                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                     March 22, 2006

                        _______________________                Charles R. Fulbruge III
                                                                       Clerk
                              No. 05-70030
                        _______________________

                         ROGELIO REYES CANNADY,

                                                    Petitioner-Appellant,

                                  versus

                        DOUG DRETKE, Director,
                Texas Department of Criminal Justice,
                 Correctional Institutions Division,

                                                     Respondent-Appellee.



          On Appeal from the United States District Court
                 for the Southern District of Texas
                       Corpus Christi Division
                          No. 2:01-CV-00273


Before JONES, Chief Judge, and BARKSDALE and PRADO, Circuit Judges.

PER CURIAM:*

           Rogelio Reyes Cannady was convicted and sentenced to

death for murdering Leovigildo Bombale Bonal while Cannady was in

prison serving two life sentences for prior murders he committed.

After he exhausted state remedies, Cannady filed a federal petition

for a writ of habeas corpus.      The district court denied relief and

refused to grant a certificate of appealability (“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opinion should not be published and is not precedent except under the limited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.
           Cannady now seeks a COA from this court on four issues:

ineffective assistance of trial counsel; whether his claim of

ineffective assistance of counsel concerning his defense of actual

innocence was procedurally defaulted; the district court’s denial

of an evidentiary hearing; and Cannady’s ex post facto challenge to

Texas Penal Code § 19.03(a)(6).   We deny the request for a COA on

all issues.

                          I.   BACKGROUND

           On October 10, 1993, while serving two consecutive life

sentences for murders he committed in 1990, Cannady beat his

cellmate, Bonal, to death with a padlock attached to the end of his

belt.   The prison guards found Bonal lying on the cell floor with

his hands tied behind his back with a belt.        Cannady had no

apparent wounds or injuries, but his boots and clothing were

covered with blood.   He neither complained of injuries nor looked

as if he had been assaulted in any way.

           Blood was splattered and smeared on the cell walls, the

bedding of both bunks, and the furniture.   Concealed in a pair of

boots, the officers found a belt and the face of a combination

lock.   The body of the lock had been dumped in the cell’s commode.

           Patricia Graham of the Texas Department of Public Safety

Crime Lab analyzed the blood splatters and testified that their

velocity indicated that the victim had been beaten.   Patterns were

                                  2
created on the ceiling by blood flying off a weapon, possibly a

combination lock.   Graham also discerned that someone stomped in a

puddle of blood or stomped on the victim lying in the blood or that

the victim’s head bounced up and down in the blood.        Additionally,

Graham had collected samples of blood from the cell, the belt, and

Cannady’s and Bonal’s clothing.     All blood samples were Type B and

belonged to the same person.     Bonal had Type B blood; Cannady has

Type O blood.

          Bonal’s     autopsy   revealed   numerous    lacerations   and

abrasions on the scalp and face as well as lacerations, abrasions,

and swelling on the arms, hands, and one leg.         A circular imprint

that matched the combination lock was found on his torso.            He

suffered two skull fractures and extensive hemorrhaging over the

scalp and in the brain.     One of the skull fractures was slightly

circular in nature.    The medical examiner matched the injuries to

the lock retrieved from the cell.      He also testified that it would

take a fair amount of force to cause the fatal fractures and

injuries Bonal sustained and that Bonal’s injuries were consistent

with homicide from the impact of a lock and from being stomped on

by a person wearing boots.

          Notwithstanding the gruesome evidence, Cannady testified

that he killed Bonal in self-defense for fear of being raped.        He

asserted, among other things, that shortly after Bonal became his

                                   3
cellmate, Bonal sat down near him and started rubbing Cannady’s

leg.       Bonal also made several sexually suggestive comments to him,

that, to Cannady, were especially ominous in a prison setting.

               On the night of the killing, Cannady testified that he

woke up when he thought he heard someone call “chow time.”                          He

allegedly got up to look out of the cell, but when he turned around

he   saw     Bonal    touching    himself       sexually.     At    that   point,    he

confronted Bonal and hit him in the face.                    It seemed to Cannady

that Bonal was trying to reach for something so Cannady grabbed his

lock and attached it to his belt.                      Cannady then hit Bonal,

believing Bonal was reaching for a weapon, and kept hitting Bonal

because Bonal kept coming toward him. Cannady admitted that he hit

and kicked Bonal repeatedly and used a weapon fashioned from a lock

and a belt.           He also admitted dismantling the weapon and tying

Bonal’s       hands    after    Bonal    became    unconscious,     both   of   which

measures were allegedly done to prevent Bonal from striking back.

