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

                                                                            FILED
                                                                        September 15, 2008

                                       No. 07-70001                   Charles R. Fulbruge III
                                                                              Clerk

ARNOLD PRIETO

                                                  Petitioner-Appellant
v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

                                                  Respondent-Appellee



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:01-CV-1145


Before JONES, Chief Judge, and WIENER and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Petitioner-Appellant Arnold Prieto petitioned the district court for a writ
of habeas corpus, asserting, inter alia, that his federal constitutional rights were
violated by improper juror discussions during the sentencing phase of his capital
murder trial. Prieto insists that the district court erred in holding that (1) he
procedurally defaulted on his federal due process jury-misconduct claim, and (2)
even assuming, arguendo, that his claim is not subject to procedural bar, it


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-70001

should be denied on its merits. Convinced that the district court properly ruled
that Prieto procedurally defaulted on his federal jury-misconduct claim, we
affirm.
                            I. FACTS AND PROCEEDINGS1
       In March 1995, Prieto was convicted of murder and sentenced to death.
Following his conviction for capital murder and sentencing, Prieto filed a motion
for new trial and presented evidence showing that (1) juror Marjorie Egloff
changed her vote from either “undecided to death” or from “life to death” on the
third capital sentencing special issue, i.e., the Penry mitigation issue, based on
comments made by another juror (or a pair of other jurors) suggesting that the
minimum time for parole eligibility on a life sentence could be reduced by the
effect of good conduct, (2) none of the jurors who made the comments in question
purported to possess personal knowledge of the law applicable to Prieto’s
sentence, and (3) when the comments were made, the jury foreman advised the
jury not to discuss parole eligibility and re-read portions of the jury charge
advising the jury that (a) Prieto would be ineligible for release on parole for at
least forty years if he were sentenced to a term of life imprisonment, and (b) the
jury was not to consider parole or good conduct time credits in rendering its
punishment-phase verdict.
       In December 1998, the Texas Court of Criminal Appeals (the “TCCA”)
affirmed Prieto’s conviction and his sentence.2 In so ruling on Prieto’s direct
appeal, the court characterized his jury-misconduct claim as being based solely
on state law. Specifically, the court observed that “[Prieto] does not raise a


       1
         In discussing the procedural history of this case, we borrow liberally from a prior
panel’s decision in this matter in which it addressed, inter alia, whether the district court had
erred by raising the procedural default issue sua sponte. See Prieto v. Quarterman, 456 F.3d
511 (5th Cir. 2006). We also borrow from the district court’s supplemental memorandum
opinion and order, which Prieto challenges.
       2
           Prieto v. State, No. 72,133 (Tex. Crim. App. 1998).

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federal substantive due process claim in these points of error even though he has
had an opportunity to do so. [Prieto’s] jury misconduct claim is based on state
law.”3 Prieto declined to seek review from the United States Supreme Court,
and his conviction and sentence became final ninety days later, on March 17,
1999.
        In October 1999, Prieto filed an application for state post-conviction relief,
asserting 66 grounds for relief, including, inter alia, a claim that the jury’s
discussion of parole violated both his state and federal constitutional rights. In
July 2001, the state habeas trial court issued its findings of fact, conclusions of
law, and recommendation that Prieto’s application be denied. In November
2001, the TCCA adopted the state habeas trial court’s findings of fact and
conclusions of law and denied Prieto’s petition.
        Prieto then sought federal habeas relief.4 The district court dismissed
Prieto’s habeas petition as untimely. Ruling in the alternative, the district court
dismissed his petition on various substantive grounds. The court then granted
Prieto a certificate of appealability (“COA”) on two questions: first, whether the
court erred in dismissing Prieto’s petition as untimely; and, second, whether
Prieto procedurally defaulted on his federal jury-misconduct claim.
        A prior panel of this court then held, inter alia, that the district court erred
when it (1) dismissed Prieto’s petition as untimely, and (2) raised the issue of
procedural default sua sponte.5 That panel remanded the case to the district
court with instructions “(1) to address the issue of procedural bar after giving
Prieto and the State opportunities to make their legal positions known to the



        3
            Id., slip op. at 43.
        4
        See Prieto v. Dretke, 386 F. Supp. 2d 767 (W.D. Tex. 2005), rev’d by Prieto v.
Quarterman, 456 F.3d 511 (5th Cir. 2006).
        5
            See Prieto v. Quarterman, 456 F.3d at 513.

