IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-50027 _____________________
OLIVER DAVID CRUZ
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 Western District of Texas (5:98-CV-132) _________________________________________________________________
July 21, 2000
Before KING, Chief Judge, and JOLLY and DeMOSS, Circuit Judges.
PER CURIAM:*
Texas death row inmate Oliver David Cruz applies to this
court for a certificate of appealability to enable him to obtain
review of the district court’s denial of his federal habeas
petition. For the reasons that follow, we deny his application.
I. FACTUAL AND PROCEDURAL BACKGROUND
* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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 1989, a Texas jury convicted Petitioner-Appellant Oliver
David Cruz of the brutal 1988 rape and murder of Kelly Donovan.
The disposition of Cruz’s application for a certificate of
appealability (“COA”) does not require that we describe the
details of the crime.
During the guilt/innocence phase of Cruz’s trial, Dr. Wayne
Gill, a clinical psychologist, testified that he tested Cruz’s IQ
using both the verbal Wechsler Adult Intelligence Scale and the
Slosson Intelligence Test. He further testified that Cruz scored
a 76 on the verbal Wechsler and 64 on the Slosson Test. He
described a score of 76 as “[b]orderline IQ” and a score of 64 as
“within the retarded range.” State Record at 3791. This
evidence was offered, along with other evidence, to establish
that Cruz was functionally illiterate in English and could not
have understood two typed confessions he signed. Dr. Gill was
recalled during the penalty phase of the trial and testified
that, in his opinion, Cruz was a follower and not a leader.
Diana Rangel, who was a case worker for the City of San
Antonio Youth Services at the time she met Cruz, also testified
during the penalty phase of the trial. She testified that she
met with Cruz several times between 1981 and about 1983 or 1984,
when Cruz was between 14 and about 18 years old. She had not
seen Cruz since that time. Like Dr. Gill, she testified that
Cruz was “[d]efinitely a follower.” State record at 4077.
2 Several months before Cruz’s trial, the United States
Supreme Court announced its decision in Penry v. Lynaugh, 492
U.S. 302 (1989). In Penry, the Supreme Court held that, under
the facts of that case, the Texas capital sentencing structure1
ran afoul of the Eighth Amendment. The Supreme Court concluded
that, “in the absence of instructions informing the jury that it
could consider and give effect to the mitigating evidence of
Penry’s mental retardation2 and abused background by declining to
impose the death penalty, . . . the jury was not provided with a
vehicle for expressing its ‘reasoned moral response’ to that
1 Under the capital sentencing structure in place at the time of both Penry’s and Cruz’s trials, the jury was presented with two or three special issues. The jury’s answers to the special issues were determinative of whether the defendant received a penalty of life in prison or death. The special issues in Cruz’s case were, in all relevant respects, identical to the first two special issues in Penry. They read:
Do you find from the evidence beyond a reasonable doubt that the conduct of the defendant, Oliver Cruz, that caused the death of the deceased was committed deliberately and with a reasonable expectation that the death of Kelly Donovan would result?
. . . Do you find from the evidence beyond a reasonable doubt that there is a probability that the defendant, Oliver Cruz, would commit criminal acts of violence that would constitute a continuing threat to society?
State Record at 4096-97. 2 As compared to Cruz’s case, the evidence of mental deficiency was more pronounced in Penry. IQ tests administered over the years indicated Penry had an IQ between 50 and 63. See Penry, 492 U.S. at 307-08. There was also evidence that Penry suffered from organic brain damage as well as retardation, the combination of which “resulted in poor impulse control and an inability to learn from experience.” Id. at 308.
3 evidence in rendering its sentencing decision.” Id. at 328
(footnote added).
