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).
2 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 timely appealed to this court. Trevino asserts that
Judge McBryde abused his discretion in denying Trevino’s recusal
motion based on McBryde’s potential bias and prejudice against
Trevino’s attorney. Trevino also requests a COA to appeal
alleged errors in his state habeas proceeding and his underlying
state-court conviction. We address these issues in turn.
II. DISCUSSION
A. The Recusal Motion
Trevino first argues that Judge McBryde should have recused
himself from considering Trevino’s federal habeas petition due to
his attorney’s involvement in Fifth Circuit Judicial Council
proceedings relating to Judge McBryde. Brender had been
subpoenaed by a special investigatory committee of the Judicial
3 Council to testify regarding Judge McBryde. The special
investigatory committee held two evidentiary hearings relating to
the McBryde proceedings; one took place before Judge McBryde
ruled on Trevino’s recusal motion and the second occurred shortly
after his recusal ruling. Brender did not testify at the first
hearing, and, although the subpoena would have extended to the
second hearing, he did not testify at that hearing either.
After completion of the McBryde proceedings, the Fifth
Circuit Judicial Council issued an order (the Judicial Council
Order) reprimanding Judge McBryde. See In re: Matters Involving
United States District Judge John H. McBryde, Under the Judicial
Conduct and Disability Act of 1980, Nos. 95-05-372-0023 et al.
(Jud. Council 5th Cir. Dec. 31, 1997), aff’d, No. 98-372-001
(Jud. Conf. U.S. Sept. 21, 1998). One portion of that order
barred Judge McBryde from hearing any cases in which certain
attorneys who had testified in the Judicial Council proceedings
(Attachment A attorneys) were involved for a period of three
years. See Judicial Council Order at 2. Although Brender did
not actually testify in front of the special investigatory
committee, the Fifth Circuit Judicial Council included him on its
list of Attachment A attorneys. See id. at Attachment A. The
Judicial Conference of the United States affirmed the portion of
the Fifth Circuit Judicial Council order relating to this ban,
finding “plenty of evidence in the record to support the judicial
council’s implicit conclusion that there was a significant risk
4 that Judge McBryde might attempt to retaliate in some fashion
against witnesses who had testified against him, or at least that
witnesses reasonably perceived such risk.” In re: Complaints of
Judicial Misconduct or Disability, No. 98-372-001, at 24 (Jud.
Conf. U.S. Sept. 21, 1998).
The Judicial Council Order did not affect Judge McBryde’s
power to adjudicate Trevino’s case directly because the portion
of the Judicial Council Order barring Judge McBryde from hearing
cases involving Attachment A attorneys did not go into effect
until February 9, 1998, after Judge McBryde had already denied
Trevino’s habeas petition and his COA application. Trevino
argues, however, that a reasonable person would question Judge
McBryde’s impartiality in deciding his habeas petition, and that
the judge therefore abused his discretion in denying the recusal
motion brought under 28 U.S.C. § 455(a). Before we can evaluate
the merits of this issue we must address the respondent’s
contention that we lack jurisdiction to consider issues unrelated
to a habeas petitioner’s underlying state-court conviction.
Trevino filed his habeas petition in the federal district
court in June 1997; therefore, the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA) applies to his case. See Green
v. Johnson, 116 F.3d 1115, 1119-20 (5th Cir. 1997). Under AEDPA,
“[u]nless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals
from . . . the final order in a habeas corpus proceeding in which
5 the detention complained of arises out of process issued by a
State court.” 28 U.S.C. § 2253(c)(1)(A). A COA can only issue
if a habeas petitioner makes a “substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A
‘substantial showing’ requires the applicant to ‘demonstrate that
the issues are debatable among jurists of reason; that a court
could resolve the issues (in a different manner); or that the
questions are adequate to deserve encouragement to proceed
further.’” Drinkard v. Johnson, 97 F.3d 751, 755 (5th Cir. 1996)
(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)),
cert. denied, 117 S. Ct. 1114 (1997). The COA requirement is
jurisdictional in nature--before an appellate court can address
the merits of an order denying federal habeas relief, the court
(or the federal district court) must grant a COA. See Whitehead
v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998) (stating that
AEDPA’s COA requirement is jurisdictional); Carter v. Johnson,
131 F.3d 452, 457 n.3 (5th Cir. 1997) (stating that AEDPA
“imposed a jurisdictional prerequisite on appeal from a final
order in a federal habeas proceeding, prohibiting the appeal
unless a circuit justice or judge issues a ‘certificate of
appealability’”), cert. denied, 118 S. Ct. 1567 (1998). The
district court denied Trevino a COA to appeal his denial of
habeas relief on November 12, 1997. Therefore, the respondent
argues, unless we find that Trevino has made a substantial
6 showing of the denial of a constitutional right in connection
with his state-court conviction, we lack jurisdiction to consider
issues relating to the district court’s adjudication of Trevino’s
federal habeas petition.
There is some force to this argument. The AEDPA language
does preclude an appeal from a district court’s order denying
habeas relief until either the district court or the court of
appeals grants a COA. We assume arguendo, without deciding, that
a court can only issue a COA upon a finding that the applicant
has made a substantial showing of the denial of a constitutional
right with respect to his underlying state-court conviction.
