Citations:

Gutierrez v. Quarterman, 201 Fed.Appx. 196 (5th Cir. 2006) (Habeas).
Ex Parte Gutierrez, Not Reported in S.W.3d, 2007 WL 841773 (Tex.Cr.App. 2007) (State Habeas).

Texas Department of Criminal Justice

Inmate: Gutierrez, Vincent
Date of Birth: 10/1/78
TDCJ#: 999262
Date Received: 4/14/98
Education: 9 years (GED)
Occupation: none
Date of Offense: 3/11/97
County of Offense: Bexar
Native County: Bexar County, Texas
Race: Hispanic
Gender: Male
Hair Color: Black
Eye Color: Brown
Height: 05' 06"
Weight: 142 lb
Co-defendants: Randy Arroyo, Christopher Suaste
Prior Prison Record: Bexar County on a ten year sentence for three counts of burglary of a habitation. Released on 02/26/1997.

Texas Attorney General

Thursday, March 22, 2007

Media Advisory: Vincent Gutierrez Scheduled For Execution

AUSTIN – Texas Attorney General Greg Abbott offers the following information about Vincent Gutierrez, who is scheduled to be executed after 6 p.m. Wednesday, March 28, 2007. Gutierrez was sentenced to death for the 1997 San Antonio robbery, kidnaping and murder of U.S. Air Force Captain Jose Cobo. The evidence presented at trial is as follows.

FACTS OF THE CRIME

On the evening of March 10, 1997, Vincent Gutierrez, Randy Arroyo, and several other persons met at the residence of Christopher Suaste to discuss Arroyo’s desire to steal a Mazda RX-7 automobile for parts for a similar vehicle Arroyo had recently acquired.

The following morning, Suaste, Arroyo, and Gutierrez drove to a nearby apartment complex where a red Mazda RX-7 owned by Air Force Captain Jose Cobo was parked. Arroyo directed Suaste to park his vehicle a short distance from Cobo’s red Mazda. As soon as Suaste did so, Gutierrez and Arroyo got into Cobo’s Mazda and drove away from the complex.

In a conversation with Suaste several hours later, Gutierrez laughingly explained the murder, stating that at gunpoint, he forced Cobo, who was leaving for work at the time, to move to the front passenger seat of the Mazda. Gutierrez then climbed into the rear of the vehicle. Arroyo told Gutierrez to shoot Cobo when he tried to escape from the vehicle. Gutierrez shot Cobo in the back and the body was dumped along a highway.

Later that evening, when a television news report about Cobo’s murder was aired, Gutierrez again described his fatal shooting of Cobo and laughingly told others at Suaste’s apartment that Cobo got what he deserved for trying to escape. That same evening, Arroyo went to the police and voluntarily confessed to his involvement in Cobo’s murder. He led police to the .357 caliber handgun Gutierrez had used to kill Cobo, as well as the .25 caliber handgun Arroyo had carried during Cobo’s robbery and kidnaping.

PROCEDURAL HISTORY

On May 28, 1997, Gutierrez was indicted by a Bexar County grand jury for the capital murder of Jose Cobo. On March 2, 1998, a jury found Gutierrez guilty of capital murder. On March 6, 1998, after a separate punishment hearing, the court assessed Gutierrez’s punishment at death. Gutierrez appealed to the Texas Court of Criminal Appeals, which affirmed his conviction and sentence on April 12, 2000.

Gutierrez filed a state habeas application in the trial court on June 19, 2000. The Texas Court of Criminal Appeals adopted the trial court’s findings of fact and conclusions law from the trial court’s evidentiary hearing and denied relief on October 10, 2001.

On April 30, 2002, Gutierrez filed a habeas corpus petition in a San Antonio U.S. District Court. On September 27, 2005, the federal district court denied Gutierrez’s petition. Gutierrez then sought permission to appeal from the 5th U.S. Circuit Court of Appeals. On September 21, 2006, the appeals court denied Gutierrez’s request. Gutierrez subsequently petitioned the U.S. Supreme Court for certiorari review. On February 20, 2007, the Supreme Court denied Gutierrez’s petition.