Considering the holding in Penry and the evidence presented
in Cruz’s case, the state trial court determined that it should
provide an instruction on mitigation. It drafted an instruction
and gave defense counsel an opportunity to suggest changes to the
instruction. Defense counsel took the position that the state of
the law in Texas made it impossible to draft a Penry instruction
that would pass constitutional muster. The court therefore gave
the instruction it prepared.3 The jury returned positive
3 The instruction read, in pertinent part:
You are instructed that the State must prove each issue beyond a reasonable doubt. You are instructed that you shall consider any evidence introduced during this trial, which in your opinion either mitigates against the imposition of the death penalty or indicates the aggravating nature of the offense alleged.
It is for the jury to consider and give effect to mitigation or aggravating evidence. Such evidence may include but is not limited to facts surrounding the defendant’s background, reputation, character or record, and the circumstances of the commission of the offense. Evidence of this nature may or may not form the basis for a sentence less than death.
In this connection, if such evidence causes you to have a reasonable doubt as to whether or not a true answer to any of the special issues should be yes, then under such circumstances, such doubt should be resolved in favor of the defendant, and the answer to such special issue should be no. Therefore, you should consider when weighing answering the special issue yes or no, all mitigating as well as aggravating circumstances represented by the evidence in the case.
In connection with the above and foregoing paragraph,
4 responses to both of the special issues and Cruz was sentenced to
death.
On direct appeal, Cruz argued that the trial court erred in
failing to instruct the jury properly on, among other things,
Cruz’s mental retardation; he asserted that the trial court erred
in failing “to provide a jury instruction allowing the jury to
express a reasoned moral response to potentially mitigating
evidence.” Cruz v. State, No 71,004, slip op. at 29 (Tex. Ct.
Crim. App. Jun 23, 1993) (en banc). The Texas Court of Criminal
Appeals decided, first, that Cruz had preserved these points of
error. The court then cited numerous cases, including one
standing for the proposition that “[e]vidence of reduced mental
capacity/low level of intelligence is . . . able to be considered
within the special issues and do [sic] not require any such
[Penry] additional instructions.” Id. at 32. The court
concluded that “in light of the above-noted cases, and the . . .
additional instruction on mitigation, there was no failure to
properly instruct the jury with regard to appellant’s proffered
mitigating evidence.”4 Id. Ultimately, the Texas Court of
evidence may be considered by you to be mitigating if it is such as does not constitute an excuse or justification for the crime, but which in fairness and mercy may be considered as extenuating or reducing the degree of moral culpability for the crime.
State Record at 4092-93. 4 In its order denying Cruz’s federal habeas petition, however, the district court stated that “the Texas Court of
5 Criminal Appeals affirmed Cruz’s conviction and sentence, see id.
at 33, and the United States denied Cruz’s petition for a writ of
certiorari. See Cruz v. Texas, 513 U.S. 965 (1994).
Cruz then filed a petition for habeas relief in the Texas
state court system, raising, among others, the Penry-based claims
raised on direct appeal. In its findings of facts and
conclusions of law, the state trial court declined to address
these federal constitutional claims because they had been
addressed by the Texas Court of Criminal Appeals on direct
review. See Ex parte Cruz, No. 89-CR-1732A-W1 (Tex. Dist. Ct.
Sept. 11, 1997) (order on writ of habeas corpus). The Texas
Court of Criminal Appeals determined that the trial court’s
findings of facts and conclusions of law were supported by the
record and denied relief. See Ex parte Cruz, No. 29,545-05 (Tex
Ct. Crim. App. Oct. 15, 1997).
Cruz then sought habeas relief in the federal district
court. In an unpublished opinion, the district court denied
Criminal Appeals expressly rejected petitioner’s Penry claims, holding that petitioner’s evidence of his low intelligence, deprived childhood, and good character traits could all be adequately considered within the scope of the Texas capital sentencing Special Issues without the necessity of a Penry instruction.” Cruz v. Johnson, No. SA-98-132-FB, slip op. at 61- 62 (W.D. Tex. Nov. 9, 1999) (memorandum opinion and order denying habeas corpus relief). Before this court, Cruz does not dispute the district court’s characterization of the decision of the Texas Court of Criminal Appeals. We agree with the district court. It appears that the Texas Court of Criminal Appeals concluded that Cruz was not entitled to a Penry instruction and that, alternatively, the instruction given was adequate under Penry.