Therefore, the reasoning goes, because Trevino’s contention that
Judge McBryde abused his discretion in failing to stand recused
is unrelated to his underlying state-court conviction, we lack
jurisdiction to consider the issue.
However, we find that we have jurisdiction to consider
whether Judge McBryde abused his discretion in denying Trevino’s
recusal motion. Trevino’s arguments regarding the recusal motion
are not addressed to the merits of Judge McBryde’s order denying
his habeas petition. Rather, he argues that Judge McBryde lacked
the authority to deny habeas relief because the judge should have
recused himself and that the order denying habeas relief must
therefore be vacated. While we lack jurisdiction to consider the
merits of a district court order denying habeas relief without
issuing a COA, we do have jurisdiction to consider whether a
7 district court judge properly declined to stand recused and
therefore had the authority to deny a habeas petition. We are
guided to this conclusion by our reasoning in Tramonte v.
Chrysler Corp., 136 F.3d 1025 (5th Cir. 1998), where we
considered whether we had jurisdiction to determine whether a
district court judge abused her discretion in denying a recusal
motion before she remanded the case to state court. Our
jurisdiction was limited in that case by 28 U.S.C. § 1447(d),
which provides that “[a]n order remanding a case to the State
court from which it was removed is not reviewable on appeal or
otherwise.” See Tramonte, 136 F.3d at 1027. We found that even
though the district court’s actual order remanding the matter to
state court was unreviewable, we could adjudicate whether the
district court abused its discretion in denying the recusal
motion. See id. at 1027-28. We noted that once a judge recuses
herself, that judge must take no further action save for
transferring the matter to a different federal judge, and that if
the district court judge should have recused herself, any orders
entered after disposing of the recusal motion should be vacated.
See id. at 1028. Therefore, our review of the recusal issue
would not constitute a review of the remand order, a review
prohibited by statute. See id. Instead, “we would be performing
an essentially ministerial task of vacating an order that the
district court had no authority to enter into for reasons
unrelated to the order of remand itself.” Id. Thus, we
8 concluded that we had jurisdiction over the appeal, and we
proceeded to analyze whether the district court judge should have
recused herself. See id.
We similarly find that we have jurisdiction to consider
whether Judge McBryde abused his discretion in denying Trevino’s
recusal motion in this case. As in Tramonte, if Judge McBryde
erred in refusing to stand recused, we must vacate any orders he
entered after denying the recusal motion. See United States v.
Anderson, 160 F.3d 231, 234-35 (5th Cir. 1998) (vacating sentence
after determining that Judge McBryde abused his discretion in
denying a recusal motion); United States v. Avilez-Reyes, 160
F.3d 258, 259-60 (5th Cir. 1998) (same); Tramonte, 136 F.3d at
1028 (“Thus, if Judge Lemmon should have recused herself, any
orders she entered following disposition of the recusal motion
should be vacated.”). Our consideration of whether to vacate the
district court’s order denying habeas relief would therefore not
constitute an appeal of the merits of that order, a review
prohibited by AEDPA in the absence of the issuance of a COA.
Instead, as in Tramonte, we are determining whether we must
vacate an order that Judge McBryde may have had no authority to
enter.
Our conclusion that we have jurisdiction to consider whether
Judge McBryde abused his discretion in denying Trevino’s recusal
motion comports with the case law of several other circuits, in
which courts of appeals have considered whether a district court
9 judge should have recused himself or herself before denying
habeas relief without determining that the applicant had made a
jurisdictional showing. See Russell v. Lane, 890 F.2d 947, 947
(7th Cir. 1989) (finding jurisdiction to consider whether a
district court abused its discretion in denying a recusal motion
before it denied habeas relief, despite the fact that the issue
was unrelated to the applicant’s underlying state-court
conviction, because “federal procedural law governing recusal
entitles [the petitioner] to have his habeas corpus petition
heard by a[n unbiased] judge”); Taylor v. Campbell, 831 F.2d 297,
No. 87-5678, 1987 WL 38693, at *2 (6th Cir. Oct. 13, 1987)
(unpublished opinion) (vacating a district court’s denial of
habeas petition based on violation of recusal statute without
granting a certificate of probable cause, the pre-AEDPA
equivalent of a COA); Rice v. McKenzie, 581 F.2d 1114, 1118 (4th
Cir. 1978) (vacating a district court’s denial of a habeas
petition brought by a state prisoner because district court
abused its discretion in denying recusal motion). We therefore
proceed to evaluate Trevino’s claim that Judge McBryde should
have recused himself.
Trevino brought his recusal motion under 28 U.S.C. § 455(a),
which states that “[a]ny . . . judge . . . shall disqualify
himself in any proceeding in which his impartiality might
reasonably be questioned.” This recusal standard is objective;
the relevant inquiry is whether a “reasonable man, were he to
10 know all the circumstances, would harbor doubts about the judge’s
impartiality.” Health Servs. Acquisition Corp. v. Liljeberg, 796
F.2d 796, 800 (5th Cir. 1986) (internal quotation marks omitted),
aff’d, 486 U.S. 847 (1988); see Air Line Pilots Ass’n, Int’l v.
