     Case: 13-70036      Document: 00512835581         Page: 1    Date Filed: 11/13/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 13-70036                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
RUBEN GUTIERREZ,                                                        November 13, 2014
                                                                           Lyle W. Cayce
              Petitioner - Appellant                                            Clerk

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

              Respondent - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No.1:09-CV-22


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Petitioner-Appellant Ruben Gutierrez (“Gutierrez”) was convicted of
capital murder in Texas and sentenced to death. He now seeks a certificate of
appealability (“COA”) from the district court’s denial of habeas corpus relief.
Because Gutierrez has failed to make a substantial showing of a denial of a
constitutional right, we deny his application for a COA.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-70036


                                       I.
      The State of Texas charged Gutierrez with capital murder committed in
the course of a robbery. In its order affirming Gutierrez’s conviction, the Texas
Court of Criminal Appeals set forth the facts of the case as follows:
      The evidence shows that the 85-year-old victim kept
      approximately $600,000 in cash in her home which also served as
      an office for a mobile home park she owned and managed. The
      victim had befriended appellant and appellant knew the victim
      kept a lot of cash in her home office.

      Appellant developed a plan to steal the victim’s money. On
      September 5, 1998, the 21-year-old appellant and an accomplice,
      whom the victim did not know, went into the victim’s home/office
      to carry out this plan. When appellant and the accomplice left with
      the victim’s money, the victim was dead. She had been severely
      beaten and stabbed numerous times.

      Appellant claimed in his third statement to the police that “we” (he
      and the accomplice) had two different types of screwdrivers when
      they entered the victim’s home/office to steal her money. Appellant
      also claimed that the initial plan was for the accomplice to lure the
      victim out of her home/office through the front by some innocent
      means at which time appellant would go in through the back and
      take the victim’s money without the victim seeing him. This plan
      was frustrated when the victim saw appellant enter through the
      front door while the accomplice was still inside with her. Appellant
      claimed that soon after this, the accomplice began to beat, kick,
      and stab the victim with a screwdriver while appellant got her
      money. Appellant did nothing to prevent the accomplice from
      attacking the victim.

      The medical examiner testified that the victim suffered various
      defensive wounds indicating that she struggled for her life and
      tried to “ward off blows or attacks of some sort.” The medical
      examiner also testified that the victim suffered approximately
      thirteen stab wounds, caused by two different instruments – one
      “almost certainly” a flat head screwdriver and the other possibly a

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                                  No. 13-70036
      Phillips head screwdriver. The victim died from “massive blows to
      the left side of the face.”

      The state trial court instructed the jury “it could convict appellant of
capital murder if, among other things, it found that appellant ‘acting alone or
as a party’ with the accomplice intentionally caused the victim’s death.” The
jury found Gutierrez guilty.
      During the punishment phase of the trial, the trial court instructed the
jury that, to determine whether the court would sentence Gutierrez to death,
it should consider (1) whether Gutierrez was a future societal danger; (2)
whether Gutierrez caused the killing or anticipated that a human life would
be taken; and (3) whether sufficient circumstances mitigated against imposing
a death sentence. Because the jury answered the first two questions in the
affirmative and the third question in the negative, the trial court sentenced
Gutierrez to death.
      Gutierrez filed a motion for a new trial, which the state trial court denied
after holding a hearing. The Texas Court of Criminal Appeals affirmed
Gutierrez’s conviction and sentence on direct appeal.
      Gutierrez then applied for a writ of habeas corpus in the state court. The
state trial court transmitted findings of fact and conclusions of law to the Texas
Court of Criminal Appeals. The Texas Court of Criminal Appeals denied the
bulk of Gutierrez’s claims, but remanded the case to the trial court so it could
supplement the habeas corpus record with respect to two of Gutierrez’s
ineffective assistance of counsel claims. After the trial court followed these
instructions, the Texas Court of Criminal Appeals rejected Gutierrez’s two
remaining claims.
      Gutierrez then filed a federal petition for a writ of habeas corpus in the
district court. Because his petition included two claims that he had not raised
in his initial state habeas petition, the district court stayed and
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                                       No. 13-70036
administratively closed the case to allow him to fully exhaust his state court
remedies. Gutierrez then raised the two unexhausted challenges in the state
court. Because Gutierrez failed to raise those claims in his previous petition,
the Texas Court of Criminal Appeals dismissed the successive application as
an abuse of the writ without considering its merits.
       Gutierrez also filed a motion for post-conviction DNA testing in the state
court. The state trial court denied that motion, and the Texas Court of Criminal
Appeals affirmed.
       The district court reopened Gutierrez’s federal habeas case once the state
court proceedings concluded. The district court then denied Gutierrez’s habeas
petition in its entirety. The court also denied a COA on all of Gutierrez’s claims
without holding an evidentiary hearing.


