                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                 F I L E D
                    UNITED STATES COURT OF APPEALS
                                                                September 20, 2007
                        FOR THE FIFTH CIRCUIT
                                                             Charles R. Fulbruge III
                                                                     Clerk


                               07-70002



     SAMUEL BUSTAMANTE,

                                           Petitioner-Appellant,

                                   v.

     NATHANIEL QUARTERMAN, Director,
     Texas Department of Criminal Justice-
     Correctional Institutions Division,

                                           Respondent-Appellee.



         Appeal from the United States District Court for the
                  Southern District of Texas, Houston
                           No. 4:05-CV-01805


Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM*

     Petitioner Samuel Bustamante, convicted of capital murder in

Texas and sentenced to death, requests this Court to issue a

Certificate   of   Appealability   (COA)   pursuant   to   28   U.S.C.      §

2253(c)(2).   Bustamante contends that counsel rendered ineffective

assistance during the guilt phase of the trial.            Finding that

Bustamante has made a substantial showing of the denial of a


     *
       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this opinion should not be published and is not precedent except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.
constitutional right, we GRANT the COA.

            I.     BACKGROUND

     On January 17, 1998, Petitioner Samuel Bustamante, Walter

Escamilla,    Arthur      Escamilla,   and    Dedrick      Depriest      planned     a

robbery.1        Walter   suggested    that   the   four    of    them     drive    to

Rosenburg, Texas to go “shopping.”            “Shopping” entailed offering a

ride to an illegal alien, taking him to a deserted location, beating

him and stealing his money and jewelry.             Arthur drove the group in

his pickup truck, and they arrived in Rosenburg at 2:00 a.m.                       The

group spotted Rafael Alvarado, and Bustamante noted that Alvarado’s

clothing was in good condition and his watch appeared to be gold.

     Alvarado offered to pay for a ride across town, and the men

agreed. Arthur and Depriest sat in the truck cab and Bustamante and

Walter rode in the truck bed with Alvarado.                After about fifteen

minutes,    Bustamante     asked   Walter     a   question,      and    Walter   said

Bustamante should wait.       Bustamante      stood up and stabbed Alvarado

ten times with a knife. Alvarado managed to break free and fall out

of the truck to the ground.        Walter shouted at the driver to stop,

but by the time the truck stopped, they were unable to find Alvarado

after searching for several minutes in the darkness.                   As they drove

away, the other men called Bustamante crazy.

     Subsequently, the police discovered Alvarado’s body in a ditch.


     1
         The facts underlying the conviction are taken largely
verbatim from the Texas Court of Criminal Appeals’ opinion.
Bustamante v. State, 106 S.W.3d 738, 739-40 (Tex. 2003).

                                        2
He was wearing a watch, a gold necklace, and a ring.           His wallet

contained one hundred dollars.      The cause of death was stab wounds

to the heart and liver and the attendant loss of blood.

       A grand jury indicted Bustamante on the charge of capital

murder.    During the guilt phase of the trial, Bustamante’s brother

was called to the stand, and he refused to testify.             Thus, his

brother’s written statement was not admitted into evidence.           The

statement contained the facts of the crime as related by Bustamante

to his brother, and it also referenced previous times Bustamante had

gone “shopping.” At the conclusion of the guilt phase of the trial,

this statement was inadvertently submitted to the jury with the

properly admitted exhibits.2       The jurors realized the error and

notified   the   trial   judge,   who   questioned   the   jurors.   This

questioning revealed that three jurors had read the statement or

portions of it either silently or aloud.      Bustamante, 106 S.W.3d at

742.   Nine jurors had not read it themselves but had heard some or

all of it read aloud.      Id.    Five jurors said that “they learned

nothing new from the statement, three said that they learned that

[Bustamante] had ‘gone shopping’ before, and four said they learned

about an incident at a truck stop, after the murder, in which

[Bustamante] apparently started to break into another vehicle



       2
        Bustamante’s brother’s statement had been marked States’
Exhibit 107, but was never admitted into evidence. Another piece
of evidence subsequently was marked as Exhibit 107 and admitted
into evidence.