Continental Airlines, Inc. (In re Continental Airlines Corp.),
901 F.2d 1259, 1262 (5th Cir. 1990); In re Faulkner, 856 F.2d
716, 720-21 (5th Cir. 1988). We review a district court judge’s
decision not to recuse himself for abuse of discretion. See
United States v. Mizell, 88 F.3d 288, 299 (5th Cir.) (reviewing a
district court’s denial of a recusal motion for an abuse of
discretion), cert. denied, 117 S. Ct. 620 (1996); In re City of
Houston, 745 F.2d 925, 927 (5th Cir. 1984) (“The issue of
judicial disqualification is solely one of law. It is a
sensitive question of assessing all of the facts and
circumstances in order to determine whether the failure to
disqualify was an abuse of sound judicial discretion.”) (citation
omitted) (internal quotation marks omitted).
On the facts of this case we hold that Judge McBryde did not
abuse his discretion by failing to recuse himself from Trevino’s
case. At oral argument, Trevino’s counsel analogized this case
to two recently decided cases where we held that Judge McBryde
abused his discretion by failing to recuse himself under § 455(a)
because of participation by counsel in Fifth Circuit Judicial
Council proceedings. See Anderson, 160 F.3d at 234-35; Avilez-
Reyes, 160 F.3d at 259-60. In each case, we emphasized that, at
11 the time Judge McBryde ruled on the recusal motion, he was aware
that the defendant’s attorney had already testified against him.
See Anderson, 160 F.3d at 233 (“The average person when viewing
this specific situation, would question Judge McBryde’s ability
to be impartial in a case involving an attorney who has testified
adversely against Judge McBryde in a Judicial Council
proceeding.”); Avilez-Reyes, 160 F.3d at 259 (finding that
defendant’s case “became infected with the appearance of
impropriety once Stickney, [the defendant’s] attorney, testified
against Judge McBryde in the Fifth Circuit Judicial Council
proceedings” a month before the recusal motion was brought). In
contrast to Anderson and Avilez-Reyes, Brender never actually
testified in either of the evidentiary hearings relating to Judge
McBryde held by the special investigating committee of the Fifth
Circuit Judicial Council. In fact, the record is devoid of any
evidence as to what Brender would have said had he been called to
testify.1
1 Brender argues that he was prohibited from creating a record relating to his participation in the Judicial Council proceedings because of the confidentiality requirements of 28 U.S.C. § 372(c)(14). Under that provision, “all papers, documents, and records of [the Judicial Council] proceedings . . . shall be confidential and shall not be disclosed by any person in any proceeding.” Id. However, Brender apparently made no effort to comply with the exception found in § 372(c)(14)(C), under which such records can be disclosed if “such disclosure is authorized in writing by the judge or magistrate who is the subject of the complaint and by the chief judge of the circuit, the Chief Justice, or the chairman of the standing committee.” Without a record, or even a proffer, concerning Brender’s role in the Judicial Council proceedings, we are left only to speculate
12 Unlike the situations in Anderson and Avilez-Reyes, we are
convinced that a reasonable person, knowing all of the
circumstances of this case, would not harbor doubts about Judge
McBryde’s impartiality. We are mindful that the reasonable
person standard in the recusal context contemplates a “well-
informed, thoughtful and objective observer, rather than the
hypersensitive, cynical, and suspicious person.” United States
v. Jordan, 49 F.3d 152, 156 (5th Cir. 1995) (citing In re Mason,
916 F.2d 384, 386 (7th Cir. 1990)).
A showing of potential bias by a judge against a party’s
attorney does not generally suffice to require a judge to
disqualify himself or herself under § 455(a). Rather, the
general rule, adopted in this and several other circuits, is that
“an appellate court, in passing on questions of
disqualification[,] . . . should determine the disqualification
on the basis of conduct which shows bias or prejudice or lack of
impartiality by focusing on a party rather than counsel.” Davis
v. Board of Sch. Comm’rs, 517 F.2d 1044, 1052 (5th Cir. 1975);
see FTC v. Amy Travel Serv., Inc., 875 F.2d 564, 576 n.13 (7th
Cir. 1989) (“Friction between court and counsel does not
constitute bias.”); In re Cooper, 821 F.2d 833, 838 (1st Cir.
1987); Gilbert v. City of Little Rock, 722 F.2d 1390, 1399 (8th
Cir. 1983); United States v. Sibla, 624 F.2d 864, 869 (9th Cir.
as to the content of his proposed testimony.
