United States Court of Appeals

Fifth Circuit



## FILED

March 8, 2004

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 03-20508

____________

JAIME ELIZALDE, JR.,

Petitioner - Appellant,

versus

DOUG DRETKE, DIRECTOR T E XAS DEPARTMENT OF

CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent - Appellee.

Appeal from the United States District Court

for the Southern District of Texas

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

EMILIO M. GARZA, Circuit Judge:

Jaime Elizalde, Jr. seeks a Certificate of Appealability (“COA”) to appeal the district court’s

denial of his petition for habeas corpus. Specifically he requests a COA to appeal the district court’s

ruling that his claims 1) that he is actually innocent, 2) that the State withheld exculpatory evidence,

and 3) that he was denied effective assistance of counsel both at trial and during his direct appeal are

procedurally barred because they were not exhausted in state court. Elizalde also seeks a COA to

appeal the district court’s denial, on the merits, of his claim that the state trial court violated the

United States Constitution when it refused to instruct the jury that if sentenced to life in pri son1 At the punishment phase of the trial the state introduced evidence of Elizalde’s criminal history including

evidence of his membership in the Mexican Mafia. Additionally, the state presented evidence of Elizalde’s

involvement in prison assaults, including one in which he stabbed another prisoner with a shank.

2 Elizalde would be eligible for parole in forty years. As the district court correctly determined that

Elizalde’s claims were procedurally barred and that the Constitution does not require his requested

jury instruction, his request for a COA is DENIED.

I

Jaime Elizalde, Jr., (“Elizalde”) was convicted of the capital murders of Marcos Vasquez and

Juan Guajado. Vasquez and Guajado were shot and killed outside the El Lugar bar. At trial, Juan

Millan, the manager of the bar, testified that while standing outside his establishment he saw Elizalde,

accompanied by his father Jaime E l izalde, Sr., shoot Guajado and then a fleeing Vasquez. Robert

Garcia testified that from the bar he saw Guajado as he was shot. He further testified that, although

he did not see the killer shoot Guajado, when he exited the bar he saw Elizalde flee with a gun.

Several days after the shooting, Millan gave a statement to the police wherein he stated that

he was playing pool inside the bar with Fidel Razo at the time of the shooting and did not go outside

until after he heard the gunshots. At trial, Razo testified that he was playing pool with Millan when

the shots were fired. Millan disavowed the statement and testified that he was not initially truthful

with the police because “he did not want to have any problems.” He also admitted that the police

pressured him, including threatening jail time, after he gave his initial statement.

After convicting Elizalde for capital murder, the jury determined that he posed a risk of future

danger, and the trial court sentenced him to death. 1 Elizalde’s direct appeal was denied and he

applied for state habeas relief. Elizalde raised seven claims in his state habeas application: 1) that his

right to equal protecti on and his right to be f ree from cruel and unusual punishment were violated3

when the trial court refused to instruct the jury that if sentenced to life imprisonment he would not

be eligible for parole for forty years; 2) that his due process rights were violated because there was

insufficient evidence to support the jury’s verdict; 3) that his due process rights were violated when

the trial c o urt instructed the jury that it could consider the applicant’s flight from the scene as

evidence of gui lt y knowledge; 4) that his due process rights were violated because there was

insufficient evidence to support the jury’s affirmative finding as to the first issue of punishment; 5)

that the mult iple murder provision of the Texas Capital Murder Statute violates the cruel and unusual

punishment provisi ons of bot h t he United States and Texas constitutions; 6) that his right to due

process and his right to be free from cruel and unusual punishment would be violated if he was

executed after review under current Texas clemency procedures; and, 7) that his right to due process

and to be free from cruel and unusual punishment would be violated by the Texas government’s

failure to prevent his execution. In a written opinion, the Texas Court of Criminal Appeals denied

Elizalde’s state habeas petition.

