                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                  UNITED STATES COURT OF APPEALS
                           FIFTH CIRCUIT                     March 23, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-70036


                      ROBERT MARTINEZ PEREZ,

                                               Petitioner-Appellant,

                               versus

           DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF
     CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                               Respondent-Appellee.



           Appeal from the United States District Court
                for the Northern District of Texas
                         (3:03-CV-1073-L)


Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Convicted in Texas state court of capital murder for murdering

more than one person during the same criminal transaction and

sentenced to death, Robert Martinez Perez requests a certificate of

appealability (COA) on two habeas claims denied by the district

court.   Those underlying claims are that he was denied due process

of law when the trial court:   (1) permitted an inspector with the

United States Marshal Service near two prosecution witnesses, in




     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
view   of    the    jury;   and   (2)   admitted   inadmissible,       cumulative

evidence.      COA DENIED.

                                         I.

       Perez was convicted of capital murder in 1999 and sentenced to

death for the 1994 murders of Jose Travieso and Robert Rivas,

members (as was Perez) of the “Mexican Mafia”, a violent street

gang in San Antonio, Texas.              His conviction and sentence were

affirmed on direct appeal.         Perez v. State, No. 73,457 (Tex. Crim.

App. 19 Sept. 2001) (unpublished).              Perez did not seek a writ of

certiorari from the Supreme Court of the United States.

       During the pendency of his direct appeal, Perez filed a state

habeas application, challenging his conviction and sentence on 45

grounds. In March 2003, the habeas trial court entered findings of

fact and conclusions of law, recommending denial of habeas relief.

That April, the Court of Criminal Appeals denied relief, adopting

the findings and conclusions in an unpublished order.                    Ex parte

Perez,      Writ    No.   55,333-01     (Tex.   Crim.   App.      30   Apr.   2003)

(unpublished).

       Perez filed for federal habeas relief in October 2003, raising

the two claims for which he now seeks a COA.               Relief was denied in

June 2005.         Perez v. Dretke, 393 F. Supp. 2d 443, 448 (N.D. Tex.

2005). That August, the district court denied Perez’s COA request.

Perez v.      Dretke,     No.   3:03-CV-1073-L     (N.D.   Tex.    2   Aug.   2005)

(unpublished).


                                          2
                                 II.

     For his COA request here, Perez’s underlying 28 U.S.C. § 2254

habeas petition is subject to the Antiterrorism and Effective Death

Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996)

(AEDPA).   See, e.g., Penry v. Johnson, 532 U.S. 782, 792 (2001).

Pursuant to AEDPA, Perez cannot appeal the habeas-relief denial

unless he first obtains a COA from either the district, or this,

court.   28 U.S.C. § 2253(c)(1)(A); FED. R. APP. P. 22(b)(1).   Under

Federal Rule of Appellate Procedure 22(b)(1), the district court

judge who denied relief “must either issue a [COA] or state why a

certificate should not issue”.   For the same reasons it had denied

relief, the district court denied a COA for both issues.

     Obtaining a COA requires “a substantial showing of the denial

of a constitutional right”.    28 U.S.C. § 2253(c)(2).   Perez must

show “that reasonable jurists could debate whether (or, for that

matter, agree that) the [federal habeas] petition should have been

resolved in a different manner or that the issues presented were

adequate to deserve encouragement to proceed further”.     Miller-El

v. Cockrell, 537 U.S. 322, 336 (2003) (internal citation and

quotation marks omitted).     This determination is limited, inter

alia, “to a threshold inquiry into the underlying merit of [the

habeas petition’s] claims”.    Id. at 327.   Such “inquiry does not

require full consideration of the factual or legal bases adduced in

support of the claims”; instead, it requires “an overview of the


                                  3
claims in the habeas petition and a general assessment of their

merits”.    Id. at 336.      Because Perez faces the death penalty, we

resolve “any doubts as to whether a COA should issue ... in [his]

favor”.    Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.), cert.

denied, 531 U.S. 966 (2000).