13 1980). Bias against a party’s attorney does not require
disqualification unless “it can also be shown that such a
controversy would demonstrate a bias for or against the party
itself.” Henderson v. Department of Pub. Safety & Corrections,
901 F.2d 1288, 1296 (5th Cir. 1990) (citing Davis); see also In
re Cooper, 821 F.2d at 839 (“It is true that occasionally
exceptional circumstances do arise where a judge’s attitude
toward a particular attorney is so hostile that the judge’s
impartiality toward the client may reasonably be questioned.”);
In re Beard, 811 F.2d 818, 830 (4th Cir. 1987) (“Bias against an
attorney is not enough to require disqualification under § 455
unless petitioners can show that such a controversy would
demonstrate a bias against the party itself.”). Trevino does not
allege any circumstances suggesting that a reasonable person
would harbor doubts about Judge McBryde’s impartiality toward
him; his only argument is based on the relationship between Judge
McBryde and Brender. We find that a reasonable, well-informed
observer would not harbor doubt about Judge McBryde’s
impartiality in adjudicating Trevino’s habeas claim, where any
potential bias would have been directed against Trevino’s
attorney and there is no suggestion of bias directed at Trevino
himself.2
2 We did note in Davis that bias against a party’s attorney could provide grounds for recusal if the bias was of a “continuing and ‘personal’ nature over and above mere bias because of [the attorney’s] conduct.” 517 F.2d at 1051; see
14 B. The State Habeas Corpus Proceeding Claim
Trevino next claims that he is entitled to a COA to appeal
the district court’s denial of his habeas claim relating to his
state habeas proceeding. Specifically, Trevino argues that he
was denied due process in his state habeas proceeding because the
state habeas court adopted the district attorney’s proposed
findings of fact and conclusions of law only three hours after
they were filed with the court.
We cannot grant Trevino a COA on this issue. Our circuit
precedent makes clear that Trevino’s “claim fails because
infirmities in state habeas proceedings do not constitute grounds
for relief in federal court.” Hallmark v. Johnson, 118 F.3d
1073, 1080 (5th Cir.), cert. denied, Johnson v. Monroe, 118 S.
Ct. 576 (1997); see Nichols v. Scott, 69 F.3d 1255, 1275 (5th
Henderson, 901 F.2d at 1296 (citing Davis); In re Beard, 811 F.2d at 830 (citing Davis). In explaining this exception in Davis, we stated that:
[T]here could be a case where the cause of the controversy with the lawyer would demonstrate bias of such a nature as to amount to a bias against a group of which the party was a member--e.g., all Negroes, Jews, Germans, or Baptists. This then would be bias of a continuing and ‘personal’ nature over and above mere bias against a lawyer because of his conduct.
517 F.2d at 1051. Trevino has not alleged that any potential bias against Brender was of a “continuing and personal nature” that would justify a finding of constructive bias against him. In addition, there is no suggestion in the record that the source of the bias against Brender, i.e., his potential testimony in the Judicial Council proceedings, would demonstrate a bias against a group of which Trevino was a part. We therefore decline to apply this exception on the facts of this case.
15 Cir. 1995) (“An attack on a state habeas proceeding does not
entitle the petitioner to habeas relief in respect to his
conviction, as it is an attack on a proceeding collateral to the
detention and not the detention itself.”) (internal quotation
marks omitted); Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th
Cir. 1992) (same); Millard v. Lynaugh, 810 F.2d 1403, 1410 (5th
Cir. 1987) (same); Vail v. Procunier, 747 F.2d 277, 277 (5th Cir.
1984) (denying petitioner a certificate of probable cause because
“[i]nfirmities in state habeas corpus proceedings do not
constitute grounds for federal habeas relief”). Other circuits
have similarly decided that habeas corpus relief is not available
to correct alleged errors in state habeas proceedings. See,
e.g., Jolly v. Gammon, 28 F.3d 51, 54 (8th Cir. 1994); Franzen v.
Brinkman, 877 F.2d 26, 26 (9th Cir. 1989); Bryant v. Maryland,
848 F.2d 492, 493 (4th Cir. 1988); Spradley v. Dugger, 825 F.2d
1566, 1568 (11th Cir. 1987); Kirby v. Dutton, 794 F.2d 245, 247
(6th Cir. 1986). But see Dickerson v. Walsh, 750 F.2d 150, 153
(1st Cir. 1984) (allowing a federal habeas claim relating to a
state court habeas proceeding).
The Eighth Circuit has specifically considered and rejected
the issue that Trevino raises for appeal. See Jolly, 28 F.3d at
54. In that case, the petitioner claimed that he was deprived of
due process when the state habeas court adopted the state’s
proposed findings of fact and law verbatim. See id. The Eighth
Circuit found that the petitioner could not raise that claim in
16 federal court on his § 2254 petition because it did not raise an
error of a “constitutional magnitude” and was collateral to the
petitioner’s detention and not a constitutional challenge of the
detention itself. Id. Trevino’s claim, in which he alleges
errors in his state habeas proceedings, must similarly fail. We
therefore decline to issue Trevino a COA on this issue.
C. The Underlying State-Court Conviction Claims
Finally, Trevino presents four issues for review related to
the punishment phase of his state trial--first, that the jury
instruction was deficient; second, that the state court erred by
refusing to allow Trevino to ask jurors about their ability to
consider youth as a potentially mitigating factor; third, that
the state failed to disclose certain documents; and fourth, that
the state court erred in finding a document inadmissible.3
Trevino’s petition for habeas relief in the state trial
court raised each of these issues. On each issue, the state
trial court entered findings of fact and conclusions of law,
recommending to the Court of Criminal Appeals that it should deny
relief. The Court of Criminal Appeals denied relief, explicitly
basing its decision on the findings of the trial court. This
3 At the end of his brief, Trevino lists 11 additional, undeveloped arguments relating to his state-court conviction. Because they are inadequately argued, we consider these issues waived. See Royal v. Tombone, 141 F.3d 596, 599 n.3 (5th Cir. 1998) (stating that a petitioner waived inadequately briefed issues in his appeal of the denial of his habeas petition); Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994) (stating that a party who inadequately briefs an issue waives the claim).
