     Case: 09-70029     Document: 00511600010         Page: 1     Date Filed: 09/12/2011




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

                                                                            FILED
                                                                        September 12, 2011
                                       No. 09-70029
                                                                           Lyle W. Cayce
                                                                                Clerk
JESSE JOE HERNANDEZ,

                                                  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. 3:06-CV-846


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:*
        Jesse Joe Hernandez (Hernandez) requests a certificate of appealability
(COA) on his claim that the prosecution violated the Fifth Amendment during
his state court trial by remarking on his failure to testify on his own behalf. For
the following reasons, we deny the COA.
                                              I
        In July 2002, a Texas jury found Hernandez guilty of capital murder after
it determined that Hernandez murdered ten-month-old Karlos Borja on or about

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                 No. 09-70029

April 11, 2001. The facts surrounding Karlos’s death, as recited by the Texas
Court of Criminal Appeals, are as follows:
             The evidence at trial showed that at the time Karlos and
      Melodi were assaulted, Misty Leverett, [ten-month-old] Karlos, and
      [four-year-old] Melodi, were living with appellant [Hernandez], his
      wife Mary Rojas, their young son, Joshua, and Gilbert Gomez. On
      the day of the assaults, Leverett went to work and left the children
      in the care of appellant and Rojas. Rojas testified that after
      Leverett left for work around noon, she stayed home with the
      children while appellant and Gomez left to run errands. When
      appellant and Gomez returned about two hours later, Rojas left for
      her sister-in-law’s house and was gone approximately thirty to
      forty-five minutes. Rojas testified that when she got home, she
      heard appellant screaming at Joshua. She picked him up and took
      him to the room she shared with appellant. Rojas asked where
      Karlos and Melodi were, and appellant replied that they were
      sleeping in the next room. Rojas then went into her room and
      relaxed with Joshua. Later, when she heard appellant preparing a
      bottle, she told appellant she was going to go into the room where
      Karlos and Melodi were sleeping. Appellant instructed Rojas not to
      enter the room for fear she would wake them up. Despite having
      seen blood stains on appellant’s shirt, Rojas waited until Leverett
      got home from work to check on the children.
             Leverett testified that when she arrived home, she went into
      the dark room she shared with her children and found Melodi
      complaining that her head hurt. Rojas and Leverett took Melodi out
      into the kitchen and saw that her head was swollen with “red
      splotches.” Alarmed, Leverett decided to take Melodi to the
      hospital. After they left, Rojas checked on Karlos and noticed his
      lips were swollen. She determined Karlos was badly hurt and took
      Karlos and Joshua down the street to her sister-in-law’s house to
      call an ambulance.
             When Leverett and Melodi arrived at the hospital, hospital
      workers asked Leverett if she had any other children. When she
      replied that she did, the hospital workers instructed her to return
      home and get her son immediately. Leverett testified that when she
      returned home, appellant was alone and he told her that Karlos was
      at his sister’s house. Leverett asked appellant to take her there but
      he refused. Moments later, police arrived and informed Leverett
      that Karlos had been rushed to Children’s Hospital by ambulance.

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            In addition to this evidence, appellant stated in his voluntary
      written statement that he was babysitting Melodi and Karlos and
      “they were being very bad by crying a lot for nothing.” Appellant
      continued that he “just exploded and hit them with the back of my
      hand not realizing I was hurting them[.]”1
Karlos died approximately one week after the beating.2
      During the guilt phase of Hernandez’s trial, the prosecution introduced
evidence that Hernandez’s right hand appeared swollen during the hours
following the time when Karlos and Melodi were beaten.                    Mary Rojas,
Hernandez’s wife, testified that she noticed the swelling in his right hand and
told a police officer about it. The jury also heard testimony from two different
detectives who also noticed swelling in Hernandez’s hand. Detective Lesher, one
of the officers who interviewed Hernandez, testified that the back of one of
Hernandez’s hands “was swollen more than the other hand was.” Detective
Breedlove, who interviewed Hernandez on two occasions—once the morning of
the incident and then later that afternoon—testified that, although he did not
notice any swelling in Hernandez’s hand during the morning interview, he did
notice the swelling that afternoon.         Hernandez was jailed between these
interviews, and Hernandez’s attorney asked Detective Breedlove on cross-
examination whether Detective Breedlove recalled being told by one of the jailers
that, in between the interviews, Hernandez was “beating on the cell in there or
causing a ruckus.” Detective Breedlove did not recall any such statement.
      During closing arguments, the parties offered competing theories on the
origin of Hernandez’s swollen hand. The defense, during its closing statement,
made the following comments:




      1
         See Hernandez v. State, No. 74401, 2004 WL 3093221, at *3-4 (Tex. Crim. App. May
26, 2004) (footnote omitted).
      2
          Id. at *1 n.2.

