ROCHA V. THALER

-ref2003 WL 21752841, at *1. Ruiz also considered a denial under § 5(a)(1). The CCA denied the habeas application under § 5, Ruiz argued § 5(a)(1) to this court, and we based our analysis on that argument: "The Texas Code of Criminal Procedure, as interpreted by the CCA, provides for subsequent applications where (1) the factual or legal basis for the subsequent claim was previously unavailable and (2) where the facts alleged would constitute a federal constitutional violation that would likely require relief from either the conviction or sentence." Ruiz, 504 F.3d at 527. Appended to this assertion was a citation to Ex parte Campbell, a CCA decision discussing § 5(a)(1), finding that the habeas applicant had "facially surmounted the `unavailability' hurdle of Section 5(a)(1)," and asking whether he had put forth a "prima facie" showing of a constitutional violation. 226 S.W.3d 418, 421-22 (Tex.Crim.App. 2007).

A federal petitioner at the same time may avoid a state-law procedural bar if he "can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.'" The "miscarriage of justice" exception applies where a petitioner is "actually innocent" of either the offense giving rise to his conviction or "actually innocent" of the death penalty. Under the Supreme Court's decision in Sawyer v. Whitley, a petitioner who claims to be actually innocent of the death penalty to which he has been sentenced "must show by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law." Actual innocence is "not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits."

Hughes, 530 F.3d at 341 (quoting Coleman, 501 U.S. at 750, 111 S.Ct. 2546).

See Schlup v. Delo, 513 U.S. 298, 326-27,115 S.Ct. 851, 130 L.Ed.2d 808; Sawyer v. Whitley, 505 U.S. 333, 338, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992); see. also Williams, 602 F.3d at 307.

505 U.S. at 336, 112 S.Ct. 2514.

See Schlup, 513 U.S. at 315, 115 S.Ct. 851(quoting Herrera v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993)) (internal quotation marks omitted).

Texas largely adopted this federal gateway in crafting its own conditions for subsequent habeas applications. As the CCA has explained, "[t]he [Texas] Legislature quite obviously intended [§ 5(a)(3)], at least in some measure, to mimic the federal doctrine of `fundamental miscarriage of justice.' . . . apparently intending to codify, more or less, the [actual-innocence-of-the-death-penalty] doctrine found in Sawyer v. Whitley." The practical result in nearly all cases will be that the federal and state standards are identical.

Ex parte Blue, 230 S.W.3d at 159-60; see also Haynes, 526 F.3d at 196 ("[T]he Texas Court of Criminal Appeals has also construed section 5(a)(3) as analogous to the federal `actual innocence' exception to exhaustion.").

Compare Sawyer, 505 U.S. at 336, 112 S.Ct. 2514, with TEX CODE.CRIM. PROC. ANN. art. 11.071 § 5(a) (West 2010).

Texas is not alone in providing exceptions to habeas procedural bars under heightened pleading standards; as the Third Circuit recently recognized, "[m]any states have procedural default rules with similar `safety valves' for situations in which enforcing the procedural default would work a serious injustice." These rules typically invoke "plain error" review of alleged constitutional violations, or pleading requirements to weed out "facially implausible" or "frivolous" claims, in order to mitigate the effects of procedural default. The circuits are split on whether these exceptions negate an otherwise independent state-law ground. First, Third, Fourth, Sixth, Seventh, Tenth, and Eleventh Circuits hold that such exceptions do not ordinarily deprive state court rulings of their "independent" character. The Ninth Circuit disagrees, the Eighth has reached inconsistent results, and the Supreme Court's teachings are inconclusive. But we need not enter this fray because the identity of state and federal law in this case has rendered meaningless any search for an independent and adequate ground.

Campbell v. Burris, 515 F.3d 172, 178 (3d Cir. 2008) (collecting cases).

Id.

Gardner v. Galetka, 568 F.3d 862, 884(10th Cir. 2009).

