IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

JAMES EDWARD MARTINEZ, §

§

Petitioner, §

§

VS. § NO. 4:04-CV-728-A

§

DOUGLAS DRETKE, DIRECTOR, TEXAS §

DEPARTMENT OF CRIMINAL JUSTICE, §

CORRECTIONAL INSTITUTIONS §

DIVISION, §

§

Respondent. §

MEMORANDUM OPINION

and

ORDER

Came on for consideration the application for writ of habeas

corpus (“application”) filed by James Edward Martinez

(“Martinez”), an inmate of the Texas Department of Criminal

Justice, Correctional Institutions Division, who is under

sentence of death. The court has determined that the application

should be denied for the reasons set forth in this memorandum

opinion and order.

I.

Procedural History

On December 20, 2000, an indictment was filed against

Martinez in Tarrant County, Texas, for the September 21, 2000,

murders of Sandra Walton ("Walton") and Michael Humphreys

("Humphreys"). The one-count indictment charged Martinez with

the offense of shooting both victims with a firearm during the

same criminal transaction. On January 22, 2002, trial on the

merits began. On January 30, 2002, the jury returned its verdict

 

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of guilty. The trial proceeded to the punishment phase and on

February 1, 2002, the jury returned its verdict mandating a

sentence of death under Texas law. By judgment signed February

6, 2002, the state trial court ordered that Martinez's punishment

be death. Martinez appealed and on November 5, 2003, the Court

of Criminal Appeals of Texas affirmed his conviction and

sentence. Martinez v. State, No. 74,292, 2003 WL 22508081 (Tex.

Crim. App. Nov. 5, 2003). His petition for writ of certiorari

was denied. Martinez v. Texas, 125 S. Ct. 32 (2004). 

On October 22, 2003, Martinez filed his state application

for writ of habeas corpus raising eleven grounds for relief. On

December 9, 2003, Martinez filed a motion to supplement his writ

with additional claims. On June 2, 2004, the trial court adopted

the State's proposed findings of fact and conclusions of law. On

September 22, 2004, the Court of Criminal Appeals of Texas denied

the application. Ex parte Martinez, No. 59,313-01 (Tex. Crim.

App. Sept. 22, 2004). The motion for leave to add claims was

treated as a subsequent application and dismissed. Ex parte

Martinez, No. 59,313-02 (Tex. Crim. App. Sept. 22, 2004). The

order stated, in pertinent part: 

This Court has reviewed the record with respect to

the eleven allegations made by Applicant in his initial

application. We adopt the trial judge's findings and

conclusions. Based upon the trial court's findings and

conclusions and our own review, the relief sought is

denied. 

With respect to Applicant's two subsequently filed

allegations, we conclude that Applicant has failed to

show the factual or legal bases of his claims were

unavailable to him at the time he filed his initial

application. Therefore, those claims are dismissed

 

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pursuant to Code of Criminal Procedure Article 11.071

§ 5. Ex parte Graves, 70 S.W.3d 103 (Tex. Crim. App.

2002). 

Ex parte Martinez, Nos. 59,313-01 & 59,313-02, slip op. at 2

(Tex. Crim. App. Sept. 22, 2004). Martinez's related petition

for writ of certiorari was denied. Martinez v. Texas, 125 S. Ct.

1401 (2005).

On October 6, 2004, Martinez filed a motion for leave to

proceed in forma pauperis and a motion for appointment of counsel

to represent him in the filing of a petition for writ of habeas

corpus under 28 U.S.C. § 2254, which were assigned the abovereferenced civil action number. During a telephone

conference/hearing on October 7, 2004, the court told Martinez

that he would need to file an affidavit to support his motion for

leave to proceed in forma pauperis and that both of his motions

would be held in abeyance pending the filing of the supporting

evidence. On November 29, 2004, Martinez filed his declaration

in support of the motion for leave to proceed in forma pauperis,

indicating his wish to proceed with the filing of a petition in

this action. Consistent with the discussion with petitioner and

counsel during the October 7 telephone conference/hearing, the

court granted the motion for leave to proceed in forma pauperis

and appointed counsel to represent Martinez in the preparation

and filing in this court of an application for writ of habeas

corpus presenting only grounds for relief that had been exhausted

in the state court. On January 10, 2005, petitioner filed his

application and, on January 14, 2005, a supplemental memorandum

 

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The application is subject to being stricken as it presents, in

violation of the court's orders, grounds that have not been

exhausted.

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in support thereof.1 After receiving several extensions of time

in which to answer, on May 31, 2005, respondent, Douglas Dretke,

Director, Texas Department of Criminal Justice, Correctional

Institutions Division, filed his response.

II.