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               Then the swollen hand, the magic swollen hand. There’s
        another beauty. The swollen hand. Really. What do you remember
        from cross-examination on this? They’re investigating someone
        that’s allegedly abused a child. Hasn’t been a death yet, but guess
        what? Nothing in the police reports, any of them.
              I asked Hernandez, Chacon, Lesher, Breedlove. Anything in
        there about Mary saying something at the house about look at his
        hands or the shirt involved or the exchanges that Mary allegedly
        had with Jesse? No. Asked the police officer. You remember that?
        No. Look in the police report. Nothing.
              You know Breedlove huddled with the officers right before he
        brought Jesse Hernandez at 5:00 o’clock and that’s crucial,
        important stuff. You know that Breedlove interrogated him for two
        hours where he was sitting distance from here to here. Never
        noticed a swollen hand ever. Nothing. For two hours. Even
        watched him write the affidavit. Said it took him an hour.
               I asked, “When you got him out of jail, do you remember a
        jailer saying he hit his hands on the wall pounding the cell?” “No,
        I don’t remember that.”
               All of a sudden, everybody sees a swollen hand. Oh, there it
        is. Must have been from what happened out there. Really. You
        might think this is kind of Oliver Stone or conspiracy theories. Take
        a good look at Mary’s statement, the one she gave here. Look at her
        handwriting. Look through all of them, it’s the same. Same
        handwriting. Nothing changes. All of a sudden at the very end look
        at the different spelling that says “that was when I noticed his hand
        was swollen.”
Thereafter, the prosecution, in its rebuttal argument, also addressed the swollen
hand:
        Look, we haven’t come in here and made promises that we can’t
        back up. We presented evidence to you that shows him guilty. We
        haven’t come in with innuendo. You know, where is this proof about
        him striking something over in the jail causing him to swell his
        hand? Where is that proof there? You haven’t heard it from any
        witness. We’re not the ones coming in here making these promises
        that we can’t back up.




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The jury ultimately found Hernandez guilty and recommended a death sentence,
which the trial court imposed.
      Hernandez filed a direct appeal to the Texas Court of Criminal Appeals in
which he raised a number of claims, including the claim that the prosecution
impermissibly commented on his failure to testify when it made the above-
excerpted statement addressing the swollen hand. The Texas Court of Criminal
Appeals concluded Hernandez had forfeited this claim by failing to object to the
prosecutor’s statement at trial.3 The court also rejected Hernandez’s other
claims and affirmed his conviction and sentence.4
      Subsequently, Hernandez filed an application for a writ of habeas corpus
in state court. That application included a claim that Hernandez’s trial counsel
was ineffective for failing to object to the comment that Hernandez characterized
as a commentary on his failure to testify. The state court determined that
Hernandez’s trial counsel did not act unreasonably in failing to object and that,
even if the failure to object was unreasonable, it was not prejudicial to
Hernandez. Additionally, the state court concluded that Hernandez’s underlying
claim lacked merit. In the state court’s opinion, the contested comment referred
not to Hernandez’s failure to testify but to Hernandez’s “failure to call a witness
who would support his theory that he injured his hand pounding on his
cell”—specifically, the unnamed jailer that Hernandez implied could have
testified that Hernandez spent all day pounding his hands on his jail cell.
Hernandez appealed to the Texas Court of Criminal Appeals, which adopted the
findings and conclusions of the trial court.5



      3
          Id. at *7.
      4
          Id. at *8.
      5
        Ex parte Hernandez, No. WR-62840-01, 2006 WL 1174307, at *1 (Tex. Crim. App.
May 3, 2006).