               Cannady’s       counsel    stipulated    in   open    court   in     the

guilt/innocence phase that Cannady had committed two murders in

1990 for which he was serving two consecutive life sentences at the

time of Bonal’s killing.                 The life sentences formed the legal

predicate for a capital murder verdict.2                     The Texas Court of

       2
            On June 2, 1994, Cannady was indicted for capital murder. At a
pretrial hearing on January 27, 1995, the trial court quashed the capital
allegations in the indictment on the grounds that the prior offenses occurred

                                            4
Criminal    Appeals   affirmed      Cannady’s    conviction    and   sentence,

Cannady v. State, 11 S.W.3d 205 (Tex. Crim. App. 2000), and

dismissed his application for a writ of habeas corpus, Ex Parte

Cannady, No. 25,462-02 (Tex. Crim. App. May 23, 2001).                 Another

state habeas application was dismissed as an abuse of the writ.

Ex Parte Cannady, No. 25,462-03 (Tex. Crim. App. Oct. 22, 2003).

            Cannady filed a state federal habeas corpus petition,

summary judgment was granted for the State and the court refused to

grant a COA on any of the issues he raised.            Cannady now seeks a

COA from this court in order to appeal the adverse judgment.

                              II. DISCUSSION

            To obtain a COA under AEDPA, which governs this case,

Cannady must make “a substantial showing of the denial of a

constitutional     right.”    28    U.S.C.   §   2253(c)(2);     Miller-El   v.

Cockrell, 537 U.S. 322, 336, 123 S. Ct. 1029, 1039 (2003).

            Thus, he “must demonstrate that reasonable jurists could

find the district court’s resolution of his constitutional claims

debatable or that reasonable jurists could conclude that the issues

presented    are   adequate    to    deserve     encouragement    to   proceed

further.”    Martinez v. Dretke, 404 F.3d 878, 884 (5th Cir. 2005)



before the effective date of the law that made the offense a capital crime. The
State appealed and on January 4, 1996, the Court of Appeals for the Thirteenth
Judicial District of Texas reversed the trial court’s ruling and reinstated the
capital allegations. State v. Cannady, 913 S.W.2d 741, 743-44 (Tex. App. 1996).

                                       5
(citing Miller-El, 537 U.S. at 336, 123 S. Ct. at 1039).                      “This

threshold inquiry does not require full consideration of the

factual or legal bases adduced in support of the claims.”                          Id.

Rather, it only “requires an overview of the claims in the habeas

petition    and     a    general     assessment      of   their   merits.”         Id.

Nevertheless,       “[b]ecause       the   present   case   involves    the   death

penalty, any doubts as to whether a COA should issue must be

resolved in [the defendant’s] favor.”                Hernandez v. Johnson, 213

F.3d 243, 248 (5th Cir. 2000).

            Upon a grant of COA, however, AEDPA imposes a deferential

standard of federal court review with respect to claims adjudicated

on   the   merits       in   state   court.    To    obtain   habeas    relief,     a

petitioner must demonstrate that the state courts’ decision was

contrary to, or involved an unreasonable application of, clearly

established federal law, as determined by the Supreme Court of the

United States; or that the decision was based on an unreasonable

determination of the facts in light of the evidence presented in

the state court proceeding.           28 U.S.C. § 2254(d).        In federal court

review, a    state       court’s     factual   findings     are   presumed    to    be

correct, and this presumption can only be rebutted by clear and

convincing evidence.           28 U.S.C. § 2254(e)(1).

            Against these background criteria, we address each of

Cannady’s issues.

                                           6
A.   Ineffective Assistance of Counsel

            To establish a violation of the Sixth Amendment right to

counsel, Cannady must show that his counsel’s representation was

deficient, and the deficiency prejudiced his defense.                 Strickland

v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984).

Deficient   legal   representation       is   that    which   falls    below    an

objective standard of reasonableness, measured against prevailing

professional     norms   and   viewed     under       the   totality    of     the

circumstances.      Id. at 687-88, 104 S. Ct. at 2064.                 Judicial

scrutiny of counsel’s performance must be highly deferential, and

we must “indulge a strong presumption that counsel’s conduct falls

within a wide range of reasonable professional assistance.” Id. at

689, 104 S. Ct. at 2065.        Cannady’s ineffectiveness claim here

rests on five contentions.

