* Pursuant to 5 T H C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

August 16, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-21168

DANIEL ANGEL PLATA,

Petitioner-Appellant,

versus

DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT

OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

-------------------- Appeal from the United States District Court

for the Southern District of Texas

(H-01-CV-2587)

--------------------

Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM: *

Petitioner-Appellant Daniel Angel Plata, a Mexican national

and Texas prisoner #999214, pleaded guilty to capital murder and

was sentenced to death. After exhausting his state remedies, Plata

filed a 28 U.S.C. § 2254 application for a writ of habeas corpus in

federal district court rais ing several grounds for relief. The

district court granted the State’s motion for summary judgment on

all issues, denied Plata’s habeas application, and refused to grant

a certificate of appealability (COA) on any issue raised.2

P lata now seeks a COA from us on the following issues: (1)

whether he is entitled to habeas relief based on the State’s

failure to advise him of his right to consular assistance under the

Vienna Convention on Consular Relations and (2) whether the trial

court’s refusal to allow evidence of his parole eligibility during

sentencing violated his constitutional rights to due process,

effective repre sentation by counsel, and freedom from cruel and

unusual punishment. His remaining claims have been waived. S ee

Hughes v. Johnson , 191 F.3d 607, 613 (5th Cir. 1999).

A district court shall entertain a § 2254 application filed by

“a person in custody pursuant to the judgment of a State court only

on the ground that he is in custody in violat ion of the

Constitution or law or treaties of the United States.” 28 U.S.C.

§ 2254(a). In determining whether to issue a COA, we ask whether

an applicant “has made a substantial showing of the denial of a

constitut ional right.” 28 U.S.C. § 2253(c)(2); M iller-El v.

Cockrell

, 537 U.S. 322, 336 (2003). W hen a district court rejects

a claim on the merits, “[t]he petitioner must demonstrate that

reasonable jurists would find the district court’s assessment of

the constitutional claims debatable or wrong.” S lack v. McDaniel

,

529 U.S . 473, 484 (2000). Likewise, when a district court finds

that a claim is procedurally barred, the applicant must demonstrate

that jurists of reason would find it debatable whether the district

court was correct in its procedural ruling. Id.3

W hen a state court has rejected the applicant’s claims on the

merits, the district court reviews the claims “through the lens of

the deferential scheme laid out in 28 U.S.C. § 2254(d).”

Barrientes v. Johnson , 221 F.3d 741, 772 (5th Cir. 2000). Under

that scheme, deference to a state court decision is required unless

the decis ion was “contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by

t he Supreme Court of the United States,” o r “was based on an

unreasonable de termination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)

and (2).

As a general rule, new constitutional rules o f criminal

procedure are not applied retroactively to cases that became final

before that decision was announced. T eague v. Lane

, 489 U.S. 288,

310 (1989). T eague remains applicable after the passage of the

Antiterrorism and Effective Death Penalty Act (“AEDPA”). R obertson

v. Cockrell

, 325 F.3d 243, 255 (5th Cir. 2003) (citing H orn v.

Banks , 536 U.S. 266, 272 (2002)).

Vienna Convention on Consular Relations (VCCR)

The VCCR is a 79-article, multilateral treaty ratified by the

United States in 1969. V CCR, A pr. 24, 1963, 21 U.S.T. 77; s ee

United States v. Jimenez-Nava , 243 F.3d 192, 195 (5th Cir. 2001).

Mexico is a signatory nation. See Jimenez-Nava , 243 F.3d at 195.

Pursuant to Article 36 of the VCCR, a “receiving State” (here, the

United States) shall inform a foreign national who has been4

arrested or committed to prison or custody pending trial or

detained in any other manner of his right to contact the consular

post of the “sending State” (here, Mexico). VCCR, art. 36, 21

U.S.T. 77.

The district court determined that (1) Plata had procedurally

defaulted his VCCR claim in the state court; (2) alternatively

assuming arguendo that his claim was not procedurally defaulted, it

was barred by T eague

, because recognizing that the VCCR cr eated

personally-enforceable rights would create a new rule of law; and

(3) even if his VCCR claim had been properly raised and h e had a

personally-enforceable ri ght under the VCCR, the state court’s

rulings

—— that Plata needed to show prejudice from the VCCR

violation and that he failed to show such prejudice —— were not

contrary to or an unreasonable application of clearly established

law under § 2254(d)(1).

Plata argues in his COA application that the district court’s

denial of his VCCR claim ignored the International Court of

Justice’s (ICJ) interpretation of Article 36 of the VCCR in the

LaGrand Case (F.R.G. v. U.S.), 2001 I.C.J. Rep. 104 (Judgment of

June 27, 2001). Plata did not present the L aGran d case or any

argument stemming from that opinion to the district court, so we

need not consider it. See Roberts v. Cockrell , 319 F.3d 690, 694

(5th Cir. 2003). Regardless, because his COA application fails to

address the district court’s finding that his VCCR claim is Teague

barred, he has not shown that the district cour t’s denial of his5

VCCR claim is debatable. S ee Hughes

, 191 F.3d at 613; Price v.