PRIOR CRIMINAL HISTORY & EVIDENCE OF FUTURE DANGEROUSNESS

The State presented the following evidence of Gutierrez’s criminal history and future dangerousness. Officer George Saidler testified that when Gutierrez was arrested, he was laughing and joking and stated that he could beat the charges. Further, during the interview, Gutierrez simply laughed, smiled, and terminated the interview when Saidler suggested that Gutierrez did not believe that it was wrong to kill. Additionally, Gutierrez showed no remorse when the police took pictures of his tattoos. Another detective testified that Gutierrez had a tattoo indicating he was in a gang involved in narcotics trafficking and drive-by shootings.

Suaste read a letter written to him by Gutierrez in which Gutierrez stated that he could not wait to go to court so that he could be on television. In the letter, Gutierrez also essentially said that when he got out of jail, he would shoot any police officer who approached him.

On May 19, 1996, a police officer arrested Gutierrez and Suaste for shoplifting at a K-Mart. Gutierrez was also involved in a string of burglaries in February and March of 1996, including the home of a frightened elderly woman. Ultimately, Gutierrez pled guilty to these offenses.

Bexar County Community Supervision Department employee Maria Morales testified that she interviewed Gutierrez in connection with the burglaries. At that time, Gutierrez told her that he was the leader of his gang and used inhalants on a weekly basis. Gutierrez was not remorseful about the burglaries and, as a result, Morales recommended that Gutierrez be sent to boot camp rather than receive probation. After Gutierrez completed his time at boot camp, he was placed on probation. However, Gutierrez’s probation officer testified that Gutierrez never reported to the supervising officer when he was released.

Jesus Gonzalez, an inmate supervisor with the Bexar County Detention Center, testified that Gutierrez was involved in a fight during his pre-trial detention. Although Gonzalez gave verbal commands to break up the fight, Gutierrez would not respond, and Gonzalez was forced to call for assistance. Gonzalez also stated that Gutierrez had a bad attitude.

The State also showed that, during middle school, Gutierrez stole a library book, threatened to kill another student, and attempted to obtain a pistol and have it delivered to him during lunch. Two other witnesses testified about an incident where Gutierrez was involved in trying to get a .22 pistol on campus. As a result of these incidents, Gutierrez was expelled. Finally, Nancy Roell, one of Gutierrez’s former teachers, testified that Gutierrez once wrote an essay in her class in which he described in graphic detail his plan to murder another person with an automatic rifle and then escape to Mexico.

Convicted killer of Air Force officer executed in Huntsville

Houston Chronicle

March 28, 2007, Associated Press

HUNTSVILLE — A San Antonio man convicted of killing an Air Force officer during a carjacking 10 years ago was executed this evening.

In a brief final statement, Vincent Gutierrez said, "I'd like to tell everybody I'm sorry the situation happened. My bad - everybody is here because of what happened.'' It was unclear from his statement whether he was apologizing for the fatal shooting. He thanked a number of relatives and friends and expressed love to them. "Where's a stunt double when you need one?'' he said, laughing.

Gutierrez, 28, never looked at relatives and a friend of the victim as they stood a few feet away looking through a window. But he had two big smiles and laughter for his parents and other relatives when they walked into the death chamber. He said a brief prayer and was pronounced dead at 6:23 p.m., seven minutes after the lethal drugs began to flow. Gutierrez was the 10th prisoner to die by injection this year in the nation's busiest capital punishment state. Another execution is set for Thursday.

He was one of two carjackers condemned for the March 1997 shooting death of Capt. Jose Cobo, whose body was shoved from his car and dumped on the shoulder of Interstate 410 during a morning rush hour in the Alamo city.

A Bexar County jury also decided Gutierrez' companion, Randy Arroyo, should receive lethal injection, but his death sentence was commuted to life after the U.S. Supreme Court two years ago ruled people could not be executed for crimes committed when they were under the age of 18. Arroyo was 17 when Cobo was killed. Gutierrez was 18.

The 5th U.S. Circuit Court of Appeals late week turned down an appeal to halt Gutierrez's execution. The Texas Board of Pardons and Paroles refused this week to commute his sentence to life. No late efforts to spare Gutierrez were planned. ``At this point, it's basically over,'' Gutierrez's lawyer, Alex Calhoun, said.

Just two weeks before the shooting, Gutierrez had been released from a two-month stint at a prison boot camp for a burglary conviction. It was the latest in a string of burglaries and thefts by the acknowledged street gang member. "If I wouldn't have gotten locked up, I would have probably really been dead by now,'' he recently told the San Antonio Current, a weekly newspaper, from death row. "So, I've made the best of it while I was here. I think I did.'' And he warned if he got out, "I'd create havoc in Texas.''

