                         REVISED March 1, 2013

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

                                                                FILED
                                                            February 27, 2013
                                  No. 07-70031
                                                              Lyle W. Cayce
                                                                   Clerk
NELSON GONGORA,

                                             Petitioner - Appellant
v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                             Respondent - Appellee



                 Appeal from the United States District Court
                      for the Northern District of Texas


Before STEWART, Chief Judge, and HIGGINBOTHAM and OWEN, Circuit
Judges.
PER CURIAM:
      Nelson Gongora was convicted in Texas state court for capital murder and
sentenced to death.     After the state court denied habeas relief, Gongora
petitioned the district court for relief under 28 U.S.C. § 2254, requesting that his
conviction and sentence be set aside and a new trial ordered. The district court
denied relief. We granted a certificate of appealability (COA) on two issues: (1)
whether Gongora is entitled to habeas relief because the prosecutor commented
during his closing argument on Gongora’s failure to testify; and (2) whether, in
                                   No. 07-70031

light of the Supreme Court’s holding in Tison v. Arizona,1 Gongora could be
sentenced to death based on a jury finding that he anticipated murder would
result from his participation in robbery of the victim.2          We find that the
extraordinarily extensive comments on Gongora’s failure to testify resulted in
actual prejudice, and we GRANT Gongora’s habeas petition and vacate his
conviction.


                                          I.
      Texas charged Nelson Gongora with capital murder for the killing of
Delfino Sierra during the course of a robbery. Although the indictment charged
that Gongora shot Sierra, at trial, the State sought to convict Gongora either as
the shooter or under the alternate theory that Gongora was a participant in a
robbery in the course of which Sierra was murdered by one of Gongora’s co-
defendants, Albert Orosco.       The jury heard sharply conflicting evidence
regarding Gongora’s role in the offense, including evidence that the shooter may
have been someone other than either Gongora or Orosco.
      The State’s first witness, Sonia Ramos, told the jury that she was driving
on the night of April 7, 2001 when she noticed three Hispanic men walking on
the side of the road; the man in the middle (Sierra) had on a cowboy hat. As she
turned to look toward a friend’s house, she saw the man on the left shoot Sierra.
She then looked back, and saw a van parked in a driveway with its reverse lights
on. The man who had been on the right side of Sierra ran “like he was running
towards the van,” and the man who shot Sierra “kind of backed up” and “kind of
looking to what he had done . . . then turned around like to go towards the van.”
Ramos could not see the mens’ faces.

      1
          481 U.S. 137 (1987).
      2
        Gongora v. Quarterman, No. 07-70031, 2008 WL 4656992, at *1 (5th Cir. Oct. 22,
2008) (Gongora IV).

                                          2
                                No. 07-70031

      Juan Vargas was the State’s next witness. Vargas also had been indicted
for Sierra’s murder. Vargas admitted that he was the driver of the van.
Arrested about three weeks after Sierra’s shooting, he gave a sworn, written
statement to police identifying James Luedtke and Carlos Almanza as the two
who had emerged from the van to rob Sierra and identifying Almanza as Sierra’s
shooter. Police interviewed him again a few weeks later. This time, Vargas
identified Gongora as the shooter. He said that it was in fact Gongora and
Orosco, and not Almanza and Luedke, who had approached Sierra. At trial,
Vargas testified that he had initially lied to the police when he identified
Almanza and Luedtke because he feared retaliation from Gongora. But that fear
was apparently soothed by his plea agreement. Under that agreement, in
exchange for pleading guilty and testifying against Gongora, Vargas would
receive a twenty-three year sentence for Sierra’s murder and not be prosecuted
at all for a second shooting.
      With plea agreement in hand, Vargas testified that on the night of April
7, 2001, he was driving his van accompanied by Gongora, Almanza, Albert
Orosco, Steven Gongora (“Steven”), and Luedtke (“Guero”) when they saw Sierra
walking down the street and decided to rob him. Gongora, Almanza, and Vargas
had all taken heroin earlier in the evening. Vargas told the jury that when he
pulled over, Gongora and Orosco jumped out of the van, ran toward Sierra, and
demanded his money. When Sierra began to run, Gongora shot him in the head
with a .38 caliber handgun that belonged to Vargas. Vargas said he had given
the gun to Gongora earlier in the night for protection. Gongora and Orosco then
returned to the van. Vargas asked what Gongora did, and Gongora said “I had
to do what I had to do” and told everyone to remain silent. The group then
returned to Gongora’s house for a cookout.
      Vargas and Gongora were leaders in the criminal street gang Puro Li’l
Mafia (PLM). Vargas testified that about two and a half hours after Sierra’s


                                      3
                                 No. 07-70031

shooting, Almanza became a member of PLM by doing a drive-by shooting.
Vargas was the driver for that shooting, and Gongora was in the van as well.
Vargas testified that the shooting by Almanza was in retaliation for drive-by
shootings at Gongora’s house. During the shooting, Gongora stood outside the
van armed with a nine-millimeter handgun.         The victim of this shooting
survived. Vargas admitted that he was high on heroin and intoxicated with beer
at the time of both shootings and that this impaired his ability to recall how
things happened.
      Several months after Vargas revised his account of Sierra’s shooting,
police interviewed Dylan Griffith, who met with the group in Vargas’s van after
Sierra’s shooting. At trial, Griffith, a defense witness, testified that when
Vargas’s van pulled up Vargas was yelling at somebody, apparently Orosco,
“because they were having a conflict over something.” When Orosco emerged
from the van, he had a .38 in his waistband and was bragging about killing
someone, saying, “I shot some wet back.” Griffith asked why Orosco did that and
Orosco said they had tried to rob the person. Griffith then asked what they got
from the robbery and Orosco said, “Nothing. I done took his soul and his
dreams. That’s all I want.”
      After Griffith was first interviewed by the police, he got in touch with
James Luedtke (“Guero”) and told him the police were trying to locate “Guero.”
Luedtke asked what the police wanted and Griffith said they just wanted a
statement of what happened. Griffith testified that Luedtke then said, “So all
I got to do is write down Albert shot him?” Griffith said, yes, if that was what
happened, and Luedtke said: “I ain’t — I ain’t going down for it. I’ll put it on
whoever I got to, as long as I don’t go down for it.” Luedtke seemed frightened
of being arrested.
      At trial, Luedtke was called as a witness for the prosecution. Police
officers did not talk to Luedtke until six months before trial. He was scared


                                       4
                                       No. 07-70031

when he first talked to the investigator, fearing a charge of capital murder.
Luedtke told police and later testified that Orosco had said “Let’s get this guy,”
and that Gongora and Orosco then approached the man and Gongora “told him
pretty much ‘casa la febio,’” which, according to Luedtke, meant “Give me your
money.” Luedtke stated that he was in the back — in the third row — of the van
when this happened, but that he was able to hear because the side windows of
the van were down. Luedtke testified that he saw Gongora pull a gun, and that
when Orosco and Gongora returned to the car, Gongora said “I took his dreams,”
apparently bragging. Gongora also said: “Nobody say nothing. Nobody seen
nothing. Nobody heard nothing.” Luedtke said that Gongora and Orosco were
behind the victim and Gongora was on the right and Orosco on the left. The day
of Sierra’s shooting, Luedtke had been doing drugs (heroin and pot) and
drinking.
       Ramiro Enriquez, a defense witness who had been in prison with Vargas
and Almanza, testified that Almanza told him that Almanza and two others had
gotten out of Vargas’s van and approached Sierra, and that Almanza had done
the shooting. Almanza told Enriquez that he was standing over the victim and
the other two people came up and said something to the effect of “Hey, let’s go,
go, go.”3
       The jury also learned of Gongora’s written statement, which he gave after
he was arrested about two-and-a-half months after Sierra’s murder. He wrote:



       3
         In his previous sworn written statement, Enriquez said was not sure how many
people, according to Almanza, got out of the van and crossed the street toward Sierra.
However, on cross-examination at trial, the prosecutor elicited that Enriquez had told the
prosecutor at some point that it was Carlos and two others. Although the prosecutor phrased
a series of questions that made reference to a group of three as about what Enriquez had
previously told him Carlos said, he then followed up with a question: “And this is what you
swear Carlos told you?” To which Enriquez responded, “Yes.” On re-direct, the defense elicited
that Enriquez actually still was not sure about the number of people Carlos had indicated
approached Sierra.

                                              5
                                      No. 07-70031

       We passed [Sierra] up and pulled into a little store before [Sierra]
       passed the railroad tracks. We did a U-turn in the parking lot and
       went back towards the guy was walking. . . . All we wanted to do is
       get a little money and go about our business. Next thing I
       remember, the side door opened, all of us . . . were going to get out.
       Then there were gunshots. I turned around and saw the guy that
       was wearing the cowboy hat laying on the ground. I think there was
       about three fast shots fired. Right after the shots, all of us jumped
       back in the van and we left.

Gongora stated that he did not know who fired the shots.
       Both Orosco and Almanza invoked their Fifth Amendment right against
self-incrimination and gave no testimony before the jury.


                                            II.
           The trial court instructed the jury that it could convict Gongora if it found
the evidence established beyond a reasonable doubt that Gongora shot Sierra
during the course of a robbery; or that Gongora entered into a conspiracy with
Orosco to rob Sierra, that Orosco shot Sierra during the course of that attempted
robbery, that the shooting was in furtherance of the conspiracy, and that
Gongora should have anticipated the shooting. The jury found Gongora guilty,
and he was ultimately sentenced to death. The CCA affirmed Gongora’s
conviction and sentence on direct appeal.4 Gongora’s state habeas petition was
rejected by the state trial court, and the CCA affirmed the trial court’s decision.5
       In February 2007, Gongora filed the underlying 28 U.S.C. § 2254 petition
for a writ of habeas corpus in the district court, claiming that constitutional
errors infected both his trial and sentencing proceedings. The district court



       4
       Gongora v. State, No. AP-74636, 2006 WL 234987 (Tex. Crim. App. 2006), cert. denied,
549 U.S. 860 (2006) (Gongora I).
       5
        See Ex parte Gongora, No. WR-60115-02, 2006 WL 3308713 (Tex. Crim. App. Nov. 15,
2006) (Gongora II).

