Maldonado v. Thaler

• Decision Date: 10 August 2010
• Docket Number: No. H-07-2984,No. 10-70003,10-70003,H-07-2984
• Parties: VIRGILIO MALDONADO, Petitioner - Appellant v. RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

VIRGILIO MALDONADO, Petitioner-Appellant

v. RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINALJUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee

No. 10-70003

No. H-07-2984

United States Court Of Appeals

For The Fifth Circuit

FILED August 10, 2010

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

Before KING, STEWART, and HAYNES, Circuit Judges.

PER CURIAM: ^*

In 1997, a Texas jury convicted and sentenced to death petitioner-appellee Virgilio Maldonado for the murder of Cruz Saucedo in the course of a robbery in 1995. State appellate courts affirmed the conviction and sentence and denied post-conviction relief. Maldonado brought a federal habeas petition under the Aniterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254. The district court denied relief and denied a certificate of appealability (COA).

Maldonado now seeks a COA for some of the claims he unsuccessfully raised in the district court. For the reasons explained below, we grant Maldonado's application for a COA on the issue of whether he is mentally retarded, rendering him ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304 (2002). Maldonado's application for a COA as to all other claims is denied.

I. FACTUAL AND PROCEDURAL BACKGROUND

The district court's exhaustive opinion more than adequately documents the factual background and procedural development of this case. See Maldonado v. Thaler, 662 F. Supp. 2d 684, 689-93 (S.D. Tex. 2009). Here, we recite only so many of the facts and procedure as are necessary to provide a framework for our grant in part and denial in part of a COA.

Maldonado, a Mexican national, was tried and convicted of capital murder in Texas state court in 1997 for the November 1995 robbery and murder of Cruz Saucedo. Maldonado filed an automatic direct appeal of his conviction with the Texas Court of Criminal Appeals (TCCA), which affirmed his conviction and sentence after considering his points of error on the merits. See Maldonado v. State, 998 S.W.2d 239 (Tex. Crim. App. 1999). While that appeal was pending, he filed his first application for a writ of habeas corpus. The state habeas trial court concluded that several of Maldonado's claims including a claim that the State's failure to inform Maldonado of his rights under the Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, caused him to make an involuntary confession were procedurally barred under the contemporaneous objection rule. The state habeas trial court also found that all of the claims raised in that application failed on the merits. The TCCA adopted the state habeas trial court's findings of fact and conclusions of law in their entirety and denied the application. Ex parte Maldonado, No. 51, 612-01 (Tex. Crim. App. 2002).

Maldonado then filed a federal habeas petition, which included several claims that he had not presented to the state courts. See Maldonado v. Cockrell, No. H-03-CV-811 (S.D. Tex.). The district court dismissed the petition without prejudice to allow Maldonado to exhaust state remedies.

Accordingly, Maldonado filed a subsequent state habeas application in the TCCA. Ex parte Maldonado, No. 51, 612-02 (Tex. Crim. App.). In this habeas application, Maldonado claimed that he was mentally retarded and therefore ineligible for the death penalty under Atkins; that he was deprived of his Fifth Amendment right to counsel when the police interrogated him and obtained a confession without counsel present; and that he was deprived of his Sixth Amendment right to counsel when trial counsel rendered ineffective assistance at both the guilt/innocence and punishment phases. The TCCA remanded the Atkins claim to the state habeas trial court to enter findings of fact and conclusions of law, but summarily dismissed the Fifth and Sixth Amendment allegations "as an abuse of the writ" under Texas Code of Criminal Procedure article 11.071, § 5(a). Ex parte Maldonado, No. 51, 612-02 (Tex. Crim. App. Mar. 2, 2003).

While Maldonado's Atkins claim was pending before the state habeas trial court, he filed a second subsequent state habeas application, contending that the State's failure to inform him of his rights under the Vienna Convention prevented him from marshaling additional mitigating evidence during the punishment phase of his trial. Ex parte Maldonado, No. 51, 612-03 (Tex. Crim. App.).

The state habeas trial court, after holding a live evidentiary hearing, entered findings of fact and conclusions of law recommending that relief be denied on Maldonado's Atkins claim. The TCCA addressed the Atkins issue from Maldonado's first subsequent habeas application and the Vienna Convention claim from Maldonado's second subsequent habeas application in a joint order.

