    Case: 17-70023    Document: 00514454374     Page: 1   Date Filed: 05/01/2018




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                 No. 17-70023                        FILED
                                                                  May 1, 2018
                                                                Lyle W. Cayce
                                                                     Clerk
ROBERT ALAN FRATTA,

                                          Petitioner–Appellant,

versus

LORIE DAVIS, Director,
 Texas Department of Criminal Justice, Correctional Institutions Division,

                                          Respondent–Appellee.




                Appeal from the United States District Court
                     for the Southern District of Texas




Before SMITH, DENNIS, and CLEMENT, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Robert Fratta moves for a certificate of appealability (“COA”) to appeal
the denial of his petition for writ of habeas corpus under 28 U.S.C § 2254.
Because his claims are procedurally defaulted and he cannot overcome the
default, the motion is denied.
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                                        No. 17-70023
                                               I.
       Fratta was convicted of capital murder in 1997 for the murder of his wife
Farah Fratta. 1 He was granted federal habeas corpus relief in 2007. 2 He was
again convicted and sentenced to death. The Texas Court of Criminal Appeals
(“TCCA”) affirmed on direct appeal and denied his state habeas petition. 3
Fratta then filed a petition for habeas relief in federal court, asserting nineteen
grounds. The district court denied the petition, finding three claims unmeri-
torious and the other sixteen procedurally defaulted and unexhausted. 4

       According to the state, Fratta employed Joseph Prystash to murder
Farah. Prystash in turn employed Howard Guidry to carry out the murder,
with Prystash serving as the getaway driver. Prystash’s girlfriend, Mary Gipp,
provided testimony linking the three men together and to the murder. 5

                                              II.
       “A [COA] may issue . . . only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “The
petitioner must demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000).                 Where a petition is dismissed on



       1   We refer to Robert Fratta as “Fratta” and Farah Fratta as “Farah.”
       2 Fratta v. Quarterman, No. CIV.A. H-05-3392, 2007 WL 2872698, at *1 (S.D. Tex.
Sept. 28, 2007), aff’d, 536 F.3d 485 (5th Cir. 2008).
       3 See Fratta v. State, No. AP-76,188, 2011 WL 4582498, at *1–2 (Tex. Crim. App.
Oct. 5, 2011) (unpublished); Ex Parte Fratta, No. WR-31,536-04, 2014 WL 631218, at *1 (Tex.
Crim. App. Feb. 12, 2014).
       4The district court provided alternative holdings, rejecting each of the sixteen proce-
durally defaulted and unexhausted claims on the merits.
       5For more detailed histories, see Fratta v. Davis, No. 4:13-CV-3438, 2017 WL 4169235,
at *1–2 (S.D. Tex. Sept. 18, 2017); Fratta, 2011 WL 4582498, at *1–2; Fratta, 536 F.3d at
489–90.
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                                       No. 17-70023
procedural grounds, the petitioner must also demonstrate “that jurists of rea-
son would find it debatable whether the district court was correct in its proce-
dural ruling.” Id.

      Fratta essentially requests we issue COAs on five questions: (1) whether
Texas law regarding hybrid representation is an independent and adequate
state law ground to default claims; (2) if his claims are defaulted, whether he
overcomes that default with a showing of actual innocence; (3) whether his
claims are exhausted; (4) whether there was insufficient evidence for convic-
tion; and (5) whether the indictment was constructively amended via an alleg-
edly erroneous jury instruction. Because Texas law regarding hybrid repre-
sentation is an independent and adequate state ground such that Fratta pro-
cedurally defaulted his insufficiency and constructive-amendment claims, and
that Fratta cannot overcome default with a showing of actual innocence, we
need not reach requests three through five.

