                           REVISED JUNE 18, 2012

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

                                                                            FILED
                                                                           June 15, 2012
                                       No. 11-70027
                                                                          Lyle W. Cayce
                                                                               Clerk
EDGARDO RAFAEL CUBAS,


                                                  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 Southern District of Texas
                                 No: 4:10-CV-604


Before STEWART, CLEMENT, and PRADO, Circuit Judges.
EDITH BROWN CLEMENT:*
       Edgardo Rafael Cubas, a Texas death row inmate, was convicted of murder
committed during a sexual assault. The Texas judge presiding over his trial was


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                       No. 11-70027

a former prosecutor and defense attorney who Cubas claims was not impartial.
Cubas seeks a Certificate of Appealability (“COA”) due to the alleged
impartiality. Because Cubas has not shown entitlement to habeas relief, we
DENY his request for a COA.
                           FACTS AND PROCEEDINGS
      Cubas was sentenced to death in 2004 for murdering a fifteen-year-old girl.
The facts of his crime are not before this court.1 Judge Jan Krocker, presiding
judge of the 184th District Court for Harris County, Texas, presided over Cubas’
trial. Judge Krocker was a former assistant district attorney with the Harris
County District Attorney’s Office. While an assistant district attorney, Judge
Krocker prosecuted a capital murder case against Martin Allen Draughon in
1987. It is not alleged that Draughon has any relationship with Cubas, nor that
their crimes are in any way related. In 1995, Judge Krocker took the bench.


      1
          The United States District Court has previously summarized the underlying facts:

              On January 22, 2002, an individual found the partially nude body of
      fifteen-year-old Esmeralda Alvarado in a secluded area of Harris County. Four
      days earlier, Ms. Alvarado disappeared after leaving her boyfriend’s house to
      use a pay phone. Police investigation showed that Ms. Alvarado died from a
      single gunshot to the head. Her body bore signs of sexual trauma.
              Several months passed without any leads. Finally, Cubas’ co-defendant
      Walter Sorto (“Sorto”) incriminated him in the duo’s nine-month crime spree, of
      which Ms. Alvarado’s murder was only one incident. On August 21, 2002, the
      police arrested Cubas. Cubas gave the police five videotaped statements over a
      two-day period. Cubas’ statements chronicle several robberies, rapes, and
      murders he committed with Sorto. With regard to Ms. Alvarado’s murder, Cubas
      explained that he and Sorto were driving around when they saw her talking on
      a pay phone. Intending to rob her, Sorto forced Ms. [Alvarado] into the vehicle.
      After unsuccessfully searching her for money, Cubas began raping Ms.
      [Alvarado]. The two men drove to various locations and took turns sexually
      assaulting her. Finally after traveling to a secluded area, Sorto told Cubas that
      they would have to kill Ms. [Alvarado] so that she could not identify them.
      Cubas originally told the police that Sorto fired the killing shot. In Cubas’ final
      statement given to Houston Police Department Officer Xavier Avila, he
      admitted that he shot Ms. [Alvarado].

Cubas v. Thaler, No. H-10-604 2011 WL 4373196 at *1 (S.D. Tex. Sept. 16, 2011).

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During Cubas’ trial, Draughon was in the midst of seeking federal habeas corpus
relief. Judge Krocker sought to file an affidavit in Draughon’s case to show that
she had not committed prosecutorial misconduct before the state trial court.
Cubas’ trial counsel was unaware of Judge Krocker’s participation in Draughon’s
federal habeas case.
        On state habeas review, Cubas argued that the alignment of interests in
the Draughon case made Judge Krocker biased against him. Cubas argued that
Judge Krocker’s actions made her effectively a member of the prosecutor’s office,
with her concern for the integrity of Draughon’s conviction and sentence spilling
over into his case.    He asserted that Judge Krocker’s interest in keeping
Draughon on death row somehow translated into seeing Cubas receive a similar
fate.
              The state habeas court denied relief on procedural and
        substantive grounds. As a procedural matter, the state habeas court
        applied Texas’ contemporaneous objection rule because trial counsel
        had not complained about bias at trial. Substantively, the state
        habeas court provided several reasons for finding that Judge
        Krocker was not biased against Cubas. The state habeas court first
        emphasized that the two proceedings were unrelated: “no aspect of
        the [Cubas’] case had any relation to the trial or subsequent
        appeals, including habeas appeals, of defendant Martin Allen
        Draughon.” Importantly, “Judge Krocker had no role in the
        preparation, investigation, or prosecution of the instant capital
        murder case.” The state court observed that any alleged bias could
        not have been pervasive; trial counsel did not know about her
        actions in Draughon and were not sure they would have objected
        had they known. Also, the state habeas court found that Judge
        Krocker’s rulings did not hint of any prejudice against him. In
        conclusion, the state habeas court found that Cubas “was provided
        an impartial and disinterested tribunal with respect to the instant
        capital murder trial and [his] allegations of bias regarding Judge
        Krocker are speculative, unpersuasive, and not supported by the
        record.”
Cubas, 2011 WL 4373196 at *7 (internal citations omitted).