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      Hernandez then filed a petition for a writ of habeas corpus in the United
States District Court for the Northern District of Texas. Hernandez’s petition
raised seven claims, one of which was that the prosecution violated Hernandez’s
Fifth Amendment right against self-incrimination by allegedly commenting on
Hernandez’s failure to testify to explain the swelling in his hand. The district
court determined that Hernandez’s Fifth Amendment claim was procedurally
defaulted, due to Hernandez’s failure to object to the prosecution’s statement at
trial, and that Hernandez had not attempted to establish any of the various
exceptions to the procedural default rule.               Accordingly, the district court
dismissed this claim on procedural grounds. The court rejected the rest of
Hernandez’s claims on the merits. Hernandez subsequently requested a COA
with respect to his Fifth Amendment claim, which the district court denied.
Hernandez now requests a COA from this court.
                                              II
      “[A] state prisoner seeking a writ of habeas corpus has no absolute
entitlement to appeal a district court’s denial of his petition.”6 Instead, the
prisoner must first obtain a COA from a circuit justice or judge.7 “[U]ntil a COA
has been issued federal courts of appeals lack jurisdiction to rule on the merits
of appeals from habeas petitioners.”8
      A COA “may issue . . . only if the applicant has made a substantial
showing of the denial of a constitutional right.”9 An applicant makes such a
“substantial showing of the denial of a constitutional right” when he
demonstrates “that reasonable jurists could debate whether (or, for that matter,


      6
          Miller-El v. Cockrell, 537 U.S. 322, 335 (2003) (citing 28 U.S.C. § 2253).
      7
          Id. at 335-36.
      8
          Id. at 336.
      9
          28 U.S.C. § 2253(c)(2).

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                                          No. 09-70029

agree that) the petition should have been resolved in a different manner or that
the issues presented were adequate to deserve encouragement to proceed
further.”10 The “issuance of ‘a COA does not require a showing that the appeal
will succeed,’” however, and we should not decline an applicant’s request for a
COA merely because we believe that the applicant will ultimately fail to
establish his entitlement to habeas relief.11 When, as here, an applicant faces
a death sentence, we will resolve any doubts as to whether a COA should issue
in his favor.12
                                                III
       The district court dismissed Hernandez’s Fifth Amendment claim on
procedural grounds.           Thus, in order to show his entitlement to a COA,
Hernandez must demonstrate two things: (1) “that jurists of reason would find
it debatable whether the district court was correct in its procedural ruling” and
(2) “that jurists of reason would find it debatable whether” he states a valid Fifth
Amendment claim.13 Hernandez has failed to make the necessary demonstration
with respect to both inquiries.
                                                 A
       We begin with the district court’s procedural ruling—that Hernandez’s
Fifth Amendment claim was procedurally defaulted because of his failure to
object to the prosecutor’s statements during trial. Hernandez does not dispute
that he did not raise his Fifth Amendment objection during his trial in state
court. Rather, he claims we can use the plain error standard of review to



       10
            Miller-El, 537 U.S. at 336 (internal quotation marks omitted).
       11
            Williams v. Thaler, 602 F.3d 291, 301 (5th Cir. 2010) (quoting Miller-El, 537 U.S.
at 337).
       12
            Id. (citing Martinez v. Dretke, 404 F.3d 878, 884 (5th Cir. 2005)).
       13
            Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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recognize the prosecution’s allegedly unconstitutional actions. The plain error
standard of review allows us to remedy unpreserved clear errors that affect a
defendant’s substantial rights and the fairness, integrity, or public reputation
of judicial proceedings.14         Hernandez argues that the error was clear and
obvious—“the comment by the prosecutor could only have been interpreted by
the jury as a reference to Hernandez’s failure to testify”—and affected a
substantial right—“his Fifth Amendment privilege against self-incrimination.”
He argues that “the error seriously affected the fairness of the proceedings and
went to the heart of the integrity of the judicial system.”
       We reject Hernandez’s argument for the simple reason that the plain error
standard of review is an instrument of direct review. It does not apply in the
context of a collateral attack on the constitutional validity of a final conviction.15
Because Hernandez failed to preserve his Fifth Amendment objection in his state
court proceedings and we are not engaged in a direct review of those
proceedings, Hernandez’s claim implicates the rule of procedural default.
       Under the procedural default rule, federal habeas relief is generally not
available “when a state court declined to address a prisoner’s federal claims
because the prisoner . . . failed to meet a state procedural requirement.”16 This
is so because in such cases “the state judgment rests on independent and




       14
            See United States v. Juarez, 626 F.3d 246, 254 (5th Cir. 2010).
       15
           Engle v. Isaac, 456 U.S. 107, 134-35 (1982) (“The federal courts apply a plain-error
rule for direct review of federal convictions. Federal habeas challenges to state convictions,
however, entail greater finality problems and special comity concerns. We remain convinced
that the burden of justifying federal habeas relief for state prisoners is greater than the
showing required to establish plain error on direct appeal.” (internal quotation marks
omitted)); see also Scott v. Mitchell, 209 F.3d 854, 872 n.6 (6th Cir. 2000) (rejecting the
argument that a procedurally defaulted claim should be reviewed for plain error on habeas
review).
       16
            Coleman v. Thompson, 501 U.S. 722, 729-30 (1991).

