Revised March 9, 1999
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-11372 _____________________
JOE MARIO TREVINO, JR.
Petitioner-Appellant,
v.
GARY L JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court for the Northern District of Texas _________________________________________________________________ February 19, 1999 Before KING, Chief Judge, JOLLY and DeMOSS, Circuit Judges.
KING, Chief Judge:
Joe Mario Trevino, a Texas death row inmate, filed a habeas
petition in federal district court, and the district court denied
habeas relief. Trevino argues that the district court judge,
Judge John McBryde, abused his discretion in denying Trevino's
recusal motion, and Trevino requests this court to vacate Judge
McBryde's order denying habeas relief and to remand the matter to
a different district court judge. In addition, Trevino requests
a certificate of appealability in order to appeal issues relating
to his state habeas proceeding and his underlying state-court conviction. We find that Judge McBryde did not abuse his
discretion in denying the recusal motion and we deny Trevino
leave to appeal all issues relating to his state habeas
proceeding and his underlying state-court conviction.
I. FACTS AND PROCEDURAL HISTORY
In 1984, Trevino was convicted of capital murder and
sentenced to death. The Texas Court of Criminal Appeals affirmed
his conviction seven years later. See Trevino v. State, 815
S.W.2d 592 (Tex. Crim. App. 1991). The United States Supreme
Court granted certiorari and remanded to the Texas Court of
Criminal Appeals for further proceedings in light of Batson v.
Kentucky, 476 U.S. 79 (1986). See Trevino v. Texas, 503 U.S. 562
(1992). The Texas Court of Criminal Appeals remanded the case to
the trial court for a Batson hearing, see Trevino v. State, 841
S.W.2d 385 (Tex. Crim. App. 1992), and later affirmed Trevino's
conviction following the trial-court hearing, see Trevino v.
State, 864 S.W.2d 499 (Tex. Crim. App. 1993). The Supreme Court
denied certiorari. See Trevino v. Texas, 510 U.S. 1185 (1994).
Trevino filed a petition for a writ of habeas corpus in the
state district court in 1994. The district court issued proposed
findings of fact and conclusions of law, which the Texas Court of
Criminal Appeals adopted in 1996, denying Trevino's habeas
petition. The Supreme Court again denied certiorari. See
Trevino v. Texas, 117 S. Ct. 1275 (1997).
On June 4, 1997, Trevino filed a federal habeas corpus
petition pursuant to 28 U.S.C. § 2254 in the Northern District of
Texas, Judge John McBryde presiding. Trevino also filed a motion
asking Judge McBryde to recuse himself under 28 U.S.C. § 455(a).
He brought the recusal motion based on the fact that his
attorney, Art Brender (Brender), was subpoenaed by a special
investigatory committee of the Fifth Circuit Judicial Council to
testify regarding Judge McBryde. Judge McBryde denied the motion
to recuse on September 24, 1997, and on November 12, 1997, he
denied the habeas petition. On December 4, 1997, Judge McBryde
denied Trevino's request for a certificate of appealability
(COA).
Trevino