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

                                                 FILED
                                                                           October 8, 2009
                                       No. 09-70005
                                                                       Charles R. Fulbruge III
                                                                               Clerk
JOHN AVALOS ALBA

                                                   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 Eastern District of Texas
                             USDC No. 1:04-CV-639


Before JONES, Chief Judge, and STEWART and OWEN, Circuit Judges.
PER CURIAM:*
       Texas inmate John Alba (“Alba”) seeks a certificate of appealability
(“COA”) to appeal the district court’s denial of his petition for a writ of habeas
corpus. Because no reasonable jurist could disagree that Alba’s claims are
procedurally defaulted, we deny the COA.
       The details of Alba’s 1991 murder of Wendy, his wife, are set forth in Alba
v. State, 905 S.W.2d 581 (Tex. Crim. App. 1995), cert. denied, 516 U.S. 1077
(1996). The district court described the procedural background:

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                 No. 09-70005

           On November 19, 1991, Alba was indicted for capital murder
     under Section 19.03(a)(2) of the Texas Penal Code for intentionally
     committing murder during the course of a burglary. Alba pleaded
     not guilty. On May 7, 1992, after being found guilty at a jury trial,
     he was sentenced to death. His conviction and sentence were
     affirmed on direct appeal. See Alba v. State, 905 S.W.2d 581 (Tex.
     Crim. App. 1995), cert. denied, 516 U.S. 1077, 116 S. Ct. 783, 133 L.
     Ed.2d 734 (1996). Alba then applied for a writ of habeas corpus,
     which the state court denied. See Ex parte Alba, No. 36711-01 (Tex.
     Crim. App. Apr. 15, 1998), cert. denied, 525 U.S. 967, 119 S. Ct. 414,
     142 L. Ed.2d 336 (1998). On August 21, 2000, however, the United
     States Court of Appeals for the Fifth Circuit vacated Alba’s death
     sentence. See Alba v. Johnson, 232 F.3d 208 (5th Cir. 2000). Alba
     was then retried on the issue of punishment only. On March 1,
     2001, he was again sentenced to death. His death sentence was
     affirmed on direct appeal. See Alba v. State, No. 71487, 2003 WL
     1888989 (Tex. Crim. App. Apr. 16, 2003), cert. denied, 541 U.S.
     1065, 124 S. Ct. 2390, 158 L.Ed.2d 966 (2004). He then sought a
     writ of habeas corpus in state court, which was denied. See Ex parte
     Alba, No. 36711-02 (Tex. Crim. App. Oct. 15, 2003).

            On June 23, 2005, Alba filed his amended petition for a writ
     of habeas corpus in this Court. The Court stayed Alba’s federal
     proceedings on February 3, 2006, so that he could return to state
     court and present a claim that the lethal injection procedure utilized
     in Texas violates the Eighth Amendment’s ban on cruel and unusual
     punishment. The state court ultimately dismissed Alba’s claim. See
     Ex parte Alba, 256 S.W.3d 682 (Tex. Crim. App. 2008).
     Consequently, on July 15, 2008, this Court lifted its stay of these
     proceedings. On July 14, 2008, Alba moved the Texas Court of
     Criminal Appeals for leave to file another petition for habeas corpus
     relief, but his request was denied. See Ex parte Alba,
     No. WR-36711-04, 2008 WL 4356934 (Tex. Crim. App. Sept. 24,
     2008).
Alba v. Quarterman, 621 F. Supp. 2d 396 (E.D. Tex. 2008).




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                                    No. 09-70005

      Although the district court located twenty-five separate claims within
Alba’s petition, Alba requests a COA regarding only two:
            1.    The State’s decision to seek the death penalty was
      racially motivated 1 and therefore violated his rights under the Fifth,
      Sixth, Eighth, Thirteenth, and Fourteenth Amendments.

            2.     Racially motivated imposition of the death penalty is
      contrary to “evolving standards of decency” and violates the Eighth
      Amendment.2
Alba first raised these claims in his state habeas petition following his re-
sentencing. The state court found them procedurally barred because he did not
raise them at his trial, re-sentencing, or on direct appeal. See, e.g., Ex parte
Gardner, 959 S.W.2d 189 (Tex. Crim. App. 1996) (“[T]he writ of habeas corpus
should not be used to litigate matters which should have been raised on direct
appeal.” (quoting Ex parte Goodman, 816 S.W.2d 383, 385 (Tex. Crim. App.
1991))). The federal district court found that Alba failed to show good cause for
not raising these claims earlier and denied them based on procedural default.
      Under 28 U.S.C. § 2253(c), before Alba may appeal the district court’s
denial of his petition, he must receive a certificate of appealability. “When the
district court denies a habeas petition on procedural grounds without reaching
the prisoner’s underlying constitutional claim, a COA should issue when the
prisoner shows, at least, that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district court was correct

      1
      Alba argues that this motivation arose from his race, his victim’s race, or some
combination of the two.
      2
        Although Alba characterizes these as separate arguments, his second claim appears
to be entirely subsumed by the first.

