Paredes v. Thaler

• Citation: 617 F.3d 315
• Decision Date: 24 August 2010
• Docket Number: No. 07-70009.,07-70009.
• Parties: Miguel A. PAREDES, Petitioner-Appellant,v.Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

617 F.3d 315

Miguel A. PAREDES, Petitioner-Appellant,v.Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.

No. 07-70009.

United States Court of Appeals, Fifth Circuit.

Aug. 24, 2010.

Michael Clark Gross (argued), (Court-Appointed), San Antonio, TX, for Paredes.

Laura Grant Turbin, Asst. Atty. Gen. (argued), Austin, TX, for Thaler.

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

Before SMITH, WIENER, and OWEN, Circuit Judges.

OWEN, Circuit Judge:

Petitioner Miguel Paredes, convicted of capital murder in Texas and sentenced to death, appeals the federal district court's denial of his petition for writ of habeas corpus. We consider whether Paredes is entitled to relief based on his contentions that (1) the state trial court violated Paredes's constitutional rights by failing to require a unanimous verdict as to which two or more of three decedents Paredes murdered; and (2) he was denied effective assistance of counsel because at trial, his attorney failed to object to the jury instructions in this regard. We affirm.

I

We have previously considered other grounds on which Paredes seeks habeas relief in Paredes v. Quarterman ( Paredes I).¹ In our earlier opinion, we described the events leading to Paredes's conviction and death sentence. We recount in this opinion only the facts essential to the disposition of the issues presently before us.

Paredes, John Saenz, and Greg Alvarado, who were all members of the Hermanos Pistoleros Latinos gang, anticipated a confrontation regarding an illegal drug transaction and allegedly armed themselves, lay in wait, then shot and killed rival gang members Adrian Torres, Nelly Bravo, and Shawn Cain inside Saenz's home. The victims were slain within seconds of one another. Paredes was charged with murdering more than one person during the same criminal transaction under the Texas capital murder statute.² The State of Texas alleged alternatively that Paredes should be held responsible for the deaths of more than one of the three decedents under Texas's law of parties, which permits a defendant to be held criminally responsible for an offense committed by another if “with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.”³

At trial, a witness testified that Paredes admitted to shooting Bravo, and other witnesses testified that Paredes remained silent when, in Paredes's presence, John Saenz recounted that Paredes had shot both Bravo and Cain. One witness, Eric Saenz, the brother of John Saenz, testified that after John Saenz, in Paredes's presence, had described in some detail how he, John Saenz, shot Torres, how Paredes shot Bravo in the head, and how Paredes then shot Cain, Paredes stated to Eric Saenz that Eric “should have been there, that [Eric] would have had some fun.” Medical evidence was consistent with testimony that Paredes was the shooter in the deaths of Bravo and Cain but not Torres. There was direct evidence that Paredes was in John Saenz's home at the time of the killings and assisted in cleaning blood off the floor and walls of the home and in disposing of the bodies afterwards. There was also strong circumstantial evidence that Paredes was present during the killing of each of the three decedents, and that at a minimum, he aided or attempted to aid Saenz in carrying out the plan to kill these individuals.

In a general charge, the trial judge instructed the jury that it could convict Paredes of capital murder if it found that he killed (1) Torres and either Bravo or Cain; or (2) Bravo and either Torres or Cain; or (3) Cain and either Torres or Bravo. The jury was also permitted to find that Paredes had committed capital murder under the law of parties. The jury was not required to specify which of the alternative grounds it found to be true, and Paredes's lawyer did not object to the instructions. The jury returned a general verdict finding “Paredes guilty of Capital Murder as charged in the indictment,” and Paredes was subsequently sentenced to death at the conclusion of the penalty phase of his trial.

Paredes appealed his conviction and sentence, and the Texas Court of Criminal Appeals affirmed.⁴ He then filed a habeas application in state court but was denied relief. In its unpublished opinion denying habeas relief, the Texas Court of Criminal Appeals did not discuss Paredes's contentions regarding jury unanimity, but the court did adopt the findings and conclusion of the state trial court with regard to the habeas petition. ⁵ The state trial court's conclusions as to the jury charge issue were brief, stating only that it “did not violate the holding of Schad,” referring to the Supreme Court's decision in Schad v. Arizona.⁶ In Schad, four members of the Court in a plurality opinion,⁷ and one Justice in a concurring opinion,⁸ held that a conviction based on an instruction that did not require jury unanimity as to whether the murder was premeditated or alternatively was a felony murder did not violate the petitioner's right to due process.

