REVISED IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT _______________
No. 96-50508 _______________
PEDRO CRUZ MUNIZ,
Petitioner-Appellant,
VERSUS
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 _________________________ January 2, 1998
Before SMITH, BARKSDALE, and DeMOSS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Pedro Muniz appeals the denial of his petition for a writ of
habeas corpus under 28 U.S.C. § 2254. Finding no reversible error,
we affirm and vacate the stay of execution.
I.
Muniz raped and murdered Janis Bickham in 1976. Before doing
so, he followed her down a city street and over a bridge. When she
reached the end of the bridge, Muniz grabbed her, dragged her down a ravine, over a stream, and through a fence. He then took her to
an abandoned cabana, where he raped her and beat in her head with
a log. When he was finished, he buried her body in a pile of wood
and fled.
Two days later, police arrested Muniz and charged him with
murder. He was taken before a magistrate, then placed in a local
jail.
The next day, Officer William Shirley questioned Muniz; this
interview ultimately led to Muniz’s confession. In his written
statement, Muniz admitted to having the aggravated and
nonconsensual sexual relations with Bickham that preceded her
death. Muniz gave the statement while in police custody after
receiving his Miranda warnings.
During this interview, Shirley suggested at one point that
Muniz might want to call a lawyer. Muniz agreed, and Shirley
picked up the telephone to place the call for Muniz. When asked
for his lawyer’s number, Muniz indicated that he would contact the
lawyer later. Shirley then hung up the phone and continued the
interview.1
II.
A.
At the pre-trial hearings concerning his motion to suppress
1 There is confusion in the record about how many times Muniz invoked his right to counsel. The state trial and appellate courts found that he did so only once. We conclude that this finding is supported by the record. See infra part IV.A.
2 the confession, Muniz testified that Shirley had coerced him into
giving the confession. He claimed that Shirley had made him feel
despondent, playing on his fears for his family; had promised him
leniency in exchange for the confession; and had offered to help
his family if he signed the statement.
Shirley testified that he told Muniz that sometimes when a
defendant confesses, the state shows leniency. Shirley, however,
denied that he guaranteed a reduced charge or sentence in exchange
for Muniz’s statement.
Shirley also stated that although he did offer to contact
social service agencies for Muniz’s family, he did not condition
his offer on whether Muniz confessed. Shirley testified that he
spoke with Muniz about religion and offered to get him a priestSSan
offer not conditioned on a confession. During the interview that
led to the confession, Shirley showed Muniz photos of Bickham’s
body and of the crime scene.
The trial judge credited Shirley’s testimony over Muniz’s and
admitted the confession into evidence. In 1986, a jury convicted
Muniz of capital murder and sentenced him to death.2
B.
The Texas Court of Criminal Appeals affirmed, see Muniz v.
2 Muniz originally was convicted and sentenced to death in 1977. This court issued a writ of habeas corpus because the trial court had improperly admitted psychiatric information obtained from Muniz without the benefit of Miranda warnings. See Muniz v. Procunier, 760 F.2d 588, 590 (5th Cir. 1985). The state retried Muniz in 1986. At the suppression hearing before trial, the trial judge reincorporated all of the testimony from the suppression hearing preceding the first trial and heard new testimony from the relevant actors.
3 State, 851 S.W.2d 238, 259 (Tex. Crim. App. 1993), whereupon Muniz
filed a state habeas corpus petition, which was denied by the Texas
Court of Criminal Appeals in 1994. Two months later, Muniz filed
a federal habeas petition, which was denied in 1996.
III.
We first must address the applicability to this case of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996.
After denying Muniz’s habeas petition, the federal district court
granted a Certificate of Probable Cause (“CPC”), allowing him to
appeal. We remanded in light of our caselaw applying the AEDPA to
similar cases. See Muniz v. Johnson, 114 F.3d 43, 45-46 (5th Cir.
