* Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR
. 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 ofhabeas corpus, asserting, inter alia, that hisfederal constitutional rightswere violated by improperjuror discussionsduring thesentencing phaseofhiscapital murder trial. Prieto insists that the district court erred in holding that (1) he procedurally defaulted on hisfederal due processjury-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 ClerkNo. 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 PROCEEDINGS 1 In March 1995, Prieto was convicted of murder and sentenced to death. Following his conviction for capital murder and sentencing, Prietofiled 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 ofother jurors) suggesting that the minimum time for parole eligibility on a life sentence could be reduced by the effect ofgood conduct, (2) none ofthejurorswho 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, thejury 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 ifhe 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 A ppeals (the “TCCA”) affirmed Prieto’s conviction and his sentence. 2 In so ruling on Prieto’s direct appeal, the court characterized hisjury-misconduct claim as being based solely
on state law

. Specifically, the court observed that “[Prieto] does not raise aNo. 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 pointsoferror 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, Prietofiled 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 offact, conclusions of l aw, 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 ofappealability (“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 ofthiscourt then held, inter alia, that the 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 theNo. 07-70001

6 Id. at 519.

7 SeeF ED
. R. E VID
. 606(b) (“Upon an inquiry into the validity ofa verdict or indictment, a juror may not testify as to any matter or statement occurring during the course ofthejury’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 brought tothejury’sattention, (2) whether any outside influencewas improperly brought to bear upon anyjuror, or (3) whether therewas 4 court, then (2) if appropriate, to address the merits of Prieto'sjury misconduct claim for habeas relief.”6 After thedistrict court directed the parties tofile 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 oferror 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’sestimation, 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 lawjury-misconduct claim, but ruled that, for the first time , Prieto had also argued that the jury’s discussion of parole violated his f ederal 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 TheNo. 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 processjury-misconduct claim, and (2) whether Prieto’sfederal due processclaim warrantsfederal habeas relief on the merits. Prieto timely filed a notice of appeal. II. ANALYSIS A. Applicable Law We reviewde novo a district court’s denial offederal 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 ofthat 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 c laim 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 ajudgment in the case ‘clearly and expressly’ states that itsjudgment 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 notNo. 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 oferror numbers sixteen, seventeen, and eighteen and were disposed ofby the Court ofCriminal Appeals.” T he 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 reviewnumbers one through four arewithout merit and relief should be denied.
Prieto asserts that the portion of the second conclusion of law providing that “any difference between the formulation ofthe 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 ofthe 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 959S.W.2d at 199 (quoting Ex ParteGoodman, 816S.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 lawjurymisconduct claim and the second conclusion addresses his federal claim. Ex ParteAcosta stands for the proposition that a Texas habeas court need not consider the merits ofa claim that was already addressed on direct appeal. 12 Prietounambiguously raised a state lawjury-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 newtrial which alleged thejury 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. Moreo ver, 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 E x 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 direc t appeal.” 1 4 TheNo. 07-70001

8 aforementioned statement, with its citation to the G ardner procedural bar, constitutes a clear and express holding by the Texas habeas court that Prieto’s federal jury-misconduct claim is proc edurally 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.