                                             II.
       Under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), a petitioner must obtain a COA before appealing the district
court’s denial of habeas relief. 1 To obtain a COA, the prisoner must “ma[k]e a
substantial showing of the denial of a constitutional right.” 2 “A petitioner
satisfies this standard if ‘reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.’” 3
       “We evaluate the debatability of [Gutierrez]’s constitutional claims
under AEDPA’s highly deferential standard, which ‘demands that state-court
decisions be given the benefit of the doubt.’” 4




       1 Newton v. Dretke, 371 F.3d 250, 254 (5th Cir. 2004) (citing 28 U.S.C. § 2253(c)(2)).
       2 28 U.S.C. § 2253(c)(2).
       3 Trottie v. Stephens, 720 F.3d 231, 239 (5th Cir. 2013), cert. denied, 134 S. Ct. 1540

(2014) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
       4 Id. at 240 (quoting Renico v. Lett, 559 U.S. 766, 773 (2010)).

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                                         No. 13-70036
      [A] habeas petitioner must prove that the constitutional
      adjudication by the state court “resulted in a decision that was
      contrary to, or involved an unreasonable application of, clearly
      established Federal law, as determined by the Supreme Court of
      the United States,” or “resulted in a decision that was based on an
      unreasonable determination of the facts in light of the evidence
      presented in the State court proceeding.” 5


“We defer to the state trial court’s factual findings and consider only the record
that was before the state court.” 6


                                               III.
      Gutierrez argues that we should issue a COA because reasonable
jurists would disagree with the district court’s rulings that:
      (1)   the interrogating officers did not violate Gutierrez’s
      constitutional rights when obtaining inculpatory statements from
      him;

      (2)  the evidence was legally sufficient to support his conviction
      and death sentence;

      (3)   the jury was capable of delivering a fair and impartial
      verdict;

      (4)   Gutierrez’s claims of juror                 misconduct   were    both
      procedurally defaulted and meritless;

      (5)   the prosecutor did not improperly question a defense witness
      regarding his religious beliefs in order to discredit him; and

      (6)   the Government timely disclosed the existence of potentially
      exculpatory DNA evidence.




      5   Id. (internal citations omitted).
      6   Id. at 241 (internal citations omitted).
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                                       No. 13-70036
For the following reasons, none of Gutierrez’s arguments have merit, so we
deny Gutierrez’s request for a COA on all claims.


                                             A.
       Gutierrez first argues that the trial court erroneously admitted his
inculpatory statements to the police into evidence. He claims that “the State
violated his constitutional rights when police elicited statements from him
after he invoked his right to remain silent.” He further argues that the police
coerced him into making a statement by “threaten[ing] to arrest his wife and
to have the Department of Children and Family [S]ervices take their children
if he did not cooperate and give a statement.” Gutierrez also claims that his
counsel rendered ineffective assistance by failing to raise these challenges in
the state court proceedings.
       Where the question presented in a section 2254 proceeding is
       whether a confession admitted at trial was voluntary and in
       compliance with Miranda, with respect to issues of underlying or
       historic facts, the state court findings, if fairly supported in the
       record, are conclusive, but there is independent federal
       determination of the ultimate question whether, under the totality
       of the circumstances, the challenged confession was obtained in a
       manner compatible with the requirements of the Constitution. 7


                                             1.
       We first consider whether the interrogating officers violated Gutierrez’s
right to remain silent by reinterrogating him on two subsequent occasions
several days after he terminated his initial interview. “[T]he admissibility of
statements obtained after the person in custody has decided to remain silent