He acknowledged the Cobo shooting - and expressed no remorse - saying he fired at the military officer because he didn't want to go back to jail for another robbery.

The Colombia-born Cobo, 39, was a 13-year Air Force veteran who was chief of maintenance training at the Inter-American Air Forces Academy at Lackland Air Force Base. "It's such a sad case,'' said Bert Richardson, who was among the Bexar County assistant district attorneys prosecuting Cobo's accused killers. "He put himself through school. He had the American dream. He became an Air Force officer.''

Cobo was abducted at gunpoint outside his apartment and was forced to the passenger side of his car. When he tried to bolt from the vehicle in slow rush-hour traffic, he was shot by Gutierrez, who was in the back seat of the Mazda sports car as Arroyo drove.

Authorities said Arroyo and Gutierrez chose Cobo's car because Gutierrez had the same model and needed some parts. Gutierrez's roommate, Christopher Suaste, had dropped them off at dawn March 11, 1997, outside Cobo's apartment, where they hid until he left for work. Suaste surrendered to police after his two companions were arrested. He's now serving a 35-year prison sentence for aggravated robbery.

He and Arroyo gave statements implicating Gutierrez as the shooter. The murder weapon, a .357-caliber Magnum pistol, plus another gun Gutierrez was carrying, were recovered from the San Antonio River. Cobo's car was recovered. It had been abandoned but not stripped.

On Thursday evening, a former Houston air conditioning contractor, Roy Lee Pippin, 51, is set to die for the slayings of two men shot 13 years ago in a Houston warehouse during a drug dispute.

Bexar County man executed for 1997 murder

By Stewart Smith - The Huntsville Item

March 29, 2007

After 10 years on death row, 28-year-old Vincent Gutierrez was executed at 6:23 p.m. on Wednesday evening. Gutierrez was convicted and sentenced to death in the March 1997 carjacking-turned-murder of Air Force Capt. Jose Cobo in Bexar County.

He was greeted with smiles by his family members as they entered the viewing room. He apologized earnestly, though it was unclear exactly to whom he was apologizing to in his final statement. “I would like to tell everybody that I’m sorry about the situation that happened,” Gutierrez said. “My bad — everybody is here because of what happened.” He said a brief prayer and was pronounced dead at 6:23 p.m., seven minutes after the lethal drugs began to flow.

Gutierrez – who was 18 at the time of the murder – was convicted and sentenced to death along with Randy Arroyo, Gutierrez’s companion in the slaying. Arroyo was 17 at the time of the murder, and after a U.S. Supreme Court ruling two years ago that ruled states could not execute those under the age of 18, Arroyo’s sentence was commuted to life in prison.

Gutierrez thanked his family for their support and gave one final sendoff to his brother, Phillip. “My brother, where’s my stunt double when you need one,” he said with a laugh.

Phillip Gutierrez could be heard championing his brother after Vincent took his final breath. “That’s a good man, right there. A damn good man,” Phillip Gutierrez said. “He paid his debt like a man.” Sister Doris Moore, spiritual advisor to the Gutierrez family, likened Vincent Gutierrez’s execution to the act of a terrorist. “This is so inhuman,” she said. “We’re just like terrorists.”

Gutierrez was the 10th prisoner to die by injection this year in the nation’s busiest capital punishment state. Another execution is set for Thursday.

He was one of two carjackers condemned for the March 1997 shooting death of Capt. Jose Cobo, whose body was shoved from his car and dumped on the shoulder of Interstate 410 during a morning rush hour in the Alamo city.

A Bexar County jury also decided Gutierrez’ companion, Randy Arroyo, should receive lethal injection, but his death sentence was commuted to life after the U.S. Supreme Court two years ago ruled people could not be executed for crimes committed when they were under the age of 18. Arroyo was 17 when Cobo was killed. Gutierrez was 18.

The 5th U.S. Circuit Court of Appeals late week turned down an appeal to halt Gutierrez’s execution. The Texas Board of Pardons and Paroles refused this week to commute his sentence to life. No late efforts to spare Gutierrez were planned. “At this point, it’s basically over,” Gutierrez’s lawyer, Alex Calhoun, said.