Paredes filed the instant federal habeas petition and requested an evidentiary hearing. The district court denied habeas relief and the request for a hearing, but granted a Certificate of Appealability (COA) on the issue of whether trial counsel rendered ineffective assistance by failing to raise Confrontation Clause objections to the testimony of two trial witnesses.

Paredes appealed and requested a COA on six additional issues. We affirmed the denial of habeas relief on the Confrontation Clause issue and denied COAs on four issues.⁹ We granted a COA on the two related questions that we now address: (1) whether the jury instructions violated Paredes's constitutional rights by not requiring the jury to agree unanimously on which two of the victims he killed; and (2) whether Paredes's attorney was constitutionally ineffective for failing to object to those instructions. ¹⁰

II

We review Paredes's habeas petition under the “ ‘highly deferential standard for evaluating state-court rulings' ”¹¹ set forth in the Anti-Terrorism and Effective Death Penalty Act (AEDPA).¹² The question before us is not whether the state trial court should have instructed the jury as it did but instead whether the determination of the Texas Court of Criminal Appeals that there was no violation of Paredes's constitutional rights “was ‘an unreasonable application of ... clearly established federal law’ ”¹³ “ ‘as determined by the Supreme Court of the United States.’ ” ¹⁴ The Supreme Court has repeatedly admonished that “ ‘an unreasonable application of federal law is different from an incorrect application of federal law.’ ”¹⁵ “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.”¹⁶ Instead, the application must be “ ‘objectively unreasonable.’ ”¹⁷ This standard of review “creates a ‘substantially higher threshold’ for obtaining relief than de novo review.” ¹⁸

But even if a state court's determination was an unreasonable application of clearly established federal law, that is not the end of the inquiry. Generally, on collateral review, “petitioners ... are not entitled to habeas relief based on trial error unless they can establish that it resulted in ‘actual prejudice.’ ”¹⁹ An error is prejudicial if it “had substantial and injurious effect or influence in determining the jury's verdict.”²⁰ The Supreme Court has recently confirmed that jury charge error in a case in which a jury rendering a general verdict had been instructed on alternative theories of guilt and may have relied on an invalid theory is not “structural” error and is subject to harmless-error analysis “so long as the error at issue does not categorically ‘vitiat[e] all the jury's findings.’ ”²¹

III

To determine whether the Texas court's determinations relating to the jury instruction at issue in the case before us constituted an unreasonable application of clearly established federal law as determined by the Supreme Court, we must attempt to ascertain what the Supreme Court has held regarding the requirement of unanimity in jury instructions in criminal cases. The most recent guidance is found in the four-Justice plurality opinion in Schad v. Arizona²² and Justice Scalia's concurring opinion in that case. ²³ There, the plurality and Justice Scalia concluded that a first-degree murder conviction based on “jury instructions that did not require agreement on whether the defendant was guilty of premeditated murder or felony murder”²⁴ was not unconstitutional. But in arriving at that decision, the Court did not, as we shall discuss below, set forth an analytical framework that can be applied to determine readily whether process has been due when facts such as those in the instant case are presented.

A

In Schad, the Arizona Supreme Court had “authoritatively determined that the State has chosen not to treat premeditation and the commission of a felony as independent elements of the crime,” and the question was whether Arizona's choice was unconstitutional.²⁵ In the present case, it is not clear that the Texas Court of Criminal Appeals has authoritatively determined what elements the Texas legislature has prescribed for the crime of murdering more than one person during the same criminal transaction.²⁶

The State argues that the single offense of murdering more than one person during the same criminal transaction may be proven by alternative means, such as showing that the defendant killed A and either B or C, B and either A or C, or C and either A or B, and that the jury does not have to agree as to which two of the victims the defendant murdered. The State argues that the murder of the same decedent does not have to be the predicate...