17 explicit denial of relief by the Texas Court of Criminal Appeals
of Trevino’s claims qualifies as an “adjudication on the merits”
entitled to deference under AEDPA. See Davis v. Johnson, 158
F.3d 806, 812 (5th Cir. 1998); Drinkard, 97 F.3d at 768 (finding
“no question” that a claim was adjudicated on the merits in state
court proceedings where state trial court entered explicit
findings later adopted by the Texas Court of Criminal Appeals in
denying relief); cf. Green v. Johnson, 116 F.3d 1115, 1120-21
(5th Cir. 1997) (stating that the question of whether a state-
court adjudication was a “resolution on the merits,” the pre-
AEDPA equivalent of an “adjudication on the merits,” turns solely
on whether the state court’s disposition was substantive or
procedural, and does not depend on the “quality of a court’s
review of claims”).
Under the AEDPA deference scheme, pure questions of law and
mixed questions of law and fact are reviewed under § 2254(d)(1),
and questions of fact are reviewed under § 2254(d)(2). See
Corwin v. Johnson, 150 F.3d 467, 471 (5th Cir. 1998); Drinkard,
97 F.3d at 767-68. When reviewing a purely legal question, we
must defer to the state court unless its decision rested on a
legal determination that was contrary to clearly established
federal law as determined by the Supreme Court. See Lockhart v.
Johnson, 104 F.3d 54, 57 (5th Cir.), cert. denied, 117 S. Ct.
2518 (1997); Drinkard, 97 F.3d at 768. Additionally, a federal
court “will not disturb a state court’s application of law to
18 facts unless the state court’s conclusions involved an
‘unreasonable application’ of clearly established federal law as
determined by the Supreme Court.” Davis, 158 F.3d at 812
(quoting 28 U.S.C. § 2254(d)(1)); see Lockhart, 104 F.3d at 57.
An application of federal law is unreasonable only “when it can
be said that reasonable jurists considering the question would be
of one view that the state court ruling was incorrect.”
Drinkard, 97 F.3d at 769; see Davis, 158 F.3d at 812; Corwin, 150
F.3d at 471-72. State factual findings are presumed to be
correct unless rebutted by clear and convincing evidence. See
Davis, 158 F.3d at 812; Jackson v. Johnson, 150 F.3d 520, 524
(5th Cir. 1998).
With this deference standard in mind, we consider whether
Trevino has raised a substantial showing of the denial of a
constitutional right with respect to his underlying state-court
conviction.
1. Punishment Phase Jury Instructions
Trevino argues that the trial court erred in refusing his
request to instruct the punishment-phase jury that it could
consider his “social history and background,” age, immaturity, or
any other “extenuating circumstances” in determining his
appropriate sentence. Trevino also claims that the jury
instructions improperly precluded the jury from considering
mitigating factors in determining the proper punishment.
Specifically, Trevino objects to a portion of the jury
19 instruction, which read, “During your deliberations, you shall
not consider or discuss what the effect of your answer to the
above issues may be.”
The Texas Court of Criminal Appeals found that this claim
had no merit, adopting the trial court’s finding that the
punishment phase jury instruction did not prevent the jury from
giving effect to any potentially mitigating testimony. The court
found that the trial judge specifically told the jury before the
punishment-phase deliberations: “You are instructed in answering
the issues submitted to you, you may take into consideration all
of the facts shown by the evidence admitted before you in the
full trial of this case.” The state habeas court reasoned that
this instruction, together with the jury instruction taken as a
whole, allowed the jury to consider any evidence admitted in the
trial--including any evidence concerning Trevino’s age, his
social history and background, his immaturity, or any other
extenuating circumstances. In addition, the court noted that the
instruction given to the jury in this case was similar to the
instruction upheld by the Supreme Court in Johnson v. Texas, 509
U.S. 350, 368 (1993); in each, the jury was explicitly told it
could take into consideration any evidence admitted in the trial.
The state court concluded that the jury instruction did not
prevent consideration of any mitigating factors in fashioning an
appropriate sentence, and that the jury instructions were
therefore not deficient.
20 We find that Trevino has not made a substantial showing of
the denial of a constitutional right on this issue. The relevant
question, as the Texas Court of Criminal Appeals noted, is
“‘whether there is a reasonable likelihood that the jury has
applied the challenged instruction in a way that prevents the
consideration of constitutionally relevant evidence.’” Johnson,
509 U.S. at 367-68 (quoting Boyde v. California, 494 U.S. 370,
380 (1990)). The state court’s conclusion that, given the trial
court’s explicit instruction to consider all evidence in
determining the proper sentence and the instruction taken as a
whole, there was no reasonable likelihood that the jury was
foreclosed from considering any mitigating evidence is not
contrary to, or an unreasonable application of, clearly
established federal law as determined by the Supreme Court. See
Green v. Johnson, 160 F.3d 1029, 1043-44 (5th Cir. Nov. 11, 1998)
(denying certificate of probable cause to applicant seeking to
appeal district court’s denial of habeas relief on jury
instruction issue because applicant did not demonstrate any
likelihood that jury was prevented from considering mitigating
evidence during punishment-phase sentencing); Tucker v. Johnson,
115 F.3d 276, 281-82 (5th Cir. 1997) (denying certificate of
probable cause on jury instruction issue because jury was not
foreclosed from considering mitigating evidence). We therefore
decline to issue Trevino a COA on this issue.
