                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                           UNITED STATES COURT OF APPEALS
                                                                                           June 1, 2005
                                       For the Fifth Circuit
                                                                                    Charles R. Fulbruge III
                                                                                            Clerk
                                 ___________________________

                                         No. 04-70046
                                 ___________________________

                                 MARIANO JUAREZ ROSALES,
                                                                              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 Southern District of Texas
                                         H-03-cv-01016


Before DAVIS, SMITH and DENNIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge.*

       Petitioner Mariano Rosales was convicted of capital murder in Texas and

sentenced to death. He now seeks a certificate of appealability from the district court’s

denial of habeas corpus relief. Because Rosales has failed to make a substantial showing

of a denial of a constitutional right on the issues of ineffective assistance of counsel and

denial of a mitigation instruction based on voluntary intoxication, we deny his application

for COA as to those issues. Because reasonable jurists could disagree over whether the

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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

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procedural bar should apply to his Batson claim, we grant COA as to that issue only.

                                              I.

       Rosales was convicted and sentenced to death in November 1985 for the capital

murder of Rachel Balboa committed during a burglary. On direct appeal, the Texas Court

of Criminal Appeals affirmed the conviction and sentence. Rosales v. State, 748 S.W.2d

451 (Tex. Crim. App. 1987). In response to Rosales’ state application for habeas relief

alleging that appellate counsel violated his constitutional right to effective legal

assistance, the Texas Court of Criminal Appeals granted Rosales a new appeal. Ex parte

Rosales, No. 70,847 (Tex. Crim. App. May 10, 1989)(unpublished). The Texas Court of

Criminal Appeals again affirmed Rosales’ conviction and sentence on his second direct

appeal. Rosales v. State, 841 S.W.2d 368 (Tex. Crim. App. 1992). The Supreme Court

denied Rosales’ petition for writ of certiorari, Rosales v. Texas, 510 U.S. 949 (1993).

       In October 1996, Rosales filed a second state application for writ of habeas

corpus. The trial court entered findings of fact and conclusions of law recommending

denial of relief. The Court of Criminal Appeals adopted the trial court’s findings and

based on that record and its own review, denied relief. Ex Parte Mariano Juarez Rosales,

Application No. 16,180-03 (Tex. Crim. App. Sept. 25, 2002)(unpublished opinion).

       Rosales filed his federal habeas petition in March 2003, raising four claims for

relief. In September 2004, the district court granted the Director’s motion for summary

judgment, denied Rosales’ request for discovery, habeas relief and a COA. Rosales

timely appealed and now seeks a COA from this court.

                                               2
                                           II.

      The Court of Criminal Appeals summarized the relevant facts of the crime in its

opinion on direct appeal:

      The evidence at guilt/innocence shows that appellant was a forty-six year
      old businessman in Houston. He and his wife of twenty-seven years, Mary
      Rosales, had six children. In 1984 appellant and his wife began to
      experience marital difficulties, and in January of 1985, Mary began seeing a
      twenty-four year old man, Hector Balboa. In February, Mary moved into a
      trailer she and appellant owned. She began spending some nights with
      Hector at the home where he lived with his mother and two sisters. In early
      March Mary sought a divorce. She still saw appellant on a daily basis,
      however, and conjugal relations between them continued. At one point
      appellant asked Mary if she was seeing Hector, with whom he was
      acquainted, and she admitted that she was.

      On Friday, March 29, 1985, Mary agreed to seek marriage counseling with
      appellant. She had plans to meet Hector that evening, but appellant asked
      her not to stay out long because he wanted to meet with her later. Mary
      agreed in order to placate appellant, but ultimately spent the night at
      Hector's house. Appellant went out that night with a friend, T. J. Tristan,
      and drank more than "six or eight beers" and part of "a fifth of liquor." He
      was last seen by Tristan at about 3:00 a.m. on the morning of Saturday,
      March 30, 1985.

      At about 7:00 a.m. appellant telephoned Hector's brother in an effort to find
      out where Hector lived. He spoke to Hector's niece, who was able to
      provide him the unlisted telephone number but not the address. He hung up
      before the girl could bring her father to the phone. Appellant next called
      Hector's home and spoke to his sister, Patricia Balboa. He told Patricia he
      was a friend of Hector's who wanted to come visit him sometime, and asked
      her for directions to the house. She complied. Fifteen minutes later
      appellant walked into the house with a pistol in his hand. Without a word
      he walked up to Pete Rodriguez, Patricia's boyfriend, who was watching
      television on a sofa, and shot him at point blank range in the head, killing
      him. He then shot Patricia in the chest, crossed the room, and shot her again
      in the back. Appellant next proceeded to the front bedroom, where fifteen



                                            3
       year old Rachel Balboa was asleep. He shot her twice, mortally.2 He then
       went to Hector's room and fired through the door, striking Hector twice.
       Appellant kicked the door open and a struggle ensued, during which both
       Hector and appellant were shot. Hector fled outside, followed by appellant,
       who continued to point the pistol at Hector and pull the trigger, though the
       gun was out of rounds. Appellant then got in his truck and drove away.
       Hector and Patricia survived.

