* Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.

 

1 Because this appeal was fully briefed and taken under

submission before April 24, 1996, the effective date of the

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-40880

_____________________

ANTONIO BARRIENTES,

Petitioner-Appellant,

versus

GARY L. JOHNSON, Director

Texas Department of Criminal Justice,

Institutional Division

Respondent-Appellee.

_________________________________________________________________

On Application for a Certificate of Probable Cause

Appeal from the United States District Court

for the Southern District of Texas

(B-89-044)

_________________________________________________________________

August 20, 1996

Before KING, GARWOOD, and SMITH, Circuit Judges.

PER CURIAM:*

Antonio Barrientes applies for a certificate of probable

cause to appeal the district court’s dismissal without prejudice

of his petition for habeas corpus for failure to exhaust his

state remedies. We deny his application.1 
“Antiterrorism and Effective Death Penalty Act of 1996,” we shall

assume without deciding that the prior habeas corpus law applies

to this appeal.

2

I. BACKGROUND

Antonio Barrientes was convicted of capital murder by a

Texas jury on April 24, 1985 and is currently incarcerated under

a sentence of death. The Texas Court of Criminal Appeals

affirmed Barrientes’s conviction on direct appeal, Barrientes v.

State, 752 S.W.2d 524 (Tex. Crim. App. 1987), and the United

States Supreme Court denied certiorari. Barrientes v. Texas, 487

U.S. 1241 (1988). 

On August 17, 1988, Barrientes filed a petition for a writ

of habeas corpus with the Texas Court of Criminal Appeals and the

state district court. The Texas Court of Criminal Appeals

granted a stay of execution and ordered the state district court

to conduct an evidentiary hearing on the issue of whether

Barrientes received effective assistance of counsel. The

evidentiary hearing was held on November 3, 1988, and the state

district court entered findings of fact and conclusions of law

recommending the denial of relief. On February 1, 1989, the

Texas Court of Criminal Appeals denied habeas relief on all

grounds, with two judges dissenting.

On March 8, 1989, Barrientes filed his first federal

petition for habeas corpus in the United States District Court

for the Southern District of Texas and amended that petition on
 

2 Specifically, the district court found that, at the

penalty phase, the prosecutor improperly presented evidence of

Barrientes 1979 capital murder arrest and improperly argued that

Barrientes had committed the 1979 murder and improperly implied

that he had murdered a witness to the 1979 murder, preventing the

state from trying him. The district court concluded that this

evidence and argument violated Barrientes’s constitutional rights

because the police file on Barrientes’s 1979 arrest strongly

indicated that Barrientes neither committed the 1979 murder nor

murdered the missing witness: the charges against Barrientes were

dropped after the police focused their investigation on another

suspect, Barrientes took and passed two polygraphic exams

indicated that he was not involved in the murder, and the missing

witness was believed to have fled out of town during the time

Barrientes was in jail.

3

April 30, 1992. On April 27, 1992, anticipating Barrientes’s

amended petition, the respondent filed a motion to dismiss for

failure to exhaust state remedies. On August 22, 1995, the

district court entered findings of fact and conclusions of law

providing that Barrientes’s death sentence should be vacated

because it was obtained in violation of the Constitution and that

Barrientes should be resentenced or his sentence commuted to life

imprisonment.2 However, the district court did not enter

judgment based on these findings and conclusions. Instead, it

dismissed Barrientes’s petition without prejudice for failure to

exhaust state remedies. The district court denied Barrientes’s

application for a certificate of probable cause, and Barrientes

filed a timely notice of appeal.

II. DISCUSSION
4

We have no jurisdiction over Barrientes’s appeal absent a

certificate of probable cause (“CPC”). Harris v. Johnson, 81

F.2d 535, 538 (5th Cir. 1996). To qualify for a CPC, Barrientes

must make a “substantial showing of the denial of a federal

right.” White v. Johnson, 79 F.3d 432, 437 (5th Cir.

1996)(quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 

“This requires that [Barrientes] demonstrate that the issues are

debatable among jurists of reason; that a court could resolve the

issues in a different manner, or that the questions are adequate

to deserve encouragement to proceed further.” Id. (internal

quotations and alterations omitted).

Despite its opinion that Barrientes’s death sentence was

unconstitutionally obtained, the district court dismissed without

prejudice Barrientes’s petition for failure to exhaust his state

remedies. The district court found, as the respondent argued,

that although Barrientes raised the same legal claims in his

state habeas petition as in his amended federal habeas petition,

he supported his federal petition with additional factual

allegations and evidence that were not presented to the state

courts.

In its motion to dismiss, respondent argued that Barrientes

supported three of his claims in his amended federal habeas

petition with significantly stronger evidence than he did in his

state habeas petition. Specifically, respondent contended the

following:
5

(1) Although Barrientes had presented his claim that

the state improperly admitted evidence of his

unadjudicated 1979 capital murder arrest at the penalty

phase and improperly argued concerning this arrest to

the state habeas court, Barrientes presented

significantly stronger evidentiary support for this

argument in his amended federal habeas petition. 