       7West v. Johnson, 92 F.3d 1385, 1402 (5th Cir. 1996) (citing Miller v. Fenton, 474 U.S.
104, 110-14 (1985)).
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                                       No. 13-70036
depends . . . on whether his ‘right to cut off questioning’ was ‘scrupulously
honored.’” 8 This depends on
       (1) whether the suspect was advised prior to initial interrogation
       that he was under no obligation to answer question [sic]; (2)
       whether the suspect was advised of his right to remain silent prior
       to the reinterrogation; (3) the length of time between the two
       interrogations; (4) whether the second interrogation was restricted
       to a crime that had not been the subject of earlier interrogation;
       and (5) whether the suspect’s first invocation of rights was
       honored. 9

No single factor is dispositive. 10
       Under this standard, reasonable jurists would not debate whether the
police officers scrupulously honored Gutierrez’s right to remain silent. First,
the trial court found that, before conducting the initial interrogation on
September 9, 1998, the officers informed Gutierrez of his right to remain silent
or to terminate the interview. The evidence presented at the pretrial
suppression hearing supports that finding. Indeed, Gutierrez exercised his
right to terminate the initial interview shortly after it began.
       Second, the state court found that the officers again advised Gutierrez of
his rights before reinterrogating him several days later, and the record
supports that finding as well. The officers testified at the suppression hearing
that they advised Gutierrez of his rights before each interrogation. Moreover,
at each subsequent interview, Gutierrez signed and initialed on a written
Miranda form that he understood that he had the right to remain silent and
terminate the interview, and that he agreed to waive those rights.




       8 Michigan v. Mosley, 423 U.S. 96, 104 (1975).
       9 United States v. Alvarado-Saldivar, 62 F.3d 697, 699 (5th Cir. 1995) (citing Mosley,
423 U.S. at 104-05).
       10 Hebert v. Cain, 121 F. App’x 43, 46 (5th Cir. 2005) (citing Kelly v. Lynaugh, 862 F.2d

1126, 1131 (5th Cir. 1988)).
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                                     No. 13-70036
       Third, the state court found that four days passed between the time
Gutierrez terminated the initial interview and the time the police officers
arrested and reinterrogated him. Because a break of two or more hours
between successive interrogations is generally sufficient, 11 this factor favors
the Government.
       It is undisputed that the successive interrogations implicated the same
crime as the initial interrogation. Although this factor favors Gutierrez, “it is
not decisive.” 12 The Government’s strong showing on the other four factors
outweighs the fact that all of the interrogations concerned the same offense.
       Finally, the officers honored Gutierrez’s first invocation of his right to
remain silent. The state court credited the officers’ testimony at the
suppression hearing that they terminated the initial interview upon
Gutierrez’s request.
       Gutierrez argues in a Rule 28(j) letter that, once he exercised his right
to remain silent after receiving Miranda warnings, the police were forbidden
from questioning him further unless he initiated further communication with
the police. That prohibition applies only to the right to counsel, which this
appeal does not implicate; it does not apply to the right to remain silent. 13
The fact that the police initiated subsequent communications with Gutierrez
therefore does not affect the admissibility of Gutierrez’s inculpatory
statements.
       In sum, we defer to the state court’s findings that the officers
scrupulously honored Gutierrez’s right to remain silent, which are amply




       11See Mosley, 423 U.S. at 104, 107.
       12Kelly, 862 F.2d at 1131.
      13 Charles v. Smith, 894 F.2d 718, 725-26 (5th Cir. 1990) (citing Edwards v. Arizona,

451 U.S. 477, 485 (1981); Mosley, 423 U.S. at 97-98, 102-04).
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                                        No. 13-70036
supported by the record. Because reasonable jurists would not debate this
issue, we deny a COA on this claim.


                                               2.
      Gutierrez claims the officers coerced him into making inculpatory
statements by threatening to take away his wife and children. The state
court, relying on the officers’ testimony at the suppression hearing that they
did not threaten Gutierrez, determined that the officers did not make these
threats. We defer to the state court’s finding, which is fairly supported by the
record. 14 We therefore deny a COA on Gutierrez’s coercion claim as well.


