UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 97-40556

JOSE ELIGIO DE LA CRUZ,

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 Southern District of Texas

January 22, 1998

Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.

PER CURIAM :

Death row inmate Jose De La Cruz appeals the district court’s

final judgment denying De La Cruz’ petition for writ of habeas

corpus. We affirm.

I.

Nine years ago, Jose De La Cruz stabbed Domingo Rosas to

death. The Friday night before the murder De La Cruz was a guest

in Rosas’ home and played a drinking game called “quarters” with

Rosas until early Saturday morning. After leaving Rosas’ home, De2

La Cruz returned and killed Rosas in order to steal Rosas’

television, VCR and stereo, a theft which yielded him approximately

$80.

De La Cruz was observed Saturday morning driving around with

a television in his car. Later that day, De La Cruz and his friend

Michael Rios tried to sell a television to Michael’s uncle, Joe

Rios. Joe Rios declined but directed the pair to Ray and Irma

Flores, who paid De La Cruz $80 for Rosas’ belongings.

Later that night, De La Cruz was arrested for public

intoxication. The arresting officer found De La Cruz staggering in

the road, near a borrowed car that De La Cruz had run into a ditch.

De La Cruz smelled like paint and seemed intoxicated. The officer

placed De La Cruz in the patrol car. Inside the ditched car, the

officer discovered a large blood-stained knife and a bottle of

medicine prescribed to Rosas. When the officer returned to the

patrol car, De La Cruz volunteered that the knife was his and

repeatedly asked whether it would be returned. De La Cruz then

announced at his booking that he was Domingo Rosas, the victim.

De La Cruz was released from jail, only to be arrested again

a few days later. This time, De La Cruz entered Rosas’ bank and

attempted to withdraw money using Rosas’ bank identification card.

The bank, knowing that Rosas was dead, notified the police, and De

La Cruz was arrested on suspicion of murder.

After his arrest for Rosas’ murder, De La Cruz told his trial

counsel that he did not c ommit the murder, but had delivered the

stolen property to a “fence.” Counsel explained that the state3

might be willing to arrange a plea agreement if De La Cru z could

recover the stolen property. Counsel also explained that any deal

with the state would be unenforceable unless De La Cruz was being

truthful about his role. Thereafter, and without finalizing any

plea agreement, De La Cruz led police to some of the stolen

property, which was recovered with De La Cruz’ fingerprints. In

addition to the stolen television, the state produced overwhelming

evidence of De La Cruz’ guilt at trial. For example, De La Cruz’

clothing and the knife recovered from the ditched car were both

stained with type-A blood, the same blood type as Rosas. Moreover,

blood spatters on De La Cruz’ pants indicated that the wearer had

forcefully stabbed a seated victim. De La Cruz does not raise any

issue of actual innocence.

De La Cruz’ victim, Rosas, was disabled at the time he was

murdered. Rosas had been pierced through the face and into the

brain with a television antennae at the age of three. As a result,

Rosas was partially paralyzed on his right side and was unable to

walk well without a leg brace . Rosas was required to take daily

medication to control spasms in his right side and suffered a

mental impairment, having the mental and emotional constitution of

a teenager. Finally, although Rosas was able to perform occasional

work in his mother’s restaurant, he collected social security

benefits and required a significant amount of daily care from his

sister and mother in order to survive. There is no dispute that

the state relied heavily upon Rosas’ disabled condition at both the

guilt and punishment phase of De La Cruz’ trial.4 II.

In June 1988, De La Cruz was convicted and sentenced to death

in Texas state court. Four years later, the Texas Court of

Criminal Appeals affirmed his conviction. D e La Cruz v. State

, No.

7 0,502 (Tex. Crim App. Mar. 11, 1992). In October 1992, the

Supreme Court denied De La Cruz’ petition for writ of certiorari.

De La Cruz v. Texas , 113 S. Ct. 149 (1992).

In December 1993, De La Cruz filed a petition for habeas

corpus relief in Texas state court. In January 1995, De La Cruz

amended his petition to reflect an investigation conducted by his

present counsel. In February 1995, the trial court recommended

that De La Cruz’ petition be denied. The Court of Criminal Appeals

adopted the trial court’s recommendation an d denied De La Cruz’

petition in March 1995.