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court, then (2) if appropriate, to address the merits of Prieto's jury misconduct
claim for habeas relief.”6
       After the district court directed the parties to file briefs and reviewed their
submissions, the court again held that Prieto had procedurally defaulted on his
federal jury-misconduct claim because he had failed to raise it on direct appeal.
The court acknowledged that, on direct appeal, Prieto had presented a series of
points of error which fairly presented complaints to the TCCA that the alleged
jury misconduct had deprived him of “a fair and impartial trial.” In the district
court’s estimation, however, the arguments and authorities presented in support
of those points addressed exclusively state law principles and did not “fairly
present” any federal constitutional gloss on Prieto’s jury-misconduct complaints.
The district court acknowledged that Prieto had, in his state habeas application,
re-urged his state law jury-misconduct claim, but ruled that, for the first time,
Prieto had also argued that the jury’s discussion of parole violated his federal
due process right to a fair and impartial trial. Most importantly, the district
court held that the state habeas court had ruled that Prieto procedurally
defaulted on his federal due process jury-misconduct claim when he failed to
assert it on direct appeal.
       In addition, the district court on remand assumed arguendo that Prieto’s
federal claim was not subject to procedural bar, but went on to hold that his
claim failed on its merits because, inter alia, the jury’s discussions regarding
parole were not the products of any outside or extraneous influence.7 The

       6
           Id. at 519.
       7
         See FED. R. EVID. 606(b) (“Upon an inquiry into the validity of a verdict or indictment,
a juror may not testify as to any matter or statement occurring during the course of the jury’s
deliberations or to the effect of anything upon that or any other juror’s mind or emotions as
influencing the juror to assent to or dissent from the verdict or indictment or concerning the
juror's mental processes in connection therewith. But a juror may testify about (1) whether
extraneous prejudicial information was improperly brought to the jury’s attention, (2) whether
any outside influence was improperly brought to bear upon any juror, or (3) whether there was

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district court did, however, grant Prieto a COA on the questions (1) whether
Prieto procedurally defaulted on his federal due process jury-misconduct claim,
and (2) whether Prieto’s federal due process claim warrants federal habeas relief
on the merits. Prieto timely filed a notice of appeal.
                                        II. ANALYSIS
A.     Applicable Law
       We review de novo a district court’s denial of federal habeas review based
on a state procedural ground.8
       “Under the procedural default doctrine, a federal court may not consider
a state prisoner’s federal habeas claim when the state based its rejection of that
claim on an adequate and independent state ground.”9 “In cases where a state
court decision ‘fairly appears’ to rest primarily on federal law, the state must
make a ‘plain statement’ that the state’s review of the claim is procedurally
barred.”10 In other words, “a procedural default does not bar consideration of a
federal claim on either direct or habeas review unless the last state court
rendering a judgment in the case ‘clearly and expressly’ states that its judgment
rests on a state procedural bar.”11
B.     Merits
       Prieto insists that he has asserted both state and federal jury-misconduct
claims throughout the appellate and habeas processes and, therefore, he did not



a mistake in entering the verdict onto the verdict form. A juror’s affidavit or evidence of any
statement by the juror may not be received on a matter about which the juror would be
precluded from testifying.”).
       8
           Martin v. Maxey, 98 F.3d 844, 847 (5th Cir. 1996).
       9
           Id. (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)).
       10
            Id. (citing Harris v. Reed, 489 U.S. 255, 261 (1989)).
       11
         Harris v. Reed, 489 U.S. 255, 263 (1989) (quoting Caldwell v. Mississippi, 472 U.S.
320, 327 (1985)).

