Trevino v. Thaler
| Decision Date | 14 November 2011 |
| Docket Number | No. 10-70004,10-70004 |
| Parties | CARLOS TREVINO, Petitioner v. RICK THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent |
| Court | U.S. Court of Appeals — Fifth Circuit |
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
Petitioner Carlos Trevino was convicted of capital murder in Texas state court and sentenced to death. The district court denied each of Trevino's eight claims for habeas relief, but granted a certificate of appealability ("COA") pursuant to 28 U.S.C. § 2253(c) on three of these issues. Trevino now petitions this court to issue COAs authorizing appeal from the district court's denial of habeas corpus relief regarding the five issues on which the district court deniedCOA. Because reasonable jurists would not find it debatable that the district court correctly rejected these five claims, we DENY Trevino's petition for COA regarding these issues. We further address the three issues on which the district court did grant COA. Finding these claims without merit, we AFFIRM the district court's denial of relief on these grounds.
We summarize the key facts and procedural background recited at length by the district court. United States v. Trevino, 678 F. Supp. 2d 445, 449-55 (W.D. Tex. 2009). The body of 15-year old Linda Salinas was discovered in Espada Park in San Antonio Texas on June 10, 1996. The San Antonio Police Department began an investigation into Salinas's death. Following the investigation, on April 8, 1997, a Bexar County, Texas grand jury indicted Trevino on a charge of capital murder for intentionally and knowingly causing the death of Linda Salinas by cutting and stabbing her with a deadly weapon while in the course of committing and attempting to commit the aggravated sexual assault of Salinas. Trevino rejected the state's subsequent plea offer and chose to go to trial.
Testimony at Trevino's trial established that on the evening of June 9, 1996, he accompanied Santos Cervantes, Bryan Apolinar, Seanido "Sam" Rey, and Juan Gonzales (Trevino's cousin), on a trip in Apolinar's car to a store to buy beer for a party they had been attending. Cervantes enticed 15-year old Linda Salinas to get into Apolinar's car with the assurance Apolinar would take Salinas to a nearby fast-food restaurant.
Instead of driving to the restaurant, Apolinar drove the group to Espada Park, where Cervantes, Apolinar, and Rey sexually assaulted Salinas while she unsuccessfully struggled to escape. Gonzales testified as the prosecution's key witness regarding the following: (1) Gonzales saw Trevino hold Salinas downwhile Rey raped her; (2) at one point, Trevino urged Gonzales to rape Salinas, but Gonzales refused; (3) Gonzales overheard Apolinar, Cervantes, and Trevino discuss their mutual desire not to leave any witnesses behind; (4) Gonzales heard Rey say "we don't need no witnesses" and heard Cervantes repeat the same comment, then heard Trevino reply "we'll do what we have to do"; (5) at that point, Gonzales returned to the group's vehicle; (5) when the others returned, Gonzales noticed that Cervantes and Trevino had blood on their shirts.
Gonzales further testified that following the incident, during the group's ensuing drive away from the scene, Cervantes made a comment that it was "neat" or "cool" about how Trevino had "snapped" Salinas's neck, and also made a comment about a knife. Trevino responded with the comments "I learned how to kill in prison" and "I learned how to use a knife in prison." Gonzales also testified that, after the incident, Trevino told Gonzales not to say anything to the police. Further, Gonzales testified that when he asked Cervantes why he killed the girl, Cervantes responded "mind your own business." Gonzales additionally testified that while he never saw Trevino or anyone else with a knife at the scene of the murder, Gonzales had seen Cervantes with a knife a few days before Salinas's murder and, two days after the murder, Cervantes told Gonzales he had broken the knife and thrown it into a river.
Salinas's body was discovered in Espada Park the day after the murder. According to expert testimony at Trevino's trial, an autopsy revealed (1) Salinas suffered two stab wounds to the left side of her neck, one of which was fatal; (2) Salinas sustained soft tissue damage in her vaginal area and at her anal opening; (3) Salinas sustained no internal injuries to her neck other than those caused by the two stab wounds, and there was no physical evidence anyone had attempted to "snap" her neck; and (4) there were scratches on Salinas's legs and fresh bruises on her breasts.
