Appeal from the United States District Court for the Eastern District of Texas.
For GUSTAVO JULIAN GARCIA, Petitioner - Appellant: Seth Kretzer, Law Offices of Seth Kretzer, Houston, TX; James Wesley Volberding, Esq., Tyler, TX.
For WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellee: Fredericka Searle Sargent, Assistant Attorney General, Office of the Attorney General, Criminal Appeals Division, William P. Clements Building, Austin, TX.
Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Gustavo Garcia was convicted of capital murder by a Texas jury and sentenced to death. This is his second federal habeas petition. The district court denied relief on the merits, ordered the case dismissed with prejudice, and did not issue a certificate of appealability (COA). Garcia now requests a COA from this court pursuant to 28 U.S.C. § 2253(c)(1) to appeal the district court's denial of relief. Having carefully reviewed the record, we hold that Garcia failed to exhaust state court remedies with regard to one of the claims he now raises. To the extent Garcia's remaining claims might be barred by AEDPA's procedural strictures we invoke the statutory discretion afforded us to decline to address that possibility and proceed to deny those claims on the merits. We hold that reasonable jurists could not debate the district court's conclusions as to Garcia's remaining claims and accordingly DENY Garcia's request for a COA.
I. Procedural History
In 1991, a Texas jury found Garcia guilty of capital murder for shooting and killing Craig Turski in the course of committing a robbery at a liquor store where Turski worked. The jury sentenced Garcia to death. On automatic direct appeal, the Texas Court of Criminal Appeals (CCA) initially reversed Garcia's conviction and ordered a new trial, holding that a written confession signed by Garcia violated Texas Code of Criminal Procedure article 38.22 § 2(b), which " requires that no written statement made by the defendant be admitted into evidence unless, on its face, the statement contains a knowing, intelligent, and voluntary waiver of the rights set forth in [section 2(a), which operationalizes a standard Miranda warning]."  Although Garcia had initialed " G.G." before numbered warnings mirroring the rights listed in section 2(a) and had signed his name adjacent to additional language reinforcing those warnings, the CCA concluded that the written confession did not include " on its face" an express waiver of those rights.
The CCA subsequently granted a motion for rehearing and reversed course, affirming the trial court and holding, " though a close call," that Garcia's individual initialing beside the warnings, taken in context with his signature adjacent to the additional reinforcing language, constituted sufficient evidence that Garcia " did, on the face of his voluntary statement, knowingly, voluntarily, and intelligently waive his [s]ection 2(a) rights in a manner sufficient to comply with the legislature's intent when it enacted [s]ection 2(b)."  Garcia did not file a petition for certiorari with the Supreme Court.
Garcia filed his first application for a writ of habeas corpus in state court in 1997. In 1998, the state habeas court issued findings of fact and conclusions of law, recommending that the application be denied. In February 1999, the CCA adopted the state habeas court's findings and conclusions and denied habeas relief without written order. The state trial court set Garcia's execution date for March 31, 1999. In March 1999, the United States District Court for the Eastern District of Texas, Judge Schell, granted a motion to appoint new counsel and stayed Garcia's execution.
Garcia filed his first federal habeas petition in August 1999, which was supplemented in 2000. In response, the state confessed error as to Garcia's claim that the trial court allowed improper testimony by the state's expert witness during the punishment phase of the trial--so-called Saldano error. On September 6, 2000, the federal district court issued a conditional writ of habeas corpus, requiring the state to conduct a new sentencing hearing.
The state trial court held a second jury trial on sentencing in February and March of 2001, and the jury again sentenced Garcia to death. On automatic direct appeal, the CCA affirmed Garcia's sentence. The CCA denied Garcia's motion for rehearing. Garcia filed a petition for certiorari. The Supreme Court denied certiorari on October 4, 2004, and subsequently denied Garcia's motion for rehearing.
Meanwhile, Garcia filed a second application for a writ of habeas corpus in state court. On February 12, 2008, the state trial court issued findings of fact and conclusions of law recommending that relief be denied. The CCA denied relief in a brief written order on October 15, 2008.
Garcia began the instant proceedings on November 27, 2008 in United States District Court for the Eastern District of Texas; he sought and received appointment of counsel by Judge Heartfield. He filed his second federal habeas petition on October 11, 2009. The district court denied relief in a 163-page opinion on November 10, 2014, dismissing the case and declining to grant a certificate of appealability (COA). Garcia now requests a COA from this court pursuant to 28 U.S.C. § 2253.