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adequate state procedural grounds.”17               Here, the Texas Court of Criminal
Appeals refused to consider Hernandez’s Fifth Amendment claim because
Hernandez failed to comply with Texas’s contemporaneous objection rule—he
failed to object to the purportedly unconstitutional statements when the
prosecution made them. Texas’s contemporaneous objection rule is an adequate
and independent state procedural ground.18 Hernandez’s failure to comply with
it means he has defaulted his Fifth Amendment claim.
       However, exceptions to the procedural default rule exist. There are two.
First, the prisoner “can demonstrate cause for the default and actual prejudice
as a result of the alleged violation of federal law.”19 Second, the prisoner can
“demonstrate that failure to consider the [federal] claim[] will result in a
fundamental miscarriage of justice.”20 These exceptions present significantly
higher hurdles for a prisoner to successfully navigate than the plain error
standard that we apply to unpreserved issues on direct appeal.21
       Here, Hernandez does not argue that these exceptions warrant waiver of
his procedural default. He does not contend that cause and prejudice exist:
although he argued in his state habeas petition that his trial attorney’s failure
to object to the prosecutor’s statements constituted ineffective assistance of
counsel, a form of cause,22 he failed to repeat that argument to the district court
below and he does not repeat it here. Nor does he contend that application of the

       17
            Id. at 730.
       18
         See Turner v. Quarterman, 481 F.3d 292, 301 (5th Cir. 2007) (holding that the Texas
contemporaneous objection rule is “an adequate procedural bar” (quoting Dowthitt v. Johnson,
230 F.3d 733, 752 (5th Cir. 2000))).
       19
            Coleman, 501 U.S. at 750.
       20
            Id.
       21
            See United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991) (en banc).
       22
            Coleman, 501 U.S. at 753-54.

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                                             No. 09-70029

procedural bar will result in a fundamental miscarriage of justice. He does not
attempt to show, “as a factual matter, that he did not commit the crime of
conviction.”23           Because Hernandez fails to present an argument for the
application of either of the exceptions to the procedural default rule, no jurist
could reasonably argue that the district court erred in finding Hernandez’s claim
procedurally defaulted. Accordingly, Hernandez is not entitled to a COA on his
Fifth Amendment claim.
                                                    B
          We also deny Hernandez a COA on his claim for the alternative reason
that, even if Hernandez could demonstrate that jurists of reason would find
debatable the correctness of the district court’s procedural ruling, he still has not
shown that reasonable jurists would find it debatable whether he has alleged a
valid Fifth Amendment claim.
          The Fifth Amendment not only affords a criminal defendant the right not
to testify at his trial, but also bars prosecutors from commenting on a criminal
defendant’s exercise of that right.24 We ask two questions to determine whether
a prosecutor’s remarks were constitutionally impermissible. An affirmative
answer to either means that they were. First, we ask “whether the prosecutor’s
manifest intent was to comment on the defendant’s silence.”25 “The prosecutor’s
intent is not manifest if there is some other, equally plausible explanation for
the remark.”26 Alternatively, we ask “whether the character of the remark was

          23
        Cantu v. Thaler, 632 F.3d 157, 166-67 (5th Cir. 2011) (quoting Fairman v. Anderson,
188 F.3d 635, 644 (5th Cir. 1999)).
          24
        See Griffin v. California, 380 U.S. 609, 614-15 (1965); United States v. Grosz, 76 F.3d
1318, 1326 (5th Cir. 1996) (“It is, of course, improper for a prosecutor to comment on a
defendant's exercise of his Fifth Amendment rights.”).
          25
               Grosz, 76 F.3d at 1326 (quoting United States v. Collins, 972 F.2d 1385, 1406 (5th Cir.
1992)).
          26
               Id. (citing Collins, 972 F.2d at 1406).

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such that the jury would naturally and necessarily construe it as a comment on
the defendant’s silence.”27 With respect to this second inquiry, “the question is
not whether the jury possibly or even probably would view the challenged
remark in this manner, but whether the jury necessarily would have done so.”28
In answering these questions, we consider a prosecutor’s remarks “in the context
of the case in which they are made.”29
       During closing arguments, Hernandez’s attorney asserted the following to
the jury:
             You know Breedlove huddled with the officers right before he
       brought Jesse Hernandez at 5:00 o’clock and that’s crucial,
       important stuff. You know that Breedlove interrogated him for two
       hours where he was sitting distance from here to here. Never
       noticed a swollen hand ever. Nothing. For two hours. Even
       watched him write the affidavit. Said it took him an hour.