     1.     Failure to advise

            Cannady first contends that his trial counsel failed to

advise him to accept the State’s offer of a plea bargain that would

have spared him the death penalty in exchange for a sentence of

sixty years.     This contention contradicts the state habeas court

findings, which were made following a three day hearing.                       The

district court, applying AEDPA’s presumption of correctness, relied

on the state habeas court findings that:             (1) Cannady had received

and rejected an offer to plead guilty to capital murder in exchange

                                     7
for an agreement by the State not to seek the death penalty;

(2) Cannady’s counsel did inform him of an offer of sixty years in

exchange for a plea to noncapital murder, which offer Cannady

declined because the indictment for capital murder had been quashed

by the trial court and his counsel thought that the ruling would be

upheld by the appellate court; (3) Cannady was unwilling to plead

guilty to murder if the plea required a lengthy sentence; and

(4)   after   the   Texas   Supreme       Court   reinstated   the   capital

indictment, the State offered no further plea agreements.                The

district court reasoned that, because the best offer made by the

State carried a term of sixty years, and Cannady was unwilling to

accept any plea with a lengthy sentence, he could not demonstrate

that his counsel’s alleged failure to communicate the offer caused

him any prejudice.

          Cannady’s principal burden before the district court was

to rebut the State’s findings by clear and convincing evidence, 28

U.S.C. § 2254(e)(1), and the district court determined that he

failed to provide such evidence.          At best, he selectively rehashed

the state habeas testimony without impugning the finding that his

attorney made him aware of the plea offer and he declined it.

Alternatively, the district court determined that the state court

reasonably concluded that even if Cannady’s counsel did not inform

him of the plea offer, the deficiency did not prejudice his defense

                                      8
because he was unwilling to accept a lengthy sentence.      In light of

the presumption of correctness the district court was required to

accord the state court’s findings in reviewing the habeas petition,

Cannady has failed to make the required showing.            Reasonable

jurists could not debate the district court’s resolution of this

claim.

     2.    Failure to stipulate

           Cannady next argues that he was deprived of effective

legal assistance because his trial counsel failed to stipulate to

Cannady’s two prior murder convictions outside the jury’s presence.

Cannady argued to the district court and in his brief to this court

that the inaction by his counsel prejudiced his defense because a

stipulation would have avoided having two officers testify in the

penalty phase. The district court found no prejudice resulted from

counsel’s failure to stipulate, because the officers’ testimony

regarding Cannady’s prior crimes was clearly relevant to the

penalty   phase   issue   of   Cannady’s   future   dangerousness,   and

therefore would not have been precluded by an earlier stipulation

to the murders.   Reasonable jurists could not debate the district

court’s resolution of this claim.

     3.    Failure to object to officer’s testimony

           Cannady next contends that he was deprived of effective

legal assistance because his trial counsel failed to object to

                                    9
“hearsay” testimony by two police officers in the penalty phase.

In determining Strickland prejudice in the penalty phase, “the

question is whether there is a reasonable probability that, absent

the errors, the sentencer . . . would have concluded that the

balance of aggravating and mitigating circumstances did not warrant

death.”   Strickland, 465 U.S. at 695.      The district court noted

that, by the time of sentencing, the jury knew that Cannady

previously had been convicted of two murders, and was serving life

sentences for those murders when he stomped and bludgeoned his

cellmate to death. Consequently, the court determined that even if

counsel had successfully objected to the officer’s testimony, there

was little probability that the jury would not have concluded that

Cannady posed a future danger or that the mitigating evidence

outweighed the evidence of future dangerousness.         The district

court’s resolution of this claim is not debatable.

     4.    Failure to object to jury charge

           Cannady urges that a COA is warranted because his trial

counsel failed to object to two errors in the punishment charge.

The trial court instructed the jury that if it sentenced Cannady to

life imprisonment, he would have to serve at least thirty-five

years before becoming eligible for parole.    However, the law at the

time of trial rendered him ineligible for parole until he served

forty   years.   The   district   court   determined   that,   although

                                  10
Cannady’s counsel should have objected to the erroneous charge, no

prejudice was caused by the error:

     There is simply no reasonable probability that the jury
     would have found a triple murderer, who they were
     sentencing for a murder he committed while already
     serving two life sentences for two prior murders, any
     less dangerous if they knew that he would have to serve
     40, rather than 35, years before becoming eligible for
     parole.   The very fact that he murdered Bonal while
     serving two life sentences demonstrated that Cannady
     posed a danger if sentenced to life imprisonment.

Cannady v. Dretke, No. C-01-273, slip op. at 25 (S.D. Tex. Apr. 29,

2005).

            Cannady also asserts that counsel should have objected to

the punishment charge because it did not specify that the findings

on both special issues were to be beyond a reasonable doubt.                       In

the district court, Cannady argued that Ring v. Arizona, 536 U.S.

584, 122 S. Ct. 2428 (2002), and Apprendi v. New Jersey, 530 U.S.