2. Voir Dire Questioning
21 Trevino next argues that the trial court erred in refusing
to allow him to inquire during voir dire whether three
prospective jurors were able to consider youth as a potentially
mitigating factor. Trevino contends that youth is a “relevant
mitigating factor of great weight,” Eddings v. Oklahoma, 455 U.S.
104, 116 (1982), and that under Morgan v. Illinois, 504 U.S. 719
(1992), the trial court’s refusal to allow him to question the
jurors regarding youth violated his due process rights.
The Texas Court of Criminal Appeals found no merit to this
contention for three principal reasons. First, it noted that it
had already considered and rejected this argument on Trevino’s
direct appeal, where it had found that Trevino’s attempt to
question the venirepersons amounted to an attempt to bind the
jurors to consider youth as a mitigating factor without informing
them of the applicable law. Second, the state court found that,
in fact, the trial court had allowed Trevino to inquire whether
these venirepersons could consider youth as a mitigating factor.
Third, the Texas Court of Criminal Appeals found that Morgan v.
Illinois only required a court to allow inquiry during voir dire
regarding whether jurors would, as a matter of course, impose the
death penalty after finding a defendant guilty of a capital
crime, and did not require inquiry into whether possible jurors
could consider individual extenuating circumstances to be
mitigating.
22 We find that Trevino does not raise a substantial showing of
a constitutional right with regard to this issue. To begin with,
Trevino has not presented any evidence that suggests that he was
not able to inquire whether each venireperson at issue would
consider youth to be a mitigating factor. Even if Trevino were
to contend that he was not allowed sufficient voir dire regarding
potential jurors’ views on youth as a mitigating factor, the
state habeas court’s application of Morgan v. Illinois was not
unreasonable. This circuit has previously stated that Morgan
only “involves the narrow question of whether, in a capital case,
jurors must be asked whether they would automatically impose the
death penalty upon conviction of the defendant.” United States
v. Greer, 968 F.2d 433, 437 n.7 (5th Cir. 1992) (internal
quotation marks omitted); see also United States v. McVeigh, 153
F.3d 1166, 1208 (10th Cir. 1998) (“[W]e have held that Morgan
does not require a court to allow questions regarding how a juror
would vote during the penalty phase if presented with specific
mitigating factors. Other courts have issued similar rulings,
holding that Morgan does not require questioning about specific
mitigating or aggravating factors.”) (citation omitted); United
States v. McCullah, 76 F.3d 1087, 1113 (10th Cir. 1996) (finding
that Morgan only requires questioning during voir dire regarding
whether jurors would automatically impose the death penalty, and
it does not require specific questioning regarding mitigating
factors), cert. denied, 117 S. Ct. 1699 (1997); United States v.
23 Tipton, 90 F.3d 861, 879 (4th Cir. 1996) (finding it was not an
abuse of the trial court’s discretion to refuse to allow detailed
questioning during voir dire concerning specific mitigating
factors), cert. denied, 117 S. Ct. 2414 (1997), and cert. denied,
117 S. Ct. 2414 (1997), and cert. denied, 117 S. Ct. 2414 (1997).
After applying the AEDPA-mandated standard of review to these
state-court findings and conclusions, we cannot say that Trevino
has made a substantial showing of the denial of a constitutional
right on this issue. We therefore decline to issue Trevino a COA
on this issue.
3. Failure to Disclose Documents
In his third claim relating to his underlying state-court
conviction, Trevino argues that the State of Texas suppressed
records material to the punishment phase of the trial in
violation of Brady v. Maryland, 373 U.S. 83 (1963).
Specifically, Trevino maintains that the state refused to
disclose material records regarding Trevino’s upbringing in the
possession of the Harris County Independent School District,
Child Protective Services, and the Texas Youth Council.
The Texas Court of Criminal Appeals rejected Trevino’s Brady
contention on the basis of specific findings. First, the court
found that Trevino either had possession of the allegedly
suppressed records or that he could have obtained them through
24 the exercise of reasonable diligence.4 Second, the court found
that the allegedly suppressed records were not material.5
4 Specifically, the state habeas court in part found:
9. Each of the records that [Trevino] contends were suppressed are records which were and are readily accessible to [Trevino].
. . . .
25. The essence of [Trevino’s] complaint is that the State has suppressed his own records. However, educational records, medical records, juvenile records, TYC records, and prison records, are readily available to [Trevino] and, hence, are [Trevino’s] records.
28. Hence, all of this information was fully available to [Trevino] and could be obtained through reasonable diligence.
38. The documents which [Trevino] claims were suppressed were readily available to him through reasonable diligence, and not so readily available to the State.