Elizalde then filed a federal habeas petition raising twelve claims. He amended his petition

and raised only the following seven claims: 1) that his right to equal protecti on and his right to be free

from cruel and unusual punishment were violated when the trial court refused to instruct the jury that

if sentenced to life imprisonment he would not be eligible for parole for forty years; 2) that his due

process rights were violated because there was insufficient evidence to support the jury’s verdict; 3)

that his due process rights were violated because there was insufficient evidence to support the jury’s

affirmative finding as to t he first issue of punishment; 4) that he is illegally restrained in his liberty

because he is actually innocent of the offense of which he was convicted; 5) that his due process

rights were violated when the State withheld material, exculpatory evidence from the defense in4

violation of Brady v. Maryland and Napue v. Illinois ; 6) that he was denied effective assistance of

counsel under Strickland v. Washington when his trial counsel failed to fully and properly investigate

his case prior to trial; and, 7) that his due process rights were violated when the trial court instructed

the jury that it could consider the applicant’s flight from the scene as evidence of guilty knowledge.

The district court granted the State’s summary judgment motion and denied Elizalde’s habeas

petition. It found that his fourth, fifth and sixth claims were procedurally defaulted because he failed

to exhaust them in the state court. S ee 28 U.S.C § 2254(b)(1)(A). The district court further found

that Elizalde failed to demonstrate “cause and prejudice,” and that he did not demonstrate that failure

to consider his petition would be a “miscarriage of justice” because he failed to demonstrate that he

was actually innocent of the crime for which he was convicted. S ee Sawyer v. Whitley

, 505 U.S. 333,

338-39, 112 S. Ct. 2514 (1992) (noting that “cause and prejudice” and “miscarriage of justice” are

exceptions to procedural bars preventing consideration of a habeas petition).

As to Elizalde’s remaining claims, the district court found that the Constitution d o es not

require that a jury be informed that if the defendant is sentenced to life imprisonment he would not

be eligible for parole for forty years. See Green v. Johnson , 160 F.3d 1029, 1045 (5th Cir. 1998).

It further found t hat there was sufficient evidence for the jury to both convict Elizalde of capital

murder and to sentence him to death. Finally, it found that Elizalde’s due process rights were not

violated when the trial court instructed the jury that it could consider evidence of Elizalde’s flight as

evidence of guilty knowledge. S ee Bailey v. Procunier

, 744 F.2d 1166, 1168 (5th Cir. 1984); see

also United States v. Lopez

, 979 F.2d 1024, 1030 (5th Cir. 1993). The district court refused to grant

a COA.

Elizalde now applies to this Court for a COA to appeal the following issues: 1) whether the2 Elizalde does not seek a COA to appeal his claims that his due process rights were violated because there

was insufficient evidence to support the jury’s verdicts as to guilt and punishment, or his claim that the district court

improperly instructed the jury that it could consider his flight from the scene as evidence of guilt.

5 district court properly applied a procedural bar to his fourth, fift h and sixth claims and whether he is

entitled to habeas relief on the merits of those claims; 2) whether the district court erred in finding

that the Constitution does not require the trial co urt t o instruct the jury that if sentenced to life in

prison he would not be eligible for parole for forty years. 2

II

Before Elizalde can appeal the district court’s ruling he must firs t obtain a COA. S ee 28

U.S.C. § 2253(c)(1); Miller-El v. Cockrell , 537 U.S. 322, 336, 123 S. Ct. 1029 (2003) (COA is a

“jurisdictional prerequisite” without which “federal courts of appeals lack jurisdiction to rule on the

merits of appeals from habeas petitioners.”). To obtain a COA, Elizalde must make a “substantial

showing of the de nial o f a co nstitutional right.” S ee 28 U.S.C. § 2253(c)(2). To do so he must

demonstrate that “reasonable jurists would find the district court’s assessment of the constitutional

claims debatable or wrong.” See Slack v. McDaniel

, 529 U.S. 473, 484, 120 S. Ct. 1595 (2000).

“The question is the debatability of the underlying constitutio n al claim, not the resolution of that

debate.” Miller-El, 537 U.S. at 342. To obtain a COA for the claims which the district court found

procedurally barred, Elizalde must, in additi o n t o est ablishing the debatability of the underlying

constitutional claim, demonstrate that jurists of reason would find it debatable whether the district

court was correct in its procedural rulings as to those claims. See Slack

, 529 U.S. at 484; Hernandez

v. Johnson , 213 F.3d 243, 248 (5th Cir. 2000).