Cobo was abducted at gunpoint outside his apartment and was forced to the passenger side of his car. When he tried to bolt from the vehicle in slow rush-hour traffic, he was shot by Gutierrez, who was in the back seat of the Mazda sports car as Arroyo drove. Authorities said Arroyo and Gutierrez chose Cobo’s car because Gutierrez had the same model and needed some parts. Gutierrez’s roommate, Christopher Suaste, had dropped them off at dawn March 11, 1997, outside Cobo’s apartment, where they hid until he left for work.

Suaste surrendered to police after his two companions were arrested. He’s now serving a 35-year prison sentence for aggravated robbery. He and Arroyo gave statements implicating Gutierrez as the shooter. The murder weapon, a .357-caliber Magnum pistol, plus another gun Gutierrez was carrying, were recovered from the San Antonio River. Cobo’s car was recovered. It had been abandoned but not stripped.

On Thursday evening, a former Houston air conditioning contractor, Roy Lee Pippin, 51, is set to die for the slayings of two men shot 13 years ago in a Houston warehouse during a drug dispute.

Convicted killer of carjacked Air Force officer to die Wednesday

By Michael Graczyk - Dallas Morning News

03/27/2007

Drivers on the busy Interstate 410 Loop in San Antonio were stunned to see a man tumble out the passenger side of a small red Mazda sports car on a rainy rush-hour morning. He was wearing the uniform of a U.S. Air Force officer.

The first person to pull over to assist Capt. Jose Cobo was a military flight surgeon, but little could be done to save Cobo, who had been shot from behind, the bullet ripping through his heart. Less than two hours later, Cobo, 39, died at a hospital.

The man convicted of firing the fatal shot during Cobo's abduction and carjacking 10 years ago, Vincent Gutierrez, is set to die Wednesday in Huntsville. The lethal injection would be the 10th this year in Texas, the nation's busiest capital punishment state, and the first of two on consecutive days this week. "He was shot in the back while trying to jump out of his own car, thrown out on the highway," said Bert Richardson, one of the prosecutors in Gutierrez's capital murder case. "A retired naval investigator coming on an access road got a bird's-eye view. "As the car accelerated to the expressway, Vincent had crawled from the back to the front, pulled the seat back and tossed the body to the freeway."

Gutierrez, 28, was 18 when he and a companion, Randy Arroyo, 17, who was driving Cobo's stolen car, were arrested. They were tried together, and a jury at their 1998 trial decided both should die.

Arroyo had his sentence commuted to life in prison when the U.S. Supreme Court two years ago ruled those under the age of 18 at the time of their crime could not be executed. Gutierrez — known to his friends as "Flaco," Spanish for "Skinny" — had been free just two weeks after spending two months in a prison boot camp for a burglary conviction,

He recently told the San Antonio Current, a weekly newspaper, he had no intention of returning to jail for a robbery. "So I went ahead and shot him twice," he said. "In order for me to be remorseful, I have to feel for somebody. And I didn't know him, so I don't feel for him."

The 5th U.S. Circuit Court of Appeals turned down an appeal to halt the execution. The Texas Board of Pardons and Paroles refused Monday to commute his sentence to life. "To say 17-year-olds are not mature and 18-year-olds are mature, scientifically speaking, this is balderdash," said Alex Calhoun, Gutierrez's attorney. "While that may be a legal distinction between Gutierrez and Arroyo, there's actually no distinction."

Authorities said Arroyo and Gutierrez had scoured San Antonio for a particular Mazda model because Gutierrez had the same car and needed some parts. Gutierrez's roommate, Christopher Suaste, dropped them off at dawn March 11, 1997, outside Cobo's apartment, where they hid until he left for work at Lackland Air Force Base. The Colombian-born 13-year Air Force veteran, chief of maintenance training at Lackland's Inter-American Air Forces Academy, was confronted at gunpoint.

Cobo tried to escape in a traffic slowdown but was impeded by the automatic seat belt. According to court documents, at Arroyo's urging Gutierrez shot their captive. When the mortally wounded Cobo began choking and coughing up blood, Gutierrez said he didn't want to ride around with a dead man, so he heaved Cobo from the moving car.

Suaste surrendered to police after his two companions were arrested. He's now serving a 35-year prison sentence for aggravated robbery. He and Arroyo gave statements implicating Gutierrez as the shooter. Arroyo told officers the .357-caliber Magnum pistol used in the slaying and another gun Gutierrez was carrying were tossed into the San Antonio River. The weapons were recovered.