                                             6
                                         No. 07-70031

denied relief,6 and we granted a COA on two issues: (1) Gongora’s claim that
comments by the prosecutor during closing argument violated his Fifth
Amendment right not to testify and resulted in actual prejudice, and (2) his
claim that the imposition of the death penalty in his case would violate his right
to due process of law and to be protected from cruel and unusual punishment
under the Eighth and Fourteenth Amendments and Tison v. Arizona.7                      We
ultimately do not reach the second issue.


                                             III.
      We review Gongora’s habeas petition under the deferential standard of
review provided in the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). Under 28 U.S.C. § 2254(d), when a habeas claim has been adjudicated
on the merits in the state courts, federal habeas relief may not be granted unless
the federal habeas court finds that the state court’s decision was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court” or was “based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.”8
      A legal principle is “clearly established” only when it is embodied in a
holding of the Supreme Court.9 For purposes of § 2254(d)(1), a state court
decision “involves an unreasonable application of th[e] Court’s clearly
established precedents if the state court applies th[e] Court’s precedents to the




      6
          Gongora v. Quarterman, 498 F. Supp. 2d 919, 931 (N.D. Tex. 2007) (Gongora III).
      7
          481 U.S. 137 (1987).
      8
          28 U.S.C. § 2254(d)(1), (2).
      9
          Thaler v. Haynes, 130 S. Ct. 1171, 1173 (2010).

                                              7
                                          No. 07-70031

facts in an objectively unreasonable manner.”10                    The Supreme Court has
repeatedly admonished that “an unreasonable application of federal law is
different from an incorrect application of federal law.”11 Thus, “a federal habeas
court may not issue the writ simply because that court concludes in its
independent judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly.”12                        “A state court’s
determination that a claim lacks merit precludes federal habeas relief so long as
‘fairminded jurists could disagree’ on the correctness of the state court’s
decision.”13      Within the AEDPA framework, we review the district court’s
conclusions of law de novo.14


                                                IV.
       We now turn to Gongora’s Fifth Amendment claim.                             In Griffin v.
California, the Supreme Court held that “the Fifth Amendment . . . forbids
either comment by the prosecution on the accused’s silence or instructions by the
court that such silence is evidence of guilt.”15 The Court has since clarified that
comment on a defendant’s silence is permissible in some instances, as where “the
prosecutor’s reference to the defendant’s opportunity to testify is a fair response


       10
            Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams v. Taylor, 529 U.S. 362,
405 (2000)). In contrast, a state court decision is “contrary” to clearly established Court
precedent if “it applies a rule that contradicts the governing law set forth in [the Court’s] cases,
or if it confronts a set of facts that is materially indistinguishable from a decision of th[e] Court
but reaches a different result.” Id.
       11
            Renico v. Lett, 130 S. Ct. 1855, 1862 (2010) (quoting Williams, 529 U.S. at 410).
       12
            Id. (quoting Williams, 529 U.S. at 411).
       13
         Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado,
541 U.S. 652, 664 (2004)).
       14
            Nelson v. Quarterman, 472 F.3d 287, 293 (5th Cir. 2006) (en banc).
       15
            380 U.S. 609, 615 (1965).

                                                 8
                                          No. 07-70031

to a claim made by defendant or his counsel.”16 But the rule is unchanged that
a prosecutor “may not treat a defendant’s exercise of his right to remain silent
at trial as substantive evidence of guilt.”17 A Griffin error is subject to harmless
error analysis.18 On direct appeal, a state court cannot hold harmless a Griffin
error unless the court is “able to declare a belief that [the violation] was
harmless beyond a reasonable doubt.”19
       Our evaluation of a Fifth Amendment claim like Gongora’s proceeds in two
steps. First, we must decide under 28 U.S.C. § 2254(d)(1) whether fairminded
jurists could disagree that a Griffin error occurred.20 We must then decide
whether the Fifth Amendment violation was harmless.21 When a state court on
direct appeal has determined under Chapman that a Griffin error was harmless
beyond a reasonable doubt, a petitioner cannot obtain federal habeas relief based
merely on a finding, per AEDPA, that no jurist could reasonably conclude that
the Fifth Amendment violation was harmless beyond a reasonable doubt.
Rather, applying the standard set forth by the Supreme Court in Brecht v.
Abrahamson,22 the federal court must determine whether the Fifth Amendment
violation “had substantial and injurious effect or influence in determining the
jury’s verdict.”23


       16
            United States v. Robinson, 485 U.S. 25, 32 (1988).
       17
            Id. at 34.
       18
            Chapman v. California, 386 U.S. 18, 23–25 (1967).
       19
            Id. at 24; Fry v. Pliler, 551 U.S. 112, 116 (2007).
       20
            See Richter, 131 S. Ct. at 786.
       21
            See Fry, 551 U.S. at 120.
       22
            507 U.S. 619 (1993).
       23
         Id. at 631. In this circuit, the assessment of harmless error under Brecht is a mixed
question of fact and law, and we thus review the district court’s determination de novo. See,

                                                  9
                                       No. 07-70031

       Here it appears the CCA did not apply Chapman and made no finding that
any Fifth Amendment violation was harmless beyond a reasonable doubt.
Regardless, Gongora must still clear the hurdle of Brecht: We “assess the
prejudicial impact of [the prosecutor’s comments on Gongora’s silence] under the
‘substantial and injurious effect’ standard set forth in Brecht, whether or not the
state appellate court recognized the error and reviewed it for harmlessness
under . . . Chapman.”24
                                             A.
       During closing argument at the guilt-innocence phase of Gongora’s trial,
the prosecutor made the following relevant comments (emphasis added):

       [PROSECUTOR:] . . . I want to talk about the people you heard
       from. . . . Who did you expect us to bring to you? There’s six people
       inside that van. When you look at it, here it is. Who would you
       expect for us to give to you to establish who the shooter is? Are you
       going to be satisfied in a case with gang members just looking at one
       person, even though he’s telling you the exact truth, no matter
       what? Even if the time that he first told this story, he told the
       truth—he told the truth about someone he’s scared to death of—this
       is James Luedtke. He had nothing against him. He had no crime
       pending. He had no reason to hide the truth. He had no reason to
       talk to us, but he told us the truth.

       You listen to people inside there. Who else would you want to hear
       from, though? The shooter? We’re not going to talk to that person.
       We’re not going to make a deal with that person. This person
       deserves what they get. This person right here—
       [Pointing to Gongora’s name on a chart.]



e.g., Garcia v. Quarterman, 454 F.3d 441, 444 (5th Cir. 2006).
       24
         Fry, 551 U.S. at 121–22. The Supreme Court has explained: “[I]t is implausible that,
without saying so, AEDPA replaced the Brecht standard of ‘actual prejudice’ . . . with the more
liberal AEDPA/Chapman standard which requires only that the state court’s harmless-beyond-
a-reasonable-doubt determination be unreasonable.” Id. at 119–20 (citation omitted) (internal
quotation marks omitted).

                                              10
                                 No. 07-70031

      Nelson Gongora, the shooter. That’s the person on trial. That’s the
      person who deserves to be found guilty of capital murder.
      Who should we go ahead and talk to? Who should we go ahead and
      present to you? Should we talk to the shooter? Should we talk to—

      [DEFENSE COUNSEL:] Your Honor, I’m going to object. That’s a
      comment on the failure to testify.

      [PROSECUTOR:] Let me make that clear. I don’t mean talk to the
      shooter. What I mean is this. Who—
Defense counsel then asked for a ruling on the objection, and the trial court
sustained it; defense counsel then asked for a curative instruction:

      [DEFENSE COUNSEL:] Could we get an instruction to the jury to
      disregard that comment?
      THE COURT: Jury will so disregard.
      [DEFENSE COUNSEL:] Move for mistrial, your honor.
      THE COURT: Denied.
      [PROSECUTOR:] Let me say this. And I don’t want to give the
      wrong impression in any sort of way. We’re asking, who do you
      expect to take the stand? Who do you expect to hear from, right?

      [DEFENSE COUNSEL:] Your Honor, I object. That’s a continuation
      of the previous comments, and I, again, object to commenting on the
      failure to testify.

The court again sustained Gongora’s objection to the prosecutor’s comment,
granted his request to instruct the jury to disregard the comment, and overruled
his motion for a mistrial. The prosecutor continued:

      [PROSECUTOR:] I don’t want—to make it clear, y’all, Defendant
      has a Fifth Amendment right not to testify. And, of course—and I
      don’t want to give any wrong impression on that whatsoever. Okay?

      What I want to talk about is this. When you talk about the
      credibility of a person, I wish you—and I made a—I made a big


                                      11
                            No. 07-70031

mistake there. I’ll make it very clear. I’m not talking about, do you
want to hear from him, because you can’t do that.

[DEFENSE COUNSEL:] Your Honor, again, I’m going to object. It’s
on the same continuing subject matter. We object to comment on the
failure . . . to testify.

THE COURT: As to that particular statement, overruled.

[PROSECUTOR:] Let me back up and tell you this. Let me define it
by the roles in the car. That’s what I’m trying to get at. Okay?

The roles in the car are this. . . . And then you have a person inside
the car who is the Defendant’s brother, right? Where is that person?
We know the person was there. They could have brought that
person, but you never heard from that person. And that’s—

[DEFENSE COUNSEL:] Your Honor, I’m going to object as to what
that person is and ask to approach the bench to make a record.

THE COURT: Counsel approach.

(At the bench, on the record:)

[DEFENSE COUNSEL:] I’ll be brief.

Judge, our objection is that we issued bench warrants and
subpoenas. We asked to have people brought in. They took the Fifth.
And when he says “that person,” that diagram is still up there
showing Albert [Orosco] and everybody else, and that is an improper
comment, and it’s not invited.

[PROSECUTOR:] Judge, I’m trying to correct that right now to
make it better in terms of I’m just talking about the roles of the
persons involved.

THE COURT: All right. Sustain the objection, Counselor.

[PROSECUTOR #2:] Excuse me. Let me make one comment for the
record also.




                                 12
                                  No. 07-70031

      Immediately— what [the prosecutor] was talking about there, so it’s
      clear for the record, was that he mentioned the name “Steven
      Gongora.” He mentioned the name, and he said, “The Defendant’s
      brother.” And he said, “Where is that person?”

      Steven Gongora is the Defendant’s brother, and his name is also on
      the chart, and that’s what he was talking about.