A

Elizalde contends that the district court incorrectly determined that his fourth, fift h and sixth3 Unlike in the district court, Elizalde does not argue before this Court that failure to consider his claims will

result in a fundamental miscarriage of justice. Although he does briefly argue that he is actually innocent of the crime

for which he was convicted, he does so as an independent claim for habeas relief rather than as a challenge to the

district court’s procedural ruling. Consequently , this challenge to the district court’s procedural ruling is waived. S ee

Yohey v. Collins

, 985 F.2d 222, 225 (5th Cir. 1993). Even if we were to consider this challenge to the procedural

ruling it would fail. Elizalde poin ts only to the testimony of witnesses “whose credibility was clearly in question.”

Considering these credibility questions were squarely before the jury, and it is within the jury’s discretion to make such

determinations, see United States v. Cathey

, 259 F.3d 365, 368 (5 th Cir. 2001) ("It is well-settled that credibility

determinations are the sole province of the jury."), Elizalde has failed to demonstrate that failure to consider his claims

will result in a fundamental miscarriage of justice.

6 claims were procedurally barred. He does not assert that the claims were exhausted in state court.

Rather he argues that he has established “cause and prejudice” just ifying his failure to exhaust them

b ecause he was denied effective assistance of state habeas counsel. 3 Additionally, he argues that

because the state procedural bar preventing him from exhausting his claims violates due process, there

is no independent state law ground justifying the federal court’s refusal to consider these claims.

A federal habeas application brought by a perso n in custody pursuant to a state court

judgement shall not be granted unless the applicant has exhausted the remedies available in stat e

court. 28 U.S.C. § 2254(b)(1); B eazley v. Johnson

, 242 F.3d 248, 263 (5th Cir. 2001). A claim not

raised in the petitioner’s init ial state habeas application that would now be procedurally barred from

considera t io n by the state court is “procedurally barred [in federal court] for failure to exhaust.”

Beazley , 242 F.3d at 264. This procedural bar will not be applied if the petitioner can demonstrate

either “cause and prejudice or show that the failure to consider his claims will result in a fundamental

miscarriage of justice.” I d. at 263 (quoting Deters v. Collins

, 985 F.2d 789, 795 (5th Ci r. 1993))

(emphasis in original); see also Sawyer , 505 U.S. at 338-39.

Elizalde claims that he has cause for his default because his state appointed habeas counsel

prejudiced him by not raising the now def ault ed claims in his state habeas application. Ostensibly

E lizalde argues that he was provided ineffective assistance of state habeas counsel. “There is no7

constitutional right to an attorney in state post-conviction proceeding s . . . [c]onsequently , a

pet itioner cannot claim constitutionally ineffective assistance of counsel in such proceedings.”

Coleman v. Thompson , 501 U.S. 722, 752, 111 S. Ct 2546 (1991); Martinez v. Johnson , 255 F.3d

229, 240-41 (5th Cir. 2001).

Elizalde first contends that Coleman is inapplicable when a State takes on the responsibility

of providing competent state habeas counsel. Elizalde claims that C oleman only applies “where the

State has no responsibility to ensure that the petitioner was represented by competent counsel.” S ee

Coleman

, 501 U.S. at 754. Further, Elizalde contends that C oleman recognized t hat “[w]here a

petitioner defaults a claim as a result of the denial of the right to effective assistance of counsel, the

State, which is responsible for the denial as a constitutional matter, must bear the cost of any resulting

default

. . . .” See id. Relying on T E X C OD E C RIM

. P ROC

. art. 11.071 § 2(c-d) (requiring that the

state habeas co urt “appoint competent counsel”), Elizalde argues that Texas law requires the

appointment of competent state habeas counsel such that when the state appointed habeas attorney

,

due to his own incompetence, defaults a claim, the State, and not the petitioner, is responsible for that

default.

F irst, neither the Supreme Court, nor this court, has ever recognized that a state created

obligation to provide effective assistance of counsel would make the State rather than the petitioner

responsible for a procedura l default, as might be the case if a federal constitutional right existed.