Underlying Facts

Martinez briefly dated Walton, and gave or loaned her money

from time to time. In May of 2000, Walton signed a promissory

note reflecting that she owed Martinez $1,000. Martinez became

fixated on obtaining repayment from her, stalking, harassing, and

threatening Walton on numerous occasions. On the night of her

murder, Martinez pounded on Walton's door, threatening to break

it down if she did not open the door. He had earlier told Walton

that her time was almost up. Walton and Humphreys, who was

visiting, went out to get something to eat. When they returned,

at approximately 1:00 a.m. on September 21, 2000, they were shot

to death with a high-powered rifle. Witnesses saw a man dressed

in black trotting away from the scene. Police found twenty-seven

shell casings at the scene. Walton was shot nine or ten times;

Humphreys, eight. 

On the night of the murders, Martinez called Casey Ashford

("Ashford"), a long-time friend, several times. Martinez drove

to the farm where Ashford was staying to deliver a black canvas

bag for Ashford to keep. Ashford looked in the bag and saw the

 

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rifle later determined to be the murder weapon, among other

items. He buried the bag, but later disclosed its location to

police. When police opened the bag, they found the rifle, a bag

of fertilizer, a fuse, dark clothing, combat boots, gloves, a

pipe bomb, a ski mask, a double-edged knife, a bulletproof vest,

and ammunition.

At trial, Martinez tried to pin the blame for the murders on

Ashford. His mother and brother testified that he had been at

home on the night of the murders. He also showed that Ashford

lied several times when dealing with the police and that, prior

to the murders, Ashford had had access to the murder weapon.

At the punishment phase of the trial, the State introduced

items that had been kept by Martinez in a storage facility. They

included bomb-making components, over 3000 rounds of ammunition,

other weapons, including two pistols, several illegal knives,

illegally modified shotguns, and several rifles. Also introduced

were four books bearing the notation "completed reading by James

Martinez": Be Your Own Undertaker: How to Dispose of a Dead Body;

Master's Death Touch: Unarmed Killing Techniques; 21 Techniques

of Silent Killing; and Dragon's Touch: Weaknesses of the Human

Anatomy. The State also offered victim-impact testimony by

Humphreys' father, mother, and stepmother, and Walton's mother. 

Martinez called a number of people to testify that they had

not known him to be a violent person and did not believe he would

commit any more crimes in the future. None of them seemed to

know Martinez very well, except his mother and brother, and most

 

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of them did not know (or admit that they knew) about his

extensive collection of weapons and the books Martinez had read. 

Martinez also presented testimony of a former custodian of

records for the Texas Department of Criminal Justice, who

testified generally about daily prison routines and

classification of prisoners. Martinez also presented the

testimony of Dr. Mark Cunningham ("Cunningham"), a clinical and

forensic psychologist who testified about recidivism rates for

capital murderers with Martinez's characteristics. Cunningham

testified that there was only a small chance that a person like

Martinez would commit future acts of violence in prison. In

rebuttal, the state offered the testimony of an investigator with

the prison prosecution unit, who testified about violence within

the prison population.

III.

Scope of Review

On April 24, 1996, the President signed into law the

Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.

No. 104-132, 110 Stat. 1214 (“AEDPA”). Under AEDPA, the ability

of federal courts to grant habeas relief to state prisoners is

narrowly circumscribed:

(d) An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the judgment

of a State court shall not be granted with respect to

any claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the 

claim--

(1) resulted in a decision that was

contrary to, or involved an unreasonable

application of, clearly established Federal

 

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law, as determined by the Supreme Court of

the United States; or

(2) resulted in a decision that was

based on an unreasonable determination of the

facts in light of the evidence presented in

the State court proceeding.

AEDPA, § 104(3) (codified at 28 U.S.C. § 2254(d)). AEDPA further

provides:

(e)(1) In a proceeding instituted by an

application for a writ of habeas corpus by a person in

custody pursuant to the judgment of a State court, a

determination of a factual issue made by a State court

shall be presumed to be correct. The applicant shall

have the burden of rebutting the presumption of

correctness by clear and convincing evidence.

AEDPA § 104(4) (codified at 28 U.S.C. § 2254(e)(1)).

Having reviewed the application, the response, the record,

and applicable authorities, the court finds that none of

Martinez’s grounds has merit.

IV.

Grounds for Relief

Martinez urges twenty-nine grounds in support of his

application. Some of them have sub-parts. Some are duplicates. 

Grounds ten through twenty were not exhausted in the state court. 

Because the grounds are so voluminous, the court does not set

them all forth here.

V.

Unexhausted Claims

Before a ground may be raised in a federal habeas

application, the petitioner must have fairly presented the same

ground to the state courts. Picard v. Connor, 404 U.S. 270, 275

 

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(1971). That is, the state court system must have been presented

with the same facts and the same legal theory. Id. at 275-76. 

Mere similarity of claims is insufficient to meet the exhaustion

requirement. Duncan v. Henry, 513 U.S. 364, 366 (1995); Wilder

v. Cockrell, 274 F.3d 255, 260-61 (5th Cir. 2001).