      THE COURT: All right. You need to clear it up, Counselor.

      [PROSECUTOR:] I will.

      Defense counsel then asked if his objection was sustained. The trial court
sustained the objection and, on request of defense counsel, instructed the jury
to disregard the comment. The trial court then overruled appellant’s motion for
mistrial. The prosecutor continued:

      [THE PROSECUTOR:] Ladies and gentlemen, I want to wrap this
      up, because that’s what I’m talking about, the confusion in the case.

      When I—when you’re talking about the people inside the car, this
      is it. You have the person inside the van and, from all the testimony,
      established one person is the shooter. You have a person in the car
      who got out and could possibly have stopped the killing from ever
      taking place. You have a person inside the car, by the testimony,
      you all know was involved in another shooting later that night. You
      have a person in the car who was related to the Defendant. That is
      his brother. Right? Then you have a person inside there who is just
      present. Okay?
      ...
      Those are the different roles of the persons inside the car. You ask
      who—you know, you hear from this case, and who should—you
      know, how to determine the credibility. Who do you want to hear
      from? Who do you expect to hear from? The person who wasn’t
      involved at all, that had nothing at all, just present during that
      deal? Of course, you hear from that person.
      When you’re considering and evaluating the credibility of the next
      person—and that’s who I’m talking about in talking about who
      you’re going to hear from. I’m talking about, when listening to Juan

                                       13
                                       No. 07-70031

      Vargas, there’s different people who played different roles. When
      you consider the fact that we actually spoke to him, that’s what I’m
      talking about. I’m not talking about who would you want to hear
      from, who would you expect us to call, but I meant to define it in the
      terms of the roles of those involved in the case. Okay?

      ....

      That’s what I wanted you to consider. That’s what I was trying to
      discuss about the different roles and who you would expect to hear
      from or expect us, you know, to be looking at. That was it. Just
      examine their roles.

      In its opinion rejecting Gongora’s claims on direct appeal, the CCA
admitted that “the prosecutor’s actual comments tended to be inartful and often
confusing,” but stated that, “viewed in context, the complained-of comments
appear to be the prosecutor’s attempt to comment on appellant’s failure to
produce witnesses other than appellant, which is a permissible area of
comment.”25 The CCA concluded that the record showed “the prosecutor’s
comments were not so blatant that they rendered the instructions to disregard
ineffective” and held that “the judge reasonably concluded that the instructions
to disregard effectively removed any prejudice caused by the prosecutor’s
comments.”26
      The federal district court reviewing Gongora’s § 2254 petition found that
the prosecutor’s comments constituted constitutional error because the
prosecutor intended to comment on Gongora’s silence and that “the character of
the remarks were such that the jury would necessarily construe them as
comments on Gongora’s silence.”27 Nonetheless, the district court found the
error to be harmless, concluding that “there [was] no evidence . . . of a nexus


      25
           Gongora I, 2006 WL 234987, at *10.
      26
           Id.
      27
           Gongora III, 498 F. Supp. 2d at 926.

                                             14
                                         No. 07-70031

between the prosecutor’s improper remarks during argument and the jury’s
decisions” and presuming that the jury followed the cautionary and curative
instructions given by the trial court.28
                                              B.
                                               1.
      At the first step of our analysis, we agree with the district court that
Gongora has met his burden of showing a constitutional violation.                      The
prosecutor repeatedly referred to Gongora’s failure to testify, and whatever the
prosecutor’s subjective intent in making the remarks, “the character of the
remark[s] [was] such that the jury would naturally and necessarily construe
[them] as . . . comment[s] on the defendant’s silence.”29             Indeed, the state no
longer maintains that the prosecutor’s comments on Gongora’s failure to testify
did not violate the Fifth Amendment. To the extent that the CCA reached a
contrary conclusion, it unreasonably applied the clearly established federal law
of Griffin and its progeny.30 To conclude otherwise empties all meaning of this
cornerstone of rights upon which our criminal justice system rests. Its very
centrality renders it a primer rule — etched in the minds of all players in a
criminal case. Single episodic violations will creep in, but repeated and direct
violations are both inexplicable and inexcusable. Certainly not excusable by
ignorance or inexperience, as we will explain.
                                               2.
      At the second step, we assess the prejudicial impact of this constitutional
error, applying the standard set forth in Brecht. We make this assessment “in




      28
           Id. at 927.
      29
           Jackson v. Jackson, 194 F.3d 641, 652 (5th Cir. 1999) (citation omitted).
      30
           See 28 U.S.C. § 2254(d)(1).

                                              15
                                        No. 07-70031

light of the record as a whole.”31 As the Supreme Court has explained, the Brecht
standard does not require the petitioner to establish that it is more likely than
not that the constitutional violation resulted in actual prejudice: “When a federal
judge in a habeas proceeding is in grave doubt about whether a trial error of
federal law had ‘substantial and injurious effect or influence in determining the
jury’s verdict,’ that error is not harmless. And, the petitioner must win.”32
Several factors are relevant to this inquiry, including whether the comments
were “extensive,” whether “an inference of guilt from silence [was] stressed to
the jury as a basis for conviction,” and whether “there is evidence that could
have supported acquittal.”33 We also consider the effect of any cautionary or
curative instruction given to the jury.34 Considering each of these factors, we
conclude that the error was not harmless under Brecht.35
       a. Extent of the Comments




       31
         Brecht, 507 U.S. at 638; see also United States v. Pierre, 958 F.2d 1304, 1312 (5th Cir.
1992) (en banc) (“To determine the potential prejudicial effect of the statements, we must
consider the context in which the prosecutor made them.”).
       32
         O’Neal v. McAninch, 513 U.S. 432, 436 (1995). The Court has “deliberately phrase[d]
the issue in terms of a judge’s grave doubt, instead of in terms of ‘burden of proof.’” Id.
       33
         Anderson v. Nelson, 390 U.S. 523, 523–24 (1968); see also United States v. Johnston,
127 F.3d 380, 398 (5th Cir. 1997) (considering “the magnitude of the prejudicial effect of the
remark” and “the strength of the evidence of the defendant’s guilt”).
       34
          See Johnston, 127 F.3d at 398 (listing “the efficacy of any cautionary instruction” as
a factor to consider in assessing the harmlessness of a prosecutor’s improper comments); see
also Greer v. Miller, 483 U.S. 756, 767 n.8 (1987) (finding “no reason to believe that the jury
in [the] case was incapable of obeying . . . curative instructions” given after the introduction
of inadmissible evidence).
       35
         Where, as here, the state appellate court made no finding under Chapman, the
Supreme Court has suggested that it “makes no sense to require formal application of both
tests (AEDPA/Chapman and Brecht) when the latter obviously subsumes the former.” Fry, 551
U.S. at 120. We note, though, that as our Brecht analysis implies, the CCA could not have
reasonably determined that the error in this case was harmless beyond a reasonable doubt.

                                               16
                                       No. 07-70031

      As the district court observed, “the prosecutor’s remarks on Gongora’s
failure to testify were numerous and blatant.”36 Rather than a single question
or incidental statement, the prosecutor made a series of at least five comments
referring to Gongora’s silence as he argued to the jury that Gongora was the
shooter. In the guise of clearing up what his earlier comments meant, the
prosecutor continued to make comments relating back to the fact that Gongora
had not testified. The judge repeatedly cautioned the prosecutor, yet the
prosecutor further highlighted the reference by persisting in his train of “who
you would expect to hear from” argument. This factor weighs against a finding
that the error was harmless.
      b. Inference of Guilt Stressed to the Jury
      The prosecutor’s initial comment clearly and strenuously — regardless of
whether the comments were intentional or inartful — emphasized Gongora’s
guilt to the jury based on his failure to testify:
       You listen to people inside there. Who else would you want to hear
      from, though? The shooter? We’re not going to talk to that person.
      . . . This person right here—
      [Pointing to Gongora’s name on a chart.]
      Nelson Gongora, the shooter. That’s the person on trial. That’s the
      person who deserves to be found guilty of capital murder. Who
      should we go ahead and talk to? Who should we go ahead and
      present to you? Should we talk to the shooter? Should we talk to—
A principal focus of the prosecutor’s closing argument, and central to the State’s
case, was the credibility of co-conspirators’ statements that Gongora was the
shooter. It appears as though the prosecutor attempted to bolster the credibility
of those statements by repeatedly stressing the fact that some co-conspirators
took the stand, while persistently questioning Gongora’s claim of not-guilty by
reference to his refusal to take the stand. The argument went to the core of the


      36
           Gongora III, 498 F. Supp. 2d at 926.

                                             17
                                         No. 07-70031

State’s case and aggressively prompted the jury to infer guilt based on Gongora’s
failure to testify. Further, the comments came at the very end of the
prosecution’s closing arguments.
       Examined in context, the prosecution’s subsequent comments on Gongora’s
silence might be read, as the State and the dissent contend, as a product of a
prosecutor tripping over his words as he inartfully attempted to correct his
initial mistake. But their effect, coming as they did after the prosecutor’s initial
statement stressing an inference of guilt, was to reinforce the impression of
Gongora’s guilt from his failure to testify.               It also matters not that the
prosecutor’s later comment merely recited that Gongora “has a Fifth
Amendment right not to testify.” As we have previously observed, a reference
of this sort by the prosecutor “is far different” than a cautionary instruction
about a defendant’s Fifth Amendment right not to testify given by the court.37
Even as the prosecutor noted Gongora’s Fifth Amendment right, the function of
the prosecutor’s comment was to “focus[] the jury’s attention on the fact that the
defendants did not testify.”38 While telling the jury of Gongora’s right, he
commented on its exercise. This translated into a clear message: Gongora’s right
not to testify is not a right to be free of the jury weighing the exercise of that
right against him.
       This factor, too, thus weighs against a finding of harmless error. The Fifth
Amendment violation here did not consist of an “isolated comment,” and
whatever the prosecutor’s subjective intent, his manifest purpose was to “strike
at the jugular of the defense.”39

       37
            Johnston, 127 F.3d at 398.
       38
            Id.
       39
         United States v. Griffith, 118 F.3d 318, 325 (5th Cir. 1997) (internal quotation marks
omitted) (finding that a Griffin violation did not affect the defendant’s substantial rights where
“it was an isolated comment, which did not ‘strike at the jugular’ of the defense, and which the
jury was immediately instructed to disregard” and the “spontaneous remark [was] intended