Second, Texas law does not provide a right to competent state habeas counsel. S ee Ex parte Graves

,

70 S.W.3d 103, 113-16 (Tex. Crim. App. 2002). In Graves

, the Texas Court of Criminal Appeals

addressed the question whether there was a right to effective assis t ance of counsel in Texas state

habeas proceedings. The court first recognized that neither a federal court “nor this Court has ever8

held that a habeas petitioner has a federal or state constitutional rig ht t o co unsel in a habeas

proceeding. Absent such a constitutional right to counsel, there can be no co nstitutional right to

effective assistance of counsel in a habeas proceeding.” I d. at 113; see In re Goff

, 250 F.3d 273, 275-

76 (5th Cir. 2001) (finding that Texas’ decision to provide habeas counsel does not constitutionally

require it to provide competent or effective assistance of counsel).

The Texas Court of Criminal Appeals did recognize that T EX C ODE C RIM

. P ROC

. art. 11.071

provides a right to “competent counsel.” S ee Graves

, 70 S.W.3d at 114 and n. 45 (“[I]t would seem

an empty gesture to appoint incompetent counsel. We agree a ‘potted plant’ appointed as counsel is

no better than no counsel at all.”). It, however, held that art. 11.071 only requires “that counsel shall

be ‘competent’ at the time he is appointed.” I d. A rticle 11.071 does not refer to “the final product

of representation.” I

d. T he court found tha t recognizing such a right would allow a petitioner to

bring an unlimit

ed number of successive habeas petitions each time arguing that state habeas counsel

incompetently failed to raise the otherwise procedurally barred claims in the previous petition. See

id. at 114-15. Finally, it found that “the Legislature has not . . . evince[d] any intention that its choice

of the term ‘competent counsel’ as it applies to the appointment of a habeas attorney also applies to

the final product or services rendered by that otherwise experienced and competent attorney .” I d.

at 115-16 (emphasis in original).

Therefore, although Texas does recognize a limited right to competent counsel, it does not

recognize a right to effective assistance of counsel. As Elizalde complains only that his stateappointed counsel provided ineffective assistance, he is unable to establish that the state is responsible

for the default of his claims.

Elizalde next contends that Col eman is inapplicable because it did not resolve the issue of9

whether a prisoner is entitled to effective assistance of state habeas counsel if state collateral review

is the first place a prisoner can present a challenge to his conviction. S ee Coleman

, 501 U.S. at 755

(holding only that there is no “constitutional right to counsel on appeal f rom the state habeas tri al

court judgment”); see also Daniels v. United States

, 532 U.S. 374, 387 (2001) (Saclia, J. concurring)

(“We have left open the questi o n whether such ineffective assistance can establish a constitutional

violation

. . . .”). Specifically he argues that because a state habeas application presents a petitioner’s

first opportuni ty to make a claim of ineff ect ive assistance of trial or appellate counsel, there is a

constitutional right to effective state habeas counsel to present that claim. See Ex parte Torres

, 943

S.W.2d 469, 475 (Tex. Crim. App. 1997) (acknowledging that “[i]n most instances” the state habeas

court will present the first opportuni ty to effectively raise an ineffective assistance of counsel claim).

Elizalde, however, correctly concedes tha t we have already resolved this question. S ee, e.g.

,

Martinez

, 255 F.3d at 240; Beazley

, 242 F.3d at 256; Jones v. Johnson

, 171 F.3d 270, 277 (5th Cir.

1999); Callins v. Johnson , 89 F.3d 210, 212 (5th Cir. 1996).