Where it is clear that a petitioner would be barred from

going back to state court to present an unexhausted claim for

consideration, that claim is subject to denial in federal court

as procedurally defaulted. Gray v. Netherland, 518 U.S. 152,

161-62 (1996); Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991). 

Such is the case here with regard to grounds ten through twenty. 

Texas regularly applies the abuse of the writ rule, see Tex. Code

Crim. Proc. 11.071, § 5(a) (Vernon 2005). Fuller v. Johnson, 158

F.3d 903, 906 (5th Cir. 1998). Thus, Martinez may proceed with

those grounds only if he can show cause and prejudice for the

default, or that failure to consider the grounds will result in a

fundamental miscarriage of justice. Coleman, 501 U.S. at 750;

Muniz v. Johnson, 132 F.3d 214, 220-21 (5th Cir. 1998). He has

made no attempt to do so and it does not appear that he could.

VI.

Ineffective Assistance of Counsel

In his first five grounds, Martinez alleges that he received 

 

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Martinez twice lists a "CLAIM SIX" worded as follows: "TRIAL

COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY PRESENTING

MITIGATION TESTIMONY THAT VIRTUALLY GUARANTEED THE EXECUTION OF THE

PETITIONER." Application at 7 & 20. Such a ground was not raised in

the state court proceedings and cannot be pursued here. See Coleman

v. Thompson, 501 U.S. 722, 750 (1991); Muniz v. Johnson, 132 F.3d

214, 221 (5th Cir. 1998). Relief could not be granted on this ground

in any event, as there is no discussion of its merits.

9

ineffective assistance of counsel.2 The grounds are:

CLAIM ONE

TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF

COUNSEL BY FAILING TO INFORM THE PETITIONER OF THE

STATUTORY APPLICATION OF ACCOMPLICE WITNESS TESTIMONY

TO HIS CASE.

CLAIM TWO

TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF

COUNSEL DURING VOIR DIRE BY FAILING TO VOIR DIRE ON THE

LEGAL THEORY OF AN ACCOMPLICE WITNESS AS A MATTER OF

LAW.

CLAIM TWO-A

TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF

COUNSEL DURING VOIR DIRE BY FAILING TO VOIR DIRE ON THE

LEGAL THEORY OF AN ACCOMPLICE WITNESS AS A MATTER OF

FACT.

CLAIM THREE

TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF

COUNSEL BY FAILING TO REQUEST A CHARGE ON THE QUESTION

OF ACCOMPLICE WITNESS TESTIMONY AS A MATTER OF LAW.

CLAIM THREE-A

TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF

COUNSEL BY FAILING TO REQUEST A CHARGE ON THE QUESTION

OF ACCOMPLICE WITNESS TESTIMONY AS A MATTER OF FACT.

CLAIM FOUR

TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF

COUNSEL BY PRESENTING TESTIMONY THAT DELEGITIMIZED A

CAPITAL LIFE SENTENCE AS A VIABLE SENTENCING OPTION.

 

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CLAIM FIVE

TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF

COUNSEL BY PRESENTING PUNISHMENT TESTIMONY THAT

ESTABLISHED THE PETITIONER WAS A CONTINUING THREAT TO

SOCIETY BEYOND A REASONABLE DOUBT.

In order to prevail on an ineffective assistance of counsel

ground, Martinez must show (1) that his counsels' performance

fell below an objective standard of reasonableness and (2) that

there is a reasonable probability that, but for his counsels'

unprofessional errors, the result of the proceedings would have

been different. Strickland v. Washington, 466 U.S. 668, 687

(1984). Both prongs of the Strickland test must be met to

demonstrate ineffective assistance. Id. at 697. Judicial

scrutiny of this type of claim must be highly deferential and

Martinez must overcome a strong presumption that his counsels'

conduct falls within the wide range of reasonable professional

assistance. Id. at 689. 

The trial court made extensive findings of fact and

conclusions of law adopted by the Court of Criminal Appeals in

the habeas proceedings. Habeas R. at 216-21. Martinez has not

made any attempt to show that the findings are not entitled to

the presumption of correctness. 28 U.S.C. § 2254(e)(1). The

record supports the conclusion that Martinez's counsel employed

sound trial strategy. A conscious and informed decision on trial

tactics cannot be a basis for constitutionally ineffective

assistance of counsel unless it is so ill-chosen that it

permeates the entire trial with obvious unfairness. Crane v.

 

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As previously noted, Martinez failed to exhaust his state

remedies as to grounds sixteen through eighteen. Relief on those

grounds is barred, but would not be available in any event.

11

Johnson, 178 F.3d 309, 314 (5th Cir. 1999). The strategy

employed was sound and Martinez has no reason to complain.

VII.

The Mitigation Special Issue

In a number of issues, Martinez attacks the burden of proof

as to the mitigation special issue. His "CLAIM SIX" is:

THE TEXAS DEATH PENALTY SENTENCING SCHEME IS

UNCONSTITUTIONAL AS APPLIED TO THE PETITIONER BECAUSE

IT FAILED TO REQUIRE THAT THE JURY WAS CHARGED ON THE

MITIGATION ISSUE WITH THE BEYOND A REASONABLE DOUBT

BURDEN OF PROOF. 