                                             III.
      The adequacy and independence of a state procedural rule are reviewed
de novo. Reed v. Scott, 70 F.3d 844, 846 (5th Cir. 1995). To be independent,
the “state court opinion [must] clearly and expressly indicate[ ] that its judg-
ment is independent of federal law.” Id. To be adequate, the state procedural
rule must be “firmly established at the time it was applied,” such that it is
“‘strictly or regularly followed by the cognizant state court . . . [and] strictly or
regularly applied evenhandedly to the vast majority of similar claims.’” Id.
(brackets and emphasis in original). There is “a presumption of adequacy
when the state court expressly relies on [a state procedural rule] in deciding
not to review a claim for collateral relief.” 6 And “an occasional act of grace by



      6   Glover v. Cain, 128 F.3d 900, 902 (5th Cir. 1997) (quoting Lott v. Hargett, 80 F.3d
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                                        No. 17-70023
a state court in excusing or disregarding a state procedural rule does not ren-
der the rule inadequate.” Amos v. Scott, 61 F.3d 333, 342 (5th Cir. 1995). When
determining the adequacy of a procedural bar, “we must emphasize the appli-
cation of the bar to the specific constitutional claim at issue.” Reed, 70 F.3d at
846–47. The petitioner bears the burden of “demonstrat[ing] that the state has
failed to apply the procedural bar rule to claims identical or similar to those
raised by the petitioner himself.” Stokes v. Anderson, 123 F.3d 858, 860 (5th
Cir. 1997). 7

       Fratta contests the adequacy of Texas’s hybrid-representation bar. 8 In
1977, the TCCA announced, in a case involving the defendant’s right to cross-




161, 165 (5th Cir. 1996)).
       7 “Where a petitioner contends a state procedural rule is not strictly or regularly fol-
lowed, he must show ‘that the state has failed to apply the procedural bar rule to claims
identical or similar to those raised by the petitioner himself.’ If he does not make this show-
ing, a procedural default exists and ‘the petitioner is deemed to have forfeited his federal
habeas claim.’” Frazier v. Dretke, 145 F. App’x 866, 870 (5th Cir. 2005) (first quoting Stokes,
123 F.3d at 860; then quoting Bledsue v. Johnson, 188 F.3d 250, 354 (5th Cir. 1999)).
       8 It is clear from the opinion that the state court refused to review the relevant claims
only because of the hybrid-representation rule. Thus, the independence prong is not dis-
puted. See Fratta, 2011 WL 4582498, at *1 n.2 (“Throughout these proceedings, appellant
has filed pro se pleadings and letters in an attempt to supplement his attorneys’ efforts.
Appellant is not entitled to hybrid representation. See Scheanette v. State, 144 S.W.3d 503,
505 n.2 (Tex. Crim. App. 2004). Thus we do not address his pro se points.”).
        Fratta also proffers a convoluted theory that his pro se briefs were not “hybrid” be-
cause he was requesting to proceed pro se and had a right to do so under Texas law. We have
reviewed the filings Fratta identifies. They request only that the TCCA also accept his pro
se filings and that he receive a hearing “for appointment of new counsel.” Nothing there
suggests that he wanted to proceed solely pro se. Instead, his filings suggest unhappiness
with his current counsel, that he is entitled to effective counsel, and that he desires different
counsel. Further, a request to proceed pro se in Texas must be clear and unequivocal, and it
most certainly was not here. See Hathorn v. State, 848 S.W.2d 101, 123 (Tex. Crim. App.
1992) (“[A]n accused’s right to proceed pro se does not attach until he clearly and unequivo-
cally asserts it.”). Fratta claims that this question is a factual one. In that case, the state’s
implicit finding that Fratta was not seeking to proceed pro se “shall be presumed to be cor-
rect,” and Fratta must show otherwise “by clear and convincing evidence,” which, as
explained, he has failed to do. 28 U.S.C. § 2254(e)(1).
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                                       No. 17-70023
examine a witness himself, that “[t]here is no constitutional right in Texas to
hybrid representation partially pro se and partially by counsel.” Landers v.
State, 550 S.W.2d 272, 280 (Tex. Crim. App. 1977). Three years later, that
principle was definitively extended to the filing of pro se briefs on appeal. 9 The
rule was thus firmly established by the time the TCCA utilized it in Fratta’s
2011 appeal. 10