Cobo's car was found abandoned. Gutierrez's clothes, splattered with Cobo's blood, were found in a trash bin. Gutierrez was seen later the day of the shooting wearing a T-shirt and shorts with Air Force logos. The clothing had come from the back of Cobo's car.

Set to die 24 hours after Gutierrez is Roy Lee Pippin, condemned for the slayings of two men in Houston 13 years ago.

Texas Execution Information Center by David Carson

Txexecutions.org

Vincent Gutierrez, 28, was executed by lethal injection on 28 March 2007 in Huntsville, Texas for the carjacking murder of a 40-year-old man.

On the morning of 11 March 1997, Gutierrez, then 18, Christopher Suaste, 18, and Randy Arroyo, 17 drove to an apartment complex in San Antonio where a red Mazda RX-7 was parked. Suaste parked his vehicle a short distance from the Mazda and stayed in his vehicle while Gutierrez and Arroyo got out and waited for the owner to come outside to leave for work.

When Air Force Captain Jose Cobo came to the car, Gutierrez, who was carrying a .357-caliber handgun, forced him to move to the front passenger seat. Gutierrez climbed in the back, and Arroyo sat in the driver's seat. They drove out of the apartment complex and onto the I-410 loop, where the morning rush-hour traffic moving was moving slowly.

Cobo pleaded for his life and offered his wallet. Gutierrez assured Cobo that he would be released, but Cobo nevertheless attempted to escape the vehicle. He was caught on his seat belt, however, and then Gutierrez grabbed him and shot him twice. Arroyo then slowed the car down while Gutierrez shoved the victim out of the car. The shooting was witnessed by other motorists. Cobo was pronounced dead at a hospital about 2 hours later.

The crime was reported on that evening's news. Afterward, Arroyo went to the police and confessed. He led police to the .357-caliber handgun Gutierrez used to kill Cobo, as well as the .25-caliber handgun he was carrying while committing the crime. The guns were recovered from the San Antonio River. The vicitm's abandoned car was also recovered.

At Gutierrez's trial, Suaste testified that the evening before the murder, Gutierrez, Arroyo, and several others met at his home to discuss Arroyo's desire to steal a Mazda RX-7 for parts for his own RX-7. He testified that after he dropped Gutierrez and Arroyo off at the apartment and was driving back home, he saw the victim lying on the shoulder of the highway, with blood on his shirt.

Several hours later, he met back up with Gutierrez and Arroyo. Suaste noticed that Gutierrez was wearing different clothing, including a pair of gym shorts with the USAF logo. Gutierrez explained that his clothes had blood on them, so he obtained the new clothing from the back of the stolen vehicle.

Suaste testified that Gutierrez laughed as he told him about the murder. That evening, while Gutierrez and others watched the television news report of the crime, Gutierrez again described the murder and laughingly said that the victim got what he deserved for trying to escape.

Other witnesses testified to seeing the car being driven erratically, a man struggling inside, and the shooting. Witnesses also testified seeing the 5' 6" Gutierrez, who was known as "Flaco" - Spanish for "skinny" - awkwardly wearing the much larger victim's clothing. The state also presented evidence matching bloodstains on Gutierrez's clothing with Cobo's blood.

Gutierrez had previous convictions for burglarizing three homes in February and March 1996. He received concurrent 10-year prison sentences for those convictions, but he was given probation 7 months into his sentence after he completed boot camp. He murdered Jose Cobo 13 days after his release.

The state also presented evidence that Gutierrez was expelled from school for threatening to kill another student and attempting to obtain a gun on campus. Numerous police officers, correctional offers, and other state workers testified that Gutierrez showed never showed remorse for any of his wrongdoings.

A jury convicted Gutierrez of capital murder in March 1997 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in April 2000. All of his subsequent appeals in state and federal court were denied.

Randy Baez Arroyo was also convicted of capital murder and sentenced to death. His sentence was commuted to life in prison in June 2005 after the U.S. Supreme Court decreed that executing prisoners who were under 18 on the date of their crimes is unconstitutional. Christopher Suaste was convicted of aggravated robbery and sentenced to 35 years in prison. He remains in custody as of this writing.

In an interview from death row given in November 2006, Gutierrez said that he was afraid of going to prison if Cobo escaped and could identify him. "So I went ahead and shot him twice," Gutierrez said. He said he felt no remorse over Cobo's death. "In order for me to be remorseful, I have to feel for somebody, and I didn't know him, so I don't feel for him." In the interview, Gutierrez also warned that if he got out of prison, "I'd create havoc in Texas."

