* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

 

1 Anti-terrorism and Effective Death Penalty Act of 1996,

28 U.S.C. § 2254 (1994 & Supp. 1998).

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

______________________________________

No. 97-10851

______________________________________

DOMINGO CANTU, JR.,

Petitioner-Appellant, 

versus

GARY L. JOHNSON, Director,

Texas Department of Criminal Justice,

Institutional Division,

Respondent-Appellee.

_____________________________________________

Appeal from the United States District Court

for the Northern District of Texas

(94-CV-1397-H)

_____________________________________________

August 18, 1999

Before JOLLY, WIENER, EMILIO M. GARZA, Circuit Judges. 

WIENER, Circuit Judge.*

In his pre-AEDPA1 quest for habeas corpus relief, PetitionerAppellant Domingo Cantu, Jr., asks us to grant a certificate of

probable cause (CPC) so that he can appeal from the district

court’s denial of habeas relief. Cantu insists that he has made a

substantial showing of the denial of a federal right, which he must

do to our satisfaction if we are to grant a CPC. Cantu has

specified errors in both the guilt-innocence and punishment phases
 

2 The gruesome details of the crime are set forth in Cantu

v. State, 842 S.W.2d 667, 674-76 (Tex. Crim. App. 1992).

 

3 Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)

(quoting Gordon v. Willis, 516 F. Supp. 911, 913 (N.D. Ga. 1980))

(emphasis in Gordon).

2

of his state court trial, in which he was convicted and sentenced

to death for the brutal rape and murder of a 94-year-old woman.2

From our examination of the records of Cantu’s state and

federal court proceedings, viewed in light of the legal arguments

advanced by able counsel in their appellate briefs and in their

arguments to this panel, we are satisfied that Cantu has failed to

demonstrate that the issues on which he bases his claims of the

denial of federal rights are “debatable among jurists of reason;

that a court could resolve the issues [in a different manner]; or

that the questions are ‘adequate to deserve encouragement to

proceed further.’”3 For the reasons briefly set forth below,

therefore, we affirm the district court’s dismissal of his petition

for habeas relief and deny Cantu’s application for CPC.

I.

FACTS AND PROCEEDINGS

The homicide that occurred on June 25, 1988, during the course

of the aggravated sexual assault referred to above, led to the

August 26, 1988 indictment of Cantu in Dallas County, Texas. He

was tried and convicted by a jury in late October 1988, and on

November 1, 1988, the same jury affirmatively answered the two

special sentencing issues under Article 37.071(b) of the Texas Code

of Criminal Procedure, leading to imposition of the death penalty
3

by the state court. In June 1992, the Court of Criminal Appeals of

Texas affirmed Cantu’s conviction and sentence, and in September of

that year denied rehearing. The United States Supreme Court denied

certiorari in June 1993.

Cantu instituted state habeas corpus proceedings in April

1994, and the Court of Criminal Appeals of Texas denied such relief

on the basis of the findings of fact and conclusions of law of the

trial court. After his execution was scheduled Cantu instituted

these proceedings in federal district court, which stayed the

execution. The district court considered the recommendation of the

magistrate judge as well as Cantu’s objections, then adopted the

former. Cantu timely filed a notice of appeal and applied to the

district court for a CPC, which was denied some ten days later. He

now applies to us for a CPC to appeal the district court’s denial

of habeas relief.

II.

ANALYSIS

A. Guilt-Innocence Phase

Presumably in light of the plethora of evidence of guilt,

Cantu has not challenged the sufficiency of the evidence supporting

his conviction. Rather, he ties his insistence that he has made a

substantial showing of the denial of a federal right in the guiltinnocence phase to allegedly reversible errors in his trial court’s

conduct of the jury trial. We address in turn each of those

allegations.
 

4 Batson v. Kentucky, 476 U.S. 79 (1986).

 

5 See Cantu, 842 S.W.2d at 688.

 

6 Id. at n.16.

4

1. Batson Claim4

Cantu asserts that a Batson Equal Protection Clause violation

occurred when the state trial court allowed the prosecution to use

a peremptory challenge to exclude venireperson Sanchez, an

Hispanic, from the jury. In proffering race-neutral reasons for

that peremptory challenge, the prosecution listed seven

5 and

expressed reliance on the cumulative effect of all those reasons.

The trial court credited the totality of those reasons as well as

Ms. Sanchez’s questionnaire and the court’s observation of her

demeanor when responding to voir dire questions, and found the

prosecution’s position credible.6 In response to Cantu’s complaint

that other unchallenged venirepersons had some of the same traits

as ascribed to Ms. Sanchez, the prosecution noted —— and the court

accepted —— that none had all seven traits and thus did not have

the same totality of circumstances. We perceive no substantial

showing of the denial of a federal right in the trial court’s

disposition of Cantu’s Batson objection to the state’s peremptory

challenge to selecting Ms. Sanchez.

2. Denial of Challenge for Cause

The trial court denied Cantu’s challenge of venireperson

Jennings for cause based on his response to questions regarding

proof of each element of the offense beyond a reasonable doubt.