His "CLAIM SIXTEEN"3 is:

WHETHER THE PETITIONER WAS DENIED DUE PROCESS OF LAW

UNDER THE 5TH AND 14TH AMENDMENTS OF THE U.S.

CONSTITUTION IN THAT THE COURT FAILED TO REQUIRE THAT

THE STATE PROVE BEYOND A REASONABLE DOUBT THAT THE JURY

SHOULD ANSWER SPECIAL ISSUE NUMBER TWO, THE MITIGATION

SPECIAL ISSUE, SO AS TO BE ENTITLED TO A DEATH SENTENCE

AND INSTEAD INFORMED THE JURY THAT THERE WAS NO BURDEN

OF PROOF AT ALL AS TO THAT ISSUE?

"CLAIM SEVENTEEN" is:

WHETHER THE TEXAS DEATH PENALTY IS UNCONSTITUTIONAL IN

THAT THE STATE IS NOT REQUIRED TO PROVE BEYOND A

REASONABLE DOUBT THAT THE JURY SHOULD ANSWER THE

MITIGATION SPECIAL ISSUE "NO", SO AS TO PERMIT A DEATH

PENALTY TO BE IMPOSED?

"CLAIM EIGHTEEN" is:

WHETHER THE PETITIONER WAS DENIED HIS RIGHT TO A JURY

TRIAL UNDER THE 6TH AND 14TH AMENDMENTS OF THE U.S.

CONSTITUTION IN THAT THE COURT FAILED TO REQUIRE THAT

THE STATE PROVE BEYOND A REASONABLE DOUBT THAT THE JURY

SHOULD ANSWER SPECIAL ISSUE NUMBER TWO, THE MITIGATION

SPECIAL ISSUE, SO AS TO BE ENTITLED TO A DEATH SENTENCE

AND INSTEAD INFORMED THE JURY THAT THERE WAS NO BURDEN

OF PROOF AT ALL AS TO THAT ISSUE?

 

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CLAIM TWENTY-TWO was raised as Martinez's second point of error

on appeal and summarily rejected by the Court of Criminal Appeals. 

Martinez v. State, 2003 WL 22508081 at *1 (Tex. Crim. App. 2003). 

Martinez has not shown that the state court's decision was contrary

to, or involved an unreasonable application of, clearly established

federal law, as determined by the United States Supreme Court. 28

U.S.C. § 2254(d)(1).

5

Walton v. Arizona, 497 U.S. 639, 649-51 (1990).

12

And, "CLAIM TWENTY-TWO"4 is:

WHETHER THE STATE COURT'S [sic] ERRED IN OVERRULING THE

PETITIONER'S MOTION TO DECLARE THE TEXAS DEATH PENALTY

SCHEME UNCONSTITUTIONAL FOR FAILURE TO ALLOCATE THE

BURDEN OF PROOF ON THE MITIGATION SPECIAL ISSUE TO THE

STATE IN VIOLATION OF THE 8TH AND 14TH AMENDMENTS OF

THE UNITED STATES CONSTITUTION?

The argument in support of these grounds is fatuous. The

part of Walton v. Arizona5 holding that the burden of proof may

lie on a defendant to establish by a preponderance of the

evidence the existence of mitigating circumstances sufficiently

substantial to call for leniency was not overruled by Ring v.

Arizona, 536 U.S. 584 (2002). Neither Apprendi v. New Jersey,

530 U.S. 466 (2000), nor Ring require a mitigating factor to be

proven beyond a reasonable doubt. The issue in both cases was

whether a more severe punishment could be imposed by a trial

judge after a jury found the facts. United States v. Booker, 125

S. Ct. 738 (2005), merely reaffirms the holding in Apprendi.

Even if Martinez's argument made any sense, and it does not,

the relief he seeks would require retroactive application of

Apprendi and Ring. See United States v. Brown, 305 F.3d 304, 310

(5th Cir. 2002) (Apprendi creates a new rule of criminal

 

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CLAIM SEVEN was raised as Martinez's sixth point of error on

appeal and was rejected by the Court of Criminal Appeals. Martinez

v. State, 2003 WL 22508081 at *4 (Tex. Crim. App. 2003). 

7

The court notes that Martinez's CLAIM SEVEN, discussed at pages

48-50 of his application, is the same as his CLAIM TWENTY-SIX,

discussed at pages 164-166 of the application.

13

procedure that is not retroactively applicable). Thus, the

claims are barred by Teague v. Lane, 489 U.S. 288 (1989).

VIII.

