Salazar v. Dretke

• Citation: 419 F.3d 384
• Decision Date: 29 July 2005
• Docket Number: No. 03-11244.,03-11244.
• Parties: Robert Madrid SALAZAR, Petitioner-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 384

419 F.3d 384

Robert Madrid SALAZAR, Petitioner-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.

No. 03-11244.

United States Court of Appeals, Fifth Circuit.

July 29, 2005.

COPYRIGHT MATERIAL OMITTED

Michael B. Charlton (argued), Law Office of Michael B. Charlton, El Prado, NM, for Petitioner-Appellant.

Katherine D. Hayes (argued), Austin, TX, for Respondent-Appellee.

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

Before KING, Chief Judge, and DeMOSS and STEWART, Circuit Judges.

KING, Chief Judge:

Petitioner-Appellant Robert Madrid Salazar appeals the district court's dismissal of his 28 U.S.C. § 2254 habeas corpus application. For the following reasons, we AFFIRM the judgment of the district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Trial: Conviction and Sentencing

On April 30, 1997, Salazar was indicted for the capital murder of his girlfriend's two-year-old daughter. He pleaded not guilty, and on January 11, 1999, his trial began. The evidence adduced at trial showed that Salazar began dating a woman named Raylene Blakeburn in the fall of 1996. On April 23, 1997, Blakeburn went to work in the morning, leaving her two-year-old daughter Adriana in Salazar's care as she often did. When Blakeburn came home from work at around 5:00 p.m., Salazar was not there. Blakeburn discovered Adriana in her bed, unconscious, breathing abnormally, and with blood in her mouth. With the assistance of a neighbor, Blakeburn called for an ambulance. When the paramedics arrived, they found Blakeburn standing outside of her house holding Adriana in a blanket. The paramedics were unable to bring Adriana back to consciousness, and they therefore placed her on a ventilator. One paramedic noticed that the back of Adriana's head had been caved in and that it felt like "Jello." The paramedics also observed that one of Adriana's arms was twisted and deformed and that she had marks and bruises covering her neck, ankles, and chest. Suspecting child abuse, the paramedics contacted the police. Adriana died at roughly 7:45 p.m.

Roger Torres, one of Salazar's friends, testified that at around 4:00 p.m. that day, he was walking home when Salazar drove up to him and asked if he could take a look at Salazar's fan belt. According to Torres, Adriana was not with Salazar at the time. Shortly thereafter, Torres examined the fan belt, and a little after 5:00 p.m., the two men drove to a nearby store and purchased some beer. At around this time, Torres noticed that Salazar's shirt had on it a number of small stains, which appeared to be blood. When the two men returned from the store, they saw the ambulance outside of Blakeburn's residence. However, they did not stop, but rather drove by and continued on to Salazar's mother's house. Once at his mother's house, Salazar changed his shirt and the two men drank some of the beer. At this time, Blakeburn called Salazar at his mother's house and told him that Adriana was injured. Salazar told Blakeburn not to tell the police that he had been watching Adriana that day. He also told Torres to be quiet and that the matter was none of his business.

Salazar later gave a written statement to the police, in which he admitted that he had been watching Adriana while her mother was at work on the day in question. He stated that he and Adriana were taking a shower together and that he became angry because she would not stop crying.¹ Salazar also stated that in order to stop her crying, he pushed her with the back of his hand, causing her to fall down in the bathtub and hit her head. Salazar stated that he became scared because Adriana was unconscious and bleeding, so he abandoned the child and left the scene.

The pathologist who performed the autopsy testified that Adriana's death was caused by trauma from multiple blunt force injuries, and he ruled the manner of death a homicide. The pathologist stated that the injuries sustained by Adriana were inconsistent with Salazar's contention that she had fallen down and hit her head in the tub. Instead, Adriana's injuries indicated the infliction of repeated blows of severe force to her head, chest, and abdomen. The autopsy revealed that the two-year-old had suffered at least three life-threatening injuries. All of these injuries were "acute," meaning they had been inflicted within forty-eight hours prior to the victim's death. One blow to her head resulted in a posterior basal skull fracture, consistent with her skull having been slammed into a hard surface. The location of several other smaller skull fractures was consistent with her being struck multiple times, and the injuries to her eyes were consistent with being shaken or struck so hard that she would have been blind had she survived. A major blow to the chest bruised Adriana's lungs, diaphragm, and heart. The pathologist testified that the injuries to the child's chest surpassed anything he had seen previously in cases of automobile accidents. More than one of Adriana's ribs had been broken, and her heart was so severely damaged that it would have ruptured had she lived much longer. The blow to her stomach had pushed her abdomen against her backbone, crushing the tissues in between. The injuries to her tongue and mouth were indicative of a blow to her face, and the injury to her vagina was consistent with sexual penetration.