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      The state habeas court found that Texas’ contemporaneous objection rule
which requires “a party to preserve an issue for appellate review” by making “a
timely objection with specific grounds for the desired ruling,” Livingston v.
Johnson, 107 F.3d 297, 311 (5th Cir. 1997), prevented habeas review of Cubas’
claims of bias. Cubas appealed this ruling and raised thirty-five grounds for
habeas corpus relief before the district court. The district court examined each
ground and found that Cubas did not show an entitlement to habeas relief either
on procedural grounds or on the merits. Cubas seeks a COA on his claim the
trial judge was not impartial.
                           STANDARD OF REVIEW

      A COA is a jurisdictional requirement for our consideration of an appeal
on the merits. “[U]ntil a COA has been issued federal courts of appeals lack
jurisdiction to rule on the merits of appeals from habeas petitioners.” Miller-El
v. Cockrell, 537 U.S. 322, 336 (2003). A COA will be granted only if the
petitioner makes “a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating
that jurists of reason could disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at
327 (citation omitted). “The question is the debatability of the underlying
constitutional claim, not the resolution of that debate.” Id. at 342. “Indeed, a
claim can be debatable even though every jurist of reason might agree, after the
COA has been granted and the case has received full consideration, that
petitioner will not prevail.” Id. at 338. “While the nature of a capital case is not
of itself sufficient to warrant the issuance of a COA, in a death penalty case any
doubts as to whether a COA should issue must be resolved in the petitioner’s
favor.” Johnson v. Quarterman, 483 F.3d 278, 285 (5th Cir. 2007) (quoting
Ramirez v. Dretke, 398 F.3d 691, 694 (5th Cir. 2005)).

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                                  No. 11-70027

                                 DISCUSSION

      Cubas alleges that Judge Krocker was both actually and presumptively
biased against him due to her involvement in Draughon. See Buntion v.
Quarterman, 524 F.3d 664, 672 (5th Cir. 2008). Courts “presume that public
officials have ‘properly discharged their official duties,’” Bracy v. Gramley, 520
U.S. 899, 909 (1997) (quoting United States v. Armstrong, 517 U.S. 456, 464
(1996)), therefore “bias by an adjudicator is not lightly established.” Valley v.
Rapides Parish Sch. Bd., 118 F.3d 1047, 1052 (5th Cir. 1997). The question
before us is whether Cubas can overcome this high bar and demonstrate a valid
constitutional claim of either actual or presumptive judicial bias. Because Cubas
cannot make a substantial showing of a denial of a constitutional right, we deny
his application for a COA.

      A.    Actual Bias

      Cubas alleges actual bias by citing eight actions which he claims
demonstrated animus against him, such as Judge Krocker giving prospective
jurors an incorrect definition of “intentional” when discussing the legal
requirements for murder prior to seating the jury. The specific examples were
rejected by the district court as both independent bases for relief and as proof of
bias. None of these alleged errors demonstrate prejudice. While they might
have served as grounds for objection at trial, Cubas cites no case indicating such
objectionable actions have ever been found to show substantial bias. As the
district court noted, “taken cumulatively, [the specific allegations of error
demonstrating bias] do not display a pervasively obvious actual bias against
Cubas.” Cubas, 2011 WL 4373196 at *10. These alleged errors at trial are
insufficient to demonstrate a denial of a constitutional right. Because Cubas can
point to no compelling evidence of actual bias by Judge Krocker at trial, we deny
his request for a COA based on actual bias.


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                                  No. 11-70027

      B.    Presumptive Bias

      Cubas next alleges that Judge Krocker’s involvement in the completely
unrelated federal habeas proceedings for Draughon gave the appearance of bias
and thus the presumption of bias overshadows this case. Cubas claims that
Judge Krocker’s intervention in Draughon caused her to be biased against him
because she was acting simultaneously as judge and prosecutor.

      “[T]he United States Supreme Court has consistently enforced the
      basic right to due process and found that decision makers are
      constitutionally unacceptable when: (1) the decision maker has a
      direct personal, substantial, and pecuniary interest in the outcome
      of the case; (2) an adjudicator has been the target of personal abuse
      or criticism from the party before him; and (3) a judicial or quasi
      judicial decision maker has the dual role of investigating and
      adjudicating disputes and complaints.
Bigby v. Dretke, 402 F.3d 551, 558-59 (5th Cir. 2005). To show a constitutional
violation, Cubas must show that Judge Krocker’s intervention in Draughon ran
afoul of one of these three categories.

      The facts of this case are not even close to those cases in which the
Supreme Court has found presumptive bias.          Judge Krocker’s affidavit in
Draughon was completely unrelated to the proceedings in Cubas’ trial. Cubas
cites no portion of her affidavit or any other evidence to indicate a relationship
between his prosecution and Draughon’s and there is no evidence to show Judge
Krocker had any personal interest in the outcome of Cubas’ trial. Cubas does
not allege he abused or criticized Judge Krocker prior to the trial. Cubas does
not show bias under the first two prongs to form the basis for us to find
substantial evidence of a constitutional violation.

      We have never held that the third prong is violated when the two parties
in question are unrelated and decline to do so here. Judge Krocker’s activity in
Draughon was in no way related to Cubas’ case. She filed an affidavit which


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does not make any mention of Cubas or discuss the Cubas case. Regardless of
Judge Krocker’s motivation for involving herself in Draughon, and regardless of
the prudence in doing so, she was not simultaneously sitting in judgment over
Cubas and prosecuting Cubas or anyone related to Cubas. As the district court
found “Whatever actions she may have taken in Draughon, Judge Krocker’s
temperament, comportment, and rulings in Cubas’ trial do not hint of
impermissible bias or prejudgment.” Cubas, 2011 WL 4373196 at *11. While
Cubas argues Judge Krocker was certainly not unbiased in Draughon, he fails
to make the necessary link between her desire to maintain the outcome she had
previously obtained while prosecuting Draughon with her desire for a particular
outcome in the Cubas trial. Barring this link, we do not find presumptive bias
and therefore hold that Cubas has failed to make a substantial showing of a
denial of his constitutional rights.

                                CONCLUSION

      For the foregoing reasons, we DENY Cubas’ application for a COA.




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