Constitutionality of the Death Penalty Scheme

In his "CLAIM SEVEN,"6 Martinez urges:

THE DEATH PENALTY SCHEME IN TEXAS IS UNCONSTITUTIONAL

UNDER THE EIGHTH AMENDMENT OF THE UNITED STATES

CONSTITUTION AND THE DUE PROCESS CLAUSE OF THE FIFTH

AMENDMENT OF THE UNITED STATES CONSTITUTION BECAUSE IT

LEADS THE STATE TO EXECUTE AN UNACCEPTABLE NUMBER OF

INNOCENT DEFENDANTS. 

UNDER THE CRUEL AND UNUSUAL PUNISHMENTS CLAUSE OF THE

EIGHTH AMENDMENT AND THE DUE PROCESS CLAUSE OF THE

FIFTH AMENDMENT, THE CONSTITUTIONALITY OF THE DEATH

PENALTY MUST BE DETERMINED AND REDETERMINED BY THE

COURTS IN KEEPING WITH EVOLVING STANDARDS OF DECENCY

AND CURRENT KNOWLEDGE ABOUT ITS OPERATION.7

Martinez does not cite any pertinent authority to support

this ground. He relies on United States v. Quinones, 205 F.

Supp. 2d 256 (S.D.N.Y.), which was reversed on appeal. United

States v. Quinones, 313 F.3d 49 (2d Cir. 2002). On direct

appeal, the Court of Criminal Appeals of Texas determined that it

would not, in any event, "declare the Texas death penalty scheme

unconstitutional based on [Martinez's] prediction as to how the

United States Supreme Court will dispose of a particular federal

death penalty case." Martinez v. State, 2003 WL 22508081 at *4

(Tex. Crim. App. 2003). Martinez has not shown that the state

 

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court's decision was contrary to, or involved an unreasonable

application of, clearly established federal law, as determined by

the United States Supreme Court. 28 U.S.C. § 2254(d)(1). 

Moreover, relief is barred under Teague.

IX.

Mixed Signals

Martinez's "CLAIM EIGHT" is:

THE STATUTE UNDER WHICH THE PETITIONER WAS SENTENCED TO

DEATH IS UNCONSTITUTIONAL IN VIOLATION OF THE EIGHTH

AMENDMENT AS INTERPRETED IN PENRY V. JOHNSON BECAUSE

THE MITIGATION SPECIAL ISSUE SENDS MIXED SIGNALS TO THE

JURY THEREBY RENDERING ANY VERDICT REACHED IN RESPONSE

TO THAT SPECIAL ISSUE INTOLERABLY UNRELIABLE.

Martinez's argument is that the mitigation special issue

sends "mixed signals" to the jury. He discusses at length the

nullification instruction formerly given in death penalty cases. 

He does not, however, explain how the jury could have been

confused by the instructions in his case. The Court of Criminal

Appeals rejected this ground on direct appeal. Martinez v.

State, 2003 WL 22508081 at *5 (Tex. Crim. App. 2003). The issue

was likewise rejected in the state habeas proceedings. Habeas R.

at 221-22. Once again, Martinez has not shown that the decision

was contrary to, or involved an unreasonable application of,

clearly established federal law. 28 U.S.C. § 2254(d)(1). As the

Supreme Court has noted, the key to a constitutional sentencing

scheme is that the jury be able to consider and give effect to a

defendant's mitigating evidence in imposing sentence. Penry v.

Johnson, 532 U.S. 782, 797 (2001). Such was the case here.

 

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X.

Unconstitutional Amendment of the

Mitigation Special Issue

CLAIM NINE states:

THE TRIAL COURT JUDICIALLY AMENDED SPECIAL ISSUE NUMBER

TWO BY GRAFTING THE EVIDENTIARY REQUIREMENTS OF SPECIAL

ISSUE ONE ONTO THE MITIGATION ISSUE VIOLATING THE

PETITIONER'S EIGHTH AND FOURTEENTH AMENDMENT RIGHTS AS

APPLIED IN THE CONTEXT OF THE PETITIONER'S JURY CHARGE

AND DELIBERATION.

CLAIM NINE-A is:

TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF

COUNSEL BY FAILING TO OBJECT TO THE JUDICIAL AMENDMENT

TO THE TEXAS DEATH PENALTY SCHEME ENSURING THAT THE

PETITIONER WOULD NOT RECEIVE BENEFIT OF THE SPECIAL

MITIGATION ISSUE.

As Martinez admits, these issues were raised in the

supplement to his state application for writ of habeas corpus. 

The Court of Criminal Appeals dismissed them as an abuse of the

writ. Martinez makes no attempt to overcome this procedural bar. 

Coleman, 501 U.S. at 750. 

XI.

The Meaning of "Probability" and

The Burden of Proof

Martinez argues CLAIMS TEN and ELEVEN together. They are:

WHETHER THE PETITIONER'S CONVICTION IS INVALID AND THE

PETITIONER WAS DENIED DUE PROCESS OF LAW HEREIN BECAUSE

THE CONVICTION IS BASED ON ARTICLE 37.071, SECTION

2(B)(1), V.A.C.C.P., WHICH IS UNCONSTITUTIONAL AND

DIMINISHES THE STATE'S BURDEN OF PROOF FROM BEYOND A

REASONABLE DOUBT TO THAT OF ONLY "PROBABLE" IN

VIOLATION OF U.S. CONST. AMEND. XIV; TEX. CONST. ART.

