Moreno v. Dretke

• Decision Date: 18 May 2006
• Docket Number: No. 05-70017.,05-70017.
• Parties: Jose Angel MORENO, 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 158

450 F.3d 158

Jose Angel MORENO, Petitioner-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.

No. 05-70017.

United States Court of Appeals, Fifth Circuit.

May 18, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

James Scott Sullivan, San Antonio, TX, for Moreno.

Jeremy Craig Greenwell, 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:

Jose Moreno was convicted of murder in Texas state court and sentenced to death. After his conviction was affirmed on appeal, he petitioned for state and federal habeas relief. The district court denied all of Moreno's claims and declined to issue a certificate of appealability ("COA"). Moreno moves in this court for a COA.

I

Moreno confessed to plotting for months to kidnap and ransom someone. He ultimately settled on John Cruz as his victim because he believed Cruz was a member of a wealthy family. After locating Cruz through a high school directory, Moreno enlisted the aid of two friends in digging a grave.

After the grave was dug, Moreno plotted to capture and kill Cruz. Moreno first tried to flag Cruz's car down after Cruz got out of work. When that did not work, Moreno placed large rocks in the road near Cruz's house, in the hopes that Cruz would stop his car and clear the road, leaving him vulnerable to attack. On the night of January 21, 1986, his plan worked. Cruz got out of his car and attempted to move the rocks. Moreno approached, brandished a gun, blindfolded and handcuffed Cruz, and drove him to the grave site. As Cruz stood in front of the grave, Moreno shot him in the head from a range of three to four feet. Cruz fell into the grave, and Moreno buried him and concealed the grave with trash. Moreno then made two phone calls to Cruz's family demanding a thirty-thousand dollar ransom. In a police-recorded conversation, the Cruz family informed Moreno that the money was in trust and that they could not access it immediately, to which Moreno replied, "You killed him, not us." After informants identified Moreno's voice on the recording, the police obtained a search warrant for his home where they found the gun used to kill Cruz. The police arrested Moreno, and he signed a confession.

A Bexar County grand jury indicted Moreno on the charge of capital murder on April 2, 1986, for murder in the course of committing and attempting to commit a kidnaping under Texas Penal Code § 19.03(a)(2). Prior to trial, Moreno filed a motion to suppress his confession and the murder weapon on the basis that there was insufficient evidence to establish probable cause in the affidavit supporting the search warrant. After a hearing, the trial court denied this motion.

On appeal, Moreno argued, inter alia, that the trial court erred in denying his motion to suppress the gun seized during the search because the affidavit in support of the warrant contained misrepresentations. The Texas Court of Criminal Appeals observed that Moreno had objected to the introduction of the affidavit into evidence during the suppression hearing, but the district court never ruled on its admissibility. Accordingly, the affidavit was never made a part of the trial record, and the appellate court was unable to review the merits of Moreno's Fourth Amendment claim.

Moreno filed a petition for habeas corpus in state court raising multiple claims of error. Those relevant to this motion include: 1) that he received ineffective assistance of appellate counsel; and 2) the trial court erred in denying his motion to suppress the murder weapon. The state court first held that Moreno could not establish that his appellate counsel's actions prejudiced him. Second, the state court held that the suppression issue had been "raised and rejected on direct appeal" and therefore was not appropriately raised in a habeas petition.

Moreno filed a second state habeas corpus petition raising a claim that he is mentally retarded and ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). The Texas Court of Criminal Appeals dismissed the petition, holding that it was an abuse of the writ because Moreno failed to allege a prima facie Atkins claim.

In his federal habeas corpus petition, Moreno argued, inter alia: 1) his appellate counsel rendered ineffective assistance; 2) the trial court violated his Fourth Amendment rights by denying his motions to suppress; 3) he is ineligible for the death penalty because he is retarded; and 4) he is ineligible for the death penalty because he formed the intent to kill Cruz prior to Moreno's eighteenth birthday.