6 relief and sua sponte denied Cruz a COA. See Cruz v. Johnson,
No. SA-98-132-FB (W.D. Tex. Nov. 9, 1999) (memorandum opinion and
order denying habeas corpus relief) [hereinafter District Court
Opinion]. Cruz filed a Motion for a Certificate of Appealability
and Stay of the Proceedings in this court on March 16, 2000.
Cruz moved this court to stay its resolution of the issues he
presented in his COA application pending the Supreme Court’s
resolution of Williams v. Taylor, 119 S. Ct. 1355 (1999)
(granting certiorari). He concurrently filed a brief in support
of his COA application, in which he raised issues concerning his
Penry claim, argued that we should grant a COA to review the
district court’s decision to deny a COA sua sponte, and briefly
asserted that the Williams decision might impact the district
court’s denial of a COA on all claims.
On April 18, 2000, the Supreme Court announced its decision
in Williams, thereby mooting Cruz’s motion to stay our
proceedings. On April 20, 2000, we requested that each side file
a letter brief addressing the impact of Williams on this case.
In his letter brief, Cruz suggested in conclusory fashion that
each of his claims should be re-reviewed in light of the Supreme
Court’s decision in Williams. We now proceed to address Cruz’s
arguments surrounding his Penry claim, his argument that the
district court erred in sua sponte denying him a COA, and his
suggestion that all of his claims be re-reviewed in light of
Williams.
7 II. STANDARD OF REVIEW
Cruz wishes to appeal a claim that was denied by the
district court. Because his petition was filed after the
effective date of the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), his petition is subject to that law’s
provisions. See Hill v. Johnson, 210 F.3d 481, 484 (5th Cir.
2000). Because he seeks to initiate an appeal after the
effective date of AEDPA, “the right to appeal is governed by the
certificate of appealability (COA) requirements now found at 28
U.S.C. § 2253(c).” Slack v. McDaniel, 120 S. Ct. 1595, 1600
(2000). To obtain a COA, a prisoner must make “a substantial
showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). In order to make such a showing, a prisoner must
demonstrate “that reasonable jurists could debate whether (or,
for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.” Slack,
120 S. Ct. 1603-1604 (internal quotation marks omitted).
The determination of whether a COA should issue must be made
by viewing the petitioner’s arguments through the lense of the
deferential scheme laid out in 28 U.S.C. § 2254(d). See Hill v.
Johnson, 210 F.3d 481, 484-85 (5th Cir. 2000). Under § 2254(d),
when reviewing a claim adjudicated by a state court on the
merits, we pay deference to the state court’s decision regarding
8 that claim, unless the decision “[is] contrary to, or involve[s]
an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or . . .
[is] based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d)(1) & (2). A decision is “contrary to . . .
clearly established Federal law, as determined by the Supreme
Court of the United States” “if the state court arrives at a
conclusion opposite to that reached by [the Supreme Court] on a
question of law or if the state court decides a case differently
than [the Supreme Court] has on a set of materially
indistinguishable facts.” Williams v. Taylor, 120 S. Ct. 1495,
1523 (2000). A decision “involve[s] an unreasonable application
of[] clearly established Federal law, as determined by the
Supreme Court of the United States” “if the state court
identifies the correct governing legal principle from [the
Supreme Court’s] decisions but unreasonably applies that
principle to the facts of the prisoner’s case.” Id. Factual
findings of the state court have a presumption of correctness,
which presumption the petitioner can only rebut by “clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1).
III. PENRY CLAIM
9 In addressing Cruz’s Penry claim, the district court
examined evidence of Cruz’s mental capacity, illiteracy, deprived
childhood, and alcohol and drug abuse. See District Court
Opinion at 26-27. Before this court, Cruz limits his arguments
to evidence of his mental capacity. We limit our discussion
accordingly.
