter appellant's brother left in a rush.

Several of the party members went looking for the victim in the same area where the party was. They found her nude body lying face-up on a dirt road. They noticed the victim's head had been bashed in and it was bleeding. Her head was flinching or jerking. These party members called the police.

When the police arrived, they saw the nude victim lying on her back. There was a 30 to 40 pound asphalt rock roughly twice the size of the victim's skull lying partially on the victim's left arm. Blood was underneath this rock. A smaller rock with blood on it was located near the victim's right thigh. There was a gaping hole from the corner of the victim's right eye extending to the center of her head from which blood was oozing. The victim's head was splattered with blood.

There was a bloody and broken stick approximately 14 to 16 inches long with a screw at the end of it protruding from the victim's vagina. Another 4 to 5 inch piece of the stick was lying to the left side of the victim's skull. The police made a videotape of the crime scene portions of which were admitted into evidence.

Later that day, the police questioned appellant. Appellant gave two voluntary statements. In appellant's first statement he said he was with the victim in his car when she began hitting him and the steering wheel causing him to hit a curb. Appellant attempted to calm her down but the victim leaped from appellant's car and ran away. Appellant claimed he sat in his car and waited about ten or fifteen minutes to see if the victim would return and when she did not he went home.

After giving this statement, appellant was informed that his brother had also given a statement. Appellant then gave another statement. In this statement, appellant claimed he followed the victim when she got out of his car and ran away. Appellant claimed the victim attacked him. Appellant pushed her and she fell to the ground. When she did not get up appellant attempted to wake her but could not. He then looked at her nose and saw bubbles. Appellant stated he got scared, went home, prayed on the side of his mom's bed and told family members what had happened, claiming it was just an accident. After giving this statement an officer gave appellant a ride home.

The police searched appellant's house. The police seized a blouse which contained several blood stains, hair and fibers. This blouse was later identified as belonging to the victim. The police also seized appellant's clothing from the night before. Appellant was arrested later that afternoon at his home.

Appellant's car was also impounded. The police conducted Luminol tests of the passenger door to determine whether any blood was evident. Blood stains were discovered on the passenger door and seat. Detectives testified that the blood stains were streaked in a downward motion, indicating that the blood had been wiped off. There was insufficient residue to conduct a blood typing of the stains on the vehicle. Other DNA evidence was found on the underwear appellant was wearing that night. That evidence consisted of blood as well as bodily fluid. The DNA test did not preclude the victim's blood type from the evidence tested.

Dr. DiMaio, the medical examiner who performed the autopsy, testified about the victim's injuries and cause of death. DiMaio testified that even though the victim was intoxicated when she received her injuries, she would have been aware of what was happening to her. In addition to the victim's massive head injuries, DiMaio testified about injuries the victim received to her chest and shoulder which were consistent with having been inflicted by the stick found in the victim's vagina. DiMaio also testified about the defensive wounds the victim received to her hands trying to protect herself from some object. DiMaio also testified the victim was alive when the stick was placed in her vagina. The victim's neck also contained injuries consistent with manual strangulation.

DiMaio testified the victim received some of her injuries while standing up. The victim received her head injuries while lying flat. The injuries to the victim's head were due to blows from the front. These injuries were inconsistent with a fall. The victim's head injuries were consistent with the victim lying on the ground with somebody standing over her striking her. DiMaio testified the large rock could have delivered the injuries to the victim's head. Based on the injuries to the victim's head, DiMaio testified the victim would had to have been struck with the rock two or three times. DiMaio testified the victim died from blunt force trauma injuries to the head. DiMaio could not say for certain that the rock caused the injuries. He testified the victim was beaten about the face with a blunt object or more than one object which could have been the rock or something else. On cross-examination, DiMaio testified that one blow from the rock could have caused the victim's death.

DiMaio also testified about bite marks he found on the victim's left cheek, the right side of her neck and the left side of her chest. Another witness compared the bite marks on the victim's chest and neck with dental impressions of appellant's teeth. They matched.

The State's indictment charged that Leal killed Sauceda while in the course of and attempting either to kidnap her or to commit aggravated sexual assault. Leal was convicted and, after a separate punishment phase, sentenced to death. The Texas Court of Criminal Appeals affirmed Leal's conviction and sentence on direct appeal. After conducting an evidentiary hearing, the trial court recommended that Leal's application for habeas relief be denied, and the Texas Court of Criminal Appeals so ordered. The federal district court denied Leal's petition for federal habeas corpus relief pursuant to 28 U.S.C. § 2254 and sua sponte denied a COA.

II

To obtain a COA, Leal must make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To satisfy this standard, he "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). "[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail." Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). "The question is the debatability of the underlying constitutional claim, not the resolution of that debate." Id. at 342, 123 S.Ct. 1029. While the nature of a capital case is not of itself sufficient to warrant the issuance of a COA, in a death penalty case "any doubts as to whether a COA should issue must be resolved in [the petitioner's] favor." Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000) (citing Clark v. Johnson, 202 F.3d 760, 764 (5th Cir.2000)).

In determining whether a COA should be granted, we remain cognizant of the standard of review imposed upon the district court by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). A district court may grant habeas relief only if it determines that the state court's adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court" or "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)(1), (2). The state court's findings of fact are entitled to a presumption of correctness and the petitioner may overcome...