       In his appellate brief, Fratta cites several cases to illustrate that the
hybrid-representation rule is not regularly applied. In those cases, the state
court peeked at the pro se brief to determine whether it “reveals [an] error
which should be considered in the interest of justice.” 11 In two of the cases, the
court made no reference to what claims the pro se brief alleged, 12 and Fratta



       9See Rudd v. State, 616 S.W.2d 623, 625 (Tex. Crim. App. 1981) (“Appellant is rep-
resented by counsel who filed a brief in the case. There is no right to hybrid representation.
The pro se briefs therefore present nothing for review. An examination of the contentions
asserted therein reveals no error that should be considered in the interest of justice.”) (cita-
tion omitted).
       10See also Ex parte Bohannan, 350 S.W.3d 116, 116 n.1 (Tex. Crim. App. 2011) (“We
have received numerous documents from applicant himself, but applicant is represented by
counsel and is not entitled to hybrid representation. Because applicant is represented by
counsel, we disregard his numerous pro se submissions and take no action on them.”) (cita-
tions omitted); Marshall v. State, 210 S.W.3d 618, 620 n.1 (Tex. Crim. App. 2006) (same);
Ex parte Eldridge, No. WR-60,478-02, 2005 WL 8154075, at *1 n.1 (Tex. Crim. App. Feb. 9,
2005) (unpublished) (same).
       11Johnson v. State, 629 S.W.2d 137, 139 (Tex. App.—Dallas, 1982, no writ). See Wal-
ker v. Martin, 562 U.S. 307, 311 (2011) (‘[A] state procedural bar may count as an adequate
and independent ground for denying a federal habeas petition even if the state court had
discretion to reach the merits despite the default.”); Beard v. Kindler, 558 U.S. 53, 60 (2009)
(“We hold that a discretionary state procedural rule can serve as an adequate ground to bar
federal habeas review.”).
       12 Evans v. State, 677 S.W.2d 814, 821 (Tex. App.―Fort Worth 1984, no writ); Johnson,
629 S.W.2d at 139. In his briefing in the district court, Fratta mentioned two other TCCA
decisions and two other intermediate appellate court decisions. Those decisions also do not
identify the claims raised pro se. See Flores v. State, 871 S.W.2d 714, 724 (Tex. Crim. App.
1993); Stephen v. State, 677 S.W.2d 42, 45 (Tex. Crim. App. 1984); Ghant v. State, No. 03-04-
00473-CR, 2006 WL 952384 (Tex. App.―Austin April 13, 2006, no writ) (unpublished); Fuller
v. State, 30 S.W.3d 441, 445 (Tex. App.―Texarkana 2000, pet. ref’d).
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                                        No. 17-70023
provides no indication that the defendants raised claims similar or identical to
Fratta’s. And, three of the cases Fratta cites do not involve claims similar to
his. 13

          In response to this panel’s request for supplemental briefing on “whether
Texas state courts have regularly applied the hybrid-representation bar to
claims identical or similar” to Fratta’s, Fratta identifies six intermediate
appellate cases 14 involving insufficiency claims where the court noted the
hybrid-representation bar and chose to invoke its discretion to peek at the peti-
tion in the interest of justice. 15 As to Fratta’s claim of improper amendment of



          See In re State ex rel. Villalobos, 218 S.W.3d 837, 841 (Tex. App.―Corpus Christi,
          13