The district court began by setting forth what it considered
the appropriate legal framework through which to review a Penry
claim. The district court determined that a defendant is only
entitled to a Penry instruction if relevant mitigating evidence
is beyond the effective reach of the jury in light of the state’s
capital sentencing structure. See District Court Opinion at 44-
45. The district court stated that in order for evidence to be
relevant mitigating evidence, it “must show (1) a uniquely
severe, permanent handicap with which the defendant is burdened
through no fault of his own, and (2) that the criminal act was
attributable to this severe, permanent condition.”5 Id.
The district court first concluded that the instruction
provided by the state trial court did not meet the requirements
of Penry. See id. at 49-50. It then concluded that the evidence
of Penry’s mental deficiency was not constitutionally relevant
mitigating evidence because Cruz neither established through the
evidence that he suffered from a uniquely severe permanent
5 We refer to the second prong of this inquiry, as do the parties, as the “nexus requirement.”
10 handicap nor that his criminal act was attributable to his mental
deficiency. See id. at 55; 58-59. Ultimately, the district
court concluded that “the Texas Court of Criminal Appeals’
rejection of petitioner’s Penry claims was [not] the product of
. . . an unreasonable application of clearly established Federal
law, as determined by the Supreme Court of the United States” and
denied relief on Cruz’s Penry claim. Id. at 62.
In his brief before us, Cruz makes the following arguments:
that the evidence in his case satisfies the nexus requirement;
that the state trial court implicitly found that the nexus
requirement had been met, and the federal courts should not
disturb that conclusion; that the State waived the right to argue
that the nexus requirement had not been met because it failed to
object at trial or raise the issue on appeal in state court; and,
finally, Cruz argues that the nexus requirement does not pose a
adequate bar to relief. Cruz presupposes that the granting of a
COA in his case turns on our review of the district court’s
discussion and conclusion regarding the nexus requirement. He
consequently fails, at any point in either of his briefs before
this court, to develop any argument regarding the state court
disposition of this claim.6
6 We note that Cruz’s application would fare no better even were we simply to review the district court’s discussion of this claim. In addition to concluding that the nexus requirement had not been met, the district court determined that the evidence did not establish that Cruz suffered from a uniquely severe permanent handicap. See District Court Opinion at 55; 58-59. Apart from
11 A COA can only be granted if “reasonable jurists could
debate whether . . . the petition should have been resolved in a
different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack, 120 S. Ct. at
1604 (internal quotation marks omitted). Here, the Texas Court
of Criminal Appeals explicitly addressed Cruz’s Penry claim on
direct appeal. This treatment by the Texas Court of Criminal
Appeals constituted an adjudication on the merits for purposes of
§ 2254(d). See Hill, 201 F.3d at 485. Consequently, the
district court was bound to deny the claim, as it did, unless the
state court disposition was “contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1). By failing to develop any argument that the state
court disposition was infirm under the “contrary” or
“unreasonable application” standard, as laid out in § 2254(d) and
further defined in Williams, Cruz has not met his burden of
demonstrating that reasonable jurists could debate whether the
district court should have granted his petition on this claim or
that the issue is adequate to deserve encouragement to proceed
further. See Slack, 120 S. Ct. at 1604. He has therefore failed
to make a substantial showing of the denial of a constitutional
right.
flat assertions that he is retarded, Cruz fails to develop any argument that the latter determination was erroneous.