1997). We instructed the district court to narrow the issues for
appeal by issuing a Certificate of Appealability (“COA”) under the
new law. See id.
On remand, the district court did as we had instructed and
issued a COA specifying the issues Muniz could appeal.
Contemporaneously, however, the Supreme Court decided Lindh v.
Murphy, 117 S. Ct. 2059 (1997), holding that the AEDPA is
inapplicable to cases like Muniz’s. See Lindh, 117 S. Ct. at 2063.
In light of Lindh, we erred in remanding this case for a COA.
Instead, the district court was correct originally to have issued
a CPC. Fortunately, however, under the law of this circuit, we
construe the COA grant as a grant of a CPC. See McBride v.
Johnson, 118 F.3d 432, 436 (5th Cir. 1997).
4 IV.
Muniz claims that on multiple occasions during the
interrogation that led to his confession, he invoked his right to
counsel. He further argues that the state can offer only one
instance of his voluntary re-initiation of the interrogation.
Therefore, he maintains, we should find a Miranda violation,
because the state is unable to disprove all of the instances in
which he claims that he invoked his right to an attorney. The
well-settled rule is that “an accused . . . having expressed his
desire to deal with the police only through counsel, is not subject
to further interrogation by the authorities until counsel has been
made available to him, unless the accused himself initiates further
communication, exchanges, or conversations with the police.”
Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).
At bottom, Muniz’s argument is an attack on the trial court’s
factual finding that Muniz made only one request for a lawyer,
rather than several.3 State court factual findings are presumed
correct under 28 U.S.C. § 2254(d)4 unless one of the statutory
exceptions is met. The exception at issue here is whether the
3 Muniz does not contest the voluntariness of the re-initiation when he told Shirley that he would call his attorney at a later time. Rather, he rests the validity of his claim on the fact that he made several other requests for an attorney as to which the state cannot account for a voluntary re-initiation of the interview. 4 We refer, throughout, to the former version of § 2254(d), applicable to pre- AEDPA cases.
5 state court’s “factual determination is not fairly supported by the
record.” 28 U.S.C. § 2254(d)(8). “[T]he burden shall rest on the
applicant to establish by convincing evidence that the factual
determination by the State court was erroneous.” Id. § 2254(d).
Muniz testified that he had made several requests for counsel;
Shirley, the only other person in the room at the time, testified
to the contrary. At the suppression hearing prior to the first
trial, Shirley stated that Muniz asked for counsel “at one period.”
At that hearing, Shirley also testified, in response to a question
by defense counsel, that “there were a couple of times [Muniz]
asked to talk to an attorney,” but at the suppression hearing
before the second trial, Shirley clarified his former testimony,
stating that there was only one request for an attorney and that,
as he began to place the call to Muniz's lawyer, Muniz decided to
continue the interview without counsel.
The record supports the state court’s finding that Muniz made
only one request for counsel.5 Although Shirley equivocated at the
first suppression hearing, his subsequent testimony provides enough
evidence to support the trial judge's conclusion that Muniz
requested counsel only once.6 Moreover, there is reason to
5 These findings of fact were dictated into the record by the trial judge and were affirmed and adopted by the Court of Criminal Appeals. See Muniz, 851 S.W.2d at 252. 6 The trial judge, as fact finder, was in the best position to evaluate the credibility of witnesses, so the law defers to his judgment. See 28 U.S.C. § 2254(d). In this case, the ambiguity may have been the result of a confusing line of questioning from defense counsel. The transcript of the suppression hearing preceding the first trial is replete with puzzling questions by defense counsel that had the noticeable effect of eliciting perplexing answers from the police officers.
6 disbelieve Muniz’s testimony given at the suppression hearings.7
Given the record, therefore, Muniz has not established “by
convincing evidence that the factual determination by the State
court was erroneous.” 28 U.S.C. § 2254(d).