Specifically, Barrientes included with his amended

federal habeas petition the Cameron County sheriff’s

office’s file on the 1979 arrest, indicating that the

charges against Barrientes were dropped, as well as an

affidavit by the prosecutor that, had he known the

exculpatory information contained in the police file,

he would not have argued or presented evidence

regarding the 1979 arrest at the penalty phase of

Barrientes’s trial.

(2) Although Barrientes had argued to the state habeas

court that David Meza’s testimony was fabricated, he

had not alleged before the state habeas court that Meza

lied because the district attorney’s office threatened

him. In his federal petition, Barrientes argued that

Meza testified falsely because the district attorney’s

office threatened him, and offered Meza’s testimony to

that effect.

(3) Before the state habeas court, Barrientes had

broadly asserted that his counsel was ineffective for

failing to interview witnesses to obtain information

with which to impeach the government’s principal

witness, Felix Sanchez. However, in his federal habeas

petition, Barrientes specifically alleged and offered

evidence that Sanchez’s wife and mother would have

testified in a way that would have undermined Sanchez’s

credibility. 

 

In response to the motion to dismiss and on application for

CPC, Barrientes argued that his state habeas petition contained

in substance the same legal claims and factual allegations as his

amended first federal habeas petition. He contended that remand

to the state habeas court would be futile because the state court

has indicated that it would not consider the additional
6

evidentiary support by denying his motions for discovery and

limiting his questioning at the state evidentiary hearing on

ineffective assistance of counsel. Finally, Barrientes contended

that no adequate state law remedy is available to him because

Texas law prohibits subsequent habeas petitions.

We conclude that Barrientes has not made a substantial

showing that courts could resolve the exhaustion issue

differently than did the district court; therefore, we deny

Barrientes application for CPC. First, the record demonstrates

that Barrientes’s amended federal habeas petition presents new

factual allegations and significantly stronger evidentiary

support for his legal claims than he had presented to the state

habeas court. We have held that a habeas petitioner fails to

exhaust state remedies when he presents additional factual

allegations and evidentiary support to the federal court that was

not presented to the state court. See Joyner v. King, 786 F.2d

1317, 1320 (5th Cir.)(holding that “the policies of comity and

federalism underlying the exhaustion doctrine” require that “new

factual allegations in support of a previously asserted legal

theory” be first presented to the state court), cert. denied, 479

U.S. 1010 (1986); Brown v. Estelle, 701 F.2d 494, 495-96 (5th

Cir. 1983)(holding that when a claim is filed in federal court in

a significantly stronger evidentiary posture than it was before

the state court, it must be dismissed for failure to exhaust

state remedies and remanded to the state court).
7

Second, Barrientes has not made a substantial showing that

remand to the state court would be futile. Barrientes argues

that the state habeas court has indicated, by denying his motions

for discovery and limiting his questions at the November 3, 1988

evidentiary hearing, that it will not consider the additional

factual allegations and evidentiary support. We note that the

November 3, 1988 evidentiary hearing was limited to the subject

of ineffective assistance of counsel. Barrientes’s repeatedly

attempted to elicit testimony that, following his 1979 arrest, he

had taken and passed two polygraphic exams which indicated that

he had not committed the 1979 murder. The state court disallowed

this testimony because it considered it unrelated to the

ineffective assistance of counsel claim and possibly because of

state evidentiary rules regarding the admissibility of

polygraphic exams. These actions do not indicate that the state

habeas court will not consider Barrientes’s additional factual

allegations and evidentiary support on remand.

Finally, Barrientes has not made a substantial showing that

remand is inappropriate because he has no adequate state remedy. 

While it is true that Texas habeas corpus law ordinarily

prohibits the filing of a subsequent habeas corpus application,

TEX. CODE CRIM. PROC. art. 11.071 § 5(a), Barrientes’s petition may

fall within an exception to that prohibition allowing subsequent

petitions to be considered in some circumstances. See id. §

5(a)(1)(A) (allowing a subsequent application for habeas corpus
8

if the application contains specific facts establishing that the

current claims and issues have not been and could not have been

presented in the earlier application because the factual or legal

basis of these claims was unavailable); id. § 5(a)(3) (allowing a

subsequent application to be considered if it contains specific

facts establishing by clear and convincing evidence, “but for a

violation of the United States Constitution no rational juror

would have answered in the state’s favor one or more of the

special issues submitted to the jury” during the penalty phase). 

We conclude that Barrientes has failed to make a substantial

showing that a court could have resolved the exhaustion issue in

a different manner. Accordingly we deny Barrientes’s application

for a certificate of probable cause to appeal.

III. CONCLUSION

Barrientes’s application for a certificate of probable cause

is DENIED.
9