Rosales v. Dretke

• Decision Date: 03 April 2006
• Docket Number: No. 04-70046.,04-70046.
• Citation: 444 F.3d 703
• Parties: Mariano Juarez ROSALES, Petitioner-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

444 F.3d 703

Mariano Juarez ROSALES, Petitioner-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.

No. 04-70046.

United States Court of Appeals, Fifth Circuit.

April 3, 2006.

Michael B. Charlton (argued), Law Office of Michael B. Charlton, El Prado, TX, Paul Edward Mansur, Denver City, TX, for Rosales.

Thomas M. Jones (argued), Austin, TX, for Dretke.

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

Before DAVIS, SMITH and DENNIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Petitioner Mariano Rosales appeals the district court's denial of his petition for writ of habeas corpus. Because we conclude that the procedural default applied by the Texas Court of Criminal Appeals to bar review of Rosales' Batson¹ claim was not "firmly established and regularly followed" by that court, we vacate the district court's dismissal of Rosales' writ application and remand for further proceedings.

I.

A.

The Court of Criminal Appeals summarized the relevant facts of the crime in its opinion on direct appeal:

The evidence at guilt/innocence shows that appellant was a forty-six year old businessman in Houston. He and his wife of twenty-seven years, Mary Rosales, had six children. In 1984 appellant and his wife began to experience marital difficulties, and in January of 1985, Mary began seeing a twenty-four year old man, Hector Balboa. In February, Mary moved into a trailer she and appellant owned. She began spending some nights with Hector at the home where he lived with his mother and two sisters. In early March Mary sought a divorce. She still saw appellant on a daily basis, however, and conjugal relations between them continued. At one point appellant asked Mary if she was seeing Hector', with whom he was acquainted, and she admitted that she was.

On Friday, March 29, 1985, Mary agreed to seek marriage counseling with appellant. She had plans to meet Hector that evening, but appellant asked her not to stay out long because he wanted to meet with her later. Mary agreed in order to placate appellant, but ultimately spent the night at Hector's house. Appellant went out that night with a friend, T.J. Tristan, and drank more than "six or eight beers" and part of "a fifth of liquor." He was last seen by Tristan at about 3:00 a.m. on the morning of Saturday, March 30, 1985.

At about 7:00 a.m. appellant telephoned Hector's brother in an effort to find out where Hector lived. He spoke to Hector's niece, who was able to provide him the unlisted telephone number but not the address. He hung up before the girl could bring her father to the phone. Appellant next called Hector's home and spoke to his sister, Patricia Balboa. He told Patricia he was a friend of Hector's who wanted to come visit him sometime, and asked her for directions to the house. She complied. Fifteen minutes later appellant walked into the house with a pistol in his hand. Without a word he walked up to Pete Rodriguez, Patricia's boyfriend, who was watching television on a sofa, and shot him at point blank range in the head, killing him. He then shot Patricia in the chest, crossed the room, and shot her again in the back. Appellant next proceeded to the front bedroom, where fifteen year old Rachel Balboa was asleep. He shot her twice, mortally.² He then went to Hector's room and fired through the door, striking Hector twice. Appellant kicked the door open and a struggle ensued, during which both Hector and appellant were shot. Hector fled outside, followed by appellant, who continued to point the pistol at Hector and pull the trigger, though the gun was out of rounds. Appellant then got in his truck and drove away. Hector and Patricia survived.

Rosales v. State, 841 S.W.2d 368, 381 (Tex. Crim.App.1992).

B.

Rosales was convicted and sentenced to death in November 1985 for the capital murder of Rachel Balboa committed during a burglary. On direct appeal, the Texas Court of Criminal Appeals affirmed the conviction and sentence. Rosales v. State, 748 S.W.2d 451 (Tex.Crim.App.1987). In response to Rosales' state application for habeas relief alleging that appellate counsel violated his constitutional right to effective legal assistance, the Texas Court of Criminal Appeals granted Rosales a new appeal. Ex parte Rosales, 769 S.W.2d 248 (Tex.Crim.App.1989). In this second appeal, Rosales raised among other issues that the trial court erred by not requiring the state to explain its peremptory challenges of Hispanic veniremen. The Texas Court of Criminal Appeals held that the claim as presented appeared to be premised on the Sixth Amendment, which had been rejected by the Supreme Court in Holland v. Illinois, 493 U.S. 474, 110 S.Ct. 803, 107 L.Ed.2d 905 (1990), as a basis for a Batson claim. The court also held that to the extent Rosales raised an Equal Protection complaint under Batson, his trial objection was inadequate to preserve the claim for appellate review.³ The Texas Court of Criminal Appeals thus affirmed Rosales' conviction and sentence. Rosales v. State, 841 S.W.2d 368 (Tex.Crim.App. 1992). The Supreme Court denied Rosales' petition for writ of certiorari, Rosales v. Texas, 510 U.S. 949, 114 S.Ct. 393, 126 L.Ed.2d 341 (1993).