                                               3.
      Because Gutierrez has failed to show that reasonable jurists would
debate whether the state trial court erroneously admitted his statements to
the police into evidence, Gutierrez has failed to show that his attorney’s
failure to raise such an objection amounted to ineffective assistance. 15 We
therefore deny a COA as to Gutierrez’s ineffective assistance claim.


                                               B.
      Gutierrez also claims that the evidence introduced at trial “was legally
insufficient to support a conviction for capital murder or the death sentence
because the State failed to prove that he had specific intent to commit
murder or that he personally caused the death of the victim (either alone or
with [his accomplice]).”




      14   See West, 92 F.3d at 1402 (citing Miller, 474 U.S. at 110-14).
      15   See Strickland v. Washington, 466 U.S. 668, 691-92 (1984).
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                                        No. 13-70036
      To succeed on this claim, Gutierrez must demonstrate that reasonable
jurists would dispute whether, “upon the record evidence adduced at trial[,]
no rational trier of fact could have found proof of guilt beyond a reasonable
doubt.” 16 We “view[] the evidence in the light most favorable to the
prosecution.” 17
      The Texas Court of Criminal Appeals ruled on direct appeal that
      From the evidence that appellant and the accomplice went inside
      the victim’s home office with two different types of screwdrivers,
      the evidence that the victim’s stab wounds were caused by two
      different instruments, the evidence that the victim knew and could
      identify appellant, and the evidence that appellant did nothing to
      prevent the victim’s murder, the jury could fairly infer that
      appellant “at the very least” was guilty as a party to intentionally
      murdering the victim.

The Texas Court of Criminal Appeals further reasoned that
      A jury could fairly infer from this evidence and appellant’s
      admission in his third statement to the police about “we” having
      two screwdrivers that appellant stabbed the victim with a
      screwdriver. A jury could also fairly infer from this evidence and
      the other circumstances of the offense that appellant and the
      accomplice also beat the victim to death. On this record, we cannot
      say the jury’s verdict is irrational.

      Based on our review of the record, and giving the state court’s findings
the deference to which they are entitled, we agree that the evidence produced
at trial was sufficient to support the jury’s finding of guilt. Gutierrez’s
statements to the police, which the state court properly admitted into
evidence, establish both Gutierrez’s presence at the scene of the crime and his
involvement in the robbery. Based on this evidence and the additional
evidence summarized in the Texas Court of Criminal Appeals’ opinion, we are



      16   Jackson v. Virginia, 443 U.S. 307, 324 (1979).
      17   Id. at 319.
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                                       No. 13-70036
satisfied that the jury could infer that Gutierrez participated in the murder,
either as a principal or under Texas’s law of parties. We therefore deny a
COA on this issue.


                                              C.
      Gutierrez argues next that the district court erred by rejecting his claim
that the state trial court erroneously denied his for-cause challenge to
venireperson Sergio Sanchez (“Sanchez”). According to Gutierrez, Sanchez’s
responses during voir dire demonstrated that he would automatically render a
death sentence regardless of the evidence presented. After the trial court
denied Gutierrez’s motion to strike Sanchez for cause, Gutierrez exercised a
peremptory strike against Sanchez. As a result, Gutierrez claims he was forced
to exhaust his allotted peremptory strikes to challenge Sanchez, which in turn
required him to accept an equally objectionable juror, Melquiades Perez
(“Perez”). Gutierrez argues that the trial court also erroneously refused to
strike Perez for cause. He contends that Perez should not have served on the
jury because (1) he stated that he would always vote for a death sentence no
matter what evidence Gutierrez presented and (2) he had difficulty
distinguishing between the statutory elements of burglary and robbery.
      Where the trial court erroneously refuses to dismiss a potential juror for
cause and “the defendant elects to cure [this] error by exercising a peremptory
challenge,” the trial court’s error does not violate the defendant’s constitutional
rights if the defendant is ultimately “convicted by a jury on which no biased
juror sat.” 18 Because Perez, rather than Sanchez, ultimately sat on the jury,




