IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-70029

JESSE JOE HERNANDEZ,

Petitioner–Appellant,

v.

RICK THALER, Director, Texas Department of Criminal Justice, Correctional

Institutions Division,

Respondent–Appellee.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:06-CV-846

Before GARZA, CLEMENT, and OWEN, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:*

Jesse Joe Hernandez (Hernandez) requests a certificate of appealability

(COA) on his claim that the prosecution violated the Fifth Amendment during

his state court trial by remarking on his failure to testify on his own behalf. For

the following reasons, we deny the COA.

I

In July 2002, a Texas jury found Hernandez guilty of capital murder after

it determined that Hernandez murdered ten-month-old Karlos Borja on or about

United States Court of Appeals

Fifth Circuit

F I L E D

September 12, 2011

Lyle W. Cayce

Clerk

 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.

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April 11, 2001. The facts surrounding Karlos’s death, as recited by the Texas

Court of Criminal Appeals, are as follows:

The evidence at trial showed that at the time Karlos and

Melodi were assaulted, Misty Leverett, [ten-month-old] Karlos, and

[four-year-old] Melodi, were living with appellant [Hernandez], his

wife Mary Rojas, their young son, Joshua, and Gilbert Gomez. On

the day of the assaults, Leverett went to work and left the children

in the care of appellant and Rojas. Rojas testified that after

Leverett left for work around noon, she stayed home with the

children while appellant and Gomez left to run errands. When

appellant and Gomez returned about two hours later, Rojas left for

her sister-in-law’s house and was gone approximately thirty to

forty-five minutes. Rojas testified that when she got home, she

heard appellant screaming at Joshua. She picked him up and took

him to the room she shared with appellant. Rojas asked where

Karlos and Melodi were, and appellant replied that they were

sleeping in the next room. Rojas then went into her room and

relaxed with Joshua. Later, when she heard appellant preparing a

bottle, she told appellant she was going to go into the room where

Karlos and Melodi were sleeping. Appellant instructed Rojas not to

enter the room for fear she would wake them up. Despite having

seen blood stains on appellant’s shirt, Rojas waited until Leverett

got home from work to check on the children.

Leverett testified that when she arrived home, she went into

the dark room she shared with her children and found Melodi

complaining that her head hurt. Rojas and Leverett took Melodi out

into the kitchen and saw that her head was swollen with “red

splotches.” Alarmed, Leverett decided to take Melodi to the

hospital. After they left, Rojas checked on Karlos and noticed his

lips were swollen. She determined Karlos was badly hurt and took

Karlos and Joshua down the street to her sister-in-law’s house to

call an ambulance.

When Leverett and Melodi arrived at the hospital, hospital

workers asked Leverett if she had any other children. When she

replied that she did, the hospital workers instructed her to return

home and get her son immediately. Leverett testified that when she

returned home, appellant was alone and he told her that Karlos was

at his sister’s house. Leverett asked appellant to take her there but

he refused. Moments later, police arrived and informed Leverett

that Karlos had been rushed to Children’s Hospital by ambulance.

2

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In addition to this evidence, appellant stated in his voluntary

written statement that he was babysitting Melodi and Karlos and

“they were being very bad by crying a lot for nothing.” Appellant

continued that he “just exploded and hit them with the back of my

hand not realizing I was hurting them[.]”1

Karlos died approximately one week after the beating. 

2

During the guilt phase of Hernandez’s trial, the prosecution introduced

evidence that Hernandez’s right hand appeared swollen during the hours

following the time when Karlos and Melodi were beaten. Mary Rojas,

Hernandez’s wife, testified that she noticed the swelling in his right hand and

told a police officer about it. The jury also heard testimony from two different

detectives who also noticed swelling in Hernandez’s hand. Detective Lesher, one

of the officers who interviewed Hernandez, testified that the back of one of

Hernandez’s hands “was swollen more than the other hand was.” Detective

Breedlove, who interviewed Hernandez on two occasions—once the morning of

the incident and then later that afternoon—testified that, although he did not

notice any swelling in Hernandez’s hand during the morning interview, he did

notice the swelling that afternoon. Hernandez was jailed between these

interviews, and Hernandez’s attorney asked Detective Breedlove on crossexamination whether Detective Breedlove recalled being told by one of the jailers

that, in between the interviews, Hernandez was “beating on the cell in there or

causing a ruckus.” Detective Breedlove did not recall any such statement.