Rosales v. State, 841 S.W.2d at 381.

          Additional facts necessary to the issues will be presented in the sections that

follow.

                                               III.

       Rosales filed the instant Section 2254 application for habeas relief after the April

24, 1996 effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA).

His application is therefore subject to the AEDPA. Lindh v. Murphy, 521 U.S. 320,

336(1997). Under the AEDPA, a petitioner must obtain a COA before appealing the

district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(2). “This is a jurisdictional

prerequisite because the COA statute mandates that ‘[u]nless a circuit justice or judge

issues a certificate of appealability, an appeal may not be taken to the court of appeals. . .

.’” Miller-El v. Cockrell, 123 S.Ct. 1029, 1039 (2003) (citing 28 U.S.C. §2253(c)(1)) .

“The COA statute requires a threshold inquiry into whether the circuit court may

entertain an appeal.” Id. (citing Slack v. McDaniel, 529 U.S. 473, 482 (2000); Hohn v.

United States, 524 U.S. 236, 248 (1998)). A COA will be granted only if the petitioner



       2
           Both Patricia and Rachel were pregnant, and engaged to be married.

                                                4
makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). To make such a showing, a petitioner “must demonstrate that the issues are

debatable among jurists of reason; that a court could resolve the issues [in a different

manner]; or that the questions are adequate to deserve encouragement to proceed further.”

Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983) (citation and internal quotation marks

omitted)(emphasis in original). Any doubt regarding whether to grant a COA is resolved

in favor of the petitioner, and the severity of the penalty may be considered in making

this determination. Fuller v. Johnson, 114 F.3d 491, 495 (5th Cir. 1997).

       The analysis “requires an overview of the claims in the habeas petition and a

general assessment of their merit.” Miller-El, 123 S.Ct. at 1039. The court must look to

the district court’s application of AEDPA to the petitioner’s constitutional claims and

determine whether the court’s resolution was debatable among reasonable jurists. Id.

“This threshold inquiry does not require full consideration of the factual or legal bases

adduced in support of the claims.” Id. Rather, “‘[t]he petitioner must demonstrate that

reasonable jurists would find the district court’s assessment of the constitutional claims

debatable or wrong.’” Id. at 1040. (citing Slack v. McDaniel 529 U.S. 473, 484).

                                             IV.

       Rosales asks this court to grant a COA in connection with the following claims:

       1.     Whether Rosales’ Batson claim is procedurally defaulted;

       2.     Whether Rosales was entitled to a mitigation instruction based on voluntary
              intoxication; and


                                              5
       3.     Whether Rosales received ineffective assistance of counsel when
              a.   At the guilt-innocence phase of trial, counsel failed to present
                   psychiatric evidence;
              b.   At the punishment phase of trial, counsel failed to present
                   psychiatric evidence;
              c.   At the punishment phase of trial, counsel failed to offer certain
                   character witnesses;
              d.   The trial court required Rosales to go to trial without counsel of his
                   choice; and
              e.   The trial court denied a continuance to allow Rosales to go to trial
                   with counsel of his choice.


For essentially the reasons stated by the federal district court, we refuse a certificate on

issue two, sustaining the trial court’s refusal to give a mitigation instruction on voluntary

intoxication, and issue three, Rosales’ claim of ineffective assistance of counsel. We are

not persuaded that jurists of reason could disagree with the district court’s resolution of

these issues nor could they conclude that they are adequate to deserve encouragement to

proceed further. As discussed in more detail below, we reach a different conclusion on

issue one, Rosales’ Batson claim.

       Rosales alleges that the state’s use of race-based peremptory strikes violated the

Equal Protection Clause of the Constitution. The federal district court noted that the

Texas state court relied on an adequate and independent state law ground to deny relief

and honored that procedural default. Before this court, Rosales argues that it was error to

honor the state court’s ruling on procedural default because the procedural default rule

applied was not firmly established at the time of his trial. Jurists of reason could disagree

with the district court’s conclusion.