      18   United States v. Martinez-Salazar, 528 U.S. 304, 307 (2000).
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                                      No. 13-70036
we must evaluate whether reasonable jurists would debate whether the state
court should have excused Perez for cause. 19
       “[A] prospective juror may be excluded for cause because of his or her
views on capital punishment” when “the juror’s views would ‘prevent or
substantially impair the performance of his duties as a juror in accordance
with his instructions and his oath.’” 20 Even where a juror “h[o]ld[s] a strong
personal preference for the death penalty as a punishment for those convicted
of capital murder,” the trial court need not excuse that juror if he or she is
capable of impartially applying the law instead of his or her own personal
preferences. 21
       No reasonable jurist would debate whether the state court should have
excluded Perez for cause under this standard. The record does not support
Gutierrez’s claim that Perez would “always vote for the death penalty”
regardless of the evidence presented at trial. Perez’s juror questionnaire
stated not that he would automatically vote for the death penalty, but rather
that “[he] would always vote for the death penalty in a case where the law
allows [him] to.” During voir dire, Perez affirmed that his feelings regarding
the death penalty would not cause him to falsely answer the special-issue
questions during the punishment phase in order to obtain a death sentence. 22
Thus, no reasonable jurist would debate whether Perez was ultimately able
to follow the court’s instructions during the punishment phase of the trial.
       We likewise reject Gutierrez’s argument that Perez was unable or
unwilling to properly apply the elements of the offense during the guilt phase



       19  Id. at 316.
       20  Wainwright v. Witt, 469 U.S. 412, 424 (1985) (quoting Adams v. Texas, 448 U.S. 38,
45 (1980)).
        21 See Miniel v. Cockrell, 339 F.3d 331, 340 (5th Cir. 2003) (emphasis in original).
        22 See Tr. Vol. 16, at 30, 103-04 (“And what I’m asking is, is would you answer this

falsely to ensure a certain result? / A. No, sir.”).
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                                  No. 13-70036
of Gutierrez’s trial. According to Gutierrez, Perez did not understand or
appreciate that, in order to find Gutierrez guilty, he would have to believe
beyond a reasonable doubt that Gutierrez committed murder in the course of
a robbery (“where you use force or threat of force to take something from a
person”) as opposed to a mere burglary (“where you go into a house and take
something from the house”).
      Perez initially expressed difficulty understanding the difference
between “robbery” and “burglary.” Perez at first claimed that he “wouldn’t be
able to separate the difference” between the two crimes, stating, “It’s a
different word, but to me it’s the same meaning. You know, you still took
something. It wasn’t yours.” Perez then suggested that, even if the
indictment required proof of a robbery, he would still convict upon a showing
of a mere burglary because “Robbery and burglary is the same thing to me.”
Perez then informed defense counsel that he would in all likelihood be unable
to set aside his feelings in this regard.
      However, as the prosecutor and the trial judge questioned Perez
further, Perez displayed the ability and willingness to convict Gutierrez only
if the prosecution established the robbery element beyond a reasonable
doubt. Perez first affirmed to both the prosecutor and the trial judge that he
would only find Gutierrez guilty if the prosecution proved each of the
elements of the offense beyond a reasonable doubt. The trial judge then
extensively discussed the difference between robbery and burglary with
Perez, and explained that a robbery only occurs when the defendant
“threaten[s]” or “assault[s]” the victim in some way. After clarifying the
distinction between the two crimes, the judge asked Perez, “[I]f they don’t
prove robbery, they prove something else like a burglary, you know, what
would your verdict be after you hear that kind of case?” Perez responded, “I
guess it would be not guilty.” Perez then stated to defense counsel, “I guess
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                                    No. 13-70036
that the way the Judge explained it, they need to prove all six in order to find
the man guilty, I think I can go with that . . . I understand it now the way the
Judge explained it, yes, sir.”
      Our decision in Miniel v. Cockrell 23 disposes of Gutierrez’s challenge. In
that case, the petitioner-appellant challenged a juror who initially expressed
difficulty understanding the difference between the terms “intentional” and
“deliberate.” 24 We nonetheless denied a COA because the juror’s responses
ultimately “indicated that he perceived some difference between the two
terms and that he would base his answers on the evidence presented.” 25
Here, too, Perez ultimately “indicated that he perceived some difference
between” robbery and burglary “and that he would base his answers on the
evidence presented.” 26 As a result, no reasonable jurist would debate whether
Perez ultimately displayed views that would “prevent or substantially impair
the performance of his duties as a juror in accordance with his instructions
and his oath.” 27
      Where “there is lengthy questioning of a prospective juror and the trial
court has supervised a diligent and thoughtful voir dire, the trial court has
broad discretion” to determine whether to excuse a particular venireperson. 28
Because the state trial judge personally observed and participated in the voir
dire process, we defer to the state trial judge’s assessment of Perez’s ability
and willingness to fairly and impartially apply the correct legal standards. 29