During closing arguments, the parties offered competing theories on the

origin of Hernandez’s swollen hand. The defense, during its closing statement,

made the following comments:

See Hernandez v. State, No. 74401, 2004 WL 3093221, at *3-4 (Tex. Crim. App. May 1

26, 2004) (footnote omitted).

Id. at *1 n.2. 2

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Then the swollen hand, the magic swollen hand. There’s

another beauty. The swollen hand. Really. What do you remember

from cross-examination on this? They’re investigating someone

that’s allegedly abused a child. Hasn’t been a death yet, but guess

what? Nothing in the police reports, any of them.

I asked Hernandez, Chacon, Lesher, Breedlove. Anything in

there about Mary saying something at the house about look at his

hands or the shirt involved or the exchanges that Mary allegedly

had with Jesse? No. Asked the police officer. You remember that? 

No. Look in the police report. Nothing.

You know Breedlove huddled with the officers right before he

brought Jesse Hernandez at 5:00 o’clock and that’s crucial,

important stuff. You know that Breedlove interrogated him for two

hours where he was sitting distance from here to here. Never

noticed a swollen hand ever. Nothing. For two hours. Even

watched him write the affidavit. Said it took him an hour.

I asked, “When you got him out of jail, do you remember a

jailer saying he hit his hands on the wall pounding the cell?” “No,

I don’t remember that.”

All of a sudden, everybody sees a swollen hand. Oh, there it

is. Must have been from what happened out there. Really. You

might think this is kind of Oliver Stone or conspiracy theories. Take

a good look at Mary’s statement, the one she gave here. Look at her

handwriting. Look through all of them, it’s the same. Same

handwriting. Nothing changes. All of a sudden at the very end look

at the different spelling that says “that was when I noticed his hand

was swollen.”

Thereafter,the prosecution, in its rebuttal argument, also addressed the swollen

hand:

Look, we haven’t come in here and made promises that we can’t

back up. We presented evidence to you that shows him guilty. We

haven’t come in with innuendo. You know, where is this proof about

him striking something over in the jail causing him to swell his

hand? Where is that proof there? You haven’t heard it from any

witness. We’re not the ones coming in here making these promises

that we can’t back up.

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The jury ultimately found Hernandez guilty and recommended a death sentence,

which the trial court imposed.

Hernandez filed a direct appeal to the Texas Court of Criminal Appeals in

which he raised a number of claims, including the claim that the prosecution

impermissibly commented on his failure to testify when it made the aboveexcerpted statement addressing the swollen hand. The Texas Court of Criminal

Appeals concluded Hernandez had forfeited this claim by failing to object to the

prosecutor’s statement at trial. The court also rejected Hernandez’s other 3

claims and affirmed his conviction and sentence.4

Subsequently, Hernandez filed an application for a writ of habeas corpus

in state court. That application included a claim that Hernandez’s trial counsel

was ineffective for failing to objectto the comment that Hernandez characterized

as a commentary on his failure to testify. The state court determined that

Hernandez’s trial counsel did not act unreasonably in failing to object and that,

even if the failure to object was unreasonable, it was not prejudicial to

Hernandez. Additionally,the state court concluded that Hernandez’s underlying

claim lacked merit. In the state court’s opinion, the contested comment referred

not to Hernandez’s failure to testify but to Hernandez’s “failure to call a witness

who would support his theory that he injured his hand pounding on his

cell”—specifically, the unnamed jailer that Hernandez implied could have

testified that Hernandez spent all day pounding his hands on his jail cell. 

Hernandez appealed to the Texas Court of Criminal Appeals, which adopted the

findings and conclusions of the trial court.5

 Id. at *7.

3

 Id. at *8.

4

Ex parte Hernandez, No. WR-62840-01, 2006 WL 1174307, at *1 (Tex. Crim. App.

5

May 3, 2006).

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Hernandez then filed a petition for a writ of habeas corpus in the United

States District Court for the Northern District of Texas. Hernandez’s petition

raised seven claims, one of which was that the prosecution violated Hernandez’s

Fifth Amendment right against self-incrimination by allegedly commenting on

Hernandez’s failure to testify to explain the swelling in his hand. The district

court determined that Hernandez’s Fifth Amendment claim was procedurally

defaulted, due to Hernandez’s failure to object to the prosecution’s statement at

trial, and that Hernandez had not attempted to establish any of the various

exceptions to the procedural default rule. Accordingly, the district court

dismissed this claim on procedural grounds. The court rejected the rest of

Hernandez’s claims on the merits. Hernandez subsequently requested a COA

with respect to his Fifth Amendment claim, which the district court denied. 