Lynch v. Ficco, 438 F.3d 35 (1st Cir. 2006)("The [state court], expressly noting that the instruction `was not objected to at trial,' reviewed Lynch's jury instructions claim for `a substantial likelihood of a miscarriage of justice.' Limited review of this sort does not work a waiver of the contemporaneous objection requirement.") (internal citations and some quotation marks omitted).

Campbell, 515 F.3d at 178 ("Many states have procedural default rules with similar `safety valves' for situations in which enforcing the procedural default would work a serious injustice. As a result, while the United States Supreme Court has not definitively resolved the matter, there is ample court of appeals case law on whether invocation of similar `plain error' review of alleged violations of the federal constitution in order to mitigate the effect of a state procedural default rule will suffice to deprive a state court ruling of its `independent' character. We agree with our sister Courts of Appeals for the First, Fourth, Sixth, Seventh, Tenth and Eleventh Circuits that it does not.").

Daniels v. Lee, 316 F.3d 477, 487 (4th Cir. 2003) (holding that a federal court is procedurally barred from considering claim where state court's review was limited to determining, under the plain error doctrine, whether an error "so infected the trial with unfairness as to make the resulting conviction a denial of due process").

Gulertekin v. Tinnelman-Cooper, 340 F.3d 415, 423 (6th Cir. 2003) ("The [state court of appeals] did not conduct the sort of review of the jury instructions that presumably would have been undertaken had there been a timely objection to them; instead, the court inquired only whether affirmance of the conviction would `result in manifest injustice' because of the alleged instructional error. . . . We would be loath to adopt an exception to the `cause and prejudice' rule that would discourage state appellate courts from undertaking the sort of inquiry conducted by the [state] court, and we do not believe that the state court's explanation of why the jury instructions resulted in no manifest injustice can fairly be said to have constituted a waiver of the procedural default.").

Rodriguez v. McAdory, 318 F.3d 733, 736 (7th Cir. 2003) ("Although a state court's review of whether an error is plain often entails at least limited review of the merits, that limited review is at most `entangled' with the merits and certainly not `entirely dependent on the merits.' Thus the state court's plain error review of Mr. Rodriguez's claims did not undo his procedural default.") (internal quotation marks and citation omitted).

See Gardner, 568 F.3d at 884 (stating in dicta that a federal court is procedurally barred when state courts ask whether a constitutional claim was "facially implausible" or "frivolous" because the "frivolousness inquiry is not the bar; it is an element of the exception to the bar").

Julius v. Johnson, 840 F.2d 1533, 1546 (11th Cir. 1988) ("[T]he mere existence of a `plain error' rule does not preclude a finding of procedural default.").

See Walker v. Endell, 850 F.2d 470, 474-75 (9th Cir. 1987) ("[A] state appellate court reviewing for plain error reaches the merits of a petitioner's claim. . . . In reaching its conclusion that there was no plain error, the [state] court conducted a review on the merits . . . effectively lift[ing] the state's procedural bar to [federal] review.").

Compare Toney v. Gammon, 79 F.3d 693, 699 (8th Cir. 1996) ("[A] properly limited plain error review by a state court does not cure a procedural default."), with Hornbuckle v. Groose, 106 F.3d 253, 257 (8th Cir. 1997) (holding that when a state conducts a plain error review, the federal court may also review for plain error).

In Osborne v. Ohio, a direct review case, the Supreme Court considered the Ohio Supreme Court's ruling that, although the trial judge failed to charge the jury that scienter was an element of the petitioner's crime, the petitioner had waived the issue by failing to object at trial and the omissions did not "amount[] to plain error." 495 U.S. 103, 107-08, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990). Without reciting Ohio's plain error analysis, the Court had "no difficulty agreeing with the State that Osborne's counsel's failure to urge that the court instruct the jury on scienter constitutes an independent and adequate state-law ground preventing us from reaching Osborne's due process contention on that point." Id. at 123, 110 S.Ct. 1691. Furthermore, on direct review and in the non-death penalty context, the Supreme Court has suggested that where a state court does not actually reach the underlying merits, the independence of the state procedural rule is not automatically undermined by the mere existence of provisions requiring or empowering the state court to excuse procedural defaults if the underlying error is "plain" or "fundamental." See Sochor v. Florida, 504 U.S. 527, 534 n. *, 112 S.Ct. 2114.

