Appeal from the United States District Court for the Northern District of Texas.
For CHARLES DON FLORES, Petitioner - Appellant: Bruce Edward Anton, Sorrels, Udashen & Anton, Dallas, TX; Mary Margaret Penrose, Texas A& M University, School of Law, Fort Worth, TX.
For WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellee: Tomee Morgan Heining, Assistant Attorney General, Office of the Attorney General, Postconviction Litigation Division, Austin, TX.
Before KING, JOLLY, and HAYNES, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Charles Don Flores was convicted of capital murder and sentenced to death in Texas in 1999, based on his culpability for the shooting death of Elizabeth Black while in the course of committing robbery and burglary of her home on January 29, 1998. He requests a certificate of appealability (COA) authorizing him to appeal the district court's denial of his request to amend his federal habeas petition to pursue previously defaulted claims of ineffective assistance of trial counsel. For the reasons that follow, we DENY a COA.
We begin with the facts relevant to our consideration of the claims Flores seeks to assert by way of amendment. During individual voir dire at Flores's capital murder trial, the prosecution peremptorily
struck venire members Gloria Cantu and Brian Cunningham. Flores did not object to either strike. The following day, the prosecution peremptorily struck venire member Damon Castillo after the trial court denied a challenge for cause. Defense counsel raised a Batson  objection to the strike of Castillo and also to the strike of Cantu on the previous day. The trial court took judicial notice that Flores, Cantu, and Castillo are Hispanic. Defense counsel suggested that there was no apparent reason for the strikes except that the State did not want any Hispanics on the jury. The trial court pointed out that a Hispanic female had already been selected to serve on the jury. Defense counsel asked the court to consider that the defense had made a prima facie case of racial discrimination by the State. The following exchange then took place:
THE COURT: Well, I don't believe that the attorney that made the challenge to Gloria Cantu is in the Courtroom today. And I would have to refresh my recollection of what did go on at that time; however, I can say that the Court did not observe anything yesterday that would appear to be racially motivated.
What is the State's response to striking Damon Castillo?
[PROSECUTOR] WEST: Judge, am I to assume that you do believe there's a prima facie case [as] to Castillo?
THE COURT: Well, I'm going to assume there is, and I want to hear your side of it.
After hearing the prosecutor's explanation for the strike of Castillo, the trial court found that the strike was not based on any racial reasons, but rather on reasons having to do with his probability of convicting the defendant and assessing the death penalty. With respect to Cantu, the court stated:
I think we need to have [Prosecutor] Davis down here to refresh his memory from his notes and refresh the Court's memory also. Off the top of my head, I can't recall anything that appeared to me to be racially motivated in the examination of Ms. Cantu or the State's strike.
The Court then stated that it would appreciate it if Batson challenges were made at the time of the strike. The prosecution objected that the challenge of the strike of Cantu on the previous day was untimely, to which the Court responded: " Well, I'll hear evidence on it nonetheless." There is nothing further in the state court record regarding the Batson challenge.
Following jury selection, the State presented the following evidence at the guilt-innocence phase of the trial. On the morning of January 29, 1998, Elizabeth Black and her dog were shot to death in their home in Farmers Branch, Texas. Law enforcement officials found fragments of potato on the floor, furniture, walls, and ceiling in the vicinity of Mrs. Black's body. They also found a .380 caliber bullet on the floor near her body. Based on the size of the dog's wound, the officers believed the dog had been shot with a large-bore weapon, such as a .44 caliber.
The officers discovered a large hole in the wall above the toilet in the hall bathroom. In the master bathroom, they discovered that the medicine cabinet and sink had been torn from the wall. They found a large potato in the sink. They discovered $39,000 in cash hidden inside the master bedroom closet. Mr. Black stated that their son, Gary, who was in prison for selling drugs, had left the money with his parents. Gary's common-law wife, Jackie Roberts, had been receiving $500 of this
money from the Blacks each month. Jackie Roberts, who was on probation for possessing methamphetamine, lived with her mother and three children (two fathered by Gary Black) on Emeline Street, near the Blacks' home. She had become romantically involved with Richard Childs about three weeks before the murder.
Based on interviews with the Blacks' neighbors, law enforcement officers learned that a purple, pink, and yellow Volkswagen had been parked in the Blacks' driveway on the morning of the murder. Jackie Roberts's ex-husband, Doug Roberts, upon learning that the multi-colored Volkswagen had been seen at the Blacks' home on the morning of the murder, reported Childs's possible involvement to the police, based on his knowledge of Childs's ownership of a vehicle fitting that description.
Neighbors of the Blacks told the police that on the morning of the murder, the Blacks' garage door was open a few feet, which was unusual. Other neighbors reported that the driver of the Volkswagen got out of the vehicle, rolled underneath the garage door, and raised the door for the Volkswagen's passenger. Another neighbor, Jill Bargainer, told police that she saw two men get out of the Volkswagen. The next day, she viewed a photo line-up and identified Richard Childs as the driver. She described the passenger as a man with dark hair and eyes, of medium build, dressed in dark-colored clothing. At her request, Bargainer was hypnotized by the police prior to working on a composite drawing of the passenger.
At trial, Bargainer informed the prosecutor that, after having seen Flores in the courtroom, she was prepared to identify him as the passenger. The next day, the trial court conducted a hearing outside the presence of the jury to determine whether Bargainer's identification testimony was admissible. At the conclusion of the hearing, the trial court found that there was clear and convincing evidence that the hypnosis undergone by Bargainer did not render her in-court identification of Flores untrustworthy. The court therefore denied Flores's motion to exclude her testimony. Before the jury, Bargainer identified Flores as the passenger she saw get out of the Volkswagen at the Blacks' home on the morning of the murder. In the charge to the jury at the close of the guilt-innocence phase, the trial court instructed the jury to disregard Bargainer's testimony if it had a reasonable doubt that her identification of Flores was untrustworthy.
According to various witnesses for the State, Childs, Flores, and several others spent the early morning hours of January 29 in Flores's trailer, using methamphetamine and marijuana. Childs and Flores left Flores's trailer together in Childs's Volkswagen at around 3:00 a.m. and went to Jackie Roberts's home. Roberts had arranged for an acquaintance, Terry Plunk, to sell a quarter-pound of methamphetamine to Childs and Flores. Roberts, Flores, and Childs met Plunk in an apartment. Flores weighed the methamphetamine supplied by Plunk and claimed there was a shortage. Plunk made up the alleged shortage. Roberts, Childs, and Flores then went to Flores's home. Flores weighed the drugs again, and continued to insist that Plunk had shortchanged him.
To make up the alleged shortage, Roberts agreed to pay Flores $3,900 from the cash that Gary Black had hidden at his parents' home. Childs and Flores took Roberts to her home. Childs's former girlfriend, Vanessa Stovall, testified that Childs and Flores arrived at Childs's grandmother's home ...