      23 339 F.3d 331.
      24 Id. at 340-41.
      25 Id. at 341.
      26 See id.
      27 See Wainwright, 469 U.S. at 424 (quoting Adams, 448 U.S. at 45).
      28 Uttecht v. Brown, 551 U.S. 1, 20 (2007).
      29 See Wainwright, 469 U.S. at 425-26.

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                                  No. 13-70036
      For the foregoing reasons, we deny a COA on Gutierrez’s juror
impartiality claim.


                                       D.
      Gutierrez next claims “that he ha[s] been deprived of his right to a fair
and impartial jury” because “one or more of his jurors had looked at media
coverage of the trial during trial.” He also claims that the jury improperly
“considered the possibility of parole in rendering its verdict.”
      The state trial court held an evidentiary hearing on this issue before
ruling on Gutierrez’s motion for a new trial. Gutierrez intended to call three
jurors as witnesses at this hearing: Simon Betancourt (“Betancourt”), Beatriz
De La Garza (“De La Garza”), and Melinda Hockaday (“Hockaday”). However,
Gutierrez was ultimately unable to locate either De La Garza or Hockaday.
The state trial court therefore quashed the subpoenas as to De La Garza and
Hockaday and heard testimony only from Betancourt. The record does not
reflect that Gutierrez was able to locate De La Garza or Hockaday at any time
after the hearing.
      Betancourt testified that the jurors mentioned parole only briefly during
sentencing deliberations. The jurors ceased discussing parole immediately
after the foreperson reminded them not to consider it. Betancourt further
testified that he had not seen any media coverage of the case while serving on
the jury.
      On the basis of Betancourt’s testimony, the state trial court orally denied
Gutierrez’s motion for a new trial. Immediately after the state trial court
denied the motion, Gutierrez offered his investigator’s activity reports into the
record. The activity reports purported to set forth the testimony that Hockaday
and De La Garza would have given had they appeared at the hearing.


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                                 No. 13-70036
      The activity reports give no reason to believe that, if Hockaday and De
La Garza had in fact testified, their testimony would have been materially
inconsistent with Betancourt’s testimony. According to the activity report,
Hockaday stated that the jurors did not discuss parole after the foreperson
reminded them not to do so. De La Garza stated that the jury discussed and
considered parole, “but not for very long” and “not that much,” which is
consistent with Betancourt’s testimony. Thus, no reasonable jurist would
debate whether discussions of parole had any influence on the jury verdict.
      Nor do their statements give any indication that exposure to media
coverage improperly influenced the verdict. Hockaday’s activity report
unequivocally states: “Everybody avoided media coverage. Nobody said
anything about the trial. I knew that I was not supposed to be involved with
any media coverage so I avoided it.” De La Garza stated that she viewed some
media coverage, but that it merely reiterated the evidence that was presented
at trial. De La Garza did not suggest that this media coverage was prejudicial,
or that it influenced the jury’s verdict in any way. Thus, even after considering
their statements in addition to Betancourt’s testimony, there is no suggestion
that any of the jurors were exposed to media coverage that was innately
prejudicial.
      Thus, no reasonable jurist would debate whether juror misconduct
tainted Gutierrez’s trial or sentencing. Nor would reasonable jurists debate
whether the district court should have held an evidentiary hearing before
ruling on Gutierrez’s jury misconduct claim. We therefore deny Gutierrez a
COA on this issue.