De La Cruz filed the instant petition for habeas corpus relief

in federal district court in February 1996. The district court

called two preliminary conferences to develop the issues presented

in De La Cruz’ petition. The district court suggested particular

evidence that might be developed to support De La Cruz’ claims and

set deadli nes for the submission of additional evidence. The

district court also conducted an extensive evidentiary hearing with

respect to some of De La Cruz’ claims, receiving testimony from

seven witnesses called by De La Cruz and six witnesse s called by

the state. The district court subsequently entered a lengthy and5

detailed order explaining the reasons for its decision to deny

relief.

D e La Cruz requested that the district court issue a

certificate of appealability, which was granted for certain issues.

De La Cruz’ petition was filed before the April 1996 effective date

of the Antiterrorism and Effective Death Penalty Act. S ee Lindh v.

Murphy

, 117 S. Ct. 2059 (1997). We therefore construe the district

court’s grant of a limited certificate of appealability to be a

grant of an unlimited certificate of probable cause. M uniz v.

Johnson

, __ F.3d __, ___, 1998 WL 1761 at *2 (5th Cir. Jan 2,

1998); East v. Johnson , 123 F.3d 235, 237 n.3 (5th Cir. 1997).

III.

De La Cruz appeals the district court’s denial of his petition

for habeas corpus, raising the same six issues he presented to the

district court. First, De La Cruz maintains that the state

deprived him of due process by unfairly and inaccurately portraying

his victim as a “helpless cripple” deserving of the jury’s mercy.

See Donnelly v. DeChristoforo , 94 S. Ct. 1868 (1974). De La Cruz

supports this argument with evidence that Rosas’ physical abilities

were slightly greater than as portrayed in argument to the jury,

and t hat Rosas was convicted of robbery the year before he was

killed. Second, De La Cruz argues that the state violated the

dictates of Brady v. Maryland

, 83 S. Ct. 1194 (1963) by failing to

physically surrender the state’s file on Rosas’ prior robbery

conviction. Third, De La Cruz claims that his trial counsel was6

constitutionally deficient because counsel acted upon De La Cruz’

story that he merely fenced Rosas’ property without conducting an

independent investigation, and because counsel allowed De La Cruz

to lead police to the stolen property before a plea agreement was

finalized. S ee Bryant v. Scott

, 28 F.3d 1411, 1415 (5th Cir.

1994). Fourth, De La Cruz contends that the arresting officer

interrogated him about the blood-stained knife without advising De

La Cruz of his right to remain silent. S ee Miranda v. Arizona

, 86

S. Ct. 1602 (1966). Fifth, De La Cruz argues that he was

incompetent to stand trial because he was a long-time abuser of

spray paint inhalants and was under the influence of drugs at the

time of his trial. S ee Medina v. California

, 112 S. Ct. 2572

(1992). Sixth, De La Cruz claims that his conviction was

unconstitutio nal because the jury was not given a definition for

the term “reasonable doubt.” De La Cruz also objects that the

district court did not allow him to present additional evidence in

the evidentiary hearing to support al l six of his claims. We

review the fact findings supporting the district court’s denial of

De La Cruz’ federal habeas corpus petition for clear error.

Barnard v. Collins , 958 F.2d 634, 636 (5th Cir. 1992). Questions

of law are reviewed de novo. Id

.

The Court has considered the arguments of the parties, as

contained in the briefs and as presented at oral argument. The

Court has reviewed the relevant portions of the state and federal

components of the appella te record, including the transcripts of

t he conferences and the evidentiary hearing held in the distr ict7

court. Finally, the Court has considered the district court’s

application of the relevant legal standards to De La Cruz’ case.

Having completed that review, the Court concludes that the district

court’s denial of De La Cruz’ petitio n for writ of habeas corpus

relief is without error. De La Cruz’ conviction and sentence of

death were not secured in violation of the Constitution or federal

law. Accordingly, the district court’s denial of De La Cruz’

federal petition for writ of habeas corpus is in all respects

AFFIRMED.