II. Facts of the Offense
We rely on the CCA's factual recitation, which summarized the facts of the offense as follows:
The evidence at trial established that on December 9, 1990 [Garcia] and Christopher Vargas entered a liquor store, Beverage Warehouse, in the city of Plano. [Garcia] was armed with a single shot .20 gauge sawed-off shotgun and had additional shells in his possession. [Garcia] ordered the clerk, Craig Turski, to give him the money from the cash register. At the same time, Vargas took beer from the store and put it in their car. A female customer walked in the store, saw [Garcia], and immediately left.
[Garcia] shot Turski at close range in the abdomen. Turski fled outside the store, pursued by [Garcia]. [Garcia] then reloaded the shotgun and shot Turski in the back of the head. The female customer, Donna Delozier Sawtelle, subsequently returned to the store with her husband. Finding the store deserted, they called the police. Turski was found and was transported to the hospital, where he later died from gunshot wounds.
On January 5, 1991 at about 12:30 a.m., Vargas, [Garcia] and [Garcia's] girlfriend (Sheila Phanae Loe) stopped at a Texaco station in Plano. While Loe pumped gas, [Garcia] and Vargas entered the station with the same .20 gauge shotgun used to kill Turski. The clerk, Gregory Martin, was on the phone with his girlfriend. As he saw them enter, he informed her he thought he was about to be robbed and asked her to call the police. Martin was taken into a back room and shot at point blank range in the back of the head. He died at the scene.
[Garcia] claimed Vargas shot Martin. Evidence introduced at trial, however, indicated Vargas was carrying beer to their car (as he did in the earlier robbery) while [Garcia] shot the clerk. In addition, the shotgun was found near the freezer in close proximity to [Garcia] at the time of his capture. Two firearms experts testified at trial that the shotgun found at the scene of Martin's murder was the same weapon used in Turski's murder.
Alerted by Martin's girlfriend, the police arrived at the scene to find [Garcia], Vargas and Loe still present, Vargas was found, unarmed, standing over Martin's body. He claimed to have just entered the store and found Martin lying there. [Garcia] was found hiding in the freezer area close to where the shotgun was found.
[Garcia] was transported to the Plano Police Department. He was read his " Miranda" warnings repeatedly. He subsequently confessed, both orally and in writing, to the murders of both Turski and Martin. His confessions were videotaped, and a separate written confession was prepared for each offense.
[Garcia's] written statement regarding the killing of Turski in its entirety reads as follows:
Det. Wilson is writing my statement. Approx. 3-4 weeks from today's date, Chris Vargas & I robbed a liquor store & I killed the clerk. The liquor store was behind a 7-11 store at Plano Pkwy. & Ave. K. I was driving Sheila's Chev. Monza. We waited in the liquor store parking lot until the customers all left. Both Chris & I pulled a 20 ga. sawed-off shotgun on the clerk. I had the clerk give me the money out of the cash register & it was about $500. Chris was grabbing up beer. Chris went outside to pull the car up to the front door. I had the clerk go into a little room next to the cash register & I had him get on his knees. A customer, a white woman walked in the store & saw me & she walked back out. I then panicked and I shot the clerk with the shotgun. The clerk started coming at me & threw a chair at me and then he ran outside. I loaded the shotgun & shot the clerk again outside the store. The clerk had jumped over the fence & was in some grass when I shot him the 2nd time. I then ran to the car & we drove off. I told Sheila my common-law wife about the robbery after we did it. End--G.G.
The statement was completed at 9:05 a.m. on January 5, 1991. Each page is signed by [Garcia] and two witnesses. The statement was taken by Det. David Wilson of the Plano Police Department. . . .
At trial, an acquaintance of [Garcia], Bobby Flores, testified he was at Vargas' house the night of the Turski murder. Flores testified that Vargas and [Garcia] left the house and subsequently returned with beer and a lot of money. Flores asked [Garcia] where he got the beer and money. [Garcia] in response stated he went into a store, took the beer and money, shot the clerk and left.
III. Standard of Review
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § § 2244, 2253-2266 (" AEDPA" ), a prisoner seeking postconviction habeas relief under 28 U.S.C. § 2254 may appeal a district court's dismissal of his petition only if he first seeks and obtains a COA from the district court or the court of appeals. To obtain a COA, the petitioner must make " a substantial showing of the denial of a constitutional right."  " A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." 
In considering an application for a COA, we limit our " examination to a threshold inquiry into the underlying merit of [the petitioner's] claims."  " This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it."  In death penalty cases, " any doubts as to whether a COA should issue must be resolved in [the petitioner's] favor." 