                                       E.
      Gutierrez argues next that the prosecution impermissibly questioned a
defense witness about his religious beliefs in violation of the First Amendment.
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                                 No. 13-70036
During the punishment phase of Gutierrez’s trial, Gutierrez called Dr.
Jonathan Sorenson (“Sorenson”), a professor of criminal justice at the
University of Texas-Pan American who conducts actuarial analyses of crime
and recidivism, to testify as to Gutierrez’s future dangerousness. On cross-
examination, the prosecution sought to discredit Sorenson by showing that he
“works in a college in an ivory tower situation; and we work in the real world.”
To that end, the prosecution engaged in the following exchange with Sorenson:
      Prosecution:     Do you believe in good and evil?
      Sorenson:        I’m not a philosopher.
      Defense Counsel: I object as to relevance, Your Honor.
      The Court:       It’s overruled.
      Sorenson:        I’m sorry. I wouldn’t know how to define those
                       terms.
      Prosecution:     Do you believe in God?
      Defense Counsel: Objection, Your Honor, as to relevance.
      The Court:       I’ll sustain that objection.
      Prosecution:     Do you believe that evil is out there and that
                       we have to fight evidence [sic]?
      Defense Counsel: I’m going to object, Your Honor, as to
                       relevance.
      The Court:       It’s overruled.
      Prosecution:     Answer that.
      Sorenson:        That there’s evil out there?
      Prosecution:     Yeah, a force called evil.
      Sorenson:        No, I don’t believe that.

Then, during closing arguments, the prosecution discussed religious beliefs as
a preface to addressing Sorenson’s testimony:
      This is not about whether the death penalty is right or wrong. We
      went through that. We talked to all of you when you sat right there.
      We went through that, and we went through all the religious
      reasons and whatnot. We know that you’re going to have a
      problem. We know.

      But you have to tell the truth. You have to be true to yourselves
      above all things. Religion says that too. Religion says that there’s
      man’s laws and God’s laws; and you’ve got to follow the man’s laws
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                                 No. 13-70036
      and you’ve got to pay the man’s penalties so that you can live in
      society here. That’s in the bible. It is. And you know that.

      And when Christ was on the cross and the man next to him, the
      thief, he forgave him [sic]. But did he throw him off the cross and
      let him live? They let him go ahead and die to pay for what he did.
      You’ve got to pay on it. There’s got to be accounting here. This is
      the real world. This is not an ivory tower. It’s not a perfect place .
      ...

      I asked the doctor [Sorenson] if he believed in justice, not the kind
      of justice for fair play, but justice where you get what you deserve.
      He ultimately said he does. The defense objected, “I object. That’s
      not relevant. Justice is not relevant.”

      Folks, that’s what this is all about. Our society is going to go if we
      don’t have accounting for these terrible kinds of things . . . .

      The good doctor [Sorenson] says there’s – he doesn’t believe in the
      evil force in the world. He couldn’t answer. He believes in God.

      There’s evil in the world. There’s evil in the world. I know it
      because I’ve dedicated my life to fighting it.

      For the following reasons, reasonable jurists would not debate whether
the prosecutor’s questioning and argument violated the First Amendment.
First, the trial court sustained defense counsel’s objection to the prosecutor’s
only direct question regarding Sorenson’s belief in God. Second, to the extent
the balance of the prosecution’s questions and argument could be viewed as
touching on the witness’s religious views, Gutierrez has not identified any
clearly established First Amendment precedent that barred the prosecutor
from asking Sorenson questions that peripherally touched on his religious
beliefs or commenting upon those beliefs during closing argument. Gutierrez
insists that the Supreme Court held to the contrary in Dawson v. Delaware,




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                                    No. 13-70036
but that case only concerned evidence of the defendant’s own beliefs. 30 The
Supreme Court did not hold that a defendant may obtain relief from a
conviction when the prosecution questions a defense witness about his or her
religious beliefs. Gutierrez also cites Quinn v. United States, 349 U.S. 155
(1955), Emspak v. United States, 349 U.S. 190 (1955), and Bart v. United
States, 349 U.S. 219 (1955) for the proposition that “the Supreme Court [has]
repeatedly held that the Government may not probe the minds of witnesses on
religious beliefs,” but those cases are also inapposite. Quinn, Emspak, and Bart
all discuss the consequences of a defendant’s own refusal to answer a
congressional committee’s questions regarding the defendant’s affiliation with
the Communist party. None of these cases has anything to do with questioning
a witness about his or her religious beliefs during a criminal trial. Thus, no
reasonable jurist would debate whether the state court misapplied clearly
established Supreme Court First Amendment jurisprudence.
      The district court also analyzed whether the prosecutor’s comments were
improper under traditional due process standards, and concluded they were
not. We agree.
      In habeas corpus proceedings, we review allegedly improper
      prosecutorial statements under a strict standard. “The statements
      must render the trial fundamentally unfair.” “[I]t is not enough
      that the prosecutors’ remarks were undesirable or even
      universally condemned. The relevant question is whether the
      prosecutors’ comments so infected the trial with unfairness as to
      make the resulting conviction a denial of due process.” 31