When the trial court denied Cantu’s cause challenge he still had
 

7 Id. at 682-83.

 

8 Murray v. Carrier, 477 U.S. 478, 485 (1986); Wainwright

v. Sykes, 433 U.S. 72, 87 (1977).

 

9 Carrier, 477 U.S. at 485; Sykes 433 U.S. at 87.

 

10 28 U.S.C. § 2254(d) (Supp. 1998).

5

unused peremptory challenges, yet he did not expend one on

Jennings. Under Texas law, this failure constituted procedural

default by Cantu, eschewing preservation of the alleged error.7 To

obtain federal habeas review under prescribed circumstances ——

state procedural default coupled with refusal of the state courts

to review his constitutional claim, for one —— Cantu must

demonstrate both cause and prejudice. Having failed to assert and

prove either prong of the applicable test,8 Cantu’s claim of

reversible trial court error in its ruling on the Jennings

challenge is procedurally barred in federal court.9 Even if that

were not so, however, Cantu’s claim would fail on its merits. Our

review of the voir dire of Jennings by counsel for both parties and

by the court satisfies us that the court did not err in concluding

that Jennings’s views would not prevent or substantially impair his

performance of the duties of a juror pursuant to his oath and the

instructions of the court. This entitles the trial court’s

conclusion to that effect, and the factual determinations on which

it is grounded, to a presumption of correctness.10

3. Prosecution’s Challenge for Cause

When the prosecution challenged venireperson Holloway for

cause in light of this potential juror’s voir dire testimony
 

11 Cantu v. State, 842 S.W.2d 667, 681 (Tex. Crim. App.

1992).

6

regarding the requirement that the state prove its case beyond a

reasonable doubt, the trial court granted the challenge over

Cantu’s objection. The gravamen of the state’s challenge was

Holloway’s assertion that she would require proof to an absolute

certainty, which the prosecution correctly classified as a more

stringent burden than beyond a reasonable doubt. A reading of all

the questions propounded to Holloway by the prosecution, the

defense, and the court discloses some answers that, when read out

of context, are facially inconsistent and susceptible of

interpretation of her acceptance of the appropriate level of proof.

When the entire colloquy is read in context, however, the trial

court’s ruling comes across as clearly irreversible. We need look

no further than the final exchange between the court and Holloway

to be convinced that its grant of the prosecution’s challenge for

cause was not erroneous, particularly when viewed under the

presumption of correctness of § 2254(d):

Q. And all I need to know from you, very simply is, in

a death penalty case, which would you require, proof

beyond a reasonable doubt, which is what the law

requires, or would you require, since it is a death

penalty case, absolute certainty, proved beyond any doubt

whatsoever?

A. I would require absolute certainty.11

B. Punishment Phase
 

12 Tex. Crim. P. Code Ann. § 37.071(b) (West 1981 & Supp.

1999).

7

Cantu mounts a stereotypical punishment phase challenge by

asserting that the Texas statutory death penalty issues ——

deliberateness and probability of future violence12 —— were

constitutionally inadequate to allow the jury fully to reflect any

mitigating value of Cantu’s voluntary intoxication at the time of

the offense, which might have produced temporary insanity, or of his

history of substance abuse. In addition to being instructed to

answer the questions regarding the special issues of deliberateness

and future violence, the jury was properly instructed on deciding

the weight and credibility to give mitigating evidence and,

specifically, on the consideration of temporary insanity and

voluntary intoxication —— and their definitions —— in the sentencing

calculus. Our review of the pertinent portions of the record on

these matters demonstrates beyond cavil that the jury was able to

give adequate mitigating effect to evidence of Cantu’s intoxication,

possibility of temporary insanity, and any aspect of his character,

substance abuse record, and other circumstances advanced by Cantu

in support of his request for a sentence less than death. Assuming

without deciding that intoxication, and temporary insanity resulting

therefrom, are constitutionally relevant mitigating factors, nothing

in the jury instructions can be construed to have prevented the jury

from giving mitigating effect to Cantu’s drunken state, his history

of substance abuse, or any other purportedly mitigating evidence

adduced on his behalf.
 

13 For Cantu to prevail on the basis for which his challenge

to the mitigating effect aspect of the punishment phase is asserted

would require the application of a new rule of law, which in turn

would require the kind of retroactive application that is barred by

Teague v. Lane, 489 U.S. 288, 310 (1989).

8

We perceive no violation of the Eighth Amendment in the conduct

of the punishment phase of Cantu’s trial.13 Moreover, for whatever

comfort it may provide, Cantu should know that even if we had

concluded that there was some deficiency in the instructions and

presentation of the proffered mitigating evidence that prevented or

inhibited full application of its effects by the jury, we would hold

any such error to be harmless. The value of the evidence of Cantu’s

intoxication and history of substance abuse so pales in comparison

to the egregiousness of the crime and the plethora of punishment

phase evidence supporting the death penalty that any deficiency

affecting the jury’s ability to give effect to such mitigating

evidence would have been entirely harmless.

III.

CONCLUSION

We are completely satisfied that the district court committed

no reversible error in denying habeas relief to Cantu or refusing

to grant him a CPC. We therefore affirm all rulings of that court,

and for the foregoing reasons, decline to issue Cantu a CPC.

AFFIRMED; CPC DENIED.