     Regarding our requisite threshold inquiry, we recognize that,

in ruling on the merits, the district court was required by AEDPA

to defer to the state court’s ruling “on the merits” for a claim,

“unless [that] adjudication ... resulted in”: (1) for questions of

law and mixed questions of law and fact, “a decision that was

contrary to, or involved an unreasonable application of, clearly

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

United States”; or (2) for questions of fact, “a decision that was

based on an unreasonable determination of the facts in [the] light

of the evidence presented in the State court proceeding.”                      28

U.S.C. § 2254(d)(1) & (2); see Chavez v. Cockrell, 310 F.3d 805,

808 (5th Cir. 2002), cert. denied, 538 U.S. 915 (2003).

                                       A.

     Underlying Perez’s first COA request is his claimed denial of

due process when the trial court permitted an inspector with the

United    States   Marshal   Service       (the   Marshal)   to   be   near   two

prosecution witnesses within view of the jury (Marshal’s presence).




                                       4
                                       1.

      Outside the presence of the jury, Perez’s attorney objected

that the Marshal’s presence:               put an aura on the witnesses’

testimony, suggesting they were so important that they had their

own private guard; made Perez look dangerous because the witnesses

needed a guard in order to be in the same room with him; and was

unnecessary because of the courtroom’s other security measures.

The objections were overruled. On direct appeal, Perez claimed the

Marshal’s presence denied him due process — a fair and impartial

trial. (Although Perez raised this issue again in his state habeas

petition, the habeas trial court ruled the claim had already been

decided adversely to Perez on direct appeal.            As noted, the Court

of Criminal Appeals adopted the habeas trial court’s findings and

conclusions.)     Perez raised the same claim in his federal habeas

petition.    This claim’s having been exhausted, we consider whether

Perez is entitled to a COA.      See 28 U.S.C. § 2254(b)(1).

                                       2.

      “The physical appearance of a defendant while in the presence

of the jury may adversely affect the presumption of innocence.”

Chavez, 310 F.3d at 808.      To protect that fundamental requirement

for   a   fair   trial,   safeguards    are    placed   on   the   defendant’s

appearance.      See, e.g., Estelle v. Williams, 425 U.S. 501, 504

(1976) (“Courts have, with few exceptions, determined that an

accused should not be compelled to go to trial in prison or jail


                                       5
clothing because of the possible impairment of the presumption so

basic to the adversary system.”) (internal footnote omitted).

These safeguards are balanced, however, with the court’s need “to

protect the court and its processes, and to attend to the safety

and   security   of   those   in   the       courtroom”.    United   States    v.

Nicholson, 846 F.2d 277, 279 (5th Cir. 1988).              Accordingly, courts

have been more liberal in allowing security personnel in the

courtroom.    See id. (holding that the presence of plainclothes

deputies in front of the jury did not unfairly prejudice the

defendant).

      Outside the presence of the jury, the Marshal testified:                for

the record, he was dressed in a suit and tie and his firearm was

not exposed; although he was wearing a red badge with the letters

“SCO”, he would remove it while in court; he was assigned to

protect the two witnesses as part of the witness security program;

and that program’s policy is to allow officers to sit close to

witnesses for their protection, especially if the defendant is in

custody or there is an audience in the courtroom.              The trial judge

found:   the Marshal wore a “snappy outfit of civilian nature”; and

the jury could have seen him “as a civilian sitting over there by

the door”.

      On direct appeal, the Court of Criminal Appeals held Perez did

not meet his burden of demonstrating the Marshal’s presence caused

either actual or inherent prejudice.             Likewise, on federal habeas,


                                         6
the   district   court   denied   relief,   ruling   Perez    “failed   to

demonstrate that the presence of a plainclothes officer during the

testimony of [the two witnesses] was so inherently prejudicial that

he was denied his constitutional right to a fair trial”.           Perez,

393 F. Supp. 2d at 450.

      Whether the Marshal’s presence prejudiced Perez’s right to a

fair trial is a mixed question of law and fact.      Accordingly, under

AEDPA, the district court was required to defer to the state

court’s adjudication “unless”, as discussed supra, it “resulted in

a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by

the Supreme Court of the United States”.      28 U.S.C. § 2254(d)(1).

In the light of this standard, Perez has failed for COA purposes to

make the requisite substantial showing that the Marshal’s presence

prejudiced his right to a fair trial.

      On the merits, pursuant to 28 U.S.C. § 2254(e)(1), a state-

court finding of fact is “presumed to be correct[;] [t]he applicant

[has] the burden of rebutting the presumption of correctness by

clear and convincing evidence”.     Perez has not made the requisite

showing for COA purposes that the jury knew the Marshal was an

inspector with the United States Marshal Service.