                                               18
                                         No. 07-70031

       c. Curative and Cautionary Instructions
       While the trial court issued general cautionary instructions about the
defendant’s constitutional right not to testify at voir dire and again immediately
before closing argument,40 the prosecutor’s comments followed those
instructions.       Moreover, although two of the prosecutor’s improper remarks
were promptly followed by sustained objections and curative instructions, those
instructions — telling the jury to “disregard” the comment — were perfunctory
and devoid of specificity. Finally, the trial court did not sustain all of Gongora’s
objections to the improper remarks. Specifically, the court overruled Gongora’s
objection to the last of the improper comments, in which the prosecutor stated,
“I’ll make it very clear. I’m not talking about, do you want to hear from him,
because you can’t do that.” While as a general rule, juries are presumed to
follow instructions given by the court,41 neither this court nor the Supreme Court
has ever held that the mere fact that a curative or cautionary instruction was
offered establishes harmlessness under Brecht.42 Indeed, the Supreme Court has
noted that “[t]here are some contexts in which the risk that the jury will not, or
cannot, follow instructions is so great, and the consequences of failure so vital
to the defendant, that the practical and human limitations of the jury system

to call attention to [the defendant’s] disruptive behavior during [the prosecutor’s] argument,
and not to imply that he was harboring guilty secrets”).
       40
            The court’s instruction prior to closing argument read as follows:

       In a criminal case the law permits the Defendant to testify in his own behalf but
       he is not compelled to do so, and the same law provides that the fact that a
       defendant does not testify shall not be considered as a circumstance against
       him. You will, therefore, not consider the fact that the Defendant did not testify
       as a circumstance against him; and you will not during your deliberations allude
       to, comment on, or in any manner refer to the fact that the Defendant has not
       testified.


       41
            See Zafiro v. United States, 506 U.S. 534, 540–41 (1993).
       42
            See, e.g., Johnston, 127 F.3d at 398.

                                                19
                                      No. 07-70031

cannot be ignored.”43 Here, the efficacy of the trial court’s initial cautionary
instructions was diminished by the lack of a strong admonishment following the
statements, the fact that the cautionary instruction preceded the problematic
statements, the court’s overruling of Gongora’s objection to the prosecutor’s final
remark on his silence, and the mixed message resulting from allowing the jury
to consider the comments in some respects.
       d. Evidence Supporting Acquittal or Conviction
       We also consider the evidence of guilt and innocence presented at trial.
The prosecution maintained throughout that Gongora and Orosco had
approached Sierra and that Gongora was the shooter. This theory relied on the
trial testimony of two of Gongora’s co-conspirators, Juan Vargas and James
Luedtke, both of whom had credibility issues. The evidence of guilt in this case
was not overwhelming, and there was substantial evidence supporting acquittal.
       First, the jury had reason to question Vargas’s and Luedtke’s testimony
that Gongora was the shooter. According to Vargas’s initial, written and sworn
confession (prior to any plea agreement), Carlos Almanza and James Luedtke
approached Sierra and Almanza was the shooter. The statement of Vargas’s
wife, given to a detective, was consistent with the facts in that first confession.
It was only after Vargas was re-interviewed by Detective Ortega (when he was
seeking a plea bargain) that Vargas orally contradicted his initial written
statement to claim that Gongora and Orosco exited the van to approach Sierra.
       Dylan Griffith, with whom Luedtke had lived at the time of the offense,
testified that when he met up with Luedtke and the others in Vargas’s van after
the shooting, Albert Orosco had a .38 in his waistband and was bragging about
having killed a man, saying he took “his dreams” (the words that Luedtke


       43
          Richardson v. Marsh, 481 U.S. 200, 207 (1987) (quoting Bruton v. United States, 391
U.S. 123, 135–36 (1968)) (internal quotation marks omitted); see also Donnelly v.
DeChristoforo, 416 U.S. 637, 644 (1974) (acknowledging that “some occurrences at trial may
be too clearly prejudicial for such a curative instruction to mitigate their effect”).

                                             20
                                  No. 07-70031
attributed to Gongora).      In addition, Griffith testified that Luedtke had
originally asked Griffith whether he should tell police that Orosco did it, and
when Griffith said Luedtke should tell the truth about whatever happened,
Luedtke said he was not “going down” for it.
      Moreover, while Vargas replaced Almanza and Luedtke with Gongora and
Orosco in his second statement to police, he did not indicate in that statement
that he had actually seen Gongora shoot Sierra. Indeed, it would have been
difficult for Vargas or Luedtke to have actually seen the shooting, given their
positions in the van and the van’s location at the time. In addition, the diagram
drawn by one of the detectives based on his interview of Vargas shows that
Gongora — according to Vargas — would have been walking on the right of
Sierra. Luedtke, too, placed Gongora on the right. But Sonia Ramos, the State’s
lead-off witness and the only independent eyewitness in the case, stated that the
man walking on the left of Sierra shot him; her testimony was consistent with
forensic evidence that showed a bullet had hit the back, left side of Sierra’s head.
Vargas’s second statement to police had put Orosco on the left. The State offered
no explanation of this significant difficulty, which was created by its own
witnesses on direct examination.
      Second, even taking into account the alternative theory offered to the jury
— that Orosco and Gongora entered into a conspiracy to rob Sierra and that
Orosco shot Sierra in furtherance of that conspiracy — the evidence against
Gongora was far from overwhelming, for at least two reasons.             First, the
alternative theory not only required the jury to find that Gongora and Orosco
entered into a conspiracy to rob Sierra and that Orosco shot Sierra in
furtherance of the conspiracy, but also that the shooting “should have been
anticipated” by Gongora. Yet the State presented no direct evidence that
Gongora should have anticipated a shooting of Sierra by Orosco and made no




                                        21
                                       No. 07-70031
effort to argue that point in its closing arguments.44 Second, there was evidence
indicating that neither Gongora nor Orosco shot Sierra. Ramiro Enriquez, who
had no stake in the case, testified that he was a friend of Almanza in prison and
that Almanza had said he did the shooting. That testimony largely aligned with
Vargas’s original sworn statement in which he had said that Almanza and
Luedtke had approached Sierra and that Almanza was the shooter. The tension
between Vargas’s testimony that he saw Gongora shoot Sierra and Vargas’s
indication that Gongora was on Sierra’s right not only cast doubt on Vargas’s
claim that Gongora was the shooter, but also more generally on the credibility
of Vargas’s revised account of what occurred. Gongora’s written statement
provided to detectives asserted that he was not the shooter; it made no mention
of Orosco; and, contrary to the CCA’s summary of the evidence, it did not
indicate that Gongora approached Sierra.
       Finally, the notes sent out by the jury during deliberations suggest that
the prosecutor’s comments reflected a focus on which of the PLM members in the
van had testified and which had not. One note requested Vargas’s first
statement to the detectives and another asked about Vargas’s response to a




       44
         The dissent insists that “the evidence is overwhelming that, at the very last, Gongora
was guilty as a party to capital murder,” pointing to Gongora’s written statement, in which
Gongora admitted that he and others exited the van to “get a little money [from Sierra] and
go about our business.” But in its focus on the evidence of Gongora’s participation in the
conspiracy to rob Sierra, the dissent overlooks the fact that the jury could not convict Gongora
unless it also determined that Gongora “should have . . . anticipated” that Sierra’s murder
would result from carrying out the conspiracy.

                                              22
                                        No. 07-70031
question from defense counsel about which people were outside the van,45
hinting that the jury questioned the credibility of Vargas’s testimony.
                                              ***
       In sum, the Fifth Amendment violation in this case was not “an isolated
comment in a sea of evidence.”46 The violation consisted of repeated comments
that began after the court issued its cautionary instruction and continued
following each of the court’s brief curative instructions. The physical evidence
and the statement of the only non-biased eyewitness did not support the co-
conspirators’ testimony that Gongora was the shooter.                     The evidence that
Gongora at least approached Sierra with Orosco to attempt a robbery was
somewhat stronger. However, contrary to the state’s contention during closing
arguments, the evidence was not “undisputed” that Gongora was guilty as a co-



       45
          Specifically, Jury Note # 3 stated: “We need the original statement of Juan Vargas
of April 27th and his court testimony.” The trial court responded that Vargas’s original
statement to police was not evidence. Jury Note # 5 stated: “On Juan Vargas Statement on
Mon March 24th I would like to know when the defense ask[ed] ‘who was outside the van’ he
mention 2 people who were outside the van, what were the names he said.” The court
responded: “If you wish to receive the testimony, it will be necessary for you to certify that you
are in dispute as to a specific statement of the witness, and you should request that part of the
witness’ statement on the specific point in dispute, and only on that point which is in dispute.”
The jury then appears to have revised the original note, crossing out “mention” and replacing
it with “stated,” crossing out “who” (in the phrase “who were outside the van”), crossing out
“said” and replacing it with “stated,” and adding: “Three jurors could not hear the response of
Juan Vargas.” The court then responded: “The specific question you requested was not asked.
Please specify whether you are asking about a specific question or a general topic on that issue.
If you wish to receive the testimony, it will be necessary for you to certify that you are in
dispute as to a specific statement of the witness, and you should request that part of the
witness’ statement on the specific point in dispute, and only on that point which is in dispute.”
The jury did not resubmit the request. The only other jury note requesting evidence or
testimony was Jury Note # 1. That note requested “all evidentiary exhibits, except the
bullets,” “photos of any who testified that were in the van,” and “the easel with all exhibits.”
       46
         Cotton v. Cockrell, 343 F.3d 746, 752 (5th Cir. 2003) (citation omitted) (internal
quotation marks omitted) (finding that a comment by the prosecutor was harmless where two
non-interested witnesses identified the defendant as the attacker and the defendant had
admitted to an acquaintance that he had “killed a D.A.”); see also Nethery v. Collins, 993 F.2d
1154, 1159 (5th Cir. 1993) (finding that a prosecutor’s improper comment did not have a
substantial and injurious effect in light of the “overwhelming evidence of guilt”).