Either § 5(a)(3) operates as an independent state ground, in which case federal law permits merits review only if the petitioner demonstrates cause and prejudice or actual innocence of the death penalty, or the provision is not independent of federal law, and we apply the actual-innocence-of the-death-penalty standard because state law — § 5(a)(3) itself — demands that of us. In both cases, Rocha must clear the identical hurdle before we can reach the merits of his Wiggins claim. Texas may exercise its prerogative to establish heightened barriers to subsequent state habeas applications, and the federal courts are obliged to faithfully apply those barriers in federal habeas proceedings as well. "[N]othing in [the CCA's] perfunctory dismissal of the claims . . . suggests that it" went behind Sawyer and "actually considered or ruled on the merits." It signifies that whether § 5(a)(3) is characterized as a federally-mandated exception to a state procedural bar or as an exception derived from federal case-law yet circumscribed by state statute, the threshold review is for actual innocence of the death penalty.

See Haynes v. Quarterman, 526 F.3d 189, 196-97 (5th Cir. 2008) (applying § 5(a)(3)'s "actual innocence of the death penalty" standard to determine whether Texas courts would grant a federal habeas petitioner the opportunity to pursue a successive habeas petition despite failing to assert his claims in a previous petition), rev'd on other grounds sub nom. Thaler v. Haynes, U.S.(2010); see also Williams, 602 F.3d at 307-08 (applying § 5(a)(2)'s "actual innocence" standard to decide whether a federal habeas petitioner's new evidence demonstrated that "but for a violation of the United States Constitution no rational juror could have found [him] guilty beyond a reasonable doubt"); Hornbuckle, 106 F.3d at 257 (8th Cir. 1997) (holding that when a state conducts a plain error review for "manifest injustice," the federal court may review the habeas petitioner's claim under the same standard); Jones v. Jerrison, 20 F.3d 849, 854 (8th Cir. 1994) ("Because the state courts reviewed Jones's claim under a plain-error standard, we also apply a plain-error standard on habeas review, not a more stringent standard.") (citation omitted); Roy v. Coxon, 907 F.2d 385, 390 (2d Cir. 1990) ("The implication of Osborne [v. Ohio], therefore, appears to be that even if the state court has addressed the questions of (a) whether there was error, and (b) whether the error was prejudicial, if these questions were answered in the context of plain-error analysis, the decision was not sufficiently a ruling on the merits to authorize the federal court to reach the merits."); cf. Osborne, 495 U.S. at 123, 110 S.Ct. 1691.

See Hughes, 530 F.3d at 342.

In Balentine v. Thaler, 609 F.3d 729 (5th Cir. 2010), a panel of this Court held that the CCA reached the merits of a petition for habeas corpus when it dismissed the petition under Article 11.071 § 5. Balentine first relied on Ruiz to conclude that a bare citation to § 5 is not a clear and express statement that the decision rests on an independent and adequate state-law ground. See id. at 735-38. It then proceeded to consider the merits of the underlying claim. See id. at 738-43. To the extent that our decision today is not fully consonant with the decision in Balentine, we believe that dissonance stems from Balentine's misapplication of our decision in Ruiz. The mandate has yet to issue in Balentine, and a petition for rehearing en banc remains pending. We therefore instruct the clerk of the court that the mandate in this case shall not issue until the mandate has issued in Balentine.

Here, Rocha cannot make the requisite showing under this shared standard. When a claim of actual innocence contests a sentence of death, the habeas petitioner's claim must tend to negate not just the jury's discretion to impose a death sentence but the petitioner's very eligibility for that punishment. That is, a habeas petitioner who is "unquestionably eligible" for the sentence received can never be "actually innocent of the death penalty." This is so because late-arriving constitutional error that impacted only a jury's sentencing discretion is not "sufficiently fundamental as to excuse the failure to raise it timely in prior state and federal proceedings." "[T]he `actual innocence' requirement must," then, "focus on those elements that render a defendant eligible for the death penalty, and not on additional mitigating evidence that was prevented from being introduced as a result of a claimed constitutional error."