      Even if the jury did discern that the Marshal was an armed

guard, prejudice would not be shown automatically:           “Our society

has become inured to the presence of armed guards in most public


                                    7
places”.    Holbrook v. Flynn, 475 U.S. 560, 569 (1986).               The jurors

were exposed to numerous other security measures.                 Further, the

Marshal’s    presence    ensured    that    protection-program         witnesses

received adequate security, pursuant to witness-security-program

policies.

     Accordingly, Perez has failed to show reasonable jurists could

debate the    district    court’s   ruling:        (1)   that    the   Marshal’s

presence did not deprive Perez of a fair and impartial trial; or

(2) that the claim is not “adequate to deserve encouragement to

proceed further”.        See   Miller-El,    537    U.S.   at    336   (internal

citations and quotation marks omitted).

                                     B.

     The underlying basis for the other requested COA is Perez’s

claimed denial of a fair and impartial trial because the trial

court admitted evidence he asserts is inadmissible and cumulative.

His claim concerns seven items of evidence regarding the Mexican

Mafia.

                                     1.

     As discussed below, it appears part of this claim was not

exhausted.    If so, we cannot consider that part.              See 28 U.S.C. §

2254(b)(1)(A).    In any event, a COA is denied.

                                     a.

     It appears two letters (from gang members Luis “Blue” Adames

and Herb “Star” Huerta) were challenged for the first time in


                                      8
Perez’s federal petition.         Id.     Because it appears they were not

challenged in state court, the district court may have erred in

considering them. In any event, their being admitted at trial does

not alter the reasons for our COA denial.

                                        b.

     At trial, Perez objected on a variety of bases to the other

five items.        They are:     (1) testimony by a prosecution-witness

(former gang member) relating to the gang’s organization and

operations; (2) its constitution; (3) reading portions of the

constitution that discussed its members killing traitors to the

gang; (4) letters to Perez from the former gang member regarding

schisms, killings, and criminal conduct by the gang; and (5)

testimony by a Detective that he could not remember the exact

number of Mexican Mafia homicides he had investigated because there

had been so many.

     In his federal petition, Perez claims the admission violated

“Rule 404(b)”, presumably of the Texas Rules of Evidence, which

mirrors Federal Rule of Evidence Rule 404(b) (character evidence

generally    not    admissible    to    prove   conduct).    Although    it    is

arguable whether each item was objected to on the grounds now

presented, and although, pursuant to 28 U.S.C. § 2254(b)(3), the

State has not waived the exhaustion requirement, the bases for the

objections    are    sufficient    to    permit   our   review   of   this    COA

application for the five items.


                                         9
     On direct appeal, Perez claimed his due process rights were

violated    by   the   trial   court’s      admitting    cumulative   improper

evidence regarding the gang. (Again, although Perez also made this

claim in his state habeas application, the habeas trial court ruled

the claim had already been decided adversely to Perez on direct

appeal, and the Court of Criminal Appeals adopted the trial court’s

findings and conclusions.)         Perez raised the same claim in his

federal petition.

                                       2.

     On    direct   appeal,    Perez   challenged       the   admissibility   of

evidence pertaining to the gang under Texas Rules of Evidence 403

(exclusion of relevant evidence on special grounds) and 404(b).

The Court of Criminal Appeals held: “[T]he evidence overwhelmingly

demonstrated that the murders resulted from the rift within the

[gang], an organization notorious for committing homicides, and in

accordance with provisions of [its] constitution”.                  Perez, No.

73,457 at 8 (emphasis added). Accordingly, it upheld the admission

of the evidence.

     To support his cumulative-error COA request, Perez relies on

Derden v. McNeel, 978 F.2d 1453, 1457 (5th Cir. 1992) (en banc),

cert. denied, 508 U.S. 960 (1993), which held:

            [F]ederal habeas corpus relief may only be
            granted for cumulative errors in the conduct
            of a state trial where (1) the individual
            errors involved matters of constitutional
            dimension rather than mere violations of state
            law; (2) the errors were not procedurally

                                       10
           defaulted for habeas purposes; and (3) the
           errors “so infected the entire trial that the
           resulting conviction violates due process”.