Muniz challenges the voluntariness of his confession. A
confession is voluntary if it is “the product of a rational
intellect and a free will.” Mincey v. Arizona, 437 U.S. 385, 398
(1978) (internal quotations omitted). The defendant, therefore,
must show that but for police coercion he would not have given the
confession. See Colorado v. Connelly, 479 U.S. 157, 163-64 (1986).
“[T]he ultimate question whether, under the totality of the
circumstances, the challenged confession was obtained in a manner
compatible with the requirements of the Constitution is a matter
for independent federal determination.” Miller v. Fenton, 474 U.S.
104, 112 (1985). Subsidiary factual questions, however, are
entitled to a presumption of correctness: “[S]ubsidiary questions,
such as length and circumstances of the interrogation, the
defendant’s prior experience with the Miranda warnings, often
require the resolution of conflicting testimony of police and
defendant. The law is therefore clear that state-court findings on
7 In other aspects of his testimony concerning the confession, Muniz’s story had changed drastically in the interim between the 1977 suppression hearing and the suppression hearing before his retrial in 1986. For instance, in the 1977 hearing, the defense concentrated on the fact that Shirley had used coercive influences on Muniz to get him to confess. This coercion allegedly led Muniz to break a glass against his head. In 1986, however, Muniz stated for the first time that Shirley had smashed the glass against Muniz’s head and threatened to shoot him if he did not confess.
7 such matters are conclusive on the habeas court if fairly supported
by the record . . . .” Id. at 117. Accordingly, using the
presumptively correct factual findings of the state court, we
reweigh de novo the voluntariness calculation.
“Whether the police engaged in the coercive tactics alleged by
the defendant is a subsidiary fact; as such, the trial court’s
finding is entitled to deference on habeas review if it is
supported in the record.” Pemberton v. Collins, 991 F.2d 1218,
1225 (5th Cir. 1993) (citation omitted). The record supports the
trial court’s factual findings that Shirley did not promise
leniency in exchange for the confession.8 There is also sufficient
evidence to support the finding that Shirley did not condition his
offer to help Muniz’s family seek social services, or his getting
a priest for Muniz, on a confession.9
In our voluntariness calculation, therefore, we are left with
Shirley’s showing Muniz the murder scene pictures; Shirley’s appeal
to Muniz’s religion; and Muniz's alleged fatigued physical and
emotional condition at the time of the confession. We cannot
conclude that the totality of these factors overpowered Muniz’s
will or produced a confession that was not of his own free choice.
Muniz was fully informed of his Miranda warnings before he
gave his statement. The evidence supports the state court’s
8 Shirley so testified at both suppression hearings. 9 In addition, Muniz claims that he was deprived of a meal before he entered the interview in which he confessed. There is no evidence in the record, however, that he ever requested food, nor does he offer an explanation why he decided not to make such a request. Nothing in the record indicates that the officers conditioned Muniz's access to food and drink on his confessing.
8 finding that he understood what these warnings meant. Moreover,
before he signed the statement, Muniz was asked by another
officerSSone who was not in the room at the time the confession was
writtenSSwhether the statement he gave was voluntary. Muniz stated
that it was.
Muniz also argues that his fatigued physical and emotional
condition at the time of the confession made him more susceptible
to coercion. He argues that he was arrested late at night on
December 22, 1976. Thereafter, he was taken to a magistrate and
then taken to a holding cell in the early hours of December 23. He
claims that at noon on December 23, Shirley began the interview
that led to the confession.
Even assuming this sequence of events, there appears to have
been ample time for Muniz to rest before the interview started.
Moreover, there is nothing in the record to suggest that he
complained to the officers about his fatigue; that he requested
additional time to rest; or that the officers conditioned
additional rest time on receiving his confession. These facts,
taken together, do not suggest a coerced confession.
V.