                                              6
       At trial, on the first day of jury selection, the State used peremptory strikes to

excuse three venire panel members, Esmerelda Lopez, Alicia Taylor, and Raymond

Trevino. The next morning, the defense raised the matter with the trial court. Counsel

said that they wanted to take up the “familiar patterns already developing” and pointed

out that the State had used peremptory strikes on “two Mexican Americans and one black

woman.” Counsel said that Rosales had a “constitutional right to a cross section of his

peers” and “if the State is going to persist in using their peremptories to eliminate all

minorities, both Mexican Americans and Chicanos and black people, this defendant is

going to be denied his right to a fair trial by his peers.” Defense counsel asked the court

to require the state to give its reason for any future peremptory strikes used to exclude

minority panel members. The court denied the request. However, it did allow the parties

to place into the trial record the race of each panel member on which the State used a

peremptory strike and granted the defense’s request for a running objection on the issue.

       After the first day of jury selection, the defense objected to the state’s use of a

peremptory strike against a minority panel member once more in connection with juror

James Hamilton, who was black. The defense stated that the state’s strike was “blatantly

racial” and complained again that the procedure violated Rosales’ right to a jury of his

peers and his right to a jury drawn from a cross section of the community.

       On direct appeal, Rosales argued that the trial court erred in failing to require the

state to explain its use of peremptory challenges against Hispanic venire persons. Rosales

argued that his objection alerted the trial court to the “systematic exclusion of venire men

                                              7
based on their race or ethnic background to invoke the protections of Batson,” which case

was decided between his trial and appeal. Batson v. Kentucky, 476 U.S. 79 (1986). The

Court of Criminal Appeals noted that although Rosales’ trial objection was couched in

terms of a purported right to a fair cross section of the community on the petit jury, his

objection on appeal was premised on the Equal Protection Clause of the Fourteenth

Amendment, the basis for the Batson decision. It concluded that Rosales failed to make

an objection adequate to raise a Fourteenth Amendment violation, and, even if he had,

that he received all the relief he requested. Rosales’ counsel had requested in his initial

objection that the State be required to explain future peremptory challenges made against

Hispanic venire persons. The court stated that record does not indicate that any another

Hispanic venire persons were struck by the State.

       In state writ proceedings, Rosales again raised an Equal Protection claim alleging

that the trial court erred by not requiring the State to give its reasons for using peremptory

strikes against minority venire persons. The state habeas court concluded that Rosales

was procedurally barred from advancing that complaint in state writ proceedings because

he had failed to preserve the error. Alternatively, the state habeas court found that a

procedural bar prevented consideration of that claim because Rosales had already raised

it on direct appeal.

       Rosales again raises his Batson claim in his federal habeas petition. The federal

district court concluded that state procedural law bars federal consideration of this claim.

It also found that Rosales failed to meet his burden of showing that Texas did not

                                              8
adequately and regularly enforce its procedural law in similar cases.

       Jurists of reason could disagree with the district court’s conclusion. Objections

similar to those presented in this case were found to adequately raise a Batson claim in

several trials that took place, like that of Rosales, in the time before Batson was decided.

See generally Henry v. State, 729 S.W.2d 732 (Tex. Crim. App. 1987); DeBlanc v. State,

732 S.W.2d 640 (Tex. Crim. App. 1987); Chambers v. State, 742 S.W.2d 695 (Tex. Crim.

App. 1988); Tompkins v. State, 774 S.W.2d 195 (Tex. Crim App. 1987), aff’d 490 U.S.

754 (1987); Trevino v. Texas, 503 U.S. 562 (1992). The cases relied on by the State as

establishing that the Texas contemporaneous objection rule was strictly and regularly

applied to this issue involved situations in which the defendants failed to make any

objection or create any record regarding peremptory strikes of minority members of the

venire. Williams v. State, 773 S.W.2d 525 (Tex. Crim App. 1988); Matthews v. State,

768 S.W.2d 731 (Tex. Crim. App. 1989).

       Because jurists of reason would find it debatable whether the district court was

correct in its procedural ruling as to whether the State strictly or regularly followed a

procedural bar to pre-Batson challenges to the State’s use of peremptory challenges

around the time of Rosales’ direct appeal, we grant COA on this issue.

                                             V.

       For the foregoing reasons, Rosales’ petition for COA is denied as to issue two, the

trial court’s refusal to give a mitigation instruction on voluntary intoxication, and issue

three, Rosales’ claim of ineffective assistance of counsel. Rosales’ petition for COA on

                                              9
issue one, his Batson claim, is granted.

       The clerk will calender this case for oral argument and establish a briefing

schedule for supplemental briefs on the merits of this issue.

       Petition for COA DENIED IN PART and GRANTED IN PART.




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