I, SEC. 19?

WHETHER THE PETITIONER'S CONVICTION IS INVALID AND THE

PETITIONER WAS DENIED DUE PROCESS OF LAW IN VIOLATION

OF U.S. CONST. AMEND. XIV AND TEX. CONST. ART. I, SEC.

19 BECAUSE THE JURY WAS NOT GIVEN A DEFINITION OF WHAT

 

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WAS MEANT BY THE OPERANT TERMS REQUIRED TO BE

DETERMINED BY THE JURY WITH RESPECT TO THE PENALTY

PHASE SPECIAL ISSUES SUBMITTED TO THEM?

His CLAIMS NINETEEN and TWENTY address the same issue:

WHETHER THE PETITIONER WAS DENIED DUE PROCESS OF LAW

UNDER THE 5TH AND 14TH AMENDMENTS OF THE U.S.

CONSTITUTION IN THAT THE COURT DID NOT INFORM THE JURY

TO WHAT DEGREE OR QUANTITY OF "PROBABILITY", AS THAT

TERM IS USED IN THE FUTURE DANGEROUSNESS SPECIAL ISSUE,

THE STATE MUST PROVE IT BEYOND A REASONABLE DOUBT SO

THAT THE JURY COULD VALIDLY IMPOSE THE DEATH PENALTY?

WHETHER THE TEXAS CAPITAL SENTENCING SCHEME IS

UNCONSTITUTIONAL BECAUSE THE COURT DOES NOT INFORM THE

JURY TO WHAT DEGREE OR QUANTITY OF "PROBABILITY", AS

THAT TERM IS USED IN THE FUTURE DANGEROUSNESS SPECIAL

ISSUE, THE STATE MUST PROVE IT BEYOND A REASONABLE

DOUBT SO THAT THE JURY COULD VALIDLY IMPOSE THE DEATH

PENALTY?

The argument appears to be that the failure to define the

term "probability" somehow unconstitutionally diminishes the

State's burden to prove the special issue regarding future

dangerousness beyond a reasonable doubt. Martinez did not raise

these issues on direct appeal or in his state habeas corpus

application. Thus, they are unexhausted and procedurally barred. 

See Finley v. Johnson, 243 F.3d 215, 218 (5th Cir. 2001). In any

event, it is well established that the Texas punishment issues

are not impermissibly vague as they have a "common-sense core of

meaning." Pulley v. Harris, 465 U.S. 37, 50 n.10 (1984); Milton

v. Procunier, 744 F.2d 1091, 1095-96 (5th Cir. 1984). Any relief

on these grounds would be barred by Teague.

 

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XII.

The Twelve/Ten Rule

Martinez's CLAIM TWELVE is:

WHETHER THE TEXAS DEATH PENALTY SCHEME VIOLATED

PETITIONER'S RIGHTS AGAINST CRUEL AND UNUSUAL

PUNISHMENT AND TO DUE PROCESS OF LAW UNDER THE EIGHTH

AND FOURTEENTH AMENDMENTS OF THE UNITED STATES

CONSTITUTION BY REQUIRING AT LEAST TEN "NO" VOTES FOR

THE JURY TO RETURN A NEGATIVE ANSWER TO THE PUNISHMENT

SPECIAL ISSUES?

Martinez argues that the requirement of ten votes for the jury to

negatively answer a special issue violates the prohibition

against cruel and unusual punishment and due process. He also

complains that the jury is not informed of the consequences of a

single negative vote on the special issues. As noted earlier,

this ground was not raised on direct appeal or in Martinez's

state habeas application. And, even if it had been exhausted,

the ground is without merit. Martinez's reliance on Mills v.

Maryland, 486 U.S. 367 (1988), is misplaced. Miller v. Johnson,

200 F.3d 274, 288-89 (5th Cir. 2000). In granting relief in

Mills, the Supreme Court determined that there was a substantial

probability that reasonable jurors well may have thought that

they were precluded from considering any mitigating evidence

unless all twelve of them agreed on the existence of a particular

such circumstance. 486 U.S. at 384. Such is not the case in

Texas, where each juror is free to give weight to the mitigating

evidence as he or she chooses. Moreover, an instruction such as

the one Martinez seeks has no bearing on the jury's role in the

sentencing process. Jones v. United States, 527 U.S. 373, 382

 

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(1999). Finally, since the relief Martinez seeks would require

imposition of a new rule, it is barred under Teague. Alexander

v. Johnson, 211 F.3d 895, 897 (5th Cir. 2000); Webb v. Collins,

2 F.3d 93, 95-96 (5th Cir. 1993). 

XIII.