In October 1996, Rosales filed a state application for writ of habeas corpus. Among other issues, Rosales complained that the trial court's failure to have the State specify the reasons for its peremptory strikes denied him a fair trial.⁴ The state habeas court noted that on direct appeal the Texas Court of Criminal Appeals had concluded that Rosales failed to preserve his complaint for review. It concluded that because Rosales failed to preserve the error, he was barred from advancing this claim and denied relief. The Court of Criminal Appeals adopted the trial court's findings and based on that record and its own review, denied relief. Ex Parte Mariano Juarez Rosales, Application No. 16,180-03 (Tex.Crim.App. Sept. 25, 2002)(unpublished opinion).

Rosales filed his federal habeas petition in March 2003, raising four claims for relief. In September 2004, the district court granted the Director's motion for summary judgment, denied Rosales' request for discovery, habeas relief and a certificate of appealability ("COA"). The district court concluded that state procedural law barred consideration of his Batson claim. Rosales timely appealed. We concluded that reasonable jurists could disagree over whether the procedural bar should apply to Rosales' Batson claim and granted COA on that issue. COA was denied on Rosales' other claims. Rosales v. Dretke, 133 Fed.Appx. 135 (5th Cir.2005). Thus we are now faced with the question whether the district court was correct to honor the procedural bar applied by the Texas Court of Criminal Appeals.

C.

The following facts are relevant to jury selection and objections by Rosales. On the first day of jury selection, the parties questioned seven potential jurors. The prosecution used peremptory challenges to remove three jurors: Ms. Lopez, Ms. Taylor, and Mr. Trevino. The next morning trial counsel objected to the prosecution's peremptory strikes:

Trial counsel: Your Honor, the other matter I would like to take up with the Court is the familiar patterns already developing, Your Honor, on the selection of these jurors, and the State has exercised strikes on two Mexican Americans and one black woman, and I feel that this defendant has federal and a state constitutional right to a cross section of his peers, and if the State is going to persist in using their peremptories to eliminate all minorities, both Mexican Americans and Chicanos and the black people, this defendant is going to be denied his right to a fair trial by his peers. My proposal is this — we know the State has a right to peremptor[y] challenges. I think the Court may not favor their striking minorities without reason. I think if in the future the States strikes what is obviously a minority juror, that they state in the record their particular reasons for exercising that peremptory challenge, and I so propose it and request it and move the Court to so follow that procedure.

Trial court: I will deny your request to have them specify the reason for the exercise of peremptory challenges.

Trial counsel: May I have a running objection to that?

Trial court: Yes sir.

Trial counsel: May I have in the record, Your Honor, after each juror is selected, that I — and leaves the room, that we state in the record what the race of that juror is, and if there is any problem about it, then we can straighten it out then, if there is any issue of fact as to what color or race that particular juror is, but I would like to have that in the record specifically on the peremptory challenges the State exercises in the future.

Trial court: Very well. As I recall, obviously, Ms. Lopez, juror number one, and Mr. Trevino, number six, were both Mexican. Ms. Taylor was a black female.

On subsequent days, the prosecution struck Mr. Hamilton (a black male), Mr. Deen (an East Indian male), Ms. Walker (a black female), and Mr. Saenz (presumed Hispanic male). Even though defense so requested, the trial court did not require the prosecutor to justify its use of peremptory challenges. Of those minority potential jurors struck after the first day of jury selection, Rosales re-raised his objection only as to the dismissal of Mr. Hamilton, who was black:

Trial counsel: Your Honor, that appears just blatantly a racial strike, Your Honor, and I respectfully ask the State to justify using a strike on that juror. I think it's discriminatory. It violates this defendant's right to a jury of his peers and a cross section of the community, and if the Court would check over this information sheet, this juror is qualified from the State's point of view as any juror I have ever seen and they use a strike on him, and I move the Court to have the State justify this...