Hernandez now requests a COA from this court.

II

“[A] state prisoner seeking a writ of habeas corpus has no absolute

entitlement to appeal a district court’s denial of his petition.” Instead, the 6

prisoner must first obtain a COA from a circuit justice or judge. “[U]ntil a COA 7

has been issued federal courts of appeals lack jurisdiction to rule on the merits

of appeals from habeas petitioners.”8

A COA “may issue . . . only if the applicant has made a substantial

showing of the denial of a constitutional right.” An applicant makes such a

9

“substantial showing of the denial of a constitutional right” when he

demonstrates “that reasonable jurists could debate whether (or, for that matter,

 Miller-El v. Cockrell, 537 U.S. 322, 335 (2003) (citing 28 U.S.C. § 2253).

6

 Id. at 335-36. 7

 Id. at 336.

8

 28 U.S.C. § 2253(c)(2).

9

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agree that) the petition should have been resolved in a different manner or that

the issues presented were adequate to deserve encouragement to proceed

further.” The “issuance of ‘a COA does not require a showing that the appeal 10

will succeed,’” however, and we should not decline an applicant’s request for a

COA merely because we believe that the applicant will ultimately fail to

establish his entitlement to habeas relief. When, as here, an applicant faces 11

a death sentence, we will resolve any doubts as to whether a COA should issue

in his favor.12

III

The district court dismissed Hernandez’s Fifth Amendment claim on

procedural grounds. Thus, in order to show his entitlement to a COA,

Hernandez must demonstrate two things: (1) “that jurists of reason would find

it debatable whether the district court was correct in its procedural ruling” and

(2) “that jurists of reason would find it debatable whether” he states a valid Fifth

Amendment claim. Hernandez has failed to make the necessary demonstration

13

with respect to both inquiries. 

A

We begin with the district court’s procedural ruling—that Hernandez’s

Fifth Amendment claim was procedurally defaulted because of his failure to

object to the prosecutor’s statements during trial. Hernandez does not dispute

that he did not raise his Fifth Amendment objection during his trial in state

court. Rather, he claims we can use the plain error standard of review to

 Miller-El, 537 U.S. at 336 (internal quotation marks omitted).

10

Williams v. Thaler, 602 F.3d 291, 301 (5th Cir. 2010) (quoting Miller-El, 537 U.S. 11

at 337).

Id. (citing Martinez v. Dretke, 404 F.3d 878, 884 (5th Cir. 2005)). 12

 Slack v. McDaniel, 529 U.S. 473, 484 (2000). 13

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recognize the prosecution’s allegedly unconstitutional actions. The plain error

standard of review allows us to remedy unpreserved clear errors that affect a

defendant’s substantial rights and the fairness, integrity, or public reputation

of judicial proceedings. Hernandez argues that the error was clear and 14

obvious—“the comment by the prosecutor could only have been interpreted by

the jury as a reference to Hernandez’s failure to testify”—and affected a

substantial right—“his Fifth Amendment privilege against self-incrimination.” 

He argues that “the error seriously affected the fairness of the proceedings and

went to the heart of the integrity of the judicial system.”

We reject Hernandez’s argument for the simple reason that the plain error

standard of review is an instrument of direct review. It does not apply in the

context of a collateral attack on the constitutional validity of a final conviction.15

Because Hernandez failed to preserve his Fifth Amendment objection in his state

court proceedings and we are not engaged in a direct review of those

proceedings, Hernandez’s claim implicates the rule of procedural default. 

Under the procedural default rule, federal habeas relief is generally not

available “when a state court declined to address a prisoner’s federal claims

because the prisoner . . . failed to meet a state procedural requirement.” This 16

is so because in such cases “the state judgment rests on independent and

See United States v. Juarez, 626 F.3d 246, 254 (5th Cir. 2010).

14

Engle v. Isaac, 456 U.S. 107, 134-35 (1982) (“The federal courts apply a plain-error

15

rule for direct review of federal convictions. Federal habeas challenges to state convictions,

however, entail greater finality problems and special comity concerns. We remain convinced

that the burden of justifying federal habeas relief for state prisoners is greater than the

showing required to establish plain error on direct appeal.” (internal quotation marks

omitted)); see also Scott v. Mitchell, 209 F.3d 854, 872 n.6 (6th Cir. 2000) (rejecting the

argument that a procedurally defaulted claim should be reviewed for plain error on habeas

review).