Sister Doris Moore, a nun who corresponded with Gutierrez as a pen pal, said in an interview that such statements from Gutierrez are either false bravado, or possibly a symptom of undiagnosed bipolar disorder. The "real" Gutierrez, she said, prays, talks about the Bible, and writes smiley faces on his letters.

"I'd like to tell everybody I'm sorry the situation happened. My bad. Everybody is here because of what happened," Gutierrez said in his last statement, without looking at the victim's relatives who witnessed his execution. Media witnesses reported that it was unclear whether his remarks were intended to be an apology, and if it so, to whom it was offered. Gutierrez then thanked his friends and relatives and expressed love to them. He laughed as said to his brother, Phillip, "My brother, where's a stunt double when you need one?" He said a brief prayer as the lethal injection was started. He was pronounced dead at 6:23 p.m.

"That's a good man, right there. A damn good man," Phillip Gutierrez said afterward. "He paid his debt like a man." Sister Moore added, "This is so inhuman. We're just like terrorists."

ProDeathPenalty

On March 10, 1997, Vincent Gutierrez, Randy Arroyo, and several others met at Christopher Suaste’s residence to discuss Arroyo’s desire to steal an automobile. The next morning, Arroyo, Gutierrez, and Suaste drove to an apartment complex where the target vehicle was parked. It was owned by United States Air Force Captain Jose Cobo. Suaste parked his vehicle nearby and watched Gutierrez and Arroyo approach the target vehicle, enter it, and drive out of the complex.

While returning to his home, Suaste saw Captain Cobo lying on the shoulder of the highway with blood stains on his shirt. Several hours later, Suaste received several telephone calls from Arroyo and Gutierrez, asking Suaste to pick them up. Upon doing so, Suaste observed Gutierrez wearing different clothes than those worn earlier that day. The newer clothes were a tee shirt and a pair of gym shorts with the USAF logo.

Gutierrez explained his earlier clothes had blood on them, and the new clothes were obtained from the back of the stolen automobile. Upon Suaste’s inquiring about what happened after he left the apartment complex, Gutierrez laughingly explained: upon entering the target vehicle, he forced Captain Cobo at gunpoint to move to the back seat; Arroyo drove the vehicle from the complex; when Captain Cobo begged for his life and offered his wallet, Gutierrez reassured him that he would be released.

Nonetheless, Captain Cobo attempted to exit the vehicle, but was restrained by his seat belt; Gutierrez grabbed Captain Cobo to prevent him from jumping from the vehicle; at that point, Arroyo yelled “Shoot him. Shoot him. He’s trying to escape.”; Gutierrez fired his pistol twice, striking Captain Cobo in the back; Captain Cobo began choking and coughing up blood; as Gutierrez and Arroyo drove on, Gutierrez stated he did not want to drive around with a “dead man” in the car; Gutierrez directed Arroyo to reduce the vehicle’s speed; and, upon his doing so, Gutierrez shoved Captain Cobo out of the moving vehicle onto the shoulder of the highway.

Later that day, Arroyo confessed to being involved in Captain Cobo’s murder and led police to the pistol Gutierrez had used to kill him. Gutierrez was charged with capital murder for an intentional killing by firearm while in the course of kidnapping and robbery. On March 2, 1998, a jury found Gutierrez guilty of capital murder and sentenced him to death. Arroyo was sentenced to life.

Ex Parte Gutierrez, Not Reported in S.W.3d, 2007 WL 841773 (Tex.Cr.App. 2007) (State Habeas).

On Application for Writ of Habeas Corpus, In Cause No. 97-CR-2645B from the 299th District Court of Bexar County.

PER CURIAM.

This is a subsequent application for writ of habeas corpus filed pursuant to Texas Code of Criminal Procedure, Article 11.071, Section 5.

Applicant was convicted of capital murder on March 6, 1998. On direct appeal we affirmed the conviction and sentence. Gutierrez v. State, No. 73,605 (Tex.Crim.App. April 12, 2000). In June 2000, applicant timely filed his initial application for writ of habeas corpus pursuant to Article 11.071. We denied relief. Ex parte Gutierrez, No. WR-49,887-01 (Tex.Crim.App. October 10, 2001).