2007, no pet.) (involving a pro se response to the state’s petition for writ of mandamus against
a judge who had granted defendant’s motion for post-conviction DNA testing); Madden v.
State, 691 S.W.2d 688, 690 (Tex. Crim. App. 1985) (involving a pro se claim contesting the
trial court’s admission of the defendant’s written statement without analyzing its voluntary-
iness); Phillips v. State, 604 S.W.2d 904, 907–08 (Tex. Crim. App. 1979) (involving a pro se
claim disputing the trial court’s decision to allow the defendant to engage in hybrid represen-
tation and cross-examine witnesses, specifically contending that the court should have pro-
vided stronger warnings about the risks of conducting cross-examination pro se). None of
these cases presents similar or identical claims indicating irregular application.
        Two other intermediate appellate cases were mentioned in Fratta’s briefing in the
district court. Both reviewed claims were neither similar nor identical to Fratta’s claims
here. Tones v. State, No. 03-04-00288-CR, 2005 WL 723673, *4 n.1 (Tex. App.―Austin
Mar. 31, 2005, pet. dism’d) (unpublished) (noting that pro se brief raised “claims of ineffective
assistance of counsel and violations of Brady v. Maryland”); Fuller v. State, 30 S.W.3d 441,
445 (Tex. App.―Texarkana 2000, pet. denied) (“Fuller’s pro se brief makes three general
points: the failure of this Court to ‘investigate’ his appeal; his alleged mental incompetence;
and the alleged ineffectiveness of his court-appointed counsel.”).
         See Jefferson v. State, No. 05-15-00477-CR, 2016 WL 3749396, at *3–4 (Tex. App.—
          14

Dallas July 7, 2016, pet. ref’d) (unpublished); Green v. State, No. 10-07-00211-CR, 2009 WL
1800697, at *5 (Tex. App.—Waco June 24, 2009, pet. ref’d) (unpublished); Guyton v. State,
No. 10-07-00070-CR, 2009 WL 290935, at *2 (Tex. App.—Waco Feb. 6, 2009, pet. dism’d);
Green v. State, 137 S.W.3d 356, 365 (Tex. App.—Austin 2004, pet. ref’d); Sinyard v. State,
No. 11-94-190-CR, 1996 WL 33650185, at *2 (Tex. App.―Eastland Mar. 21, 1996, no pet.)
(unpublished); Warren v. State, 641 S.W.2d 579, 581 (Tex. App.—Dallas 1982).
         The other two cases cited by Fratta in his response letter either do not involve hybrid
          15

representation or do not raise similar claims. See Anderson v. State, No. 13-96-124-CR, 1997
WL 33642798, at *1 (Tex. App.—Corpus Christi Aug. 2014, 1997) (unpublished) (reviewing a
pro se insufficiency claim where the defendant fired his attorney and received permission to
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                                         No. 17-70023
the indictment, he identifies three similar cases. 16

       Though Fratta points to a handful of cases over the last thirty years that
raise claims similar or identical to his, those few exceptions—all but one by
intermediate appellate courts 17—“do[] not render the rule inadequate.” 18


