432 F. App'x 395
5th Cir.2011Background
- George Rivas, a Texas inmate, was convicted of capital murder and sentenced to death; he sought a COA after the district court denied his federal habeas petition.
- Rivas was a ringleader of the Texas Seven who escaped December 13, 2000, and participated in the Oshman’s Superstore robbery in Irving, Texas that killed Irving Officer Aubrey Hawkins.
- During the robbery, Rivas helped abduct employees and supervised the theft, and later drove Ferris’s Ford Explorer to the back of the store.
- Following the escapees’ capture, Rivas gave a 21-page written confession; weapons and Oshman’s merchandise were recovered, including Hawkins’s gun.
- Rivas’s direct appeal affirmed his conviction and death sentence; state habeas denied; he then filed a federal habeas petition governed by AEDPA, seeking a COA on multiple claims.
- The district court denied a COA on all claims, and the Fifth Circuit denied relief, concluding no substantial showing of a constitutional violation was demonstrated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ineffective assistance for closing argument objection | Rivas contends counsel failed to object to improper closing. | State asserts objection would have been meritless and strategic. | COA denied; no substantial showing of prejudice. |
| Fair cross-section claim at jury selection | Rivas claims underrepresentation of Hispanics and 18–34 age group biased the jury. | State argues no Duren violation; no systematic exclusion proven. | COA denied; no prima facie fair cross-section violation. |
| Admission of out-of-court statements during sentencing | Co-defendant statements used to impeach Rivas violated Confrontation Clause. | Trial strategy supported not objecting; statements cited as cross-examination. | COA denied; no showing of ineffective assistance. |
| Lethal injection protocol and Eighth Amendment | Texas lethal injection protocol poses substantial risk of serious harm. | Protocol upheld by Supreme Court precedent; no substantial risk shown. | COA denied; claim foreclosed by controlling precedent. |
| Separation of Powers challenge to AEDPA | § 2254 violates separation of powers by deferential review standard. | AEDPA is constitutionally sound and properly before court. | COA denied; reasonable jurists would not debate district court’s denial. |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (standard for ineffective assistance of counsel)
- Miller-El v. Cockrell, 537 U.S. 322 (2003) (COA standard for substantial showing of denial of constitutional right)
- Williams v. Taylor, 529 U.S. 362 (2000) (definition of debatable whether COA should issue)
- Teague v. Lane, 489 U.S. 288 (1989) (no new constitutional rules in habeas review)
- Cullen v. Pinholster, 131 S. Ct. 1388 (2011) (reaffirmed deferential AEDPA standards for state-court decisions)
- Ring v. Arizona, 536 U.S. 584 (2002) (constitutional questions about judging aggravating factors in sentencing)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (capital sentencing considerations and beyond-the-leadership of juries)
- Barefoot v. Estelle, 463 U.S. 880 (1983) (Daubert-like reliability in sentencing evidence (predecessor context))
- Baze v. Rees, 553 U.S. 35 (2008) (Eighth Amendment standard for lethal injection protocols)
- Alexander v. Johnson, 211 F.3d 895 (5th Cir. 2000) (foreclosure of certain capital-pena l claims under precedent)