Applicant raises two claims: (1) that he might be mentally ill and that he was possibly sexually abused by family members, and (2) that the prosecutor failed to divulge Brady evidence that he had promised a witness a favor for his testimony.

The record shows that trial and initial habeas counsel interviewed applicant's mother. She testified at trial. There was an evidentiary hearing on the initial habeas application. Applicant asserts that his various counsel did not complete the investigation of this claim because this Court did not properly provide funds to him.

Applicant has failed to show a reason why counsel could not have gotten a statement or called his mother to testify at the initial writ hearing. This indicates he did not exercise due diligence. With regard to applicant's second claim, it is not a Brady violation to thank a witness with the pleasantry “call me if you need a favor” where there is no “legal trouble” for the State to use to overbear the will of the witness and where the witness asks the prosecutor for assistance seven years after he testifies.

We have reviewed this subsequent application and find that it does not meet the requirements of Article 11.071, Section 5 for consideration of subsequent claims. The application is dismissed as an abuse of the writ and the motion for stay of execution is denied.

IT IS SO ORDERED THIS THE 19TH DAY OF MARCH, 2007.

Gutierrez v. Quarterman, 201 Fed.Appx. 196 (5th Cir. 2006) (Habeas).

Background: State prisoner convicted and sentenced to death for capital murder filed petition for writ of habeas corpus. The United States District Court for the Eastern District of Texas, 392 F.Supp.2d 802, denied petition. Prisoner requested certificate of appealability (COA).

Holdings: The Court of Appeals held that: (1) prisoner was not deprived of due process based on prosecutor's failure to disclose that prospective juror been arrested almost 20 years earlier for theft of amount less than five dollars and that bond had been forfeited; (2) prisoner's claim that he was deprived fair and impartial jury due to prospective juror's alleged misrepresentation in questionnaire regarding theft charge was procedurally defaulted; (3) habeas claim that prisoner was deprived fair and impartial jury when trial court granted State's for-cause challenge of prospective juror who was opposed to death penalty was procedurally defaulted; (4) claim that denial of request for severance of his sentencing for capital murder from co-defendant's violated Eighth Amendment mandate for individual sentencing was procedurally defaulted; (5) prisoner was not entitled to certificate of appealability as to whether he could show requisite cause and prejudice from denial of request for funds to investigate procedurally defaulted claims; and (6) denial of state prisoner's request for additional funds to investigate claims that were procedurally defaulted was not abuse of discretion. COA denied.

PER CURIAM:

Vincent Gutierrez was convicted in Texas state court of capital murder and sentenced to death. The district court's having denied habeas relief and a certificate of appealability (COA), Gutierrez seeks a COA for five issues. Concomitantly, he challenges the district court's denying funding for investigative assistance. A COA is DENIED.

I. The following factual recitation is based primarily upon that presented by the district court. Gutierrez v. Dretke ( USDC Opn.), 392 F.Supp.2d 802 (W.D.Tex.2005).

On 10 March 1997, Gutierrez, Randy Arroyo, and several others met at Christopher Suaste's residence to discuss Arroyo's desire to steal an automobile. The next morning, Arroyo, Gutierrez, and Suaste drove to an apartment complex where the target vehicle was parked. It was owned by United States Air Force (USAF) Captain Jose Cobo. Suaste parked his vehicle nearby and watched Gutierrez and Arroyo approach the target vehicle, enter it, and drive out of the complex. While returning to his home, Suaste saw Captain Cobo lying on the shoulder of the highway with blood stains on his shirt.

Several hours later, Suaste received several telephone calls from Arroyo and Gutierrez, asking Suaste to pick them up. Upon doing so, Suaste observed Gutierrez wearing different clothes than those worn earlier that day. The newer clothes were a tee shirt and a pair of gym shorts with the USAF logo. Gutierrez explained his earlier clothes had blood on them, and the new clothes were obtained from the back of the stolen automobile.

Upon Suaste's inquiring about what happened after he left the apartment complex, Gutierrez laughingly explained: upon entering the target vehicle, he forced Captain Cobo at gunpoint to move to the back seat; Arroyo drove the vehicle from the complex; when Captain Cobo begged for his life and offered his wallet, Gutierrez reassured him that he would be released; nonetheless, Captain Cobo attempted to exit the vehicle, but was restrained by his seat belt; Gutierrez grabbed Captain Cobo to prevent him from jumping from the vehicle; at that point, Arroyo yelled "Shoot him. Shoot him. He's trying to escape.”; Gutierrez fired his pistol twice, striking Captain Cobo in the back; Captain Cobo began choking and coughing up blood; as Gutierrez and Arroyo drove on, Gutierrez stated he did not want to drive around with a “dead man” in the car; Gutierrez directed Arroyo to reduce the vehicle's speed; and, upon his doing so, Gutierrez shoved Captain Cobo out of the moving vehicle onto the shoulder of the highway.