Muniz avers that the prosecutor made improper closing
arguments. Specifically, he alleges that the prosecutor deprived
him of due process by disparaging his constitutional rights and by
improperly vouching for the evidence. Muniz failed to object to
the prosecutor's closing arguments at trial and did not raise the
9 issue on direct appeal in the state court or in his state habeas
proceedings.
A federal habeas court may not consider a state prisoner’s
claim if the state court based its rejection of that claim on an
independent and adequate state ground. See Martin v. Maxey,
98 F.3d 844, 847 (5th Cir. 1996). “In all cases in which a state
prisoner has defaulted his federal claims in state court pursuant
to an independent and adequate state procedural rule, federal
habeas review of the claims is barred unless the prisoner can
demonstrate cause for the default and actual prejudice as a result
of the alleged violation of federal law, or demonstrate that
failure to consider the claims will result in a fundamental
miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750
(1991). “This doctrine ensures that federal courts give proper
respect to state procedural rules.” Glover v. Cain, 128 F.3d 900,
902 (5th Cir. 1997) (citing Coleman, 501 U.S. at 750-51).
“[P]rocedural default does not bar consideration of a federal
claim on either direct or habeas review unless the state court
rendering a judgment in the case 'clearly and expressly' states
that its judgment rests on a state procedural bar.” Teague v.
Lane, 489 U.S. 288, 298-99 (1989) (plurality opinion) (quoting
Harris v. Reed, 489 U.S. 255, 263 (1989)). This method for
determining whether the “independence requirement” is met, however,
“assumes that a state court has had the opportunity to address a
10 claim that is later raised in a federal habeas proceeding. It is
simply inapplicable in a case such as this one, where the claim was
never presented to the state courts.” Id. at 299 (citation
omitted); accord Coleman, 501 U.S. at 735 n.*.10
The “adequacy” of a state procedural rule depends on whether
it is “strictly or regularly followed” by the state courts.
Johnson v. Mississippi, 486 U.S. 578, 587 (1988) (citations
omitted). We make our adequacy determination by looking at how the
state courts have applied the rule in a “vast majority of similar
claims.” Amos v. Scott, 61 F.3d 333, 339 (5th Cir.) (emphasis
omitted), cert. denied, 516 U.S. 1005 (1995).
1.
The Texas courts require a defendant to raise a
contemporaneous objection to a prosecutor’s improper closing
arguments. See TEX. R. APP. P. 52(a); Penry v. State, 903 S.W.2d
715, 760 (Tex. Crim. App.), cert. denied, 516 U.S. 977 (1995). The
rationale for the contemporaneous objection rule is that it
conserves judicial resources. A contemporaneous objection allows
the trial court to correct the error at the time it occurs, or to
grant a new trial.
We have previously held the contemporaneous objection
10 “[I]t is simply impossible to '[require] a state court to be explicit in its reliance on a procedural default,' where a claim raised on federal habeas has never been presented to the state courts at all. In such a context, federal courts quite properly look to, and apply, state procedural default rules in making the congressionally mandated determination whether adequate remedies are available in state court.” Harris, 489 U.S. at 270 (O’Connor, J., concurring) (quoting Harris, 489 U.S. at 264 (majority opinion)).
11 requirement to be an adequate state procedural rule; the Texas
appellate courts strictly and regularly enforce it, see, e.g.,
Sharp v. Johnson, 107 F.3d 282, 285 (5th Cir. 1997), in order to
give defendants the proper incentive to present their claims of
error in a forum in which they are most easily resolved.
Muniz made no objection to the prosecutor’s arguments at
trial. He suggests no reason why the state courts would choose not
to enforce the contemporaneous objection rule in his case had he
raised it on direct appeal. Therefore, we conclude that the rule
would foreclose the Texas courts’ direct review of Muniz’s closing
argument challenges.
2.