12 Although Cruz’s brief incorrectly focuses on the district
court’s discussion of the nexus requirement rather than on the
disposition of this claim by the Texas Court of Criminal Appeals,
he does briefly state that his evidence of mental retardation
entitled him to a Penry instruction. See Petitioner’s Brief at
10. Even giving Cruz and his habeas counsel the benefit of the
doubt by construing this statement as an argument that the
decision of the Texas Court of Criminal Appeals was an
unreasonable application of Supreme Court precedent, Cruz has
failed to make a substantial showing of the denial of a
constitutional right. Considering the evidentiary differences
between Cruz’s case and Penry’s case, particularly the evidence
relating to the extent of Penry’s retardation and the evidence
that he was unable to learn from his mistakes, see Penry, 492
U.S. at 308, we conclude that reasonable jurists could not debate
whether the decision by the Texas Court of Criminal Appeals that
Cruz was not entitled to a Penry instruction, see supra note 4,
was an unreasonable application of Supreme Court precedent as
defined in Williams.
IV. SUA SPONTE DENIAL OF A COA AND REQUEST FOR
RE-REVIEW IN LIGHT OF WILLIAMS
In his final argument for a COA, Cruz asserts that by sua
sponte denying him a COA, the district court denied him
13 “meaningful access to the courts and the representation of
counsel.” Petitioner’s Brief at 32. We have previously
addressed this same claim in Alexander v. Johnson, 211 F.3d 895
(5th Cir. 2000), and found it to be without merit. See id. at
898 (“It is perfectly lawful for district court's [sic] to deny
COA sua sponte.”).
Cruz also states in that same section of his brief that:
the court below applied an inappropriate legal standard for a certificate of appealability under the law as it currently stands. Even more importantly, in light of the district court’s standards and the pending Williams case, . . . this Court can not at all be confident that a certificate of appealability should be denied on any issue, let alone on all issues.
Id. Cruz’s first unsubstantiated averment, that the district
court applied the inappropriate legal standard for a COA, is
without merit. The district court applied the correct standard
for granting a COA. In the process of applying that standard,
however, it concluded that “the vast majority of petitioner’s
claims for relief herein are not only foreclosed under the highly
deferential standard of review mandated by the AEDPA but wholly
frivolous when examined de novo.” District Court Opinion at 175.
Earlier in its opinion, it relied on the standard we announced in
Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir. 1996), in
determining whether, under AEDPA, a state court’s decision
involved an unreasonable application of clearly established
federal law, as determined by the Supreme Court. The Drinkard
standard was abrogated by the Supreme Court in Williams. See 120
14 S. Ct. at 1522. Of course, the Williams opinion had not been
announced at the time Cruz filed his brief.
Considering the Supreme Court’s abrogation of the Drinkard
standard, and considering Cruz’s additional averment that
Williams might impact his case, we requested that Cruz file a
letter brief discussing the impact of Williams on his case. His
letter brief was devoted almost exclusively to discussing the
Williams opinion and arguing its purported impact on the nexus
requirement. His only reference to any other claims was an
assertion, raised for the first time at the end of his letter
brief, that, “in light of the Williams case discussed above, this
Court should also consider the necessarily [sic] application by
the Court below of the wrong standard for granting a [COA] to all
claims. Because the standard for appealability was judged on the
now-discredited Drinkard standard, the entire review of the court
below must be subject to re-review.” Petitioner’s Letter Brief
at 8-9. Whether Cruz is suggesting that we re-review every claim
or remand the case to the district court to re-review every claim
is unclear. In either case, he never develops any argument that
re-review would result in a different outcome on any specific
claim. His conclusory assertions regarding the impact of
Williams on his entire case are not adequately briefed, and we
therefore consider his request for re-review in light of Williams
waived. See Rutherford v. Harris County, 197 F.3d 173, 193 (5th
Cir. 1999) (“[W]e will not consider an issue that is inadequately
15 briefed . . . .”); Justiss Oil Co., Inc. v. Kerr-McGee Refining
Corp., 75 F.3d 1057, 1067 (5th Cir. 1996) (same).
VI. CONCLUSION
For the foregoing reasons, we DENY Cruz’s application for a
COA. His motion to stay proceedings to await the Williams case
is DISMISSED as moot. His motion filed July 18, 2000 to stay his
execution is DENIED.