Under AEDPA, a district court may not grant habeas relief with respect to any claim that was adjudicated on the merits in state court proceedings, unless the state court's denial of habeas relief:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
" A state court's decision is 'contrary to' clearly established federal law if 'the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.'"  " A state court's decision involves an 'unreasonable application' of clearly established federal law if 'the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.'"  Finally, we presume correct any factual findings made by the state court unless the petitioner " rebut[s] the presumption of correctness by clear and convincing evidence." 
Garcia presents four claims in his COA application: (1) a claim that the admission into evidence at trial of two written confessions violated his rights under Miranda; (2) a claim of ineffective assistance of counsel based on a contention that trial counsel unreasonably failed to object at trial to the admission of Garcia's confessions on the basis that he was legally blind and could not read printed Miranda warnings or the confessions themselves; and (3)-(4) a pair of Batson claims that the state prosecution based its use of peremptory challenges during voir dire on impermissible racial characteristics in violation of the Equal Protection Clause.
A. Miranda and the Written Confessions
Garcia requests a COA for his claim that the admission into evidence of his two written confessions violated the requirements set out by the Supreme Court in Miranda v. Arizona. The state trial court found that " [t]here is no evidence that [Garcia] was compelled in any way to give a confession or that his will was overborne by the police officers in any way."  We presume the correctness of this finding. Garcia has not offered clear and convincing evidence to rebut it and he thus fails to make a substantial showing that the admission of his confessions violated a constitutional right.
1. Texas Code of Criminal Procedure Article 38.22
As an initial matter, Garcia urges that the merits of his Miranda claim are fairly debatable by reasonable jurists because the CCA initially overturned his conviction on grounds that one of the written confessions violated a Texas statute that operationalizes Miranda. Garcia argues in essence that the CCA's reversal necessarily indicates that jurists have disagreed about the merits of his Miranda claim. This argument is misplaced, as " federal habeas corpus relief does not lie for errors of state law."  The relevant question before this court is not whether reasonable jurists could disagree about whether the written confessions complied with a Texas statute. Rather, we must consider whether reasonable jurists could disagree about whether the admission of the statements violated the Constitution.
2. Waiver of Miranda Rights
Miranda requires that prior to a custodial interrogation an accused person must be warned: (1) that he has a right to remain silent; (2) that any statement he makes can and will be used as evidence against him in court; (3) that he has a right to consult with counsel prior to questioning; (4) that he has a right to have counsel present during any questioning; and (5) that if he cannot afford an attorney a lawyer will be appointed to represent him. " If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to [invoke any of these rights], the interrogation must cease." 
Although an accused " may waive effectuation of the rights conveyed in [these] warnings,"  the Supreme Court has held that statements made " during a custodial interrogation [are] inadmissible at trial unless the prosecution can establish that the accused 'in fact knowingly and voluntarily waived Miranda rights' when making the statement."  This is a two-part inquiry, considered under the " totality of the circumstances surrounding the interrogation."  First, the waiver must have been " the product of free and deliberate choice rather than intimidation, coercion, or deception."  Second, " the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." 
The trial court found that Garcia " was twice read his Miranda warnings" orally and " did not invoke his right to remain silent or his right to counsel," nor did he " indicate in any manner that he desired to do so."  This in addition to the fact that Garcia placed his initials beside language tracking Miranda on the face of each written confession. Garcia does not dispute that he received a proper Miranda warning before offering his confessions and that he did not invoke any Miranda right. He contends only that a reasonable jurist could conclude that Garcia did not voluntarily waive his Miranda rights under the totality of the circumstances. In support, Garcia cites the following factual circumstances: " Garcia was only four months past his 18th birthday, with moderate education, interrogated by experienced police[,] exhausted, hungover, lacking his glasses, and unable to read adequately the statements written for him." 
Garcia also cites two cases: Mincey v. Arizona and United States v. Murphy. The factual circumstances of these cases are easily distinguished from the circumstances surrounding Garcia's confessions. In Mincey, the Supreme Court held that a confession was involuntary where the accused: " had been seriously wounded just a few hours" before confessing; was in " unbearable" pain; was " in the intensive care unit . . . lying on his back on a hospital bed, encumbered by tubes, needles, and [a] breathing apparatus; " was " confused and unable to think clearly about either the events . . . or the circumstances of his interrogation; " gave incoherent answers; and even " [in] his debilitated and helpless condition . . . clearly expressed his wish not to be interrogated."  In Murphy, the Second Circuit held that a waiver was not knowing where the interrogating officer had given an " incomprehensible instruction" that " strongly suggest[ed] that the [accused] should talk if they wished to exercise their rights--or, put another way, that they would waive their rights if they remained silent."  The factual circumstances to which Garcia points fall short of the egregious conditions present in Mincey and Murphy. By contrast to these cases, Garcia ...