Roark

, 256 F.3d 364, 368 n.2 (5th Cir. 20 01). We therefore deny

COA with respect to Plata’s VCCR claim.

Furthermore, even if we were to address the Teague arguments

raised in Plata’s reply brief, he has not shown that the district

court’s denial of his VCCR claim as Teague

- barred is debatable.

See Breard v. Greene

, 523 U.S. 371, 377 (1998); Flores v. Johnson

,

210 F.3d 456, 456-57 (5th Cir. 2000). In addition, even if Plata’s

VCCR claim were not procedurally defaulted and even if it were not

barred by T eague

, he still would have to show that the VCCR

violation had some effect on his tr ial. S ee Breard

, 523 U.S. at

377; Avena and other Mexican Nationals (Mexico v. United States),

2004 I.C.J. Rep. , ¶ 121. Plata asserts that he was prejudiced

by the lack of consular assistance because he did not understand

why, under the Texas legal system, it would have benefitted him to

plead guilty, and because the con sul would have litigated the

inequality of the prosecution’s grant of favorable plea deals to

his co-conspirators. H e insists that consular assistance would

have aided him in finding m edical documents to show that he was

injured at birth and that he was physically abused by his father

while he lived in Mexico; that the consul could have obtained

Plata’s educational records from Mexico; and that the consul could

have traveled to Mexico and conducted interviews with his relatives

there, which in turn could have assisted the defense in confirming6

the diagnosis suggested by Pl ata’s MMPI scores, i.e., that he

suffered from schizophrenia.

Plata’s argument regarding prejudice suffered at trial because

he did not understand the benefit of pleading guilty before trial

does not make the district court’s denial of his VCCR claim

debatable, as trial counsel’s affidavit in the s tate habeas

proceedings stated the he explained to Plata the consequenc es of

pleading guilty before trial and after the State presented its

case. F urther, Plata’s argument that he was discriminated against

because the one of his co-conspirators who told him to fire the

fourth, fifth, and sixth shots at the victim received only a life

sentence does not make debatable the district court’s finding that

Plata’s death sentence was most likely the result of his being the

gunman during the offense.

Although he argues that the Mexican consul could have obtained

medical records to show that Plata suffered from oxygen deprivation

at birth and that he was physically abused as a child, and despite

the fact that he now has legal assistance from Mexican consul,

Plata does not provide any evidence to support these claims.

Regardless, his mother testified that Plata was “born dead,” that

he need ed to be revived by doctors after his birth, and that she

and Plata were physically abused by Plata’s father. P lata also

testified that he was physically abused by his father. Given the

cumulative nature of any records regarding Plata’s birth and

physical ab use, Plata has not shown that the district court’s7

alternative denial of his VCCR claim on prejudice grounds is

debatable.

Plata also contends that the prosecution argued to the jury

that there were no records to support Plata’s physical abuse

claims, and that the absence of such records therefore prejudiced

him at sentencing. Again, however, as he has not provided any

records to supp ort this claim, his assertion regarding those

records is speculative and, thus, does not render the district

court’s denial of Plata’s VCCR claim debatable. Neither does Plata

explain what his educational records from Mexico would have shown

that would have mitigated his sentence. Plata moved from Mexico to

the United States when he was eleven years old.

Finally, Plata’s assertion tha t Mexican consul would have

traveled to Mexico and interviewe d relatives, which could have

assisted the defense in confirming the diagnosis of schizophrenia

suggested by the scores on his personality test, is raised for the

first time in his COA application and therefore will not be

considered. S ee Roberts

, 319 F.3d at 694. Moreover, the claim is

purely speculative, as Plat a has provided us no indication that

there is any evidence in Mexico that would support such a

diagnosis. N either is there any indication that the Mexican consul

would have been more likely than trial counsel to investigate

whether Plata is schizophrenic, given trial counsel’s statement in

his affidavit that there was no indication that Plata was suffering

from any mental health problem or mental retard ation; that Plata8

was lucid and conversant during their meetings; that counsel had

numerous conversations with Plata concerning mitigating evidence

for sentencing; that counsel interviewed numerous family members;

and that counsel would have checked out other witnesses if Plata

had told him about them. Accordingly, even if Plata’s claim were

properly raised and before this court, we would conclude that Plata

has failed to show that the district court’s alternative denial of

his VCCR claim on prejudice grounds is debatable among reasonable

jurists. See Miller-El , 537 U.S. at 336.