 Coleman v. Thompson, 501 U.S. 722, 729-30 (1991).

16

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adequate state procedural grounds.” Here, the Texas Court of Criminal 17

Appeals refused to consider Hernandez’s Fifth Amendment claim because

Hernandez failed to comply with Texas’s contemporaneous objection rule—he

failed to object to the purportedly unconstitutional statements when the

prosecution made them. Texas’s contemporaneous objection rule is an adequate

and independent state procedural ground. Hernandez’s failure to comply with 18

it means he has defaulted his Fifth Amendment claim.

However, exceptions to the procedural default rule exist. There are two. 

First, the prisoner “can demonstrate cause for the default and actual prejudice

as a result of the alleged violation of federal law.” Second, the prisoner can 19

“demonstrate that failure to consider the [federal] claim[] will result in a

fundamental miscarriage of justice.” These exceptions present significantly 20

higher hurdles for a prisoner to successfully navigate than the plain error

standard that we apply to unpreserved issues on direct appeal.21

Here, Hernandez does not argue that these exceptions warrant waiver of

his procedural default. He does not contend that cause and prejudice exist:

although he argued in his state habeas petition that his trial attorney’s failure

to object to the prosecutor’s statements constituted ineffective assistance of

counsel, a form of cause, he failed to repeat that argument to the district court 22

below and he does not repeat it here. Nor does he contend that application of the

 Id. at 730.

17

See Turner v. Quarterman, 481 F.3d 292, 301 (5th Cir. 2007) (holding that the Texas 18

contemporaneous objection rule is “an adequate procedural bar” (quoting Dowthitt v. Johnson,

230 F.3d 733, 752 (5th Cir. 2000))).

 Coleman, 501 U.S. at 750.

19

Id. 20

See United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991) (en banc).

21

Coleman, 501 U.S. at 753-54. 22

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procedural bar will result in a fundamental miscarriage of justice. He does not

attempt to show, “as a factual matter, that he did not commit the crime of

conviction.” Because Hernandez fails to present an argument for the 23

application of either of the exceptions to the procedural default rule, no jurist

could reasonably argue that the district court erred in finding Hernandez’s claim

procedurally defaulted. Accordingly, Hernandez is not entitled to a COA on his

Fifth Amendment claim.

B

We also deny Hernandez a COA on his claim for the alternative reason

that, even if Hernandez could demonstrate that jurists of reason would find

debatable the correctness of the district court’s procedural ruling, he still has not

shown that reasonable jurists would find it debatable whether he has alleged a

valid Fifth Amendment claim.

The Fifth Amendment not only affords a criminal defendant the right not

to testify at his trial, but also bars prosecutors from commenting on a criminal

defendant’s exercise of that right. We ask two questions to determine whether 24

a prosecutor’s remarks were constitutionally impermissible. An affirmative

answer to either means that they were. First, we ask “whether the prosecutor’s

manifest intent was to comment on the defendant’s silence.” “The prosecutor’s 25

intent is not manifest if there is some other, equally plausible explanation for

the remark.” Alternatively, we ask “whether the character of the remark was 26

Cantu v. Thaler, 632 F.3d 157, 166-67 (5th Cir. 2011) (quoting Fairman v. Anderson,

23

188 F.3d 635, 644 (5th Cir. 1999)).

See Griffin v. California, 380 U.S. 609, 614-15 (1965); United States v. Grosz, 76 F.3d 24

1318, 1326 (5th Cir. 1996) (“It is, of course, improper for a prosecutor to comment on a

defendant's exercise of his Fifth Amendment rights.”).

Grosz, 76 F.3d at 1326 (quoting United States v. Collins, 972 F.2d 1385, 1406 (5th Cir. 25

1992)).

 Id. (citing Collins, 972 F.2d at 1406). 26

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such that the jury would naturally and necessarily construe it as a comment on

the defendant’s silence.” With respect to this second inquiry, “the question is 27

not whether the jury possibly or even probably would view the challenged

remark in this manner, but whether the jury necessarily would have done so.”28

In answering these questions, we consider a prosecutor’s remarks “in the context

of the case in which they are made.”29

During closing arguments, Hernandez’s attorney asserted the following to

the jury: 

You know Breedlove huddled with the officers right before he

brought Jesse Hernandez at 5:00 o’clock and that’s crucial,

important stuff. You know that Breedlove interrogated him for two

hours where he was sitting distance from here to here. Never

noticed a swollen hand ever. Nothing. For two hours. Even

watched him write the affidavit. Said it took him an hour.