In Martinez

, we recognized that Coleman may have reserved the issue of whether there is a

right to state habeas counsel when the state habeas corpus proceeding is the first opportuni ty to raise

a particular claim. See Martinez

, 255 F.3d at 240. Like Elizalde, Martinez argued that “he possessed

a constitutional right to effective assistance of counsel in his first state habeas corpus proceeding so

that he could raise his claims of ineffective assistance of counsel.” I d. M artinez further argued that

“because his trial counsel also represented him on direct appeal, the state habeas corpus proceeding

was his first opportuni ty to present his ineffective assistance of co unsel claims.” I d. W e,

nevertheless, declined to recognize a right to state habeas counsel in such a circumstance observing

that “[t]his court is foreclosed by precedent from considering whether an exception exists under the10

Coleman rule.” Id. Despite Martinez’s request that we “reevaluate” our precedent, we declined to

do so noting that “this panel may not undertake such a reevaluation, as it is b o und by controlling

precedent.” Id. at 241. We continue to be bound by that precedent, thus there is no need to revisit

this issue.

Elizalde additionally contends that his state-appointed attorney’s failure to provide effective

assistance of counsel is a violation of his right to due process. Relying on our decision in Welch v.

Beto

, 355 F.2d 1016 (5th Cir. 1966), which held that “[h]aving invoked the Texas statutes granting

post-conviction hearings, [the petitioner] had the right to be tried according to the substantive and

procedural due process requirements of the Fourteenth Amendments,” id. at 1020, Elizalde contends

that Texas’ decision to provide state habeas counsel requires it to provide effective assistance of that

habeas counsel. Even if our decision in W elch suggests that Texas’ decision to provide state habeas

counsel requires it, as a function of due process, to provide effective assistance of counsel, we have

already recognized that the Supreme Court has decided otherwise. S ee Goff

, 250 F.3d at 276 (“While

the Welch holding does hint at some form of due process right once a state decides to provide a nonconstitutionally obligated service, the Supreme Court has spoken quite explicitly on this subject since

Welch and has repeatedly emphasized that i neffective assistance of counsel in a post-conviction

proceeding cannot serve as cause to excuse default in a federal habeas proceeding.”); see also Morris

v. Dretke

, 2004 WL 49095, at *6 (5th Cir. Jan. 6, 2004) (unpublished) (noting that this Court has

continuously “rejected the argument” that Art. 11.071 “creates a federal right enforceable on habeas

review”). We are forestalled by Supreme Court precedent, and the precedent of this Court, from

recognizing any constitutional right to effective assistance of counsel in state habeas proceedings.11

As a separ at e challenge to the district court’s application of the procedural bar, Elizalde

argues that because the state procedural bar preventing him from exhausting his claims violates due

process, there is no independent state law ground just ifying the district c ourt ’s refusal to consider

these claims. Elizalde claims that because his right to due process was violated in the stat e co urt,

there is no independent state law ground supporting the federal procedural default. See Lee v. Kemna

,

534 U.S. 362, 376 (2002) (finding that there are “exceptional cases in which exorbitant application

of a genera lly so und rule renders the state ground inadequate to stop consideration of a federal

question”). Presumably, though it is not clear from his brief, Elizalde is referring to the due process

violation of not being pro vided effective assistance of state habeas counsel. As explained above,

denial of effective assistance of state habeas counsel is not a violation of due process. Further, the

district court found that federal consideration of Elizalde’s claims is precluded by the application of

Texas’ abuse of writ doctrine. We have already found that application of that doctrine is necessarily

consistent with the requirements of due process. S ee Millard v. Lynaugh

, 810 F.2d 1403, 1410 (5th

Cir. 1987) (“[S]tate court ruling denying Petitioner the opportuni ty to file furt her writs of habeas

corpus was not a denial of petitioner's due process rights because a state has no constitutional duty

to provide post c o nviction remedies.”); see also Trevino v. Johnson

, 168 F.3d 173, 180 (5th Cir.

1999) (“[I]nfirmities in state habeas court proceedings do not constitute grounds for relief in federal

court.”).

Elizalde cannot establish cause and prejudice excusing his failure to exhaust his claims in state

court. Therefore, the district court correctly concluded that his claims were procedurally barred, and

reasonable jurists would not find this conclusion debatable.

B4 Joined by Justices Stevens, Souter and Ginsburg.