                                               23
                                        No. 07-70031
conspirator, in particular given that the State’s main witness had originally
identified two others as the people who had approached and killed Sierra — one
of whom bragged about the killing to Ramiro Enriquez, an uninvolved party.
Indeed, the jury seemed particularly concerned about Vargas’s shifting
statements as to who had approached Sierra. Ultimately, “when a court is ‘in
virtual equipoise as to the harmlessness of the error’ under the Brecht standard,
the court should ‘treat the error . . . as if it affected the verdict.’”47 Because the
record here leaves us “in grave doubt as to the harmlessness of [the] error,”
Gongora is entitled to relief.48


                                              V.
      Because Gongora was denied a right to a fair trial by the prosecutor’s
comments in violation of his Fifth Amendment right not to testify, we REVERSE
the judgment of the district court, GRANT Gongora’s petition for habeas relief,
and vacate his conviction. Gongora will be released from custody unless within
six months of the mandate of this court he is again brought to trial or the case
is otherwise terminated by plea or other disposition under state law.




      47
           Fry, 551 U.S. at 121 n.3 (quoting O’Neal, 513 U.S. at 435).
      48
           O’Neal, 513 U.S. at 437.

                                              24
                                     No. 07-70031
OWEN, Circuit Judge, dissenting:
           The majority opinion seriously misapprehends what constitutes actual
harm, and it requires the State to retry Gongora or release him even though the
evidence is overwhelming that, at the very least, Gongora was guilty as a party
to capital murder. The majority opinion holds that both the Texas Court of
Criminal Appeals (TCCA) and the federal district court were unreasonable in
denying relief to Gongora. I respectfully dissent. I cannot agree with the
majority opinion’s conclusion that “the extraordinarily extensive comments [by
the prosecutor] on Gongora’s failure to testify resulted in actual prejudice.”1 The
prosecutor’s comments were neither “extraordinarily extensive” nor actually
prejudicial.
       The prosecutor’s problematic statements did not have a “substantial and
injurious effect or influence in determining the jury’s verdict”2 of guilt because
the jury instructions permitted the jury to convict Gongora of capital murder by
finding that he entered into a conspiracy to rob the victim, Sierra, and that
Gongora should have anticipated his coconspirator would shoot the victim. The
evidence was overwhelming that only two men exited the van to rob the victim.
Gongora admitted, in a written confession, that he intended to rob Sierra and
that he exited the van. While Gongora claimed that all six occupants got out of
the van to commit robbery, every other account of the attempted robbery and
shooting was that only two men left the van.               The prosecutor’s improper
comments were focused on convincing the jury that Gongora was the actual
shooter, an alternative ground on which the jury could have found Gongora
guilty. The prosecutor’s comments about Gongora’s failure to testify had little,




       1
           Ante at 2.
       2
        Brecht v. Abrahamson, 507 U.S. 619, 638 (1993) (quoting Kotteakos v. United States,
328 U.S. 750, 776 (1946)) (internal quotation marks omitted).

                                            25
                                        No. 07-70031
if any, bearing on Gongora’s guilt as a conspirator and responsible party in light
of Gongora’s own confession that he exited the van to rob Sierra.
         With regard to the number and extent of the prosecutor’s improper
comments, considered in context, the prosecutor commented three times, at
most, on Gongora’s failure to testify, and these comments were themselves
confusing. They were made in conjunction with the prosecutor’s arguments
about the credibility of two occupants of the van during the shooting who
testified at Gongora’s trial and on the failure of Gongora to call as a witness his
brother Stephen Gongora, who was also in the van during the shooting.
         An entirely separate question is whether Gongora’s conviction can be
upheld since the jury issues allowed the jury to find him guilty of capital murder,
as an alternative ground, under Texas’s “law of parties,” which permits
conviction of capital murder on a finding that the defendant anticipated a
human life would be taken. The majority opinion does not reach this issue.
Though the jury issues may have been infirm under the Eighth Amendment,
United States Supreme Court precedent that has not been expressly overruled
permits Texas courts to make the finding that Gongora had the requisite mental
state to satisfy the Eighth Amendment’s requirements. The TCCA made that
finding and upheld Gongora’s conviction on direct appeal.
         I would affirm the district court’s judgment denying habeas relief.
                                               I
         It is apparent that this has been a difficult case for us to resolve. The fact
that we ordered oral argument solely on whether a certificate of appealability
(COA) was warranted is evidence of the uncertainty we had as to the merits of
the issues presented. We nevertheless concluded that a COA should issue.3 We




         3
             Gongora v. Quarterman, No. 07-70031, 2008 WL 4656992, at *1 (5th Cir. Oct. 22,
2008).

                                              26
                                  No. 07-70031
then heard arguments a second time, only then reaching the merits of the two
issues now before us, and our consideration of those questions has been lengthy.
      The first of the two issues pertains to statements made by one of the
prosecutors, Granger, during closing arguments. To put these statements in
context, it is helpful to review the closing arguments in their entirety. Another
prosecutor, Rousseau, began the State’s closing argument. The first point that
Rousseau made to the jury was that Gongora could be found guilty even if he
was not the “person who pulled the trigger” and that “[t]he evidence in this case
is undisputed that the man is guilty as a party. That is without a doubt.” With
regard to Texas’s law of parties, Rousseau told the jury that because of Texas’s
law of parties, “the answer, is he guilty or not guilty, is an easy question. Yes,
he’s guilty.” The prosecutor then focused on an alternate ground that could
support a verdict of a guilt, which was a finding that Gongora was “the one who
pulled the trigger.” Rousseau said that he would spend most of his time on this
issue and proceeded to discuss the evidence that indicated that Gongora shot the
victim and why evidence that Albert Orosco was the shooter should be
discounted.
      Following Rousseau’s presentation, an attorney for Gongora began the
defense’s closing argument. He, too, recounted the evidence, pointing out that
Juan Vargas changed his initial statement in which Vargas had said that Carlos
Almanza was the shooter and that James Luedtke had exited the van with
Almanza. Gongora’s counsel conceded to the jury that other than this recanted
statement, “Dylan Griffith is the only person that says Carlos [Almanza] did it.”
The thrust of the argument was that there was varied testimony as to who was
the shooter. The candidates included not only Gongora but also Orosco and
Almanza. Gongora’s other counsel then argued, attempting to convince the jury
it should not find that a robbery or attempted robbery occurred because the
shooter—either Almanza or Orosco, counsel posited—changed his mind as he


                                       27
                                  No. 07-70031
approached the victim and killed Sierra rather than proceeding with a robbery.
The motive for the murder, counsel contended, was some sort of insult from the
victim to the shooter.     Counsel then discussed the credibility of various
witnesses, in particular Juan Vargas’s lack of credibility. Little was said to call
into question Gongora’s guilt as a nonshooter.
      Granger then argued for the State. His first point was a reminder to the
jury to “[r]emember the law of parties. The law of parties is clear.” He discussed
the substance of that law, contending that Gongora was guilty of capital murder
under it and again asserting that “[t]he law’s clear. The law’s very much on our
side in this case.” Granger asked the jury to consider the facts, pointing to
Gongora’s written confession to establish conspiracy to commit robbery.
      Granger then turned to the alternate theory of guilt and examined at some
length the varying evidence as to who actually shot the victim. One point that
Granger emphasized to the jury was that every witness, including Sonia Ramos,
a disinterested person who was driving past as the murder occurred, testified
that two men got out of the van to accost the victim. The only contrary evidence
was Gongora’s written confession, which said that “we all” got out of the van. At
a minimum, counsel asserted, the credible evidence established that Gongora
was one of those two men. Granger then argued that the consistency of the
accounts of what happened “establishes the credibility” of the State’s witnesses.
      The evidence reflects that there were six people inside the van just before
the victim was killed. They were:
      Juan Vargas, the driver, who testified
      James Luedtke, who testified
      Nelson Gongora, the defendant, who asserted the Fifth Amendment
      Carlos Almanza, who asserted the Fifth Amendment
      Albert Orosco, who asserted the Fifth Amendment
      Steven Gongora, the defendant’s brother, who was not called as a witness
The prosecutor who presented the final closing argument, Granger, talked to the
jury about the two men inside the van who testified, Vargas and Luedtke, and

                                        28
                                  No. 07-70031
another who was inside the van, Stephen Gongora, who did not testify and who
did not assert his Fifth Amendment rights. The prosecutor said, “When [those
who had exited to rob the victim] got back inside the van, then consider what
was said there.” It was then that the statements at issue commenced. Granger
told the following to the jury:
      Before you get there, I want to talk about the people you heard from.
      We’re talking about Juan [Vargas] and James [Luedtke] through
      this entire deal. I used his first name, because, in this case, we have
      little brothers involved, you know, Steven Gongora, you know, Pablo
      Vargas. I’m using first names to keep everybody clear.
      Who did you expect us to bring to you? There’s six people inside
      that van. When you look at it, here it is. Who would you expect for
      us to give to you to establish who the shooter is? Are you going to
      be satisfied in a case with gang members just looking at one person,
      even though he’s telling you the exact truth, no matter what? Even
      if the time that he first told this story, he told the truth—he told the
      truth about someone he’s scared to death of [Gongora]—this is
      James Luedtke. He had nothing against him. He had no crime
      pending. He had no reason to hide the truth. He had no reason to
      talk to us, but he told us the truth.
      You listen to people inside there. Who else would you want to hear
      from, though? The shooter? We’re not going to talk to that person.
      We’re not going to make a deal with that person. This person
      deserves what they get. This person right here. . . . Nelson Gongora,
      the shooter. That’s the person on trial. That’s the person who
      deserves to be found guilty of capital murder.
      Who should we go ahead and talk to? Who should we go ahead and
      present to you? Should we talk to the shooter? Should we talk to—
At this point, Gongora’s attorney objected, “That’s a comment on the failure to
testify,” and he requested a jury instruction to disregard the comment. He also
moved for a mistrial.     The trial judge sustained the objection, issued an
instruction to disregard, and overruled Gongora’s motion for a mistrial.
      The prosecutor continued, “Let me say this. And I don’t want to give the
wrong impression in any sort of way. We’re asking, who do you expect to take the