Other evidence during the guilt/innocence phase of Trevino's trial included testimony from forensic and DNA experts establishing (1) the examination of a pair of blue women's shorts and a pair of white women's panties found at the crime scene, both identified by Linda Salinas's mother as belonging to Linda, revealed the presence of polyester and cotton fibers which were consistent with a pair of slacks owned by Trevino; and (2) a blood stain found on Linda Salinas's white panties contained a mixture of the DNA from at least two persons, with DNA testing eliminating as possible sources of the DNA all but Salinas and Trevino from among those identified by Gonzales as present at the scene.1
The jury returned a guilty verdict. During the punishment phase of trial, the prosecution presented evidence regarding Trevino's culpability and future dangerousness, including his former arrests and his admitted membership in a violent street gang. As mitigating evidence, the defense presented Trevino's aunt, who testified generally that she knew Trevino to be a good person and that he had experienced certain difficulties in his life, including the absence of his father and his mother's alcohol problems.
The jury returned its verdict at the punishment phase of trial, finding (1) that Trevino would commit criminal acts of violence in the future which would constitute a continuing threat to society; (2) Trevino actually caused the death of Linda Salinas or, if he did not actually cause her death, he intended to kill her or another, or he anticipated a human life would be taken; and (3) there were insufficient mitigating circumstances to warrant a sentence of life imprisonment. In accordance with the jury's verdict, the state trial court imposed a sentence of death.
Trevino directly appealed his conviction and sentence, asserting 19 claims for relief. The Texas Court of Criminal Appeals affirmed his conviction and sentence. Trevino v. State, 991 S.W.2d 849 (Tex. Crim. App. 1999). While his direct appeal was still pending, Trevino filed an application for state habeas corpus relief in which he urged 46 grounds for relief. The state habeas trial court held an evidentiary hearing during which Trevino's former trial counsel testified in part that (1) the defense contacted Gonzales prior to trial and knew what testimony he would give; (2) Trevino never denied participating in the offense and admitted he was present when Salinas was killed; (3) when defense counsel pressed Trevino about the facts of the offense, Trevino responded he was too stoned at the time of the offense to recall details; and (4) Trevino never denied saying "I learned to kill in prison." The state habeas trial court denied the habeas corpus application. The Texas Court of Criminal Appeals adopted the state habeas trial court's findings and conclusions and denied Trevino's state habeas corpus application. Ex parte Carlos Trevino, WR-48, 153-01 (Tex. Crim. App. April 4, 2001).
On March 14, 2002, Trevino filed his original petition for federal habeas corpus relief in the district court, asserting four claims for relief. He subsequently filed, and the district court granted, an unopposed motion for stay, seeking leave to return to state court and explore a potential mental retardation claim, as well as other unexhausted claims.
Trevino then filed his second state habeas corpus application, asserting new claims that (1) his trial counsel rendered ineffective assistance by failing to adequately investigate, develop, and present available mitigating evidence during the punishment phase of trial; and (2) the Supreme Court's holding in Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242 (2002) precludes his execution because he suffers from fetal alcohol syndrome. The Texas Court of Criminal Appeals dismissed Trevino's second state habeas corpus application pursuantto the Texas writ-abuse statute in an unpublished, per curiam order. Ex parte Carlos Trevino, WR-48,153-02, 2005 WL 3119064 (Tex. Crim. App. November 23, 2005).
Thereafter, Trevino filed, and the district court granted, another motion for stay in which Trevino sought to return to state court and exhaust a new claim based on his federal habeas counsel's discovery in the state's files of a written witness statement dated June 12, 1996 given by Rey indicating that Cervantes, not Trevino, stabbed the victim.
Trevino then filed a motion for appointment of counsel in state court, seeking legal representation in connection with this new claim. However, for over two years the state judicial officers either failed or refused to appoint counsel for Trevino to pursue this claim, despite entreaties from the district court. The district court then lifted the stay and federal proceedings resumed.
On December 8, 2008, Trevino filed his amended petition for federal habeas corpus relief, in which he asserted eight claims for relief. The district court denied relief on all claims, but granted COA on three of these claims. Trevino now appeals the district court's rejection of those three claims. Trevino also seeks COAs to authorize appeal of the claims on which the district court denied COA.
Trevino's primary assertion in the current appeal is that...
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