* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-70001

ARNOLD PRIETO

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. 5:01-CV-1145

Before JONES, Chief Judge, and WIENER and BENAVIDES, Circuit Judges.

PER CURIAM:*

Petitioner-Appellant Arnold Prieto petitioned the district court for a writ

of habeas corpus, asserting, inter alia,that his federal constitutional rights were

violated by improper juror discussions during the sentencing phase of his capital

murder trial. Prieto insists that the district court erred in holding that (1) he

procedurally defaulted on his federal due process jury-misconduct claim, and (2)

even assuming, arguendo, that his claim is not subject to procedural bar, it

United States Court of Appeals

Fifth Circuit

F I L E D

September 15, 2008

Charles R. Fulbruge III

Clerk
No. 07-70001

1

In discussing the procedural history of this case, we borrow liberally from a prior

panel’s decision in this matter in which it addressed, inter alia, whether the district court had

erred by raising the procedural default issue sua sponte. See Prieto v. Quarterman, 456 F.3d

511 (5th Cir. 2006). We also borrow from the district court’s supplemental memorandum

opinion and order, which Prieto challenges.

2 Prieto v. State, No. 72,133 (Tex. Crim. App. 1998).

2

should be denied on its merits. Convinced that the district court properly ruled

that Prieto procedurally defaulted on his federal jury-misconduct claim, we

affirm.

I. FACTS AND PROCEEDINGS1

In March 1995, Prieto was convicted of murder and sentenced to death.

Following his conviction for capital murder and sentencing, Prieto filed a motion

for new trial and presented evidence showing that (1) juror Marjorie Egloff

changed her vote from either “undecided to death” or from “life to death” on the

third capital sentencing special issue, i.e., the Penry mitigation issue, based on

comments made by another juror (or a pair of other jurors) suggesting that the

minimum time for parole eligibility on a life sentence could be reduced by the

effect of good conduct, (2) none of the jurors who made the comments in question

purported to possess personal knowledge of the law applicable to Prieto’s

sentence, and (3) when the comments were made, the jury foreman advised the

jury not to discuss parole eligibility and re-read portions of the jury charge

advising the jury that (a) Prieto would be ineligible for release on parole for at

least forty years if he were sentenced to a term of life imprisonment, and (b) the

jury was not to consider parole or good conduct time credits in rendering its

punishment-phase verdict. 

In December 1998, the Texas Court of Criminal Appeals (the “TCCA”)

affirmed Prieto’s conviction and his sentence.2In so ruling on Prieto’s direct

appeal, the court characterized his jury-misconduct claim as being based solely

on state law. Specifically, the court observed that “[Prieto] does not raise a
No. 07-70001

3

Id., slip op. at 43.

4 See Prieto v. Dretke, 386 F. Supp. 2d 767 (W.D. Tex. 2005), rev’d by Prieto v.

Quarterman, 456 F.3d 511 (5th Cir. 2006).

5 See Prieto v. Quarterman, 456 F.3d at 513.

3

federal substantive due process claim in these points of error even though he has

had an opportunity to do so. [Prieto’s] jury misconduct claim is based on state

law.”3 Prieto declined to seek review from the United States Supreme Court,

and his conviction and sentence became final ninety days later, on March 17,

1999.

In October 1999, Prieto filed an application for state post-conviction relief,

asserting 66 grounds for relief, including, inter alia, a claim that the jury’s

discussion of parole violated both his state and federal constitutional rights. In

July 2001, the state habeas trial court issued its findings of fact, conclusions of

law, and recommendation that Prieto’s application be denied. In November

2001, the TCCA adopted the state habeas trial court’s findings of fact and

conclusions of law and denied Prieto’s petition.

Prieto then sought federal habeas relief.4 The district court dismissed

Prieto’s habeas petition as untimely. Ruling in the alternative, the district court

dismissed his petition on various substantive grounds. The court then granted

Prieto a certificate of appealability (“COA”) on two questions: first, whether the

court erred in dismissing Prieto’s petition as untimely; and, second, whether

Prieto procedurally defaulted on his federal jury-misconduct claim. 