Review of Mitigating Evidence

Martinez argues his CLAIM THIRTEEN and CLAIM FOURTEEN

together:

WHETHER THE COURT OF CRIMINAL APPEALS OF TEXAS HAS

DENIED THE PETITIONER DUE PROCESS OF LAW AS GUARANTEED

TO HIM BY THE U.S. CONST. AMEND. XIV AND TEX. CONST.

ART. I, SEC. 19 BY REFUSING TO REVIEW UNDER ANY LEGAL

STANDARD WHETHER THE MITIGATING EVIDENCE REQUIRES THAT

THE DEATH PENALTY BE SET-ASIDE [sic]?

WHETHER THE COURT OF CRIMINAL APPEALS OF TEXAS HAS

DENIED THE PETITIONER DUE PROCESS OF LAW AS GUARANTEED

TO HIM BY THE U.S. CONST. AMEND. XIV AND TEX. CONST.

ART. I, SEC. 19 BY REFUSING TO DETERMINE ON APPEAL

WHETHER THE JURY'S ANSWER TO THE MITIGATION SPECIAL

ISSUE IS SUPPORTED BY SUFFICIENT EVIDENCE TO INSURE

THAT THE SAME IS NOT MANIFESTLY UNJUST?

Under these grounds, Martinez argues that the Court of

Criminal Appeals of Texas was obligated to review the sufficiency

of the evidence supporting the jury's answer to the mitigation

special issue. However, the record does not reflect that he ever

made such a request. Thus, the claims are barred. Martinez has

no constitutional right to such a review in any event. Moore v.

Johnson, 225 F.3d 495, 505-07 (5th Cir. 2000); Hughes v. Johnson,

191 F.3d 607, 621 (5th Cir. 1999). And, the review Martinez

seeks would be a new rule of constitutional law. Hence, relief

is barred under Teague.

 

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XIV.

Exercise of the Jury's Discretion

For his CLAIM FIFTEEN, Martinez asks:

WHETHER THE TEXAS DEATH PENALTY SCHEME DENIED

PETITIONER DUE PROCESS OF LAW, AND IMPOSED CRUEL AND

UNUSUAL PUNISHMENT, IN VIOLATION OF THE FIFTH, EIGHTH

AND FOURTEENTH AMENDMENTS OF THE UNITED STATES

CONSTITUTION BECAUSE OF THE IMPOSSIBILITY OF

SIMULTANEOUSLY RESTRICTING THE JURY'S DISCRETION TO

IMPOSE THE DEATH PENALTY WHILE ALSO ALLOWING THE JURY

UNLIMITED DISCRETION TO CONSIDER ALL EVIDENCE

MILITATING AGAINST IMPOSITION OF THE DEATH PENALTY?

The argument supporting this ground contains a rambling

discussion of the thoughts of Justice Blackmun in his dissenting

opinion from the denial of the petition for writ of certiorari in

Callins v. Collins, 510 U.S. 1141 (1994). Despite Justice

Blackmun's beliefs, the United States Supreme Court has

repeatedly held that the Texas death penalty scheme passes

constitutional muster. See, e.g., Johnson, 509 U.S. at 363-64;

Franklin v. Lynaugh, 487 U.S. 164, 182 (1988); Lowenfield v.

Phelps, 484 U.S. 231, 245 (1988). In any event, Martinez did not

exhaust state court remedies as to this ground. And, like the

others, relief on this ground is barred by Teague.

XV.

Sufficiency of the Indictment

Martinez's CLAIM TWENTY-ONE is:

WHETHER THE PETITIONER'S INDICTMENT IN THIS CAUSE WAS

FUNDAMENTALLY DEFECTIVE AND HE WAS DENIED DUE PROCESS

OF LAW AND HIS RIGHT TO A JURY TRIAL BECAUSE THE TRIAL

COURT PERMITTED THE JURY TO CONSIDER IMPOSING A DEATH

SENTENCE WHERE THE INDICTMENT DID NOT ALLEGE WHAT WAS

LATER SUBMITTED TO THE TRIAL JURY AS SPECIAL ISSUE

NUMBER ONE?

 

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This ground and the argument supporting it come almost

verbatim from Martinez's first point of error on appeal. In sum,

Martinez alleges that the indictment was fundamentally defective,

because it did not allege future dangerousness. The claim was

rejected by the Court of Criminal Appeals of Texas. Martinez v.

State, 2003 WL 22508081 at *1 (Tex. Crim. App. 2003). Martinez

has not shown that the state court's decision was contrary to, or

involved an unreasonable application of, clearly established

federal law, as determined by the United States Supreme Court. 

28 U.S.C. § 2254(d)(1). 

XVI.

Exclusion of Testimony

In CLAIM TWENTY-THREE Martinez asks:

WHETHER THE PETITIONER WAS DENIED HIS RIGHT OF

EFFECTIVE CROSS-EXAMINATION BECAUSE THE STATE TRIAL

COURT EXCLUDED TESTIMONY THAT A STATE'S WITNESS WHO WAS

URGED AS RESPONSIBLE FOR THE MURDER HAD PREVIOUSLY

POSSESSED A BOMB UNDER CIRCUMSTANCES IN WHICH EVIDENCE

LINKED TO THE MURDERER INCLUDED A PIPE BOMB?