Texas law also requires habeas petitioners to present all of
their state habeas claims in their first petition. See TEX. CODE
CRIM. PROC. ANN. art. 11.071, § 5(a) (Vernon Supp. 1998). Absent
facts giving rise to one of the statutory exceptions, the Texas
Court of Criminal Appeals will not entertain a new issue in a
successive habeas petition. See Ex parte Davis, 947 S.W.2d 216,
221 (Tex. Crim. App. 1996).
Although Muniz filed his first state habeas action before
art. 11.071 became effective, the Court of Criminal Appeals
nonetheless has applied art. 11.071 to preclude the raising of new
issues in successive petitions when the claimant's original
petition was filed before the statute’s effective date. See id.
Recently, we held art. 11.071 to be an adequate state procedural
12 bar, finding that this rule is strictly and regularly enforced in
these circumstances by the Texas Court of Criminal Appeals. See
Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997).
Muniz failed to raise his complaints about the prosecutor’s
improper closing argument in his first state habeas petition. He
has made no showing that any of the statutory exceptions would
obtain in his case.11 He thus would be barred from raising these
issues under art. 11.071 in a successive petition for collateral
review in state court.
Muniz, therefore, would find his challenges to the
prosecutor’s closing argument barred from both direct and
collateral review in the state courts. As a result, we are also
barred from reviewing the claim unless Muniz can make the requisite
showing of cause and actual prejudice, or that a fundamental
miscarriage of justice12 would result from our failure to address
his federal claims. See Coleman, 501 U.S. at 750.
Muniz has not attempted to make a showing of cause and actual
prejudice, nor has he asserted actual innocence. Accordingly, his
challenges to the prosecutor’s closing argument are barred by the
11 The exceptions include the inability to raise the claim in the first petition because of facts unknown at the time, see TEX. CODE CRIM. PROC. ANN. art. 11.071, § 5(a)(1) (Vernon Supp. 1998), and a showing of actual innocence, see id. art. 11.071, § 5(a)(3). Muniz offers no showing on any of these prongs, nor does he argue that the Texas Court of Criminal Appeals would find an exception applicable to his case. 12 “In order to prove a fundamental miscarriage of justice, the prisoner must assert his actual innocence.” Glover, 128 F.3d at 904 (citation omitted).
13 doctrine of state procedural default.
VI.
Muniz contends that the trial court effectively prevented the
admission of mitigating evidence at the sentencing stage in
violation of the Eighth and Fourteenth Amendments. At the
sentencing phase, Muniz wanted to call Merrill Person to testify.
Person worked for the state court system and had gotten to know
Muniz during his first trial in 1977. She thereafter made visits
to him in prison and had contributed money to his prison account so
that he could purchase art supplies.
Person swears in an affidavit that she would have testified
that Muniz was remorseful. Such testimony would have rebutted the
prosecutor’s argument that defendant had shown no remorse for the
heinous crime. Accordingly, this testimony would have helped to
negate the state’s argument that Muniz was likely to commit crime
in the future.13
The well-settled rule is that the state may not prevent the
defendant from introducing any mitigating evidence at the capital
sentencing phase.14 Mitigating evidence is “'any aspect of a
13 The Texas capital sentencing scheme requires the jury to answer two questions affirmatively. First, it must find that “the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result.” TEX. CODE CRIM. PROC. art. 37.071, § 2(b)(1) (Vernon 1981). Second, it must find that “there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” Id. art. 37.071, § 2(b)(2). 14 See Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion); accord Eddings v. Oklahoma, 455 U.S. 104, 110 (1982); cf. Penry v. Lynaugh, 492 U.S. 302, (continued...)
14 defendant’s character or record and any of the circumstances of the
offense that the defendant proffers as a basis for a sentence less
than death.'” Eddings, 455 U.S. at 110 (quoting Lockett, 438 U.S.
at 604).
There is little dispute that Person’s testimony is mitigating
evidence falling within the scope of the Lockett rule. The
question, however, is whether there was any state action that
prevented the defense from calling Person to testify at the
sentencing hearing. We conclude that there was not.