Ex parte Blue, 230 S.W.3d at 160 (citing Sawyer, 505 U.S. at 343-48, 112 S.Ct. 2514).

Id. (citing Sawyer, 505 U.S. at 343-48, 112 S.Ct. 2514).

Sawyer, 505 U.S. at 347, 112 S.Ct. 2514; Ex parte Blue, 230 S.W.3d at 161 ("This reading of the [§ 5(a)(3)] exception seems to limit its applicability to constitutional errors that affect the applicant's eligibility for the death penalty under state statutory, law.") (emphasis in original).

But that is just the sort of evidence Rocha presents here. His Wiggins claim reduces to an assertion that mitigating evidence could have influenced the jury's discretion in considering a sentence of death; he does not argue that this evidence would have rendered him ineligible for the death penalty. A Wiggins claim by its operation in this case goes only to a jury's discretion in meting out the penalty of death, not a particular defendant's eligibility for that punishment.

See Haynes, 526 F.3d at 197; Ex parte Blue, 230 S.W.3d at 160.

That said, a caveat is necessary. Although the state actual innocence standard as a general rule coincides with the federal standard, uncertainty exists because the CCA speculated in Ex parte Blue that it might "permit a subsequent state habeas applicant to proceed under circumstances that would not excuse a federal petitioner under Sawyer v. Whitley," specifically circumstances where the applicant faults his counsel's failure to develop and present mitigation evidence at sentencing. Thus, Rocha's Wiggins claim — the constitutional vehicle for complaints of inadequate mitigation at sentencing — might very well "meet the criteria" of § 5(a)(3) as a matter of state law.

See Ex parte Blue, 230 S.W.3d at 161 n. 42("Since 1991, one of the special issues that determine whether capital punishment will be imposed is the so-called mitigation' special issue, embodied in Article 37.071, Section 2(e). Article 11.071 was originally promulgated in 1995, after this amendment to Article 37.071. Therefore it is arguable that, in theory at least, a subsequent habeas applicant could demonstrate by clear and convincing evidence that, but for some constitutional error, no rational juror would have answered the mitigation special issue in the Slate's favor."); see also TEX. CODE CRIM. PROC ANN. art. § 37.071 (West 2010) ("(2)(b) On conclusion of the presentation of the evidence, the court shall submit the following issues to the jury: (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. . . . (e)(1) The court shall instruct the jury that if the jury returns an affirmative finding to each issue submitted under Subsection (b), it shall answer the following issue: 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.").

Ex parte Blue, 230 S.W.3d at 161 n. 42.

But in the face of this state-law uncertainty, the CCA in Rocha's case was silent, dismissing his subsequent application with a bare citation to § 5(a)(3). From this silence we cannot discern whether the CCA resolved the question left open in Ex parte Blue, concluded that the state version of actual innocence does in fact permit mitigation evidence to form the basis of such a claim, and then determined on the facts of this case that Rocha had nevertheless failed the standard, or whether the court simply reverted to the federal standard. Putting aside the low probability that any court would resolve sub rosa an issue it had very recently and explicitly left unanswered, we must at any rate conclude that the CCA relied on federal law in making its decision. Hitched to the Supreme Court's teachings in Sawyer, bare citation to § 5(a)(3) — without more — "fairly appears to rest primarily on federal law, or to be interwoven with federal law," namely the federal actual innocence standard, and there is no clear and express basis to say otherwise. Accordingly, we must "accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so." And federal law under Sawyer precludes Rocha's Wiggins claim.

Coleman, 501 U.S. at 735, 111 S.Ct. 2546.

Id. at 733, 111 S.Ct. 2546 (internal quotations, brackets, ellipses, and citations omitted).

Long, 463 U.S. at 1040-41, 103 S.Ct. 3469.