Reasonable jurists would not disagree regarding whether the prosecutor’s
religious references violated Gutierrez’s due process rights. The prosecutor did


      30503 U.S. 159, 160, 168 (1992).
      31 Dowthitt v. Johnson, 230 F.3d 733, 755 (5th Cir. 2000) (quoting Darden v.
Wainwright, 477 U.S. 168, 181 (1986); Barrientes v. Johnson, 221 F.3d 741, 753 (5th Cir.
2000)).
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                                        No. 13-70036
not exhort the jury to apply the Biblical law of capital punishment in place of
the State’s law; to the contrary, the prosecutor acknowledged that the jury
should judge Gutierrez on the basis of “man’s laws.” In any event, the
prejudicial effect of the prosecutor’s comments was minimal, and certainly did
not approach a denial of due process.


                                               F.
       Gutierrez argues next that the Government violated Brady v.
Maryland 32 by failing to turn certain DNA evidence over in sufficient time to
make proper use of it at trial. Gutierrez concedes that the Government did
indeed provide him the evidence in question prior to trial, but he contends
that the Government did not make this evidence available soon enough to
allow Gutierrez to conduct DNA testing and assess the results.
       The district court correctly ruled that Gutierrez procedurally defaulted
on his Brady claim. 33 “A federal habeas claim is procedurally defaulted when
the state court has based its rejection of the claim on a state procedural rule
that provides an adequate basis for relief, independent of the merits of the
claim.” 34 “Federal habeas review of procedurally defaulted claims is barred
‘unless the petitioner can demonstrate cause for the default and actual
prejudice as a result of the alleged violation of federal law, or demonstrate that




       32  373 U.S. 83 (1963). Brady holds “that the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”
Id. at 87.
        33 Gutierrez contends that “[t]he District Court did not rely upon the procedural bar”

to resolve his Brady claim. Gutierrez is incorrect. Although the district court considered the
substantive merits of Gutierrez’s Brady claim in the alternative, the court did indeed reject
this claim on procedural grounds.
        34 Hughes v. Quarterman, 530 F.3d 336, 341 (5th Cir. 2008) (citing Coleman v.

Thompson, 501 U.S. 722, 729-32 (1991)).
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                                       No. 13-70036
failure to consider the claims will result in a fundamental miscarriage of
justice.’” 35
       Texas’s abuse of the writ doctrine, which is codified in Texas Code of
Criminal Procedure Article 11.071 § 5(a), bars the state court from considering
a successive habeas petition unless the petitioner meets certain prerequisites.
A dismissal pursuant to Article 11.071 “is an independent and adequate state
ground for the purpose of imposing a procedural bar” in a subsequent federal
habeas proceeding. 36
       Gutierrez raised his Brady claim for the first time in a successive state
habeas petition. The Texas Court of Criminal Appeals “dismissed the
[successive] application as an abuse of the writ without considering the merits
of [his] claims” because he had “failed to satisfy the requirements of Article
11.071, § 5(a).” Thus, adequate and independent state law bars Gutierrez’s
Brady claim unless he can demonstrate cause and prejudice for not raising the
claim in his initial state habeas petition, or that this Court’s refusal to consider
the claim would amount to a fundamental miscarriage of justice. 37 Gutierrez
offers no persuasive reason why either of these exceptions to the procedural
bar would apply. Reasonable jurists would therefore not debate the district
court’s ruling.


                                             IV.
       Because all of Gutierrez’s arguments lack merit, Gutierrez’s request for
a COA is hereby DENIED.




       35 Id. (citing Coleman, 501 U.S. at 750).
       36 Id. at 342 (citations omitted)
       37 See id. at 341 (citing Coleman, 501 U.S. at 750).

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