The Texas Code of Judicial Conduct, as it read at the time of
the trial, provided that a “judge should not lend the prestige of
his or her office to advance the private interests of himself or
herself or others; nor should he or she convey or permit others to
convey the impression that they are in a special position to
influence him or her. A judge should not testify voluntarily in an
adjudicative proceeding as a character witness.”15 The code extends
this obligation to the members of the judge’s staff: “A judge
should require his or her staff and court officials subject to the
judge’s discretion and control to observe the standards of this
Code.”16
Person was a court official subject to the trial judge’s
(...continued) 319 (1989) (“The sentencer must also be able to consider and give effect to [mitigating] evidence in imposing sentence.”). 15 TEX. CODE JUD. CONDUCT Canon 2(B) (emphasis added), reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit.G app.B (Vernon 1988). 16 Id. Canon 3(B)(2).
15 discretion and control. Under the state conduct code, therefore,
it was entirely appropriate for the judge to advise Person that she
could not testify voluntarily for the defendant as a character
witness at sentencing. Consequently, to obtain Person’s testimony,
the defense would have had to issue a subpoena.
This requirement does not run afoul of the Eighth or
Fourteenth Amendment when applied at capital sentencing, for it is
designed to protect the institutional impartiality of the courts.
Were Person allowed to testify voluntarily, she may have signaled
to the jury that the court disfavored a death sentence for Muniz.
Her actions may have had an impact on a wider audience as well, for
the public may have viewed such an action as unfairly favoring one
of the litigants over the other.
Muniz responds that issuing a subpoena for Person’s testimony
would have been futile. He specifically points to testimony at the
recusal hearing for the trial judge. There, Muniz’s attorney
testified that he had seen the judge sternly telling Person in the
hallway that she was not to testify voluntarily. Muniz also points
to Person’s affidavit, in which she swears that she would not have
testified voluntarily and that she wished not to be subpoenaed,
because she believed it would upset the judge.
Although we sympathize with defense counsel’s dilemmaSSissuing
a subpoena and risk upsetting the witness and the court, or
foregoing the mitigating evidenceSSthere is an insufficient nexus
between what can properly be called state actionSSthe existence of
the Canon and the actions of the prosecutor and of the judgeSSand
16 the defense’s decision not to subpoena Person.17 At bottom,
defense counsel made a strategic decision to forego Person’s
testimony, and Muniz must now accept the consequences of that
choice.18
VII.
Muniz claims that the jury’s knowledge of his prior death
sentence amounts to a sentencing error of constitutional magnitude
and mandates our vacating his death sentence. We disagree.19
The only means by which the jury came to know of the prior
death sentence is that defense counsel elicited it. When
questioning a police officer at the 1986 sentencing phase, counsel
17 Cf. Callins v. Collins, 998 F.2d 269, 275 (5th Cir. 1993) (“It is well settled that no Penry claim can be asserted for evidence that could have been, but was not, introduced in the sentencing phase . . . .”). 18 The district court believed there to be an Eighth and Fourteenth Amendment violation here but held the error to be harmless. The court reasoned that but for judicial interventionSSthat is, the trial judge’s telling his employee, Person, that she could not testify voluntarilySSthe defense would have had an enthusiastic, credible witness at its disposal.
Because the judge did not actually prevent Person from testifying, however, we disagree. Judicial enforcement of the ethical code in these circumstances can operate within the bounds of the Lockett rule. As long as the judge leaves some reasonable avenue available to the defendant to introduce any and all mitigating evidence he wishes, the state and the trial judge can otherwise structure the means by which such mitigating evidence is introduced. 19 Alternatively, we find Muniz's arguments procedurally barred for the reasons mentioned above in part V. He failed to make a contemporaneous objection on these grounds, although Texas courts would require such an objection in this instance. See TEX. R. APP. P. 52(a); Norris v. State, 902 S.W.2d 428, 444-45 (Tex. Crim. App.), cert. denied, 516 U.S. 890 (1995). Thereafter, he failed to raise the issue to the state courts on direct appeal. Muniz also failed to raise this issue in his initial state collateral claim. He thus would find this claim barred in a subsequent state habeas action. See TEX. CODE CRIM. PROC. art. 11.071, § 5(a). He has not attempted to show cause and actual prejudiceSSor a fundamental miscarriage of justiceSSresulting from our refusal to reach the issue.