45. All of the purportedly suppressed information was readily available to [Trevino] and his attorneys, with [Trevino’s] consent.Hence, all of this information was fully available to [Trevino] and could be obtained through reasonable diligence. 5 The state habeas court adopted specific findings on this issue as well, including:
54. The documents which [Trevino] claims were suppressed were not “favorable” to him.
58. The evidence which [Trevino] now claims would have
25 Therefore, the court found that Trevino was not entitled to
relief under Brady.
Trevino is not entitled to a COA on this issue because he
cannot overcome the deference we must afford these state-court
findings under AEDPA. To prevail on a Brady claim, Trevino must
show that the evidence was suppressed by the prosecution; that
the evidence was favorable to the defense; and that the evidence
was material. Brady, 373 U.S. at 87. Whether documents must be
produced and whether they are material under Brady is a mixed
question of law and fact. See Brown v. Cain, 104 F.3d 744, 750
(5th Cir.), cert. denied, 117 S. Ct. 1489 (1997); Kennedy, 54
F.3d at 682. Given this standard, we cannot say that the state
habeas court’s application of Brady was unreasonable. Trevino
has made no attempt to rebut the presumption of correctness we
been mitigating does not “tend to justify, excuse, or clear” [Trevino] of the charge of capital murder. 59. The trial record shows that the supposedly suppressed documents are cumulative and, in some instances, out-of-date or incorrect.
74. Based upon the cumulative nature of the supposedly suppressed evidence, there would be no probability sufficient to undermine the confidence in the outcome of the proceeding. Simply stated, additional background mitigation evidence, even if provided by way of expert testimony, or evidence of intoxication at the time of the offense would not have caused the jury to respond differently to the punishment issues submitted.The trial record shows that the supposedly suppressed documents are cumulative and, in some instances, out-of-date or incorrect.
26 must afford the state court’s findings that Trevino could have
obtained all of the information at issue with reasonable
diligence and that the records were not material. The state
court’s conclusion that the prosecution had no Brady obligation
to produce these records for Trevino is therefore not an
unreasonable application of clearly established federal law. See
Lucas v. Johnson, 132 F.3d 1069, 1082 (5th Cir. 1998) (denying
habeas relief on Brady issue because petitioner presented no
“convincing evidence that casts doubt on the state court’s
factual findings”); Brown, 104 F.3d at 749 (finding no Brady
violation where habeas applicant presented no evidence rebutting
state habeas court’s finding that relevant evidence was not
exculpatory). We find that Trevino has not made a substantial
showing of the denial of a constitutional right on this issue,
and we therefore deny Trevino’s request for a COA.
4. Evidentiary Issues
Trevino’s last claim relating to his underlying state-court
conviction challenges an evidentiary ruling of the state trial
court. During the punishment phase of his trial, the court ruled
that a report that Trevino’s counsel attempted to introduce was
inadmissible hearsay. Trevino claims that the report, prepared
by an educational psychologist who had examined him, found that
he had “limited judgment and possible impulsivity,” issues he
claims could have been considered in the punishment phase of his
trial.
27 Trevino does not argue that the trial court’s evidentiary
ruling deprived him of a constitutional right; his argument to
this court is simply that the trial court’s ruling incorrectly
excluded evidence relevant to the punishment phase of his trial.
The Texas Court of Criminal Appeals denied this claim, finding
that any error by the trial court in its evidentiary ruling was
subject to harmless-error review and that because Trevino had not
alleged that the ruling had an injurious effect on his sentence,
he was not entitled to habeas relief.
"[I]t is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions."
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). A petitioner is
not entitled to federal habeas relief due to trial error unless
“‘the error had substantial and injurious effect or influence in
determining the jury’s [sentence].’” Corwin, 150 F.3d at 476
(quoting Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993))
(further internal quotation marks omitted). Trevino has not
presented any evidence to rebut the state habeas court’s finding
that he failed to allege that the evidentiary ruling had an
injurious effect on his sentence. Indeed, he only argues to this
court that the report was “relevant.” The state habeas court’s
conclusion that he was not entitled to habeas relief is therefore
not an unreasonable application of federal law as determined by
the Supreme Court, and we decline to grant Trevino a COA on this
issue. See id. at 476-77 (denying petitioner a COA on
28 evidentiary issue because admission “did not have a substantial
and injurious effect or influence in determining the jury’s
verdict”) (internal quotation marks omitted).
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
decision not to recuse and we DENY Trevino’s request for a COA on
all other issues.
29 DeMoss, Circuit Judge, dissenting:
I respectfully dissent. I would not reach the merits of
Trevino’s petition because Judge McBryde should have recused
himself from its original consideration.
The prior decisions of this Court in United States v.
Anderson, 160 F.3d 231 (5th Cir. 1998), and United States v.
Avilez-Reyes, 160 F.3d 258 (5th Cir. 1998), control the result in
this case. Applying 28 U.S.C. § 455(a) to the question of
whether Judge McBryde should have recused himself from a
sentencing hearing in which the defendant was represented by an
Assistant Federal Public Defender who had testified against Judge
McBryde before the special investigatory committee of the
Judicial Council, we concluded that a reasonable person, when
apprised of the relevant circumstances that surround this case,
“would harbor doubts about Judge McBryde’s impartiality.”