I asked, “When you got him out of jail, do you remember a

jailer saying he hit his hands on the wall pounding the cell?” “No,

I don’t remember that.”

Subsequently, on rebuttal, the prosecution remarked:

Look, we haven’t come in here and made promises that we can’t

back up. We presented evidence to you that shows him guilty. We

haven’t come in with innuendo. You know, where is this proof about

him striking something over in the jail causing him to swell his

hand? Where is that proof there? You haven’t heard it from any

 Id. (quoting Collins, 972 F.2d at 1406); see also Jackson v. Johnson, 194 F.3d 641,

27

652 (5th Cir. 1999) (“For there to have been a denial of one’s [F]ifth [A]mendment right to

remain silent, the prosecutor’s manifest intent in making the remark must have been to

comment on the defendant’s silence, or the character of the remark must have been such that

the jury would naturally and necessarily construe it as a comment on the defendant’s

silence.”).

Grosz, 76 F.3d at 1326 (quoting Collins, 972 F.2d at 1406) (internal quotation marks 28

omitted).

United States v. Johnston, 127 F.3d 380, 396 (5th Cir. 1997) (citing United States v. 29

Montoya-Ortiz, 7 F.3d 1171, 1179 (5th Cir. 1993)).

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witness. We’re not the ones coming in here making these promises

that we can’t back up.

Hernandez argues that the prosecutor’s remarks violated the Fifth Amendment

because the prosecutor’s statement that “[y]ou haven’t heard it from any

witness” necessarily referred to Hernandez’s failure to testify. He summarizes

his claim as follows:

The evidence adduced at trial conclusively demonstrated that only

three persons could possibly have knowledge of and testify

regarding Petitioner’s bruised and swollen hand, which according to

the State’s theory had been caused by Petitioner striking the

deceased victim. Two of those three witnesses were peace officers

who were in fact called by the State to testify about the injuries. 

The only remaining witness who could offer any explanation as to

how the injury occurred was Petitioner himself, who had invoked his

constitutional right to remain silent.

It is true that a Fifth Amendment violation occurs when a prosecutor

refers to a lack of evidence in support of a defendant’s theory when the comment

necessarily refers to the defendant’s failure to testify. In United States v.

Johnston, for example, we held that a Fifth Amendment violation occurred when

a prosecutor, in response to a witness’s testimony that no other person could

corroborate his testimony about a number of activities, inquired on redirect

“[A]ren’t there some people in this courtroom that can back up what you say?”30

The prosecutor also simultaneously “made a sweeping arm gesture indicating

the individuals seated at counsel tables.” As we explained, a violation occurred 31

because:

In responding to the cross-examination to the effect that there were

no witnesses who could corroborate [the witness’s] testimony, the

prosecutor implied that there were such people in the courtroom,

obviously referring to the defendants. No one else in the court room

 Id. at 397.

30

 Id. 31

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could have witnessed the events; only the defendants could

reasonably be thought to be capable of providing corroboration.32

In this case, however, one could plausibly interpret the prosecutor’s

remarks as referring to the lack of corroboration for Hernandez’s story in the

testimony of other actual and potential witnesses. The prosecutor could have

been commenting on the lack of corroboration for Hernandez’s theory in the

testimony of Detectives Breedlove and Lesher, for example. Or the prosecutor

could have been remarking on the failure of the defense to present the testimony

of the jailer who allegedly saw Hernandez pounding his hands on the jail cell. 

Indeed, when considered in context, it is not debatable in this case “(1) whether

the prosecutor’s manifest intent was to comment on the defendant’s silence or

(2) whether the character of the remark was such that the jury would naturally

and necessarily construe it as a comment on the defendant’s silence.” We thus 33

deny Hernandez a COA on his Fifth Amendment claim for the separate reason

that jurists of reason would not find it debatable whether he has alleged a valid

Fifth Amendment claim. He has not. 

* * *

For the above reasons, we DENY Hernandez’s motion for a COA.

 Id. 32

 Grosz, 76 F.3d at 1326 (quoting Collins, 972 F.2d at 1406). 33

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