17 asked the officer if he knew whether Muniz had committed any crimes
since 1978; the officer stated that he did not know of any such
offenses. The defense obviously wanted to use this testimony to
negate the future-dangerousness prong of the Texas capital
punishment scheme.
When the prosecutor questioned the officer, he sought to
remedy the misperception that defense counsel had left in the minds
of the jurors. To do so, the prosecutor asked why the officer had
no knowledge of any of Muniz's post-1978 bad acts. The officer
said this was because Muniz was incarcerated at the time.
Later, defense counsel stated in his closing argument that
Muniz had not committed any crimes in the recent past. In
response, the prosecutor stated in closing that “there are no
nineteen-year-old girls walking across bridges at night on death
row in [the state prison].”
We do not find that this testimony “so infected” the
sentencing phase with unfairness that it rose to the level of a due
process violation. See Donnelly v. DeChristoforo, 416 U.S. 637,
643 (1974). The introduction of a prior death sentence is
allowable if it does not mislead the jury in its sentencing role.
See Romano v. Oklahoma, 512 U.S. 1, 9 (1994).
Although Romano dealt with the introduction of an unrelated
offense, rather than a retrial for the same offense, the rationale
of that case speaks broadly. Essentially, the Court held that once
the basic requirements of the Eighth and Fourteenth Amendments are
metSSthat is, narrowing the class of eligible defendants and an
18 individualized inquirySS“the States enjoy their traditional
latitude to prescribe the method by which those who commit murder
shall be punished.” Romano, 512 U.S. at 7 (quotation omitted).
The Court extended “this latitude” to “evidentiary rules at
sentencing proceedings.” Id.
Assuming that this testimony is admissible under the Texas
Constitution and rules of procedure, we find no federal
constitutional violation in its admission. After reviewing the
record, we believe that these comments were isolated enough that
they did not mislead the jury in its sentencing role or diminish
its sense of responsibility in considering the death penalty.
Therefore, we find this claim to be without merit.
VIII.
Muniz challenges the constitutionality of the introduction of
an unadjudicated, extraneous offense at the sentencing phase. The
introduction of such evidence at capital sentencing is
constitutional: “[W]e hold that the admission of unadjudicated
offenses in the sentencing phase of a capital trial does not
violate the eighth and fourteenth amendments.” Williams v.
Lynaugh, 814 F.2d 205, 208 (5th Cir. 1987); accord Callins, 998
F.2d at 276-77 (5th Cir. 1993). Accordingly, this claim is without
merit.20
20 The claim is also procedurally barred. Muniz was required to make a contemporaneous objection to the introduction of this evidence at sentencing. See TEX. R. APP. P. 52(a); Bell v. State, 938 S.W.2d 35, 44-45 (Tex. Crim. App. 1996), cert. denied, 118 S. Ct. 90 (1997). His failure to do so forfeited his (continued...)
19 IX.
Muniz challenges the constitutionality of the instruction that
the jury not consider the length of time before his parole
eligibility under a life sentence when determining whether to give
him life in prison or the death penalty. This claim is problematic
on a number of grounds.
Under the Texas death penalty statute, it is constitutional
to instruct the jury not to consider the length of time before a
capital defendant’s eligibility for parole if he receives a life
sentence.