                                    3
occupied by a sleeping person.”               Id.     Additionally, “[o]ne juror

said she also learned that [Bustamante] had told his brother before

leaving for Rosenburg that he intended to rob someone.”                      Id.

      The judge overruled Bustamante’s motion for mistrial and

instructed the jurors not to consider that statement “as evidence

of any kind for any purpose at any stage of this trial.”                        The jury

found Bustamante guilty as charged. After the sentencing phase, the

jury answered the special issues, and the judge imposed a death

sentence.

      After exhausting his direct appeal and state habeas remedies,

Bustamante filed the instant federal habeas petition.                    The district

court denied relief and a certificate of appealability (COA).

Bustamante now moves this Court for a COA.

       II. STANDARD OF REVIEW

      Under    the    Antiterrorism       and   Effective       Death    Penalty    Act

(“AEDPA”), a petitioner must obtain a COA before he can appeal the

district court’s denial of habeas relief.               See 28 U.S.C. § 2253(c);

see   also    Miller-El   v.    Cockrell,       537    U.S.    322,     335-36    (2003)

(“[U]ntil a COA has been issued federal courts of appeals lack

jurisdiction     to    rule    on   the    merits      of     appeals    from    habeas

petitioners.”).

      The COA determination under § 2253(c) requires an overview of

the claims in the habeas petition and a general assessment of their

merits.      We look to the district court’s application of AEDPA to


                                          4
petitioner’s constitutional claims and ask whether that resolution

was debatable among jurists of reason.              This threshold inquiry does

not require full consideration of the factual or legal bases adduced

in support of the claims.        In fact, the statute forbids it.

Miller-El, 537 U.S. at 336.

     A   COA   will   be    granted    only    if    the   petitioner   makes   “a

substantial showing of the denial of a constitutional right.”                   28

U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by

demonstrating    that      jurists    of   reason    could   disagree   with    the

district court’s resolution of his constitutional claims or that

jurists could conclude the issues presented are adequate to deserve

encouragement to proceed further.”              Miller-El, 537 U.S. at 327

(citation omitted).          “The question is the debatability of the

underlying constitutional claim, not the resolution of that debate.”

Id. at 342.     “Indeed, a claim can be debatable even though every

jurist of reason might agree, after the COA has been granted and the

case has received full consideration, that petitioner will not

prevail.”      Id. at 338.       Moreover, “[b]ecause the present case

involves the death penalty, any doubts as to whether a COA should

issue must be resolved in [petitioner’s] favor.”                   Hernandez v.

Johnson, 213 F.3d 243, 248 (5th Cir. 2000) (citation omitted).



     III. INEFFECTIVE ASSISTANCE OF COUNSEL

     Bustamante argues that trial counsel’s failure to inspect the


                                           5
exhibits    and     discover   his   brother’s      statement     constituted

ineffective assistance.        As previously set forth, his brother’s

statement contained the facts of the crime as related by him to his

brother.    Bustamante’s own confessions to the murder were properly

before   the     jury.   Nonetheless,     he    argues   that   his   brother’s

statement prejudiced him because it provided that Bustamante had

expressed his intention to commit robbery prior to the murder.                   He

contends    that,    without   his   brother’s     statement,    there      is   a

reasonable probability that the jurors would have found him guilty

of murder but not robbery.

     To establish ineffective assistance of counsel, Bustamante must

show (1) defense counsel’s performance was deficient and (2) this

deficient      performance   prejudiced   the    defense.       Strickland       v.

Washington, 466 U.S. 668, 687 (1984).             We must find that trial

counsel “made errors so serious that counsel was not functioning as

the ‘counsel’ guaranteed ... by the Sixth Amendment.”                 Id.    The

Supreme Court instructs courts to look at the “norms of practice as

reflected in the American Bar Association standards” and to consider

“all the circumstances” of a case.         Id. at 688.