12 Eli zalde co nt ends that the district court incorrectly concluded that the trial judge was not

required by the Constitution to instruct the jury that Elizalde would have been eligible for parole in

forty years if sentenced to life in prison. Elizalde argues that under Simmons v. South Carolina

, 512

U.S. 154, 114 S. Ct. 2187 (1994), the jury must be fully instructed on the alternatives to the death

penalty. By not fully informing the jury that a sentence of life imprisonment provides for parole only

after forty years, Elizalde argues, the trial court prevented the jury from understanding “the precise

meaning of ‘life imprisonment.’” See Simmons v. South Carolina , 512 U.S. at 169.

In Simmons

, the Supreme Court considered whether a state trial court unconstituti o nally

prevented the petitioner from informing the jury that if sentenced to life imprisonment, rather than

death, he would not be eligible for parole. Id. a t 156-61. The petitioner contended that because

juries of t en misunderstand the prison term required by a life sentence, and because ineligibility for

parole has a direct bearing on the important issue of his future dangerousness, a defendant must be

allowed to instruct the jury that if sentenced to life in prison he will ineligible for parole. I d. at 160-

61. In a fractured ruling, the Supreme Court agreed. Justice Blackmun’s plurality opinion 4 held that

in a death penalty case, a “trial court’s refusal to provide the jury with accurate information regarding

petitioner’s parole ineligibilit y” constitutes a denial of due process. I d. at 162. It concluded that if

the State rests its case for imposing the death penalty at least in part on the defen dant’s f uture

dangerousness, “the fact that the alternate to the death sentence is life without parole will necessarily

undercut the State’s argument regarding the threat the defendant poses to society.” I d. at 168-69.

We have repeatedly held that Simmons does not require a Texas trial court to instruct a jury

as to the meaning of life in prison, because the defendant would not, if sentenced to life imprisonment,13

be ineligible for parole. See Green

, 160 F.3d at 1045 (“[T]he Fifth Circuit has repeatedly refused to

extend the rule in Simmons beyond those situations in which a capital murder defendant is statutorily

ineligible for parole.”); see also Woods v. Cockrell

, 307 F.3d 353, 361-62 (5th Cir. 2002); Wheat v.

Johnson

, 238 F.3d 357, 361-62 (5th Cir. 2001); Miller v. Johnson

, 200 F .3d 274, 290 (5th Ci r.

2000); Montoya v. Scott

, 65 F.3d 405, 416 (5th Cir. 1995); Kinnamon v. Scott, 40 F.3d 731, 733 (5th

Cir. 1994); see also Smith v. State

, 898 S.W.2d 838, 850-53 (Tex. Crim. App. 1995) (rejecting a due

process and Eight Amendment challenge to a trial court’s refusal to instruct the j ury as to ti m e of

eligibility for parole if sentenced to life imprisonment).

Elizalde urges that we should reconsider ten years worth of j urisprudence because the

Supreme Court has not clarified its position as to the constitutionality of a refusal to instruct the jury

as to when the defendant would be parole eligible if sentenced to life in prison. In a dissent from the

Court’s refusal to grant certiorari in a Texas case considering t h is question, Justice Stevens

emphasized that the “Court’s action in denying certiorari does not constitute

. . a decision on the

merits of the question presented . . . .” Brow n v. Texas , 522 U.S. 940, 940, 118 S. Ct. 355 (1997).

Rather, he concluded, “the likelihood that the issue will be resolved may increase if this Court allows

other tribunals ‘to serve as laboratories in which the issue received study before it is addressed by this

Court.’” Id. Therefore, Elizalde argues, we should continue to study this question.

The Supreme Court, however, has clarified its pos it ion on t his issue. In R amdass v.

Angelone , 530 U.S. 156, 120 S. Ct. 2113 (2000), a majority of the Court explained that “ Simmons

applies only

. . . [in] instances where, as a legal ma t t er, t here is no possibility of parole if the jury

decides the appropriate sentence is life in prison.” R amdass

, 530 U.S. at 169. Therefore, the district

court correctly concluded that the trial court was not constitutionally required to instruct the jury that14

if sentenced to life in prison Elizalde would not hav e been eligible for parole for forty years and

reasonable jurists would not disagree as to its conclusion.

III

Elizalde’s request for a COA is DENIED.