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                                        No. 09-70005

in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595,
1604 (2000).
       To overcome his acknowledged procedural default of these claims, Alba
must either “demonstrate cause for the default and actual prejudice as a result
of the alleged violation of federal law, or demonstrate that failure to consider the
claims will result in a fundamental miscarriage of justice.”                      Coleman v.
Thompson, 501 U.S. 722, 750, 111 S. Ct. 2546, 2565 (1991). Alba argues that
both reasons excused his failure to raise these claims earlier.
       Cause and Prejudice
       In order to show adequate cause for the default, Alba must demonstrate
that some objective, external factor prevented his compliance with the state
procedural rule.       Meanes v. Johnson, 138 F.3d 1007, 1011 (5th Cir. 1998)
(quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639, 2645 (1986)).
       Alba attributes his failure to raise both claims to the same cause—the
evidence was not available at the time of his re-sentencing.3 Both claims rest
upon a chart purportedly listing every murder in Collin County for 15 years,4 the
race of the defendant, and the race of the victim. He asserts that only after his
re-sentencing had he “reached a point where he could legitimately lay the
pattern emerging from Collin County’s capital litigation at the feet of racism.”




       3
       Paradoxically, Alba repeatedly asserts that his original trial and his resentencing were
both pervaded by racism, yet he claims not to have had an inkling that the County’s
prosecutors were allegedly engaged in systematic racially-charged death penalty decisions.
       4
        Demonstrating commendable candor, Alba volunteers that he decided to begin the
analysis period “slightly after the date of the last trial of a white person for capital murder.”
Such transparent attempts to manipulate the statistics do nothing to reassure the court of
their credibility.

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                                      No. 09-70005

       Why he was unaware of his claim during the direct appeal of his re-
sentencing in 2001 is wholly unexplained in his briefing. He makes no attempt
to show what additional evidence became available between 2001 and 2003,
when he first raised the claim in his state habeas petition. The chart includes
a date in each row, ranging from “1/5/1991” to “8/22/2000.” Without a column
title the meaning of these dates is unclear, but since the date in Alba’s row reads
“8/5/1991,” we assume they are the dates of the murders. By not including the
sentencing dates, Alba makes it impossible to evaluate whether he should have
been aware of this claim on direct appeal of his re-sentencing.5 Reasonable
jurists would not disagree that Alba has failed to meet his burden to show cause
for his procedural default.
       Fundamental Miscarriage of Justice
       A federal court may hear the procedurally defaulted claims of a state
prisoner if the failure to hear those claims would constitute a “miscarriage of
justice” because the prisoner is actually innocent. Sawyer v. Whitley, 505 U.S.
333, 339, 112 S. Ct. 2514, 2518–19 (1992). Applied to the death penalty, Alba
must “show by clear and convincing evidence that but for constitutional error at




       5
         This is far from the largest problem with Alba’s statistics. To adequately allege
racially motivated charging decisions, Alba would need to identify when charging decisions
were made and compare treatment of different defendants at that point in time. The statistics
he presents fail to do so—the “trial-life” notation, for example, does not reveal whether the
death penalty was sought and rejected by a jury or never sought.
        Alba distinguishes “plea-life” from death, but presumably in at least some of these
cases the plea was an alternative to facing a capital trial.
        The question is not, as Alba appears to believe, what ultimately happened to a
defendant, but whether, had the defendant not pled guilty, the prosecution would have sought
the death penalty. In this analysis, sentences actually imposed by juries and decisions to
plead guilty have no significance.

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                                      No. 09-70005

his sentencing hearing, no reasonable juror would have found him eligible for the
death penalty.” Id. at 350.
       The only cognizable actual innocence claim made by Alba is his argument
that he murdered his wife outside her friend’s apartment and therefore did not
commit the murder during a burglary.6 This claim fails because Alba presents
no new evidence—he merely makes an argument that the jury rejected.
       For the foregoing reasons, reasonable jurists could not disagree with the
district court’s refusal to entertain Alba’s claims because he failed to assert them
timely in the state courts and is unable to satisfy the federal standards for
excusing procedural default. Alba’s request for a COA is DENIED.




       6
        Alba additionally attempts to argue that he is actually innocent because “but for the
unconstitutional use of race against him in its charging practices he would never have been
charged with capital murder.” The assertion that Collin County executes an insufficient
number of white murderers might raise a constitutional claim, but this purported
constitutional violation has no bearing on whether Alba “committed an act for which the
United States Constitution and [Texas] laws permit imposition of the death penalty.” Schlup,
513 U.S. at 316.

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