Anderson, 160 F.3d at 233; see also Avilez-Reyes, 160 F.3d at
259. The considerations relied upon in Anderson included the
fact that many attorneys are reluctant to file complaints against
judges or testify against them for fear of retaliation, as well
as the fact that the Judicial Council itself saw fit to order
Judge McBryde not to participate in cases involving the
30 testifying attorneys for a period of three years. See Anderson,
160 F.3d at 233-34. Given that the aim of § 455 is to avoid even
the appearance of impropriety, see Liljeberg v. Health Servs.
Acquisition Corp., 486 U.S. 847, 860, 108 S. Ct. 2194, 2203
(1988), we concluded that Judge McBryde abused his discretion in
failing to recuse.
The logic of these precedents should control the present
case. We must consider the facts and determine whether a
reasonable person who is aware of all of the relevant
circumstances would doubt Judge McBryde’s impartiality. Such a
reasonable person would know that Judge McBryde faced charges of
misconduct which specifically related, in part, to his treatment
of lawyers appearing in his court. See In re Complaints of
Judicial Misconduct or Disability (McBryde), No. 98-372-001,
manuscript op. at 2 (Jud. Conf. U.S. Sept. 21, 1998). Such a
reasonable person would know that an investigation of his conduct
had been ongoing for over two years, and that this investigation
involved taking testimony from lawyers who had practiced before
Judge McBryde. See id. Such a reasonable person would know that
the proceedings were adversarial in every sense of the word, that
Judge McBryde was fully aware of all these complaints, that he
was represented by counsel, that he had been apprised of the
nature and substance of the complaints, and that he personally
attended many of the committee’s hearings in which testimony was
-31- 31 presented. Such a reasonable person would know that at the time
Trevino filed the recusal motion, Brender was under subpoena to
appear before the committee and testify. Such a reasonable
person would know that Judge McBryde was given “brief
explanation[s]” of the substance of the witnesses’ testimony in
advance of their appearances. Id. Such a reasonable person
would know that at the time Judge McBryde denied the motion on
September 24, 1997, there were still scheduled sessions at which
Brender could have been called to testify. See id. Such a
reasonable person would know that Judge McBryde either knew with
certainty or would have inferred that Brender would give adverse
testimony.
If a reasonable person would harbor doubts about the
impartiality of a judge who knew of adverse testimony actually
supplied against him by the lawyers in a case, it stands to
reason that the same doubt would exist with respect to an
attorney who had been subpoenaed and for whom there was every
reason to believe that he would in fact be called to testify and
provide additional adverse testimony. This conclusion is
bolstered by the fact that despite the committee’s failure to
actually call Brender to testify, at the end of the proceedings
his name was nevertheless included on the list of lawyers over
whom Judge McBryde is not permitted to preside for a period of
three years. See In re Matters Involving United States District
-32- 32 Judge John H. McBryde, Under the Judicial Conduct and Disability
Act of 1980, Nos. 95-05-372-0023 et al. (Jud. Council 5th Cir.
Dec. 31, 1997) (order and public reprimand), aff’d,
No.98-372-001, manuscript op. at 24 (Jud. Conf. U.S. Sept. 21,
1998) (“There is plenty of evidence in the record to support the
judicial council’s implicit conclusion that Judge McBryde might
attempt to retaliate in some fashion against witnesses who had
testified against him, or at least that witnesses reasonably
perceived such a risk.”). The majority’s attempt to distinguish
Anderson and Avilez-Reyes is, quite frankly, a stretch.
In addition to our controlling precedents, requiring Judge
McBryde’s recusal comports with established interpretations of
the Code of Conduct for United States Judges published by the
Judicial Conference Committee on Codes of Conduct.****** Because I
****** Canon 3C(1) of the Code requires that “[a] judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned . . . .” Notably, this requirement embodies the same standard for recusal as does § 455. Applying Canon 3C(1), the Committee has determined that “[a] judge who is personally involved in litigation with the IRS is recused, subject to remittal, from cases in which . . . the Assistant United States Attorneys appearing before the judge are also litigating the judge’s dispute with the IRS.” Compendium § 3.4-8(c). Additionally, “[a] judge should recuse from cases handled by a law firm, one of whose members or associates represents a party adverse to the judge in other litigation.” Compendium § 3.6-3(a). And although “[a]utomatic recusal is not necessary when a 28 U.S.C. § 372 complaint is filed” against a judge, because it may not be meritorious, “[a] judge should normally recuse if the complaint is not dismissed.” Compendium § 3.6-7. Each of these examples provides additional color around the edges of Judge McBryde’s situation, and each of them suggests generally that when a judge
g:\opin\97-11372.dis -33- 33 believe that our decision is controlled by Anderson and Avilez-
Reyes, and because I have no trouble concluding that a reasonable
person aware of all the facts would question Judge McBryde’s
impartiality in a case involving a lawyer who was named as a
witness in the investigation of Judge McBryde’s judicial
misconduct, I would vacate the judgment and remand the case for
proceedings before a different judge. I therefore dissent.
is involved in some variety of litigation, there ordinarily is sufficient doubt about the judge’s impartiality towards opposing counsel to trigger the obligation to recuse.
g:\opin\97-11372.dis -34- 34