The TCCA adopted the state habeas trial court's findings of fact and conclusions of law on the Atkins issue and denied relief. It also concluded that the Vienna Convention claim "failed to meet one of the exceptions provided for" under article 11.071, § 5(a), and accordingly denied Maldonado's second subsequent habeas application. See Ex parte Maldonado, Nos. 51, 612-02, 51, 612-03, 2007 WL 2660292, at *1 (Tex. Crim. App. Sept. 12, 2007).

Maldonado then returned to federal district court with an amended habeas petition. The district court granted summary judgment to the State, dismissed Maldonado's petition, and sua sponte denied a COA as to all issues. Maldonado now seeks as COA as to whether he is mentally retarded under Atkins. He also seeks a COA as to the district court's conclusions that his Vienna Convention and Fifth and Sixth Amendment claims are procedurally defaulted and fail on the merits. We address each of these issues below.

II. STANDARDS OF REVIEW

Maldonado's motion is governed by the applicable provisions of AEDPA. See Lindh v. Murphy, 521 U.S. 320, 335-36 (1997). Under AEDPA, a state habeas petitioner may appeal a district court's dismissal of his petition only if the district court or the court of appeals first issues a COA. 28 U.S.C. § 2253(c)(1)(A); see also Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (describing a COA as a "jurisdictional prerequisite" without which "federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners"). In determ in in g w hether to grant a p etitioner's application for a COA, we limit our "examination to a threshold inquiry into the underlying merit of [the petitioner's] claims." Miller-El, 537 U.S. at 327 (citing Slack v. McDaniel, 529 U.S. 473, 481 (2000)). "This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it." Id. at 336.

We will grant an application for a COA "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). In order to grant a COA for one of Maldonado's substantive claims, we must conclude only that he has demonstrated the threshold showing for that substantive claim. See Miller-El, 537 U.S. at 327. "Although the issuance of a COA 'must not be pro forma or a matter of course, ' the petitioner satisfies the burden under § 2253(c) 'by demonstrating] that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.'" Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir. 2005) (alteration in original) (quoting Miller-El, 537 U.S. at 337-38). "[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, 537 U.S. at 338. "[A]ny doubt as to whether a COA should issue in a death-penalty case must be resolved in favor of the petitioner." Pippin, 434 F.3d at 787.

In determining whether the district court's denial of Maldonado's application for a COA on his claims was debatable, we must keep in mind the deferential standard of review that AEDPA requires a district court to apply to the state court's rulings. See Brown v. Dretke, 419 F.3d 365, 371 (5th Cir. 2005) ("With respect to the review of factual findings, AEDPA significantly restricts the scope of federal habeas review."). Under AEDPA,

a federal court is not to grant a writ of habeas corpus "with respect to any claim that was adjudicated on the merits in State court proceedings" unless 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 of the United States."

Pippin, 434 F.3d at 787 (quoting 28 U.S.C. § 2254(d)(1)). Moreover, a "'determination of a factual issue made by a State court shall be presumed to becorrect' unless the petitioner rebuts the presumption 'by clear and convincing evidence.'" Id. at 788 (quoting 28 U.S.C. § 2254(e)(1)). "This presumption of correctness attaches not only to explicit findings of fact, but also to 'unarticulated findings which are necessary to the state court's conclusions of mixed law and fact.'" Id. (quoting Pondexter v. Dretke, 346 F.3d 142, 148 (5th Cir. 2003)).

III. ANALYSIS

Maldonado seeks a COA as to whether he is a mentally retarded offender whose execution is barred under Atkins. Maldonado also seeks a COA as to the district court's conclusions that his claims relating to the Vienna Convention and the Fifth and Sixth Amendments were procedurally defaulted and failed on the merits. Each of these issues is discussed below.

A. The Atkins Claim

Maldonado seeks a COA as to whether he is mentally retarded and therefore ineligible for execution under Atkins. Maldonado argues that the district court's conclusion to the contrary is at least debatable because that conclusion relied, in part, on the testimony of the State's expert witness, Dr. George Denkowski, who evaluated Maldonado in 2005 in connection with his state habeas application.

Dr....