A prior panel ofthis courtthen held, inter alia,thatthe district court erred

when it (1) dismissed Prieto’s petition as untimely, and (2) raised the issue of

procedural default sua sponte.

5 That panel remanded the case to the district

court with instructions “(1) to address the issue of procedural bar after giving

Prieto and the State opportunities to make their legal positions known to the
No. 07-70001

6

Id. at 519.

7 See FED.R.EVID. 606(b) (“Upon an inquiry into the validity of a verdict or indictment,

a juror may not testify as to any matter or statement occurring during the course of the jury’s

deliberations or to the effect of anything upon that or any other juror’s mind or emotions as

influencing the juror to assent to or dissent from the verdict or indictment or concerning the

juror's mental processes in connection therewith. But a juror may testify about (1) whether

extraneous prejudicial information was improperly broughtto the jury’s attention, (2) whether

any outside influence was improperly brought to bear upon any juror, or (3) whether there was

4

court, then (2) if appropriate, to address the merits of Prieto's jury misconduct

claim for habeas relief.”6

After the district court directed the parties to file briefs and reviewed their

submissions, the court again held that Prieto had procedurally defaulted on his

federal jury-misconduct claim because he had failed to raise it on direct appeal.

The court acknowledged that, on direct appeal, Prieto had presented a series of

points of error which fairly presented complaints to the TCCA that the alleged

jury misconduct had deprived him of “a fair and impartial trial.” In the district

court’s estimation, however, the arguments and authorities presented in support

of those points addressed exclusively state law principles and did not “fairly

present” any federal constitutional gloss on Prieto’s jury-misconduct complaints.

The district court acknowledged that Prieto had, in his state habeas application,

re-urged his state law jury-misconduct claim, but ruled that, for the first time,

Prieto had also argued that the jury’s discussion of parole violated his federal

due process right to a fair and impartial trial. Most importantly, the district

court held that the state habeas court had ruled that Prieto procedurally

defaulted on his federal due process jury-misconduct claim when he failed to

assert it on direct appeal. 

In addition, the district court on remand assumed arguendo that Prieto’s

federal claim was not subject to procedural bar, but went on to hold that his

claim failed on its merits because, inter alia, the jury’s discussions regarding

parole were not the products of any outside or extraneous influence.7 The
No. 07-70001

a mistake in entering the verdict onto the verdict form. A juror’s affidavit or evidence of any

statement by the juror may not be received on a matter about which the juror would be

precluded from testifying.”).

8 Martin v. Maxey, 98 F.3d 844, 847 (5th Cir. 1996).

9

Id. (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)).

10 Id. (citing Harris v. Reed, 489 U.S. 255, 261 (1989)). 

11 Harris v. Reed, 489 U.S. 255, 263 (1989) (quoting Caldwell v. Mississippi, 472 U.S.

320, 327 (1985)).

5

district court did, however, grant Prieto a COA on the questions (1) whether

Prieto procedurally defaulted on his federal due process jury-misconduct claim,

and (2) whether Prieto’s federal due process claim warrants federal habeas relief

on the merits. Prieto timely filed a notice of appeal.

II. ANALYSIS

A. Applicable Law

We review de novo a district court’s denial of federal habeas review based

on a state procedural ground.8

“Under the procedural default doctrine, a federal court may not consider

a state prisoner’s federal habeas claim when the state based its rejection of that

claim on an adequate and independent state ground.”9“In cases where a state

court decision ‘fairly appears’ to rest primarily on federal law, the state must

make a ‘plain statement’ that the state’s review of the claim is procedurally

barred.”10 In other words, “a procedural default does not bar consideration of a

federal claim on either direct or habeas review unless the last state court

rendering a judgment in the case ‘clearly and expressly’ states that its judgment

rests on a state procedural bar.”11

B. Merits

Prieto insists that he has asserted both state and federal jury-misconduct

claims throughout the appellate and habeas processes and, therefore, he did not
No. 07-70001

6

procedurally default on his federal claim. He further contends that the state

habeas court did not provide a clear and express statement that his federal jurymisconduct claim was subject to procedural bar. We disagree.