                                        29
                                  No. 07-70031
stand? Who do you expect to hear from, right?” Gongora’s attorney again
objected, and the trial judge instructed the jury to disregard the comment.
Gongora’s counsel moved for a mistrial, which was denied.
      The prosecutor then attempted to address his error:
      I don’t want—to make it clear, y’all, Defendant has a Fifth
      Amendment right not to testify. And, of course—and I don’t want
      to give any wrong impression on that whatsoever. Okay?
      What I want to talk about is this. When you talk about the
      credibility of a person, I wish you—and I made a—I made a big
      mistake there. I’ll make it very clear. I’m not talking about, do you
      want to hear from him, because you can’t do that.
Gongora’s counsel again objected, but that objection was overruled “as to that
particular statement.” The prosecutor continued,
      Let me back up and tell you this. Let me define it by the roles in the
      car. That’s what I’m trying to get at. Okay?
      The roles in the car are this. You have a person inside the car who
      is the shooter. You have a person inside the car who got out with
      the shooter. You have a person inside the car who was guilty—or,
      actually, may have participated in another shooting later that night.
      You have a person inside the car who is just sitting there who is
      present. And then you have a person inside the car who is the
      Defendant’s brother, right? Where is that person? We know the
      person was there. They could have brought that person, but you
      never heard from that person. And that’s—
Gongora’s counsel interjected an objection, and the judge called counsel to the
bench. Gongora’s attorney asserted that bench warrants and subpoenas had
been issued, but that “they [the witnesses other than Gongora] took the Fifth.”
Gongora’s counsel also objected that the prosecutor had been pointing to a
diagram “showing Albert [Orosco] and everybody else” while commenting on
those witnesses’, not Gongora’s, failure to testify. The objection was sustained.
      One of the State’s other prosecutors, Rousseau, then commented for the
record, saying,



                                       30
                                  No. 07-70031
      Immediately—what J.D. [Granger] was talking about there, so it’s
      clear for the record, was that he mentioned the name “Steven
      Gongora.” He mentioned the name, and he said, “The Defendant’s
      brother.” And he said, “Where is that person?”
      Steven Gongora is the Defendant’s brother, and his name is also on
      the chart, and that’s what he was talking about.
The trial judge responded, “All right. You need to clear it up, Counselor.” At the
request of Gongora’s counsel, the judge then reiterated that the objection was
sustained, instructed the jury to disregard, and denied Gongora’s motion for a
mistrial. Granger then continued, without any further objection by Gongora’s
counsel, as follows:
      Ladies and gentlemen, I want to wrap this up, because that’s what
      I’m talking about, the confusion in the case.
      When I—when you’re talking about the people inside the car, this
      is it. You have the person inside the van and, from all the
      testimony, established one person is the shooter. You have a person
      in the car who got out and could possibly have stopped the killing
      from ever taking place. You have a person inside the car, by the
      testimony, you all know was involved in another shooting later that
      night. You have a person in the car who was related to the
      Defendant. That is his brother. Right? Then you have a person
      inside there who is just present. Okay? . . . .
      Those are the different roles of the persons inside the car. You ask
      who—you know, you hear from this case, and who should—you
      know, how to determine the credibility. Who do you want to hear
      from? Who do you expect to hear from? The person who wasn’t
      involved at all, that had nothing at all, just present during that
      deal? Of course, you hear from that person.
      When you’re considering and evaluating the credibility of the next
      person—and that’s who I’m talking about in talking about who
      you’re going to hear from. I’m talking about, when listening to Juan
      Vargas, there’s different people who played different roles. When
      you consider the fact that we actually spoke to him, that’s what I’m
      talking about. I’m not talking about who would you want to hear
      from, who would you expect us to call, but I meant to define it in the
      terms of the roles of those involved in the case. Okay?


                                       31
                                  No. 07-70031
      The roles that are defined in this case are abundantly clear. When
      you look at all the roles of those persons involved, the person in this
      case who is, you know, least culpable, besides the person who didn’t
      do anything, is the driver, right?
      That’s what I wanted you to consider. That’s what I was trying to
      discuss about the different roles and who you would expect to hear
      from or expect us, you know, to be looking at. That was it. Just
      examine their roles.
      I agree that the statements italicized in the above quotations were an
impermissible comment on Gongora’s assertion of his Fifth Amendment rights.
However, other of the statements that the panel majority’s opinion concludes
“strenuously. . . emphasized Gongora’s guilt to the jury based on his failure to
testify”4 do not clearly fall into that category. Those statements are instead the
prosecutor’s explanation of who he meant when he asked, “[D]o you want to hear
from him[?]” The statement, “I’ll make it very clear. I’m not talking about, do
you want to hear from him, because you can’t do that,” does refer to the
Gongora’s exercise of his Fifth Amendment rights, but the context of the
statement makes clear that the prosecutor, in asking who “do you want to hear
from,” was referring to Vargas, Luedtke, and Stephen Gongora, the three people
in the van who did not assert their Fifth Amendment rights. Similarly, the final
two statements italicized in the majority opinion referred to the occupants of the
van who did not assert the Fifth Amendment. It is telling that Gongora’s
counsel did not make any objection at trial to these two arguments that the
majority opinion says are among five egregious statements. In these final two
statements on which the panel majority relies, the prosecutor’s point, while
clumsily made, was that the State called Vargas and Luedtke as witnesses.
Gongora could have called, but did not call, the only other occupant of the van
who did not assert the Fifth Amendment, Gongora’s brother. Gongora’s counsel



      4
          Ante at 17.

                                        32
                                      No. 07-70031
understood the argument that the prosecutor was making in this regard and did
not object.
      Gongora argued in his direct appeal to the TCCA that the prosecutor’s
comments were unconstitutional, but the state court disagreed. The Texas court
reasoned, “When viewed in context, the complained-of comments appear to be
the prosecutor’s attempt to comment on [Gongora’s] failure to produce witnesses
other than [Gongora], which is a permissible area of comment.”5 The state court
acknowledged that the prosecutor’s comments “tended to be inartful and often
confusing, leading the trial judge to sustain appellant’s objections to the remarks
and to instruct the jury to disregard them.”6 Nevertheless, the state court
concluded that the trial court “did not abuse its discretion in thereafter
overruling [Gongora’s] various motions for mistrial.”7 The court explained that
“[o]n this record, the prosecutor’s comments were not so blatant that they
rendered the instructions to disregard ineffective,” and the trial judge
“reasonably concluded that the instructions to disregard effectively removed any
prejudice caused by the prosecutor’s comments.”8
      On federal habeas review, the district court “concluded that the
prosecutor’s remarks concerning Gongora’s failure to testify amount[ed] to
constitutional error.”9        But the district court ultimately held that the
constitutional error was harmless. There was no “evidence in the record that
[the] remarks ‘had substantial and injurious effect or influence in determining



      5
        Gongora v. State, No. AP-74636, 2006 WL 234987, at *10 (Tex. Crim. App. Feb. 1,
2006) (en banc).
      6
          Id.
      7
          Id.
      8
          Id.
      9
          Gongora v. Quarterman, 498 F. Supp. 2d 919, 927 (N.D. Tex. 2007).

                                            33
                                         No. 07-70031
the jury’s verdict’ as required for the granting of federal habeas relief.”10 The
district court also noted that the trial judge had issued several curative and
cautionary jury instructions regarding the Fifth Amendment privilege against
self-incrimination.11 Because “[j]uries are presumed to follow their instructions,”
the district court concluded, these instructions further mitigated the harm from
the comments.12
                                                II
      Gongora may obtain federal habeas relief on his claim of improper
prosecutorial comment only if that constitutional error was not harmless. “[I]n
§ 2254 proceedings a court must assess the prejudicial impact of constitutional
error in a state-court criminal trial under the ‘substantial and injurious effect’
standard set forth in Brecht [v. Abrahamson], whether or not the state appellate
court recognized the error and reviewed it for harmlessness under . . . Chapman
[v. California, 386 U.S. 18 (1967)].”13 In Brecht, the Supreme Court established
the standard that a constitutional error is harmless unless the habeas petitioner
shows that it “had substantial and injurious effect or influence in determining
the jury’s verdict.”14
      Gongora has not shown that the constitutional error had substantial and
injurious effect or influence in determining the jury’s verdict. The first hurdle
that Gongora must overcome is the effect of the curative and cautionary jury
instructions at Gongora’s trial.           I agree with the district court that these
instructions mitigated the prejudicial effect of the prosecutor’s comments. The


      10
           Id. (quoting Fry v. Pliler, 551 U.S. 112, 116 (2007)).
      11
           Id.
      12
           Id.
      13
           Fry, 551 U.S. at 121-22 (citations omitted).
      14
           Brecht v. Abrahamson, 507 U.S. 619, 638 (1993).

                                               34
                                        No. 07-70031
trial judge, in addition to issuing curative instructions during the prosecutor’s
closing argument, admonished the jurors several times that they could not and
must not consider Gongora’s choice not to testify as evidence of guilt. The judge
issued such cautionary instructions at voir dire and again immediately before
closing arguments, when it instructed the jury:
       In a criminal case the law permits the Defendant to testify in his
       own behalf but he is not compelled to do so, and the same law
       provides that the fact that a defendant does not testify shall not be
       considered as a circumstance against him. You will, therefore, not
       consider the fact that the Defendant did not testify as a
       circumstance against him; and you will not during your
       deliberations allude to, comment on, or in any manner refer to the
       fact that the Defendant has not testified.
       Such jury instructions are “powerful tool[s] . . . to protect the [Fifth
Amendment] privilege” and give the trial judge a “unique power . . . to reduce”
speculation “about why a defendant stands mute in the face of a criminal
accusation.”15 Absent a showing to the contrary, we presume that the jury
heeded the judge’s instructions.16 On the basis of the record, and considering the
evidence of guilt and the presumptively effective jury instructions, the improper
comments did not have a substantial and injurious effect or influence in
determining the jury’s verdict.
       Gongora confessed in writing that he intended to rob the victim. He
confessed in writing that he left the van to rob the victim. Although he said that
everyone else in the van also exited to rob the victim, he is the sole person to give
that account. The disinterested eye witness who was driving past as the
shooting occurred testified that only two men were accosting the victim. In


       15
            Carter v. Kentucky, 450 U.S. 288, 303 (1981).
       16
         Zafiro v. United States, 506 U.S. 534, 540-41 (1993); see also Portuondo v. Agard, 529
U.S. 61, 67 (2000) (“It is reasonable enough to expect a jury to comply with [a curative]
instruction since, as we observed in Griffin, the inference of guilt from silence is not always
‘natural or irresistible.’” (quoting Griffin v. California, 380 U.S. 609, 615 (1965))).