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procedurally default on his federal claim. He further contends that the state
habeas court did not provide a clear and express statement that his federal jury-
misconduct claim was subject to procedural bar. We disagree.
      The state habeas court, in its findings of fact, stated that Prieto’s
allegations regarding the jury’s discussions of the law of parole (grounds for
relief numbers one through four in his state habeas action) “were essentially
raised on direct appeal in [Prieto’s] points of error numbers sixteen, seventeen,
and eighteen and were disposed of by the Court of Criminal Appeals.” The court
then stated its two conclusions of law with respect to Prieto’s jury-misconduct
claims:
            1. Contentions disposed of on direct appeal cannot form the
      basis for relief by way of unit of habeas corpus. See Ex Parte
      Acosta, 672 S.W.2d 470, 472 (Tex. Crim. App. 1984).

            2. Any difference between the formulation of the allegations
      on direct appeal versus on writ of habeas corpus are not material.
      The appellant has at any rate, forfeited the right to raise the
      reformulated arguments because there was no reason he could not
      have raised them on direct appeal. See Ex Parte Gardner, 959
      S.W.2d 189, 199 (Tex. Crim. App. 1998) (Opinion on Rehearing) The
      applicant grounds for review numbers one through four are without
      merit and relief should be denied.


      Prieto asserts that the portion of the second conclusion of law providing
that “any difference between the formulation of the allegations on direct appeal
versus on writ of habeas corpus are not material” demonstrates that he has
asserted both state and federal jury-misconduct claims all along.            His
interpretation of the two conclusions of law cannot stand because his
construction (1) renders the two conclusions redundant, and (2) ignores the
second sentence of the second conclusion of law: “The appellant has at any rate,
forfeited the right to raise the reformulated arguments because there was no
reason he could not have raised them on direct appeal. See Ex Parte Gardner,

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959 S.W.2d 189, 199 (Tex. Crim. App. 1998).” The proper interpretation, as
evidenced by the cases cited by the state habeas court in support of each
conclusion of law, is that the first conclusion addresses Prieto’s state law jury-
misconduct claim and the second conclusion addresses his federal claim.
          Ex Parte Acosta stands for the proposition that a Texas habeas court need
not consider the merits of a claim that was already addressed on direct appeal.12
Prieto unambiguously raised a state law jury-misconduct claim on direct appeal:
The TCCA stated that “appellant claims as a matter of state law that the trial
court erroneously denied his motion for new trial which alleged the jury engaged
in misconduct during the punishment phase deliberations by improperly
considering how parole would affect a life sentence.”13 Accordingly, the state
habeas court, in its first conclusion of law, made clear that it was barred from
considering Prieto’s state law jury-misconduct claim because the TCCA had
already addressed it on direct appeal.
          Moreover, in its second conclusion of law, the state habeas court
acknowledged Prieto’s attempt to reformulate the state law jury-misconduct
claim that he had urged on direct appeal by adding a federal gloss. Accordingly,
a second conclusion of law was needed to address this new claim. The state
habeas court rejected it, holding that Prieto “forfeited the right to raise the
reformulated arguments because there was no reason he could not have raised
them on direct appeal.” In so ruling, the court cited Ex Parte Gardner, which
stands for the proposition that “the writ of habeas corpus should not be used to
litigate matters which should have been raised on direct appeal.”14                            The


          12
               672 S.W.2d at 472.
          13
               Prieto v. State, No. 72,133 (Tex. Crim. App. Dec. 16, 1998), slip op. at 30 (emphasis
added).
          14
               959 S.W.2d at 199 (quoting Ex Parte Goodman, 816 S.W.2d 383, 385 (Tex. Crim. App.
1991)).

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aforementioned statement, with its citation to the Gardner procedural bar,
constitutes a clear and express holding by the Texas habeas court that Prieto’s
federal jury-misconduct claim is procedurally barred under Texas law.
Furthermore, Prieto makes no effort in his briefs to argue that the Gardner
procedural rule is not adequate or independent. We conclude that Prieto’s
federal jury-misconduct claim is subject to procedural bar and therefore do not
reach the merits of his claim.
                              III. CONCLUSION
      The district court’s decision denying Prieto’s petition for a writ of habeas
corpus as procedurally barred is AFFIRMED.




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