And, in CLAIM TWENTY-FOUR, he asks:

WHETHER THE PETITIONER WAS DENIED HIS RIGHT TO A FAIR

TRIAL AND [TO] PRESENT A DEFENSE BECAUSE THE STATE

TRIAL COURT EXCLUDED TESTIMONY OF THE EYEWITNESSES'

EXCITED UTTERANCES CONCERNING A DESCRIPTION OF THE

ASSAILANT INCONSISTENT WITH THE CHARACTERISTICS OF THE

PETITIONER?

CLAIM TWENTY-THREE was presented as Martinez's third point

of error, and CLAIM TWENTY-FOUR as his fourth point of error on

appeal. Both claims were rejected by the Court of Criminal

Appeals. Martinez v. State, 2003 WL 22508081 at *1-*4 (Tex.

Crim. App. 2003). Martinez has not shown that the state court's

 

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decision was contrary to, or involved an unreasonable application

of, clearly established federal law, as determined by the United

States Supreme Court. 28 U.S.C. § 2254(d)(1). The court defers

to the Court of Criminal Appeals on matters of state law. 

Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Weeks v. Scott, 55

F.3d 1059, 1063 (5th Cir. 1995). 

XVII.

Whether a Mistrial Should Have Been Declared

In CLAIM TWENTY-FIVE, Martinez asks:

WHETHER THE PETITIONER WAS DENIED A FAIR TRIAL WHEN THE

TRIAL COURT REFUSED TO DECLARE A MISTRIAL WHEN A

DETECTIVE BLURTED OUT THAT THE PETITIONER HAD TAKEN A

POLYGRAPH?

This ground was presented as point of error number five on

appeal and was overruled. Martinez v. State, 2003 WL 22508081 at

*4 (Tex. Crim. App. 2003). Martinez "concedes that it has

generally been held that when a witness gives a nonresponsive

answer that mentions a polygraph, but which does not reveal the

results[,] there is generally no error in failing to grant a

mistrial when the trial court sustains the adverse party's

objection and instructs the jury to disregard the answer." 

Application at 161. Martinez has not shown that the state

court's decision was contrary to, or involved an unreasonable

application of, clearly established federal law, as determined by

the United States Supreme Court. 28 U.S.C. § 2254(d)(1). 

 

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XVIII.

Jury Discretion

CLAIM TWENTY-SEVEN asks:

WHETHER THE PETITIONER'S DEATH SENTENCE IS

UNCONSTITUTIONAL BECAUSE THE STATUTE UNDER WHICH HE WAS

SENTENCED IS VIOLATIVE OF THE CRUEL AND UNUSUAL

PUNISHMENTS PROHIBITION OF THE 8TH AMENDMENT BECAUSE IT

ALLOWS THE JURY TOO MUCH DISCRETION TO DETERMINE WHO

SHOULD LIVE AND WHO SHOULD DIE AND BECAUSE IT LACKS THE

MINIMAL STANDARDS AND GUIDANCE NECESSARY FOR THE JURY

TO AVOID ARBITRARY AND CAPRICIOUS IMPOSITION OF THE

DEATH PENALTY?

CLAIM TWENTY-SEVEN was raised as Martinez's seventh point of

error on appeal and was rejected by the Court of Criminal

Appeals. Martinez v. State, 2003 WL 22508081 at *4 (Tex. Crim.

App. 2003). Martinez has not shown that the state court's

decision was contrary to, or involved an unreasonable application

of, clearly established federal law, as determined by the United

States Supreme Court. 28 U.S.C. § 2254(d)(1). In any event, the

relief sought is barred by Teague.

XIX.

Cumulative Error

Finally, in CLAIM TWENTY-NINE, Martinez asks:

WHETHER THE CUMULATIVE EFFECT OF THE ABOVE-ENUMERATED

CONSTITUTIONAL VIOLATIONS DENIED PETITIONER DUE PROCESS

OF LAW IN VIOLATION OF THE FIFTH AND FOURTEENTH

AMENDMENTS OF THE UNITED STATES CONSTITUTION, EVEN IF

NO SEPARATE INFRACTION BY ITSELF ROSE TO THAT

MAGNITUDE?

Where, as here, no error has been demonstrated, there is

nothing to cumulate. United States v. $9,041,598.68, 163 F.3d

238, 250 (5th Cir. 1998); Darden v. McNeel, 938 F.2d 605, 609

(5th Cir. 1991).

 

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XX.

Order

For the reasons discussed herein,

The court ORDERS that the application be, and is hereby,

denied, and be, and is hereby, dismissed.

SIGNED June 8 , 2005.

 /s/ John McBryde 

JOHN McBRYDE

United States District Judge

 

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