                                               35
                                  No. 07-70031
Vargas’s original, subsequently withdrawn, statement to authorities as well as
his later statement, he said that only two men exited the van to commit the
robbery. The jury unquestionably concluded that Gongora was one of those two
men and that one of them was armed with the gun that shot the victim.
Gongora admitted that he left the van. The only question was who was the
actual shooter. The fact that Gongora may not have pulled the trigger did not
absolve him of guilt under the charge given to the jury.
      Even were the question before the jury limited to whether Gongora was
the shooter, there is no actual prejudice demonstrated on the record before us.
For the reasons discussed above, the trial judge’s instructions were adequate.
      The evidence that Gongora was not the shooter is not as strong as the
majority opinion suggests. The majority opinion makes much of the testimony
of Sonia Ramos, a disinterested witness who was driving past as the shooting
occurred. She did now know any of the parties involved. She could say only on
which side of the victim the shooter stood. The majority opinion says that
Ramos’s testimony conflicts with Vargas’s placement of Gongora and Orosco.
However, it is not at all clear from the record what left or right meant to either
Vargas or Ramos in the context of Ramos driving past the scene of the murder
at approximately thirty miles an hour and looking back over her shoulder from
a vantage point that was different from Vargas’s. More importantly, the record
about what Vargas said as to the positioning of Gongora and Orosco comes from
a diagram drawn by a detective based on his interview with Vargas. Notably,
the original diagram, drawn contemporaneously with the interview, does not
show Gongora and Orosco in distinct positions. Instead, the diagram contains
arrows pointing from “(Nelson / Albert)” to two Xs marking their position. The
detective created the diagram to aid his “own personal understanding” based on
his interpretation of Vargas’s recollection of the event. Vargas neither created
the diagram nor testified to its accuracy at trial.


                                        36
                                         No. 07-70031
      In sum, Gongora has not shown that the prosecutor’s violations of the Fifth
Amendment substantially influenced the jury’s verdict that he was guilty of
capital murder.
                                               III
       Gongora additionally argues that his sentence of capital punishment
violates the Eighth Amendment, as applied to the states pursuant to the
Fourteenth Amendment, based upon the Supreme Court’s clearly established
holdings in Apprendi v. New Jersey,17 Ring v. Arizona,18 and Blakely v.
Washington,19 which Gongora says call into question the continued vitality of
Enmund v. Florida,20 Tison v. Arizona,21 and Cabana v. Bullock.22 Gongora
contends that the “anti-parties” charge as used in Texas is unconstitutional
because the jury was never required to find that he committed capital murder
either by his own acts or by his substantial participation in the robbery of the
victim with at least reckless indifference to the life of the victim. The jury
instructions at the conclusion of the guilt/innocence phase of the trial permitted
the jury to find Gongora guilty of capital murder if it found that the murder of
the victim during the conspiracy to rob him was an offense that should have
been anticipated.23 During the sentencing phase, the questions submitted


      17
           530 U.S. 466 (2000).
      18
           536 U.S. 584 (2002).
      19
           542 U.S. 296 (2004).
      20
           458 U.S. 782 (1982).
      21
           481 U.S. 137 (1987).
      22
           474 U.S. 376 (1986), overruled in part by Pope v. Illinois, 481 U.S. 497 (1987).
      23
           The jury instructions in this case stated, in pertinent part, as follows:
      If, in the attempt to carry out a conspiracy to commit one felony, another felony
      is committed by one of the conspirators, then all conspirators are guilty of the
      felony actually committed, though having no intent to commit it, if the offense

                                                37
                                        No. 07-70031
permitted the jury to find that Gongora either intended to kill the victim or
anticipated that a human life would be taken.24
       The majority opinion did not reach this issue because of its disposition of
the Fifth Amendment question. I nevertheless would deny habeas relief in this
case because unless and until the Supreme Court overrules its existing
precedent, state courts, including state appellate courts, are permitted to make
the finding that the defendant had the mental state required to satisfy the
Eighth Amendment’s requirements.25
       Under Texas law, it is a capital crime to commit murder in the course of
attempted robbery.26 One who did not actually commit the murder may also be
convicted of capital murder under Texas law based on the law of parties. By
statute, a defendant who did not kill the victim and who did not intend for the
murder to occur may nevertheless be convicted of a capital offense if, in an
attempt to carry out a conspiracy to commit a felony, the murder “was
committed in furtherance of the unlawful purpose and was one that should have
been anticipated as a result of the carrying out of the conspiracy.”27                    The


       was committed in furtherance of the unlawful purpose and was one that should
       have been anticipated as a result of the carrying out of the conspiracy. Robbery
       is a felony.
       24
         The issues submitted to the jury at the sentencing phase included “[w]hether the
Defendant actually caused the death of the deceased or did not actually cause the death of the
deceased but intended to kill the deceased or another or anticipated that a human life would
be taken.”
       25
            See Hopkins v. Reeves, 524 U.S. 88, 100 (1998); Cabana, 474 U.S. at 392.
       26
            The Texas Penal Code provides as follows:
       (a) A person commits an offense if the person commits murder as defined under
       Section 19.02(b)(1) and: . . .
       (2) the person intentionally commits the murder in the course of committing or
       attempting to commit kidnaping, burglary, robbery . . . .
Tex. Penal Code Ann. § 19.03(a)(2).
       27
            Tex. Penal Code Ann. § 7.02(b).

                                              38
                                       No. 07-70031
instructions to the jury in this case permitted the jury to convict Gongora under
these statutory provisions.
       Pursuant to Texas’s capital-sentencing scheme, after the jury found
Gongora guilty of capital murder, it was required to answer three special issues
to determine whether he was eligible for the death penalty.28 Special issue
number two asked the jury to answer the following question: “Do you find from
the evidence beyond a reasonable doubt that the Defendant actually caused the
death of Delfino Sierra or did not actually cause the death of Delfino Sierra, but
intended to kill Delfino Sierra or another or anticipated that a human life would
be taken?” Gongora contends that this special issue, combined with the law-of-
parties instruction at the guilt/innocence phase of his trial, permitted the jury
to sentence him to death on a finding of culpability no greater than that he
anticipated a life would be taken, a level of culpability too low to comport with
the requirements of Enmund and Tison.
       The Supreme Court’s decisions in Enmund and Tison both address the
degree of responsibility the Eighth Amendment requires for the imposition of



       28
        Article 37.071 of the Texas Code of Criminal Procedure provides that the issues
submitted to the jury shall include the following:
       (1) whether there is a probability that the defendant would commit criminal acts
       of violence that would constitute a continuing threat to society; and
       (2) in cases in which the jury charge at the guilt or innocence stage permitted
       the jury to find the defendant guilty as a party under Sections 7.01 and 7.02,
       Penal Code, whether the defendant actually caused the death of the deceased
       or did not actually cause the death of the deceased but intended to kill the
       deceased or another or anticipated that a human life would be taken. . . .
       [And if the answers to these questions are in the affirmative:]
       [(3)] Whether, taking into consideration all of the evidence, including the
       circumstances of the offense, the defendant’s character and background, and the
       personal moral culpability of the defendant, there is a sufficient mitigating
       circumstance or circumstances to warrant that a sentence of life imprisonment
       without parole rather than a death sentence be imposed.
Tex. Code Crim. Proc. Ann. art. 37.071(b), (e)(1).

                                             39
                                          No. 07-70031
capital punishment after felony-murder convictions. In Enmund, the Supreme
Court held that the death penalty cannot be imposed upon a defendant who,
though involved in a felony, did not kill, attempt to kill, intend that a killing
take place, or anticipate that lethal force would be used.29 In Tison, the Supreme
Court qualified Enmund by holding that “major participation in the felony
committed, combined with reckless indifference to human life, is sufficient to
satisfy the Enmund culpability requirement.”30
       The Supreme Court has also held that the findings mandated by Enmund
and Tison need not be made during trial proceedings.31 The Supreme Court
expressly held that “the Eighth Amendment does not require that a jury make
the findings required by Enmund.”32 The death penalty may be imposed if “the
requisite findings are made in an adequate proceeding before some appropriate
tribunal—be it an appellate court, a trial judge, or a jury.”33 This holding was
reaffirmed in Hopkins v. Reeves.34
       When a federal habeas court reviews a claim that the death penalty has
been imposed without the findings mandated by Enmund and Tison,
       the court must examine the entire course of the state-court
       proceedings against the defendant in order to determine whether,

       29
          See Cabana, 474 U.S. at 386 (“Enmund . . . imposes a categorical rule: a person who
has not in fact killed, attempted to kill, or intended that a killing take place or that lethal force
be used may not be sentenced to death.”); see also Enmund v. Florida, 458 U.S. 782, 798
(1982).
       30
            Tison v. Arizona, 481 U.S. 137, 158 (1987).
       31
        See Hopkins v. Reeves, 524 U.S. 88, 100 (1998) (“Tison and Enmund do not affect the
showing that a State must make at a defendant’s trial for felony murder, so long as their
requirement is satisfied at some point thereafter.”).
       32
            Cabana, 474 U.S. at 392.
       33
            Id. (emphasis added).
       34
        See Reeves, 524 U.S. at 100 (emphasizing that Cabana “held that a State could
comply with Enmund’s requirement at sentencing or even on appeal”).