            A.      Deficient Performance Prong

     Bustamante contends that counsel’s failure to review the

exhibits before they were given to the jury constituted deficient

performance.      While “[j]udicial scrutiny of counsel’s performance

must be highly deferential,” Bustamante can demonstrate deficient


                                      6
performance if he shows “that counsel’s representation fell below

an objective standard of reasonableness.”            Id. at 688-89. However,

“[t]here is a ‘strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance.’”

United States v. Webster, 392 F.3d 787, 793 (5th Cir. 2004) (quoting

Strickland, 466 U.S. at 689).

     In   support    of   his   contention,    Bustamante    cites   a   Texas

appellate court’s opinion stating “that it is the responsibility of

the attorneys for [a]ll parties, as well as of the judge and

bailiff, to check the materials to be sent to the jury room.”

Houston v. Simon, 580 S.W.2d 667, 668 (Tex.Civ.App. – Houston [14th

Dist.] 1979).3      Bustamante also relies on a Seventh Circuit case.

Adams Laboratories v. Jacobs Engineering Co., 761 F.2d 1218 (7th

Cir. 1985).   In that case, the jury received exhibits that had not

been redacted as ordered.             Id. at 1227.    The complaining party

argued that it did not thoroughly examine the exhibits because it

was relying on the court’s order to redact.             The Seventh Circuit

found the argument “unpersuasive since it is also their attorney[’]s

responsibility to thoroughly examine all exhibits before they are

submitted to the jury.”         Id.    Although Adams Laboratories was not

a case involving ineffective assistance, that case does support the


     3
        It should be noted that Simon involved a claim of jury
misconduct in a civil case. Id. Ultimately, the court found that
the inadvertent presence of a copy of the charge with counsel’s
notes was not an act of misconduct such that harm could be
presumed.

                                         7
proposition that it is counsel’s duty to examine the exhibits before

they are submitted      to the jury.       We therefore conclude that

Bustamante has demonstrated that it is debatable among jurists of

reason whether counsel’s failure to examine the exhibits constitutes

deficient performance.

           B.      Prejudice Prong

     Bustamante next contends that counsel’s failure to discover

that his brother’s statement was erroneously marked as an admitted

exhibit prejudiced him. He argues that the statement prejudiced him

by informing the jurors of an extraneous offense that was similar

to the instant robbery charge. He further argues that his brother’s

statement prejudiced him because it provided that Bustamante had

expressed his intention to commit robbery prior to the murder.             He

contends   that,    without   his    brother’s   statement,   there   is   a

reasonable probability that the jurors would have found him guilty

of murder but not robbery.     Strickland’s “prejudice” prong requires

Bustamante to establish that there is a reasonable probability that,

but for the deficient performance of his trial counsel, the outcome

of his capital murder trial would have been different.         Id. at 694.

     Under Texas law, to convict Bustamante of capital murder, the

jurors had to unanimously find beyond a reasonable doubt that he

killed the victim in the course of attempting the robbery.            Tex.

Pen. Code § 19.03(a)(2).      Bustamante argues that a juror could have

been persuaded that the murder was not connected to the robbery.


                                      8
He asserts that the killing was unanticipated. This is demonstrated,

Bustamante argues, by the evidence that the driver of the pickup

truck had to be told to slow down and turn around after the victim

had fallen from the truck.     He also points to an accomplice’s

testimony that the killing made no sense.

     Resolving any doubts as to whether a COA should issue in

Bustamante’s favor,4 we conclude that he has demonstrated that

jurists of reason would find it debatable whether the district court

correctly found no Strickland prejudice.    Cf. Old Chief v. United

States, 519 U.S. 172, 185 (1997) (explaining that the risk of unfair

prejudice is “especially obvious” when a prior similar conviction

is admitted).

     COA GRANTED.




     4
         Hernandez, 213 F.3d at 248.

                                 9