Seen generally, the district court's conclusion — that Rocha's Wiggins claim is of no help to him given the procedural posture of his case and the contours of state law — was correct. However, given Balentine and its newly minted reading, reasonable jurists could debate whether Rocha's Wiggins claim fails because § 5(a)(3) operates as an independent and adequate state ground and Rocha cannot make the showing of actual innocence of the death penalty that is required to overcome a state-law procedural bar, or his Wiggins claim fails because his claim of actual innocence under § 5(a)(3) fails on the merits. Therefore, a COA will issue on this question. As for our broader conclusion, whether state court invocation of § 5(a) of Article 11.071 of the Texas Code of Criminal Procedure or its parts clearly rests a decision upon independent state grounds does not yield to a universal answer. Rather, the answer will often turn on contextual and case specific inquiries laid on the federal blanket of Michigan v. Long and Coleman v. Thompson, ever mindful that the state has the right to define the gateways of state habeas processes — free of federal review if clearly stated.

463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201.

501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640.

B

Lastly, Rocha requests a COA to determine whether the state of Texas violated his rights under Article 36 of the Vienna Convention and whether such a violation warrants the exclusion of his confession. The state admits that it violated the Convention's terms: Rocha is a citizen of Mexico — a fact known to the arresting officer — yet Rocha was never informed of his right to talk to the Mexican consulate. For this violation, Rocha seeks to suppress his confession. The trial court denied relief, and direct and state habeas review upheld that decision. The federal district court also denied relief, explaining that Article 36 did not create individually-enforceable rights.

The district court also observed that the International Court of Justice ("ICJ") has already determined that Rocha's rights under the treaty were not substantively violated. While it is true that the ICJ refused to find that Mexico's right to "arrange for [Rocha's] legal representation" had not been violated, it found that the state violated the Convention when it failed to inform Rocha of his right to request that the authorities inform his government's consulate that he had been detained. Case Concerning Avena and Other Mexican Nationals (Mexico v. United States), 2004 I.C.J. 12; see also Medellin II, 552 U.S. at 502, 128 S.Ct. 1346. The rights of an individual are distinct from those of a government under the Convention, and the ICJ decision is not determinative here.

Rocha acknowledges we have held that Article 36 does not create individually-enforceable rights but wants a COA so that he may pursue en banc consideration. He points to the Supreme Court's 2006decision in Sanchez-Llamas where four justices — Ginsburg, Breyer, Stevens, and Souter — expressed their belief that the Vienna Convention does create individually-enforceable rights. Without a clear holding from the Court, however, our precedent stands and we must decline Rocha's request for a COA on this issue.

See, e.g., Leal Garcia v. Quarterman, 573 F.3d 214, 218 n. 19 (5th Cir. 2009); Cardenas v. Dretke, 405 F.3d 244, 253 (5th Cir. 2005).

Sanchez-Llamas v. Oregon, 548 U.S. 331, 360, 126 S.Ct. 2669, 165 L.Ed.2d 557 (Ginsburg, J., concurring in the judgment); id. at 365, 126 S.Ct. 2669 (Breyer, J., dissenting).

Even if we were to take up the subject as a full court, Rocha's requested remedy — suppression of inculpatory statements — is unavailable. Sanchez-Llamas held that suppression of evidence is not an available remedy where, as here, the Vienna Convention "does. not, provide [that] particular remedy, either expressly or implicitly." Absent a prescribed remedy, "it is not for the federal courts to impose one on the States through lawmaking of their own." And in any event, suppression here would upend the state courts' determination that Rocha knowingly and voluntarily confessed and did not desire an attorney at that time, whether provided to him by the Mexican consulate or not.

Id. at 347, 126 S.Ct. 2669.

Id.

* * *

We AFFIRM the district court, DENY relief on the Brady claim, DENY a COA on the claim under the Vienna Convention, and HOLD that Rocha was not entitled to have his Wiggins claim considered on the merits but GRANT a COA on that question. Because we are convinced that the issue on which we grant the COA has been fully briefed and squarely addressed at oral argument by able counsel, we will not seek additional briefing. In addition, we instruct the clerk of the court not to issue the mandate in this case until the mandate issues in Balentine.