The district court denied relief. The district court held: 1) Moreno's appellate counsel was not ineffective, nor was Moreno prejudiced by counsel's performance; 2) Moreno's Fourth Amendment claim is barred by Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), is procedurally barred, and fails on the merits; 3) the state court's rejection of Moreno's mental retardation claim was not an unreasonable application of Atkins or an unreasonable determination of the facts; 4) Moreno's execution was not barred by Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). The district court denied a COA on all claims.

Moreno now requests a COA from this court.

II

A petitioner may receive a COA only if he makes a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Moreno must demonstrate that jurists of reason could disagree with the district court's resolution of his claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further. Summers v. Dretke, 431 F.3d 861, 869 (5th Cir.2005). When ruling on a COA, we are mindful of AEDPA's deferential standard of review. Brown v. Dretke, 419 F.3d 365, 371 (5th Cir.2005). The district court may only grant relief with respect to a claim adjudicated on the merits when the claim either: 1) resulted in a decision contrary to, or involved an unreasonable application of, Supreme Court precedent; or 2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d). Factual findings by the state court are presumed correct, and a petitioner can rebut them only with clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Because this case involves the death penalty, we resolve any doubts as to whether a COA should issue in Moreno's favor. Morris v. Dretke, 379 F.3d 199, 204 (5th Cir.2004).

A

Moreno argues that he is ineligible for the death penalty by reason of mental retardation. The Supreme Court held in Atkins, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335, that the Eighth Amendment forbids the execution of the mentally retarded. The Court left "to the States the task of developing appropriate ways to enforce the constitutional restriction upon their execution of sentences." Id. at 317, 122 S.Ct. 2242 (quoting Ford v. Wainwright, 477 U.S. 399, 416-17, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986)). Because the Supreme Court declined to define explicitly "mental retardation" for purposes of the Eighth Amendment, Texas courts have employed the definition promulgated by the American Association of Mental Retardation. In re Hearn, 418 F.3d 444, 446 (5th Cir.2005). This definition imposes three requirements: 1) subaverage general intellectual functioning, generally defined as an IQ below 70; 2) accompanied by related "limitations in adaptive functioning" defined as "significant limitations in an individual's effectiveness in meeting the standards of maturation, learning, personal independence, and/or social responsibility that are expected for his or her age level and cultural group, as determined by clinical assessment and, usually, standardized scales"; and 3) onset prior to the age of 18. Ex parte Briseno, 135 S.W.3d 1, 7, n. 24 & 25 (Tex.Crim.App.2004).¹

The Texas Court of Criminal Appeals has identified additional criteria for courts to use in assessing whether a prisoner's "adaptive functioning" is sufficiently limited, including: 1) whether those who knew the prisoner during his developmental state considered him to be mentally retarded; 2) whether he has formulated and carried out plans; 3) whether his conduct shows that he is a leader; 4) whether his conduct in response to external stimuli is rational; 5) whether he responds coherently and rationally to questioning; 6) whether he can effectively lie to further his own interests; and 7) whether the crime of conviction required planning and complex execution. Id. at 8-9. Moreno does not dispute that these are correct definitions of mental retardation.

In support of his Atkins claim in state court, Moreno presented evidence that he scored a 64 on an IQ test that was administered in 2003, after Atkins was decided and when he was 35 years of age. The psychologist who administered this test qualified the score with the following observations:

The results probably reflect the lowest level of his abilities. The results may not be valid, because he may not have been motivated to give his best effort on some of the tasks, and may have exaggerated any possible deficits. He often gave up easily on questions but would guess at the answers when encouraged to do so by the examiner. . . . This score may somewhat underestimate his true level of intellectual functioning.

The psychologist also observed that Moreno's speech was "free of articulation errors," he expressed himself appropriately and coherently, and his "cognitive processing speed was unremarkable." He was oriented to time and place, his memory was intact, and he was able to perform tasks that took several minutes of concentration.

Moreno argued that he suffered adaptive...