466, 120 S. Ct. 2348 (2000), required the State to prove beyond a

reasonable doubt that there was nothing sufficiently mitigating

about Cannady to justify a life sentence. The district court noted

that neither Ring nor Apprendi had been decided at the time of

Cannady’s trial in 1997.            The court then held that Cannady’s

counsel    “did   not   render    deficient      performance       by    failing   to

anticipate    the   Supreme       Court’s      decisions    in     cases    decided

approximately     three   and     five    years     after   Cannady’s        trial.”

Cannady,    No.   C-01-273,      slip    op.   at   26.     Even    if     Cannady’s

                                         11
substantive claims have merit,1 the district court’s holding is not

debatable. Neither Ring nor Apprendi existed at the time Cannady’s

conviction became final, neither case applies retroactively,2 and

his counsel could not have been ineffective for failing to object

to issues based on Supreme Court cases that were yet to be decided.

Therefore, we need not grant a COA on this claim.

      5.    Failure to assess counsel errors cumulatively

            Cannady seeks to magnify his individual ineffectiveness

claims with a plea of cumulative error.                  The district court

recognized that “cumulative error may provide a basis for habeas

relief if the cumulative effect of the errors was to deny the

defendant due process.”         Cannady, No. C-01-273, slip op. at 26

(citation omitted).       Such errors must “amount to ‘the failure to

observe that fundamental fairness essential to the very concept of

justice,’” and “‘must be of such quality as necessarily prevent a

fair trial.’”      Id. (quoting Lisenba v. California, 314 U.S. 219,

236, 62 S. Ct. 280, 290 (1941)).         In light of the fact that each of

Cannady’s ineffectiveness claims failed to satisfy at least one of



      1
            It is unlikely that a Ring challenge can be made to Texas’s procedure
of entrusting the jury alone with a capital punishment decision.         Further,
Apprendi has yet to be applied to prior convictions.
      2
            See Schriro v. Summerlin, 542 U.S. 348, 358, 124 S. Ct. 2519, 2526
(2004) (“Ring announced a new procedural rule that does not apply retroactively
to cases already final on direct review.”); United States v. Brown, 305 F.3d
304, 310 (5th Cir. 2002) (holding that the procedural rule announced in Apprendi
is not retroactively applicable to AEDPA petitioners).

                                       12
the   elements   of   Strickland,   and   considering   the   overwhelming

evidence that Cannady beat Bonal to death while serving life

sentences for two other murders, the district court reasonably

concluded that the alleged errors did not prevent a fair trial.         As

reasonable jurists could not debate the district court’s resolution

of this contention, we will not issue a COA.

B.    Procedural Default

           Cannady challenges the district court’s finding that he

did not present to the state courts his claim of ineffective

assistance of counsel for failing to assert his actual innocence.

In consequence of his procedural default, the district court could

not review the claim unless refusal to do so would have resulted in

a miscarriage of justice.     A miscarriage of justice, according to

the Supreme Court, is actual innocence, meaning “the prisoner must

show a fair probability that, in light of all the evidence . . .

the trier of the facts would have entertained a reasonable doubt of

his guilt.”   Kuhlmann v. Wilson, 477 U.S. 436, 454 n.17, 106 S. Ct.

2616, 2627 n.17 (1986).

           Cannady’s claim of actual innocence of capital murder was

based on self-defense.      As the district court noted, under Texas

law a person may use self-defense if “he reasonably believes the

force is immediately necessary to protect himself against the

other’s use or attempted use of unlawful force,” but that the use

                                    13
of force is not justified “if the actor provoked the other’s use or

attempted use of unlawful force.”          TEX. PENAL CODE § 9.31(a).     The

court determined that Cannady was not legally justified in using

force, and therefore could not establish that actual innocence,

because (1) Cannady admitted at trial that Bonal was sitting on his

own bed when Cannady went over and struck him; (2) Cannady admitted

that Bonal did not first attack him; (3) Bonal did not begin to use

physical force until after Cannady attacked him; and (4) there was

no reasonable basis for Cannady to believe that the use of force

was immediately necessary to protect himself.

           In light of the evidence in this case, reasonable jurors

could not entertain a reasonable doubt of his guilt, and reasonable

jurists could not debate the district court’s conclusion that

Cannady lacked legal justification in using force.         In the absence

of any possible miscarriage of justice, Cannady’s underlying claim

of   counsel   error   is   procedurally    defaulted.     A   COA   is   not

appropriate.