Id. at 1454 (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973))

(emphasis added).

     In deciding this claim, the district court concluded that,

under 28 U.S.C. § 2254(d)(1), “[b]ecause the ‘cumulative error’

doctrine has not been clearly established by the Supreme Court,

habeas relief is not available”.          Perez, 393 F. Supp. 2d at 448.

In doing so, it failed to address this court’s holding that,

although rare, instances of cumulative trial-court errors resulting

in federal habeas relief “fit the Supreme Court’s description of a

denial of due process as ‘the failure to observe that fundamental

fairness essential to the very concept of justice’”.               Derden, 978

F.2d at 1457 (quoting Lisenba v. California, 314 U.S. 219, 236

(1941)).   In the alternative, as discussed infra, the district

court denied the claim on the merits, holding that, because the

challenged evidence was relevant to the issues being decided, there

was no constitutional error.

     For   COA   purposes,   Perez     fails     to   make   the    requisite

substantial showing that his claim falls within the cumulative-

error doctrine.     Under    this    doctrine,    “errors    of    state   law,

including evidentiary errors, are not cognizable in habeas corpus”.

Id. at 1458 (emphasis added).         Instead, such errors are of the

requisite constitutional nature only if they “infuse[] the trial

                                     11
with unfairness as to deny due process of law”.             Id. (quoting

Lisenba, 314 U.S. at 228).

     Perez claims evidence was improperly admitted based on lack of

relevance, unfair prejudice, and prior criminal conduct.           For COA

purposes, we cannot consider the state court’s rulings on these

state-law bases.    See Estelle v. McGuire, 502 U.S. 62, 68 (1991)

(“In conducting [federal] habeas review, a federal court is limited

to deciding whether a conviction violated the Constitution, laws,

or treaties of the United States.”).

     In conjunction with his due process cumulative-error COA

request, Perez’s only colorable non-state-law claim is that his

First Amendment right to freedom of association was violated by the

trial court’s allowing evidence of his gang involvement.                In

support, Perez cites Dawson v. Delaware, 503 U.S. 159, 167 (1992).

In Dawson, however, the defendant’s First Amendment rights were

violated because of the admission of evidence at sentencing that

proved nothing more than his “abstract beliefs”. Id.        In contrast,

Perez’s gang involvement concerned the motive and reason for the

murders. See Vasquez v. State, 67 S.W.3d 229, 239 (Tex. Crim. App.

2002) (holding “gang-affiliation is relevant to show a motive for

a gang-related crime”).

     In this regard, as described supra, the challenged evidence

involves:   (1)    the   gang’s   organization   and   operation   in   San

Antonio; (2) killings and criminal conduct by the gang; and (3) the

                                    12
number of homicides associated with it.         The district court ruled

this evidence

             support[ed] the state’s theory that [Perez]
             killed the two victims to succeed in a power
             struggle within the San Antonio Mexican Mafia
             by establishing that: (1) [he] was a leader
             in the organization; (2) there was a dangerous
             power struggle within the organization at the
             time of the killings; (3) the victims were on
             the opposite side of that power struggle; (4)
             the organization’s rules required [Perez] to
             carry out the murders; and (5) the victims
             were killed because of the power struggle.

Perez, 393 F. Supp. 2d at 448.       Obviously, if there was no error in

admitting the challenged evidence, there was no cumulative error.

     Perez’s challenge to the admission of this evidence is a

question of law.     United States v. Meserve, 271 F.3d 314, 327 (1st

Cir. 2001) (“[T]he district court’s construction of evidentiary

rules   is    a   question   of   law”.)   (internal   citation   omitted).

Accordingly, on the merits, the district court was required by

AEDPA to defer to the state court’s “adjudicat[ion] on the merits

... unless the adjudication of the claim ... resulted in a decision

that was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court

of the United States”.       28 U.S.C. § 2254(d)(1).     Perez has failed

to show reasonable jurists could debate the district court’s

ruling:      (1) that Perez’s gang affiliation was relevant to the

murders for which he was convicted; or (2) that the issue is not




                                      13
“adequate to deserve encouragement to proceed further”. Miller-El,

537 U.S. at 336 (internal citations and quotation marks omitted).

                              III.

     For the foregoing reasons, a COA is

                                                     DENIED.




                               14