The prosecution also presented evidence at trial that in January 1997, Adriana suffered either a broken collar bone or a dislocated shoulder. When asked about the injury by a neighbor, Adriana replied that Salazar had done it. Lab analysis of a blood stain on the pants that Salazar was wearing on the day in question revealed that the stain was consistent with Adriana's DNA. On March 9, 1999, the jury found Salazar guilty of capital murder.

At sentencing, the State and Salazar each presented evidence with respect to the special issues submitted to the jury pursuant to TEX.CODE CRIM. PROC. ANN. art. 37.071 (i.e., future dangerousness and mitigating circumstances). In an attempt to show mitigating circumstances, Salazar presented evidence that he had been badly abused and neglected as a child. The State countered with evidence that Child Protective Services had intervened on his behalf. Moreover, the prosecution argued in closing that Salazar's childhood did not provide sufficient mitigating circumstances in light of, inter alia: (1) the heinous and brutal nature of the crime, including the likelihood that sexual assault had occurred; (2) the vulnerability of the victim due to her age and his position of trust in relation to her; (3) his attempt to cover up the crime and his continuing lack of remorse; and (4) evidence that he had a history of violence against the child.

In an effort to show a low probability of future dangerousness, Salazar presented expert testimony of a clinical psychologist familiar with the Texas Department of Criminal Justice Institutional Division. The expert opined that if Salazar were sentenced to life in prison, he would be a candidate for administrative segregation, wherein he would pose a lesser danger to other inmates due to the increased level of supervision. However, the expert conceded that he could predict with near certainty that Salazar would commit additional violent offenses in the future if he were not imprisoned. The State also presented rebuttal evidence that although only 10-15% of the prison population is in administrative segregation, roughly 40% of the felony offenses committed in the prison occur in administrative segregation. In addition, the State presented evidence that Salazar had committed at least one minor theft and that he had been involved in a number of violent assault offenses, including an incident in which he choked the mother of his two children (a woman other than Blakeburn).

Salazar requested the trial court to instruct the jury that he would be eligible for parole after forty years if he received life in prison rather than death. At the time of Salazar's trial, Texas law provided that a criminal convict who is sentenced to life in prison will not be eligible for parole until he has served forty years. TEX. GOV'T CODE ANN. § 508.145(b) (Vernon 2003) ("An inmate serving a life sentence for a capital felony is not eligible for release on parole until the actual calendar time the inmate has served, without consideration of good conduct time, equals 40 calendar years."). However, the trial court declined to give the instruction.² After the close of evidence and argument, the jury deliberated and answered the two special issues in favor of the death penalty (i.e., that Salazar presented a continuing threat to society and that there were insufficient mitigating circumstances to warrant life in prison rather than death). Consequently, the trial court sentenced Salazar to death.

B. Motion for New Trial

After sentencing, television reporters interviewed at least one of the jurors, who revealed that during deliberations the jury discussed the possibility of parole if Salazar were sentenced to life in prison rather than death. In light of this discovery, Salazar filed a motion for a new trial, arguing, inter alia, that he had been denied a fair and impartial trial because one of the jurors, who professed to know the law of parole, asserted as fact a misstatement about parole law, and that misstatement was relied upon by one of the other jurors, who for that reason changed her vote to a harsher sentence.³ In a separately numbered paragraph, Salazar's motion advanced a similar claim, without citing any authority, that he was deprived of a fair and impartial trial because the jury "improperly discussed the effect the Parole Laws would have on the release of Defendant if assessed a life sentence by the jury."

On May 19, 1999, the state trial court conducted a hearing on Salazar's motion for a new...