REVISED NOVEMBER 15, 2007

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-50596

Summary Calendar

HECTOR LUIS MARTINEZ, JR 

Petitioner-Appellant

v. 

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT

OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS

DIVISION 

Respondent-Appellee 

Appeal from the United States District Court

for the Western District of Texas

USDC No. 6:03-CV-48

USDC No. 6:03-CV-52

Before HIGGINBOTHAM, STEWART and OWEN, Circuit Judges.

United States Court of Appeals

Fifth Circuit

F I L E D

November 9, 2007

Charles R. Fulbruge III

Clerk
No. 05-50596

* 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should not be published and is not precedent except under the limited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.

2

PER CURIAM:*

Hector Luis Martinez, Jr., Texas prisoner # 1006536, was

convicted by a jury of capital murder and was sentenced to life in

prison. Martinez filed a 28 U.S.C. § 2254 application challenging his

murder conviction. A judge of this court granted a certificate of

appealability (COA) on the issue whether the district court erred by

finding that Martinez failed to exhaust his state remedies on his

claims that the jury instruction on reasonable doubt was faulty, that

he was convicted by admission of a coerced confession, and that trial

counsel was ineffective for failing to object to the prosecutorial

misconduct. On appeal from the denial of a § 2254 application, this

court reviews the district court’s findings of fact for clear error and

conclusions of law de novo. Robertson v. Cain, 324 F.3d 297, 301

(5th Cir. 2003).

Applicants seeking federal habeas relief under § 2254 are

required to exhaust all claims in state court prior to requesting

federal collateral relief. Whitehead v. Johnson, 157 F.3d 384, 387

(5th Cir. 1998). To have exhausted his state remedies, a petitioner

“must have fairly presented the substance of his claim to the state

courts.” Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997) (citing

Picard v. Connor, 404 U.S. 270, 275-76 (1971)). 
No. 05-50596

3

In his state habeas application, Martinez asserted that the jury

instruction on reasonable doubt was faulty and that it deprived him

of a fair and impartial trial. Martinez argued that the instruction

was redundant, confusing, and logically flawed. In his § 2254

application, Martinez argued that the reasonable doubt instruction

was constitutionally deficient because it was redundant, confusing,

and logically flawed. The district court found correctly that

Martinez did not make specific citation to the Fifth and Fourteenth

Amendments in his state court pleadings. Nevertheless, a reading

of the two pleadings shows that they make the same complaint, that

Martinez was denied a fair trial, and are based on the same factual

allegations. This is not a case of Martinez making a technical

argument based on state evidentiary law in state court and then

arguing the same facts to show a constitutional violation in federal

court. See Wilder v. Cockrell, 274 F.3d, 255, 259-60 (5th Cir. 2001).

On direct appeal, Martinez argued that his confession was

inadmissable because he was not warned properly of his

constitutional rights. Specifically, he asserted that erroneous advice

given by the police officer, in addition to the required warning under

Miranda v. Arizona, 384 U.S. 436 (1966), nullified the warning. In

his § 2254 application, Martinez made the same argument.

Although the district court found that the constitutional arguments

made to the federal and state courts were different, both are based
No. 05-50596

4

on the same premise, that Martinez was questioned in violation of

Miranda. 

In his state habeas application, Martinez asserted that trial

counsel was ineffective for failing to object to the prosecutorial

misconduct. Martinez argued that counsel’s performance was

ineffective under Strickland v. Washington, 466 U.S. 668 (1984). In

his § 2254 application, Martinez made the same argument. 

Martinez’s arguments in state and federal court on these points

are substantially similar and the claims were presented fairly to the

state courts. Martinez has shown that the district court erred by

finding that he failed to exhaust his state remedies on his claims

that the jury instruction on reasonable doubt was faulty, the he was

convicted by admission of a coerced confession, and that trial counsel

was ineffective for failing to object to the prosecutorial misconduct.

The judgment of the district court is VACATED and the matter is

REMANDED for consideration of Martinez’s § 2254 application in

the light of these three exhausted claims. 

Martinez’s motion for appointment of counsel on appeal is

DENIED as unnecessary.