proceed pro se before filing a pro se brief, thereby ensuring there was no hybrid representa-
tion); Edwards v. State, No. 03-97-00587-CR, 1999 WL 959166, at *10 (Tex. App.—Austin
Oct. 21, 1999, no pet.) (reviewing a pro se jury-instruction claim);
       16See Newton v. State, 648 S.W.2d 693, 694 (Tex. Crim. App. 1983); Williams v. State,
946 S.W.2d 886, 892 (Tex. App.―Waco 1997, no writ); Cline v. State, 770 S.W.2d 844, 848
(Tex. App.—Texarkana 1989, no pet.).
       Fratta points to one other intermediate appellate court case that reviewed an im-
proper amendment of the indictment claim. Robertson v. State, 701 S.W.2d 665, 667–68 (Tex.
App.—Houston [14th Dist.] 1985, no pet.) Though the defendant in that case raised the
amendment claim in his pro se brief, that claim was also raised in the brief filed by his
attorney. And, the court reviewed only claims raised by defendant’s attorney, though it noted
where a claim was raised both by the attorney and the defendant. Thus, that case does not
involve ignoring the hybrid-representation bar.
       In the district court, Fratta also cited Campbell v. State, No. 01-98-00570-CR, 2000
WL 553185 (Tex. App.―Houston [1st Dist.] May 4, 2000, pet. denied) (unpublished), for
support. That case, however, involved a pro se reply to an attorney’s Anders brief, which the
TCCA previously held did not constitute hybrid representation. Bledsoe v. State, 178 S.W.3d
824, 827 (Tex. Crim. App. 2005) (“Under Anders, an appellant has a right to review the
Anders brief that counsel submitted and to respond to it on his own. In the case before us,
the pro se brief that Appellant filed in response to his counsel’s filing of an Anders brief is not
dual representation.”)
       17See Dugger v. Adams, 489 U.S. 401, 410 n.6 (1989) (looking only at whether “the
Florida Supreme Court ha[d] failed to apply its procedural rule consistently and regularly”);
Barr v. City of Columbia, 378 U.S. 146, 149 (1964) (looking at cases decided by the South
Carolina Supreme Court).
       In response to our request for further briefing, the Director noted that since 1995 the
TCCA has refused to review any pro se briefs where the defendant is represented by counsel.
See, e.g., Ex parte Medina, 361 S.W.3d 633, 637 (Tex. Crim. App. 2011); Bohannan, 350
S.W.3d at 116 n.1; Marshall, 210 S.W.3d at 620 n.1; Eldridge, 2005 WL 8154075, at *1 n.1;
Scheanette, 144 S.W.3d at 505 n. 2; Patrick v. State, 906 S.W.2d 481, 498 (Tex. Crim. App.
1995). Thus, “[i]n the vast majority of cases . . . the [TCCA] has faithfully applied its rule.”
Dugger, 489 U.S. at 410 n.6; accord Amos, 61 F.3d at 339 (“The Supreme Court has further
defined this concept of adequacy, however, to include a state procedural ground that is strictly
or regularly applied evenhandedly to the vast majority of similar claims.”) (emphasis in
original).
       18Amos, 61 F.3d at 342 (“The handful of [six] cases upon which [petitioner] relies as
typifying the TCCA’s disregard of the contemporaneous objection rule are either insufficient
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                                       No. 17-70023
“[A]fter all, ‘regularly’ is not synonymous with ‘always’ and ‘strictly’ is not
synonymous with ‘unanimously.’” Amos, 61 F.3d at 342.

       Fratta does not show that reasonable jurists would disagree with the
district court’s ruling that his claims are procedurally defaulted. We thus need
not reach either the exhaustion issue or the merits “unless [Fratta] can dem-
onstrate cause for the default and actual prejudice” or can “demonstrate that
failure to consider the claims will result in a fundamental miscarriage of jus-
tice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).

                                             IV.
       Fratta requests we grant a COA on whether he demonstrated a funda-
mental miscarriage of justice by raising a meritorious actual-innocence claim
under Schlup v. Delo, 513 U.S. 298 (1995). “[T]enable actual-innocence gate-
way pleas are rare.” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). To prove
actual innocence, Floyd must show that “in light of the new evidence, no juror,
acting reasonably, would have voted to find him guilty beyond a reasonable
doubt.” Schlup, 513 U.S. at 329. “The gateway should open only when a peti-
tion presents ‘evidence of innocence so strong that a court cannot have confi-
dence in the outcome of the trial unless the court is also satisfied that the trial
was free of nonharmless constitutional error.’” Perkins, 569 U.S. at 401 (quot-
ing Schlup, 513 U.S. at 316).




to undercut the adequacy of the Texas rule or inapplicable.”). See also Dugger, 489 U.S. at
410 n.6 (“Moreover, the [three] cases that respondent and the dissent cite as ignoring proce-
dural defaults do not convince us that the Florida Supreme Court fails to apply its procedural
rule regularly and consistently.”); Barr, 378 U.S. at 149 (refusing to find that the South Car-
olina Supreme Court regularly applied a procedural bar where it had refused to utilize that
bar in three cases in the two month period before petitioner’s case—including one the day
before—and in one case a few weeks after petitioner’s case).