[D]ue process requires the state to inform a sentencing jury about a defendant’s parole ineligibility when, and only when, (1) the state argues that a defendant represents a future danger to society, and (2) the defendant is legally ineligible for parole. [T]exas did not statutorily provide for parole ineligibility at the time of [the petitioner’s] conviction . . . .”
Allridge v. Scott, 41 F.3d 213, 222 (5th Cir. 1994) (emphasis in
original). In Allridge, we distinguished Simmons v. South
Carolina, 512 U.S. 154 (1994), upon which Muniz relies, because in
Simmons, state law made the petitioner legally ineligible for
parole, while Texas capital defendants, sentenced when Muniz was,
would be eligible for parole in thirty-five years if sentenced to
(...continued) right to review on direct appeal in state court (he never attempted to raise it on direct appeal in state court in any event), and his failure to raise this issue in his first state habeas claim forfeited his right to raise it in a subsequent state habeas action. See TEX. CODE CRIM. PROC. art. 11.071, § 5(a). Muniz has made no showing of cause and actual prejudiceSSor of a fundamental miscarriage of justiceSSfor us to overcome the default.
20 life imprisonment.21 Accordingly, the claim has no merit under the
law of our circuit.22
The rule Muniz would have us adopt also would constitute a
“new rule” in violation of Teague v. Lane, 489 U.S. at 299. Muniz
relies on Simmons v. South Carolina, 512 U.S. at 162 (plurality
opinion), in which the trial court prevented the jury from knowing
that a capital defendant was statutorily ineligible for parole with
a life sentence. The Supreme Court found this action
unconstitutional, because the death penalty statute relied on the
jury’s determination of the defendant’s future dangerousness. See
id.
Muniz seeks to apply (and expand) the Simmons rule to his
case. Even assuming, arguendo, that we did not foreclose this
extension of Simmons in Allridge, see Allridge, 41 F.3d at 222, the
Supreme Court has declared Simmons a “new rule” under Teague. See
O'Dell v. Netherland, 117 S. Ct. 1969, 1973-74 (1997). Because
Muniz’s conviction became final in 1993, see Muniz v. Texas,
510 U.S. 837 (1993), and Simmons was not decided until 1994, we
cannot apply this new rule to Muniz’s case unless one of the two
Teague exceptions attaches.
21 See TEX. CODE CRIM. PROC. art. 42.18, § 8(b)(2) (Vernon Supp. 1986). 22 But cf. Brown v. Texas, 118 S. Ct. 355, 355-57 (1997) (opinion of Stevens, J., respecting denial of petition for writ of certiorari) (suggesting that Texas's prohibition on informing juries of parole eligibility is in “obvious tension” with Simmons).
21 Teague provides that a new constitutional rule can apply
retroactively on federal collateral review only if the new rule
(1) puts “certain kinds of primary, private individual conduct
beyond the power of the criminal law-making to proscribe” or (2)
is a rule of procedure that is “implicit in the concept of ordered
liberty.” Teague, 489 U.S. at 307 (quotations omitted). This
second exception is “reserved for watershed rules of criminal
procedure.” Id. at 311.
By definition, the rule Muniz seeks does not fall within the
ambit of the first Teague exception. In O'Dell, the Court held
that the Simmons rule does not fit within the narrow, second Teague
exception. “Simmons possesses little of the 'watershed' character
envisioned by Teague's second exception.” O'Dell, 117 S. Ct.
at 1978. Thus, the Teague exceptions are inapplicable, and Muniz
is barred from seeking to have this new rule of constitutional law
applied retroactively to him.23
There being no merit to any of Muniz's claims, the judgment
is AFFIRMED, and the stay of execution is VACATED.
23 The state argues that this claim is procedurally defaulted. We need not reach the issue, however, because we find the claim Teague-barred. See Smith v. Black, 904 F.2d 950, 982 (5th Cir. 1990) (adopting a prudential rule that we decide Teague challenges before reaching those based on procedural default), vacated and remanded on other grounds, 503 U.S. 930 (1992).