              I asked, “When you got him out of jail, do you remember a
       jailer saying he hit his hands on the wall pounding the cell?” “No,
       I don’t remember that.”
Subsequently, on rebuttal, the prosecution remarked:
       Look, we haven’t come in here and made promises that we can’t
       back up. We presented evidence to you that shows him guilty. We
       haven’t come in with innuendo. You know, where is this proof about
       him striking something over in the jail causing him to swell his
       hand? Where is that proof there? You haven’t heard it from any



       27
            Id. (quoting Collins, 972 F.2d at 1406); see also Jackson v. Johnson, 194 F.3d 641,
652 (5th Cir. 1999) (“For there to have been a denial of one’s [F]ifth [A]mendment right to
remain silent, the prosecutor’s manifest intent in making the remark must have been to
comment on the defendant’s silence, or the character of the remark must have been such that
the jury would naturally and necessarily construe it as a comment on the defendant’s
silence.”).
       28
            Grosz, 76 F.3d at 1326 (quoting Collins, 972 F.2d at 1406) (internal quotation marks
omitted).
       29
        United States v. Johnston, 127 F.3d 380, 396 (5th Cir. 1997) (citing United States v.
Montoya-Ortiz, 7 F.3d 1171, 1179 (5th Cir. 1993)).

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      witness. We’re not the ones coming in here making these promises
      that we can’t back up.
Hernandez argues that the prosecutor’s remarks violated the Fifth Amendment
because the prosecutor’s statement that “[y]ou haven’t heard it from any
witness” necessarily referred to Hernandez’s failure to testify. He summarizes
his claim as follows:
      The evidence adduced at trial conclusively demonstrated that only
      three persons could possibly have knowledge of and testify
      regarding Petitioner’s bruised and swollen hand, which according to
      the State’s theory had been caused by Petitioner striking the
      deceased victim. Two of those three witnesses were peace officers
      who were in fact called by the State to testify about the injuries.
      The only remaining witness who could offer any explanation as to
      how the injury occurred was Petitioner himself, who had invoked his
      constitutional right to remain silent.
      It is true that a Fifth Amendment violation occurs when a prosecutor
refers to a lack of evidence in support of a defendant’s theory when the comment
necessarily refers to the defendant’s failure to testify. In United States v.
Johnston, for example, we held that a Fifth Amendment violation occurred when
a prosecutor, in response to a witness’s testimony that no other person could
corroborate his testimony about a number of activities, inquired on redirect
“[A]ren’t there some people in this courtroom that can back up what you say?”30
The prosecutor also simultaneously “made a sweeping arm gesture indicating
the individuals seated at counsel tables.”31 As we explained, a violation occurred
because:
      In responding to the cross-examination to the effect that there were
      no witnesses who could corroborate [the witness’s] testimony, the
      prosecutor implied that there were such people in the courtroom,
      obviously referring to the defendants. No one else in the court room


      30
           Id. at 397.
      31
           Id.

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      could have witnessed the events; only the defendants could
      reasonably be thought to be capable of providing corroboration.32
      In this case, however, one could plausibly interpret the prosecutor’s
remarks as referring to the lack of corroboration for Hernandez’s story in the
testimony of other actual and potential witnesses. The prosecutor could have
been commenting on the lack of corroboration for Hernandez’s theory in the
testimony of Detectives Breedlove and Lesher, for example. Or the prosecutor
could have been remarking on the failure of the defense to present the testimony
of the jailer who allegedly saw Hernandez pounding his hands on the jail cell.
Indeed, when considered in context, it is not debatable in this case “(1) whether
the prosecutor’s manifest intent was to comment on the defendant’s silence or
(2) whether the character of the remark was such that the jury would naturally
and necessarily construe it as a comment on the defendant’s silence.”33 We thus
deny Hernandez a COA on his Fifth Amendment claim for the separate reason
that jurists of reason would not find it debatable whether he has alleged a valid
Fifth Amendment claim. He has not.
                                      *        *         *
      For the above reasons, we DENY Hernandez’s motion for a COA.




      32
           Id.
      33
           Grosz, 76 F.3d at 1326 (quoting Collins, 972 F.2d at 1406).

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