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       A defendant must show “new reliable evidence . . . not presented at trial.”
Schlup, 513 U.S. at 324. Examples of “new reliable evidence” are “exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical evi-
dence.” Id. “The habeas court must make its determination concerning the
petitioner’s innocence in light of all the evidence, including that alleged to have
been illegally admitted . . . and evidence tenably claimed to have been wrongly
excluded or to have become available only after the trial.” 19 We must “make a
probabilistic determination about what reasonable, properly instructed jurors
would do” after considering all of the evidence. Id. at 329.

      Fratta proffers, as “new reliable evidence,” ballistic testing that he
claims excludes, as the murder weapon, the .38 Charter Arms caliber revolver
that he purchased. The ballistics report states,
      Examinations have been completed on these items and it was
      determined that the submitted fired lead bullets and fragments
      contain insufficient definite and consistent individual characteris-
      tics to effect an identification. Test fired bullets fired in the [Char-
      ter Arms .38 caliber revolver] were found [to] bear inconsistent
      characteristics from the barrel.
That report was made in March 1995 and was known to Fratta before the
second trial. In fact, Fratta attempted to introduce the report at trial, but it
was ruled inadmissible hearsay.

      This court has yet to weigh in on the circuit split concerning what con-
stitutes “new” evidence. The nature of the split over “new” is based on whether
the evidence must be “newly discovered” or “newly presented.” 20 We still need
not weigh in on that discussion because the ballistic report is not “new” under


      19 Schlup, 513 U.S. at 328 (internal quotation marks and citations omitted); accord
House v. Bell, 547 U.S. 518, 538 (2006).
      20  See Wright v. Quarterman, 470 F.3d 581, 591 (5th Cir. 2006) (describing split and
collecting cases).
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either standard. Fratta possessed the report at the time of his second trial,
and he presented it to the court, even though it was ultimately ruled
inadmissible. 21

       Regardless, even assuming that the ballistics report was “new,” that new
evidence is not “so strong” that it undermines our confidence in the jury’s ver-
dict. We are allowed to weigh that “new” evidence against “old” evidence, even
old inadmissible evidence, because “the emphasis on ‘actual innocence’ allows
the reviewing tribunal also to consider the probative force of relevant evidence
that was either excluded or unavailable at trial.” 22

       Prystash, the “middleman,” confessed that Fratta solicited him to kill
Fratta’s wife and provided him a gun to do so, and that he in turn solicited
Guidry to perform the act. Though that confession was deemed inadmissible
at trial, we can consider it at this stage for the reasons articulated above. Fur-
ther, Gipp testified at the second trial that Prystash was friends with Fratta;
Fratta began calling Prystash in the weeks and days leading up to the murder;
Prystash and Guidry (her next door neighbor) were friendly; Prystash “talk[ed]
to [her] about killing Farah Fratta”; Prystash told her what day he would kill
Farah (Wednesday, the day Farah was murdered); Prystash told her he was
“the middle man to find someone that would kill Farah”; Prystash left with
Guidry the evening of the murder; she saw Prystash and Guidry return
together on the evening of the murder; she saw Prystash stash a gun the



       21 See Moore v. Quarterman, 534 F.3d 454, 465 (5th Cir. 2008) (explaining that evi-
dence was not “new” where “it was always within the reach of [petitioner’s] personal knowl-
edge or reasonable investigation”).
       22 Schlup, 513 U.S. at 327–28; accord House, 547 U.S. at 538 (“[T]he habeas court must
consider all the evidence, old and new, incriminating and exculpatory, without regard to
whether it would necessarily be admitted under rules of admissibility that would govern at
trial.” (internal quotation marks and citations omitted)).
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                                No. 17-70023
evening of the murder; Prystash told her “they had killed her”; and Prystash
was promised a jeep “for his part in this murder.”

      No reasonable jurist would disagree that Fratta fails to prove actual
innocence. He thus cannot overcome procedural default, and we need not reach
his other requests.

      The motion for a COA is DENIED.




                                      11