The state habeas court, in its findings of fact, stated that Prieto’s

allegations regarding the jury’s discussions of the law of parole (grounds for

relief numbers one through four in his state habeas action) “were essentially

raised on direct appeal in [Prieto’s] points of error numbers sixteen, seventeen,

and eighteen and were disposed of by the Court of Criminal Appeals.” The court

then stated its two conclusions of law with respect to Prieto’s jury-misconduct

claims:

1. Contentions disposed of on direct appeal cannot form the

basis for relief by way of unit of habeas corpus. See Ex Parte

Acosta, 672 S.W.2d 470, 472 (Tex. Crim. App. 1984).

2. Any difference between the formulation of the allegations

on direct appeal versus on writ of habeas corpus are not material.

The appellant has at any rate, forfeited the right to raise the

reformulated arguments because there was no reason he could not

have raised them on direct appeal. See Ex Parte Gardner, 959

S.W.2d 189, 199 (Tex. Crim. App. 1998) (Opinion on Rehearing) The

applicant grounds for review numbers one through four are without

merit and relief should be denied.

Prieto asserts that the portion of the second conclusion of law providing

that “any difference between the formulation of the allegations on direct appeal

versus on writ of habeas corpus are not material” demonstrates that he has

asserted both state and federal jury-misconduct claims all along. His

interpretation of the two conclusions of law cannot stand because his

construction (1) renders the two conclusions redundant, and (2) ignores the

second sentence of the second conclusion of law: “The appellant has at any rate,

forfeited the right to raise the reformulated arguments because there was no

reason he could not have raised them on direct appeal. See Ex Parte Gardner,
No. 07-70001

12 672 S.W.2d at 472.

13 Prieto v. State, No. 72,133 (Tex. Crim. App. Dec. 16, 1998), slip op. at 30 (emphasis

added).

14 959 S.W.2d at 199 (quoting Ex Parte Goodman, 816 S.W.2d 383, 385 (Tex. Crim. App.

1991)).

7

959 S.W.2d 189, 199 (Tex. Crim. App. 1998).” The proper interpretation, as

evidenced by the cases cited by the state habeas court in support of each

conclusion of law, is that the first conclusion addresses Prieto’s state law jurymisconduct claim and the second conclusion addresses his federal claim. 

Ex Parte Acosta stands for the proposition that a Texas habeas court need

not consider the merits of a claim that was already addressed on direct appeal.12

Prieto unambiguously raised a state law jury-misconduct claim on direct appeal:

The TCCA stated that “appellant claims as a matter of state law that the trial

court erroneously denied his motion for new trial which alleged the jury engaged

in misconduct during the punishment phase deliberations by improperly

considering how parole would affect a life sentence.”13 Accordingly, the state

habeas court, in its first conclusion of law, made clear that it was barred from

considering Prieto’s state law jury-misconduct claim because the TCCA had

already addressed it on direct appeal.

Moreover, in its second conclusion of law, the state habeas court

acknowledged Prieto’s attempt to reformulate the state law jury-misconduct

claim that he had urged on direct appeal by adding a federal gloss. Accordingly,

a second conclusion of law was needed to address this new claim. The state

habeas court rejected it, holding that Prieto “forfeited the right to raise the

reformulated arguments because there was no reason he could not have raised

them on direct appeal.” In so ruling, the court cited Ex Parte Gardner, which

stands for the proposition that “the writ of habeas corpus should not be used to

litigate matters which should have been raised on direct appeal.”14 The
No. 07-70001

8

aforementioned statement, with its citation to the Gardner procedural bar,

constitutes a clear and express holding by the Texas habeas court that Prieto’s

federal jury-misconduct claim is procedurally barred under Texas law.

Furthermore, Prieto makes no effort in his briefs to argue that the Gardner

procedural rule is not adequate or independent. We conclude that Prieto’s

federal jury-misconduct claim is subject to procedural bar and therefore do not

reach the merits of his claim. 

III. CONCLUSION

The district court’s decision denying Prieto’s petition for a writ of habeas

corpus as procedurally barred is AFFIRMED.