                                                40
                                          No. 07-70031
       at some point in the process, the requisite factual finding as to the
       defendant’s culpability has been made. If it has, the finding must
       be presumed correct . . . , and unless the habeas petitioner can bear
       the heavy burden of overcoming the presumption, the court is
       obliged to hold that the Eighth Amendment as interpreted in
       Enmund is not offended by the death sentence.35
In this case, the TCCA made the requisite finding on direct appeal, stating, “The
testimony in the instant case showed that [Gongora] himself exited the van and
shot the victim. Thus, he was a major participant in an offense who possessed
‘reckless indifference’ towards the murder.”36 As a result, the TCCA rejected
Gongora’s claim that his death sentence violated the Eighth Amendment.37
       Pursuant to Cabana, the TCCA was permitted to make the requisite Tison
finding that Gongora was a major participant in the robbery who possessed
reckless indifference towards the murder.38 The TCCA made that finding here,
and Gongora’s argument that the TCCA unreasonably ignored evidence he
believes to be in his favor is not sufficient to overcome the presumption of
correctness accorded to the state court’s findings.39 Under Cabana, Gongora’s
death sentence does not violate the Eighth Amendment.
       Gongora contends, however, that the Supreme Court’s decisions in Ring
v. Arizona40 and Apprendi v. New Jersey41 clearly established that only a jury,


       35
            Cabana, 474 U.S. at 387-88 (citation omitted).
       36
         Gongora v. State, No. AP-74636, 2006 WL 234987, at *12 (Tex. Crim. App. Feb. 1,
2006) (en banc).
       37
         See id. (“Considering the evidence, the fact that the jury was authorized by the charge
to convict appellant as a party does not make Article 37.071, section 2(b)(2) unconstitutional
as applied to appellant in this case.”).
       38
            See Cabana, 474 U.S. at 387.
       39
            See 28 U.S.C. § 2254(e)(1).
       40
            536 U.S. 584 (2002).
       41
            530 U.S. 466 (2000).

                                               41
                                       No. 07-70031
and not a judge, may make the findings mandated by Enmund and Tison. I do
not agree. The Supreme Court has admonished federal courts time and again
to construe its holdings narrowly for purposes of federal habeas review, and the
Supreme Court “has held on numerous occasions that it is not ‘an unreasonable
application of clearly established Federal law’ for a state court to decline to apply
a specific legal rule that has not been squarely established by [the Supreme
Court].”42
       The Enmund, Tison, and Cabana line of cases makes clear that the Eighth
Amendment is “a substantive limitation on sentencing, and like other such
limits it need not be enforced by the jury.”43 The Supreme Court’s decision in
Cabana explained at some length that its “ruling in Enmund does not concern
the guilt or innocence of the defendant—it establishes no new elements of the
crime of murder that must be found by the jury.”44 This bears repeating. The
limitations that the Enmund decision found to be imposed by the Eighth
Amendment do not add elements to a state’s statutory elements of a capital
offense. The opinion in Cabana makes the following observations at various
junctures:
       Enmund “does not affect the state’s definition of any substantive
       offense, even a capital offense.” Enmund holds only that the
       principles of proportionality embodied in the Eighth Amendment
       bar imposition of the death penalty upon a class of persons who may
       nonetheless be guilty of the crime of capital murder as defined by



       42
          Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (internal quotation marks omitted);
see also Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (per curiam) (rejecting petitioner’s
claim under § 2254(d)(1) because “[n]o decision of this Court . . . squarely addresses the issue
in this case” and “[b]ecause our cases give no clear answer to the question presented”); Carey
v. Musladin, 549 U.S. 70, 77 (2006) (rejecting petitioner’s claim “[g]iven the lack of holdings
from this Court” on the rule urged).
       43
            Cabana, 474 U.S. at 386.
       44
            Id. at 385.

                                              42
                                No. 07-70031
state law: that is, the class of murderers who did not themselves
kill, attempt to kill, or intend to kill.45
                                ***
We are unable to understand Justice BLACKMUN’s statement that
we have failed to grasp “the distinction . . . between defining an
offense and being entitled to execute a defendant.” As stated in the
text, we recognize that there is a class of persons whom the State
may define as having committed capital murder but whom the State
may not permissibly execute. The point we are making, however, is
that while the Eighth Amendment prohibits the execution of such
defendants, it does not supply a new element of the crime of capital
murder that must be found by the jury; hence, such cases as Cole v.
Arkansas, which hold that the inadequacy of a jury’s findings on the
issue of guilt or innocence may not be corrected by an appellate
court, are inapposite.46
                                ***
[T]he decision whether a sentence is so disproportionate as to
violate the Eighth Amendment in any particular case, like other
questions bearing on whether a criminal defendant’s constitutional
rights have been violated, has long been viewed as one that a trial
judge or an appellate court is fully competent to make.47
                                  ***
Enmund . . . imposes a categorical rule: a person who has not in fact
killed, attempted to kill, or intended that a killing take place or that
lethal force be used may not be sentenced to death. Nonetheless,
the rule remains a substantive limitation on sentencing, and like
other such limits it need not be enforced by the jury.
Indeed, Enmund does not impose any particular form of procedure
upon the States. The Eighth Amendment is satisfied so long as the
death penalty is not imposed upon a person ineligible under
Enmund for such punishment. If a person sentenced to death in
fact killed, attempted to kill, or intended to kill, the Eighth
Amendment itself is not violated by his or her execution regardless
of who makes the determination of the requisite culpability; by the


45
     Id. (citations omitted).
46
     Id. at 385 n.3.
47
     Id. at 386.

                                    43
                                        No. 07-70031
      same token, if a person sentenced to death lacks the requisite
      culpability, the Eighth Amendment violation can be adequately
      remedied by any court that has the power to find the facts and
      vacate the sentence. At what precise point in its criminal process a
      State chooses to make the Enmund determination is of little concern
      from the standpoint of the Constitution. The State has considerable
      freedom to structure its capital sentencing system as it sees fit, for
      “[a]s the Court has several times made clear, we are unwilling to
      say that there is any one right way for a State to set up its capital
      sentencing scheme.”48
      If a state were to require in a statute the minimum requirements set forth
in Enmund and Tison as an element of an offense or as a sentencing factor that
could increase the severity of a sentence, then the Sixth Amendment, through
the Fourteenth Amendment, would require a jury to find the requisite facts.
That is the teaching of the decisions subsequent to Cabana on which Gongora
relies.
      The actual holdings in Apprendi and Ring were that when a state statute
permits punishment to be increased based on the existence of particular facts,
a jury must make the factual findings. Although the rationale of Apprendi and
Ring calls into question the reasoning in Enmund, Tison, and Cabana, those
cases have not been overruled. Nor are the actual holdings in Apprendi and
Ring in conflict with the holdings in Enmund, Tison, and Cabana.
      In Apprendi, a state statute set the maximum penalty for possession of a
firearm for unlawful purposes at ten years.49                  However, another statute
permitted a judge to impose an “extended term” of imprisonment if the judge
found that the defendant had acted to intimidate a person or a group because of
race or other enumerated characteristics or beliefs.50 The Supreme Court held


      48
           Id. at 386-87 (quoting Spaziano v. Florida, 468 U.S. 447, 464 (1984)).
      49
           Apprendi v. New Jersey, 530 U.S. 466, 468 (2000).
      50
           Id. at 468-69.

                                              44
                                           No. 07-70031
that “any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.”51 That decision did not consider whether requirements
imposed by the Eighth Amendment beyond the statutory elements of the offense
or statutory sentencing enhancements must be found by a jury.
       The Supreme Court’s decision in Ring extended this principle to the
capital-punishment context and overruled Walton v. Arizona52 in part.53 In so
doing however, the Supreme Court discussed the state court’s Enmund
findings,54 specifically citing Enmund and Tison, but it did not hold that state
courts can no longer make such Eighth Amendment findings. The only state
court findings at issue in Ring were the trial judge’s finding of one statutory
aggravating factor, which was that the offense was committed in “an especially
heinous, cruel or depraved manner.”55 In framing the issue that was actually
decided, the Ring opinion observed that based on the jury’s findings alone, only
a life sentence could have been imposed under state law.56 A death sentence
could be imposed under the Arizona statute at issue only if “at least one




       51
            Id. at 490 (emphasis added).
       52
            497 U.S. 639 (1990).
       53
            Ring v. Arizona, 536 U.S. 584, 589 (2002) (citing Walton, 497 U.S. 639).
       54
         Id. at 594 (“Because Ring was convicted of felony murder, not premeditated murder,
the judge recognized that Ring was eligible for the death penalty only if he was Magoch’s
actual killer or if he was ‘a major participant in the armed robbery that led to the killing and
exhibited a reckless disregard or indifference for human life.’”); id. (explaining that the trial
judge “concluded that Ring ‘is the one who shot and killed Mr. Magoch’” and that “[t]he judge
also found that Ring was a major participant in the robbery and that armed robbery ‘is
unquestionably a crime which carries with it a grave risk of death.’”).
       55
            Id. at 595 (internal quotation marks omitted).
       56
            Id. at 597.

                                               45
                                         No. 07-70031
aggravating factor is found.”57 The Supreme Court’s actual holding is limited to
the issue decided, which was “whether that aggravating factor may be found by
the judge, as Arizona law specifies, or whether the Sixth Amendment’s jury trial
guarantee . . . requires that the aggravating factor determination be entrusted
to the jury.”58 The Court did not address whether the Enmund findings must be
made by a jury. The Supreme Court overruled Walton only to the extent that
Walton held that statutorily required aggravating factors could be found by a
state judge or appellate court.59
       Neither Ring nor Apprendi—nor any other decision of the Supreme
Court—has explicitly overruled Cabana’s holding that a trial judge or appellate
court may make the Eighth Amendment findings mandated by Enmund and
Tison. The Supreme Court has repeatedly “reaffirm[ed] that ‘[i]f a precedent of
[the Supreme Court] has direct application in a case, yet appears to rest on
reasons rejected in some other line of decisions, the Court of Appeals should
follow the case which directly controls, leaving to [the Supreme Court] the
prerogative of overruling its own decisions.’”60 Whether the Supreme Court will
continue to adhere to the reasoning and holdings of Enmund, Tison, and Cabana
is highly questionable. However, because no clearly established holding of the
Supreme Court overruled Cabana’s holding that an appellate court may make
the findings mandated by Enmund and Tison, Gongora’s second claim must fail.


       57
            Id. (internal quotation marks omitted).
       58
            Id. (emphasis added).
       59
         See id. at 598-99, 609; id. at 609 (“[W]e overrule Walton to the extent that it allows
a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for
imposition of the death penalty.”).
       60
          Agostini v. Felton, 521 U.S. 203, 237 (1997) (second alteration in original) (quoting
Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)); see also State
Oil Co. v. Khan, 522 U.S. 3, 20 (1997) (“[I]t is this Court’s prerogative alone to overrule one of
its precedents.”).

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                                *        *         *
        In conclusion, I would deny Gongora’s application for a writ of habeas
corpus because neither of his claims satisfy the requirements for a grant of the
writ.




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