C.   Evidentiary Hearing

           Cannady next asserts that he is entitled to a COA to

contest the district court’s denial of an evidentiary hearing. The

court, however, held that none was required because Cannady did not

demonstrate any factual dispute whose favorable outcome would have

entitled him to relief, and each of his claims could be resolved by

                                    14
reference to the state court record.     In this part of his COA

application, Cannady argues in a wholly conclusional fashion that

he has shown many issues of disputed fact entitling him to relief.

          Neither in the district court nor in this court did

Cannady even attempt to satisfy the statutory requirements that

would justify an evidentiary hearing.      See § 2254(e)(2).    He

asserted no retroactive rule of constitutional law “that was

previously unavailable”, see § 2254(e)(2)(A)(i).       Not one of

Cannady’s claims relied on a “factual predicate that could not have

been previously discovered through the exercise of due diligence.”

See § 2254(e)(2)(A)(ii). Finally, none of the facts underlying any

of Cannady’s claims would convince a reasonable jury that Cannady

is actually innocent of capital murder.       See § 2254(e)(2)(B).

AEDPA prescribes a presumption of correctness for state factual

findings, which can only be rebutted by clear and convincing

evidence. 28 U.S.C. § 2254(e)(1). The district court presumed the

correctness of the state court findings after determining that

Cannady could not rebut the presumption with clear and convincing

evidence. Therefore, because reasonable jurists could not find the

district court’s resolution of the need for an evidentiary hearing

debatable, or that the district court abused its discretion in

denying a hearing, we will not grant a COA.

D.   Ex Post Facto

                                15
                Cannady argues that he is entitled to a COA on whether

the district court erred in denying relief on his ex post facto

challenge to TEXAS PENAL CODE § 19.03(a)(6).                Section 19.03(a)(6)

makes it a capital crime when murder is committed by an inmate

serving a sentence of ninety-nine years or life imprisonment.3

Cannady contends that because an element of the capital murder

charge — his life sentences — occurred before the effective date of

the statute, the State is barred by the Ex Post Facto clause, U.S.

CONST.   ART.   I, § 9, cl. 3     AND ART.   I § 10, cl. 1 , from applying this

statute to him.

                The   Texas    Court   of     Criminal   Appeals   rejected   this

argument, noting that the legislators’ intent in passing the law

was to deter inmates already serving long sentences from murdering

other inmates. State v. Cannady, 913 S.W.2d 741, 743-44 (Tex. App.

1996).     The court held that the defendant’s status as an inmate

serving a sentence of ninety-nine years or life, rather than the

date of his prior convictions or the underlying offense, is an



     3
                TEXAS PENAL CODE § 19.03. Capital Murder

     (a)        A person commits an offense if the person commits murder as
                defined under Section 19.02(b)(1) and:
     . . .
                (6)   the person:
     . . .
                      (B)     while   serving   a   sentence  of   life
                              imprisonment or a term of 99 years for an
                              offense under Section 20.04, 22.021, or
                              29.03, murders another.

                                             16
element     of    the   §   19.03(a)(6)     crime.           Cannady    fulfilled       the

necessary status on and after the effective date of § 19.03(a)(6).

             The district court reviewed the state court decision and

likened § 19.03(a)(6) to “recidivist, or ‘three strikes,’ statutes

which enhance penalties for crimes committed after the effective

date   of   the    statute    based    on      prior    convictions.”           Cannady,

No. C-01-273, slip op. at 33.             In so doing, the court noted that

“[b]oth the Supreme Court and the Fifth Circuit have held that such

enhancements do not violate the Ex Post Facto clause,” id., and

should not be “viewed as either a new jeopardy or additional

penalty     for   the   latest   crime,     which       is    considered      to   be    an

aggravated offense because a repetitive one.”                   Id. (quoting Gryger

v. Burke, 334 U.S. 728, 732, 68 S. Ct. 1256, 1258 (1948).                               The

district court’s enhancement reasoning is perfectly apt.

             In view of the Texas Court of Appeals decision and the

state record, the district court held that § 19.03(a)(6) did “not

retroactively       punish     Cannady’s        prior        offenses;       rather,     it

enhance[d] the possible penalty for his murder of Bonal because of

his then-current status as a convicted murderer serving two life

sentences,” and therefore § 19.03(a)(6) did “not violate the

constitutional prohibition against ex post facto lawmaking.”                            Id.

at   34.     Reasonable      jurists   accordingly           could     not   debate     the

district court’s resolution of Cannady’s ex post facto claim.

                                          17
                          III.    CONCLUSION

          For   the   reasons   discussed   above,   we   deny   Cannady’s

application for a COA on all claims and as such lack jurisdiction

to review the district court’s denial of habeas relief on these

claims.   See Miller-El, 537 U.S. 335-36, 123 S.Ct. 1039.

          COA DENIED.




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