Parole Eligibility

Due Process

Relying on state cases construing the Supreme Court’s decision

in Simmons v. North Carolina

, 512 U.S. 154 (1994), the state court,

on both direct and habeas review, rejected Plata’s claim that he

had a due process right to have the jury informed that he would not

be eligible for parole for 40 years. The district court noted

that, in Simmons

, 512 U.S. at 1 69, the Supreme Court held that a

capital defendant who could be sentenced to life without parole

, as

an alternative to a death sentence, should be allowed to inform the

jury of their parole ineligibility; that the Supreme Court, in

Ramdass v. Angelone , 530 U.S. 156, 166 (2000), declined to extend

that rule to prisoners who, like Plata, would ultimately be

eligible for parole; and that this court, in Tigner v. Cockrell

,

264 F.3d 521, 525 (5th Cir. 2001), held that extending the rule of9

Simmons to prisoners who were eligible for parole would be barred

by Teague

. T he district court determined that the state court’s

decisions were not contrary to or an unreasonable application of

clearly established law. See 28 U.S.C. § 2254(d)(1).

In Simmons

, 512 U.S. at 157, the prosecution had raised the

issue of the capital defendant’s future dangerousness to the jury.

A plurality of the Court concluded that, by refusing to inform the

jury of Simmons’s parole ineligibility, the State had deprived him

of his due process rights under the Fourteenth Amendment. Id. at

171. I n O'Dell v. Netherland , 521 U.S. 151, 159-66 (1997), the

Court determined that the holding in Simmons was a “new” rule

within the me aning of T eague

. S ee also Ramdass v. Angelone

, 530

U.S. 156, 169-70 (2000). In the same vein, we have repeatedly held

t hat any extension of the scope of S immons is barred by Teague

.

See e.g.

, Tigner v. Cockrell , 264 F.3d 521, 525 (5th Cir. 2001).

Plata nevertheless insists that his claim is now supported by

the Supreme Court’s decision in Ring v. Arizona

, 536 U.S. 584

(2002). Ring held, however, that due process is violated when a

judge rather than a jury finds the presence of aggrav ating

circumstances that are necess ary for the imposition of a capital

sentence. R ing

, 536 U.S. at 609. I t did not state that a capital

defendant’s parole eligibility was required by du e process to be

presented to the jury, and it did not address whether, as

determined by the district court, any extension of S immons is

barred by Teague

. A s Plata has failed to show that the district1 When Plata was convicted, the sentencing jury’s

consideration of parole eligibility in capital cases was expressly

forbidden by Texas law. See T EX

. C ODE C RIM

. P ROC

. A NN

. ART

. 37.07, §

4(a) (West 1998). Texas law was amended in 1999 to allow for

evidence of parole eligibility in all capital cases. S ee T EX

. C ODE

C RIM

. P ROC

. A NN

. ART . 37.071(e)(2)(b) (West 2000).

10 court’s denial of his due process claim is debatable based on Ring

,

COA is DENIED with respect to this claim.

Right to Effective Legal Representation

Plata urges t hat State action denied his right to effective

representation under the Sixth Amendment because Texas law

precluded him from informing the jury that he would not be eligible

for parole for 40 years. 1 As he fails to challenge the district

court’s determinations that his counsel was not ineffective under

Strickland v. Washington

, 466 U.S. 668 (1984), and that any

extension of Simmons to the Sixth Amendment context would be barred

by Teague

, see Hughes

, 191 F.3d at 613, we deny COA with respect to

this claim.

Cruel and Unusual Punishment

Plata argues that, based upon Skipper v. South Carolina

, 476

U.S. 1 (1986), and Jurek v. Texas , 428 U.S. 262 (1976), the trial

court violated his Eighth Amendment rights because punishment was

impo sed without his being allowed to introduce evidence that he

would not be eligible for parole for 40 years. The Texas Court of

Criminal Appeals rejected this claim on both direct and habeas

review. The district court determined that Plata had failed to

show that the state court decisions were contrary to or an11

unreasonable application of federa l law. S ee 28 U.S.C.

§ 2254(d)(1).

In Skipper and Jurek , the Supreme Court held that precluding

a defendant from introducing relevant mitigating evidence during a

sentencing proceeding violates the Eighth Amendment. S kipper

, 476

U.S. at 4; Jurek

, 428 U.S. at 271. The Simmons Court relied on

Skipper to find that the due process clause requires a jury to be

told of a capital defendant’s parole ineligibility, but the Court

expressly declined to address whether its result was also compelled

by the Eighth Amendment. S immons

, 512 U.S. at 162 n.4, 164-65. As

Plata has failed to show that the d istrict court’s denial of his

parole eligibility claims is debatable among reasonable jurists, we

deny COA with respect to this claim. S ee Miller-El

, 53 7 U.S. at

336.

COA DENIED.

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