     Case: 09-70034 Document: 00511332658 Page: 1 Date Filed: 12/27/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         December 27, 2010

                                       No. 09-70034                         Lyle W. Cayce
                                                                                 Clerk

MARK ANTHONY STROMAN,

                                                          Petitioner - Appellant

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                          Respondent - Appellee




                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 3:05-CV-1616


Before JONES, Chief Judge, and HIGGINBOTHAM and DAVIS, Circuit Judges.
PER CURIAM:*
       In the wake of the 9/11 terrorist attacks, Mark Anthony Stroman, a
member of the Aryan Brotherhood, murdered two individuals he believed to be
of Middle Eastern descent. He was convicted and sentenced to death. He sought
federal habeas relief; the district court denied his petition and refused to grant
a certificate of appelability (COA). Stroman now seeks a COA from this Court



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 09-70034 Document: 00511332658 Page: 2 Date Filed: 12/27/2010



                                  No. 09-70034

pursuant to 28 U.S.C. § 2253. Because reasonable jurists would not find it
debatable that the district court's rejection of the underlying habeas petition was
correct, Stroman’s application for a COA is DENIED.
                              I. BACKGROUND
      Stroman murdered a gas station attendant, Vasudev Patel, in the course
of an attempted robbery. Patel’s murder was the last in a series of shootings –
resulting in two individuals killed and one severely disfigured – that Stroman
committed post-9/11 against those whom he believed to be of Middle Eastern
descent. Stroman testified at trial that the United States government “hadn’t
done their job so he was going to do it for them.” Patel’s murder, planned in
advance, was captured in graphic detail by the gas station’s surveillance camera.
Stroman was convicted and sentenced to death. He has never shown remorse
for the murders, and he even composed poetry in prison expressing his pride in
his crimes.
      The district court denied Stroman’s habeas petition, concluding, among
other things, that all but three of Stroman’s claims were unexhausted and
therefore procedurally barred, and the claims that were not procedurally barred
warranted no habeas relief. Stroman now moves for a COA.
                        II. STANDARD OF REVIEW
      Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”),
28 U.S.C. § 2253(c)(2), a petitioner seeking a COA must demonstrate “a
substantial showing of the denial of a constitutional right.” In Miller-El v.
Cockrell, 537 U.S. 322 (2003), the U.S. Supreme Court clarified: “A petitioner
satisfies this standard by demonstrating that jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that jurists
could conclude the issues presented are adequate to deserve encouragement to
proceed further.” 537 U.S. at 327 (citing Slack v. McDaniel, 529 U.S. 473, 484



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                                   No. 09-70034

(2000)). The district court’s review of the conviction was, like ours, guided by the
deferential standards of AEDPA.
                               III. DISCUSSION
A.    Stroman’s Unexhausted and Procedurally Barred Claims
      Stroman’s habeas petition presented several unexhausted claims,
including: actual innocence; lack of a presumption of innocence; lack of a fair
defense; and ineffective assistance of counsel claims for failure to investigate and
failure to introduce favorable evidence. Stroman does not contend that the
claims are exhausted. He instead argues that: (1) he is excused from exhaustion
because he is actually innocent; (2) the state corrective procedure was ineffective
to protect his rights as per 28 U.S.C. § 2254(b)(1)(B)(ii); and (3) his failure to
exhaust is excused in light of Ruiz v. Quarterman, 504 F.3d 523 (5th Cir. 2007).
      We have reviewed the record, and we conclude that the district court’s
treatment of the actual innocence claim is not debatable among jurists of reason.
To receive a hearing on the merits on a successive habeas claim, a petitioner
“‘must show that it is more likely than not that no reasonable juror would have
convicted him’ in light of newly discovered evidence.” Schlup v. Delo, 513 U.S.
298, 332-33 (O’Connor, J., concurring). Moreover, the “new reliable evidence”
ought to consist of “exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence.” House v. Bell, 547 U.S. 518, 537 (2006)
(quoting Schlup, 513 U.S. at 324). Stroman’s proffered evidence of mental
problems falls far short of this demanding standard. The district court correctly
applied this standard.
      As to his claim of ineffective process, Stroman points to a “systemic failure
of the [Texas] habeas system to provide competent counsel to investigate and
present habeas claims to the Texas courts.” There is no constitutional right to
counsel in post-conviction proceedings. Thus, the district court correctly noted
that numerous Fifth Circuit decisions reject this premise as a ground for habeas

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relief. See, e.g., Ruiz v. Quarterman, 460 F.3d 638, 644 (5th Cir. 2006) (“Yet the
law of this Court is clear: ineffective state habeas counsel does not excuse failure
to raise claims in state habeas proceedings.”).
      Stroman also mistakenly claims that a different Ruiz decision – Ruiz v.
Quarterman, 504 F.3d 523 (5th Cir. 2007) – excuses his failure to exhaust his
claims. Ruiz held that Tex. Code Crim. Proc., art. 11.071, § 5(a)(1), did not serve,
under unusual circumstances, as an independent and adequate state bar when
the Texas Court of Criminal Appeals failed to state the basis for its rejection of
a successive petition. Here, Stroman never filed a successive state petition, and
thus, there never was a § 5(a) ruling. The Fifth Circuit has held post-Ruiz that
§ 5(a) remains an independent and adequate state ground for the purpose of
imposing a procedural bar. See Hughes v. Quarterman, 530 F.3d 336, 342 (5th
Cir. 2008); see also Rocha v. Thaler, 619 F.3d 387 (5th Cir. 2010) (denying an
application for a COA as an abuse of the writ under § 5), clarified and panel
rehearing denied, ___ F.3d ___, 2010 WL 4630794 (5th Cir. Nov 17, 2010). Ruiz
does not excuse Stroman’s failure to exhaust.
B.    Stroman’s Ineffective Assistance of Counsel Claims
      Stroman has properly exhausted two ineffective assistance of counsel
claims: one for his counsel’s failure to challenge a juror, and another for his
counsel’s failure to object to purported hearsay.      The record demonstrates,
however, that the district court carefully and correctly analyzed both prongs of
Strickland v. Washington, 466 U.S. 688 (1984). Stroman cannot demonstrate an
arguable infringement of his right to effective assistance of counsel. Reasonable
jurists could not debate that the state court’s denial of relief must be sustained
under AEDPA.
                              IV. CONCLUSION
      Because the district court’s conclusions are not debatable by jurists of
reason, we DENY Stroman’s motion for a COA.

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