Later that day, Arroyo confessed to being involved in Captain Cobo's murder and led police to the pistol Gutierrez had used to kill him. Gutierrez was charged with capital murder for an intentional killing by firearm while in the course of kidnapping and robbery. On 2 March 1998, a jury found Gutierrez guilty of capital murder, pursuant to § 19.03(a) of the Texas Penal Code. Pursuant to the jury's answers to the statutory special issues, he was sentenced to death.

Gutierrez raised only two issues on direct appeal (jury instruction on accomplice liability and facial challenge to the constitutionality of Texas' death penalty); neither is at issue here. The Texas Court of Criminal Appeals affirmed. Gutierrez v. State, No. 73,065 (Tex.Crim.App. 12 April 2000) (unpublished). Gutierrez did not seek review by the Supreme Court of the United States.

In requesting state-habeas relief, Gutierrez raised 11 claims, including the claims for which he seeks a COA, but not including the four claims for which he seeks a COA regarding insufficient investigative funding. The judge who had presided at trial presided over the state-habeas proceeding; granted part of the amount requested for investigating possible claims; held an evidentiary hearing; and, in a 61-page opinion, rendered findings of fact and conclusions of law, recommending denial of relief. Ex Parte Gutierrez, No. 97-CR-2457-B-W1 (226th Dist. Ct., Bexar County, Tex.2001).

That court concluded, inter alia: Gutierrez had procedurally defaulted his claims based on trial error, because they were not raised on direct appeal. Id. In the alternative, the court addressed each claim on the merits, concluding no relief was warranted. Id.

The Texas Court of Criminal Appeals adopted the state-habeas court's findings and conclusions and denied relief. Ex Parte Vincent Gutierrez, No. 49,887-01 (Tex.Crim.App. 10 Oct. 2001) (per curiam) (unpublished). Gutierrez did not seek review by the Supreme Court of the United States.

In April 2002, Gutierrez presented 14 claims for federal habeas relief. After filing his application, Gutierrez moved for the appointment of an investigator, claiming such assistance was necessary to rebut the state-habeas factual findings by clear and convincing evidence, as required under the applicable Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (1996). Gutierrez admitted, however, that the claims for which he sought investigative assistance were procedurally defaulted because they had not been exhausted in state court.

The district court denied the requested investigative assistance. Subsequently, in a 154-page opinion in September 2005, it granted the State's summary-judgment motion, denying habeas relief on all 14 claims, and sua sponte denied Gutierrez a COA. USDC Opn., 392 F.Supp.2d at 810.

* * *

The first four claims for which a COA is requested are:

(1) whether the state-habeas and district courts erred in construing Gutierrez' due-process claim (regarding the prosecution's alleged failure to produce information about a juror's prior offense) as one arising under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (holding prosecution's suppression of favorable material evidence violates due process);

(2) whether Gutierrez was denied a fair and impartial jury, as required by the Sixth and Fourteenth Amendments, because (a) the above-referenced juror misstated she had never been convicted of a crime, thus precluding Gutierrez' counsel from making a for-cause challenge, and (b) the trial court granted the State's for-cause challenge for a prospective juror;

(3) whether the trial court's denial of Gutierrez' severance motion at the trial's penalty phase denied him the right to individualized sentencing, pursuant to the Eighth Amendment; and

(4) whether, by failing to challenge on direct appeal both the for-cause juror-dismissal and the severance-denial, Gutierrez' counsel was constitutionally ineffective under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (two-pronged standard for making an ineffective assistance of counsel (IAC) claim: counsel's performance was deficient; and that deficiency caused prejudice).

The fifth COA request concerns four unexhausted claims. Gutierrez maintains he failed to exhaust them because the state-habeas court refused to grant him enough funding to conduct an investigation. Regarding that fifth COA request, Gutierrez challenges the district court's denial of investigative-assistance funding.

A. In the state-habeas and district courts, Gutierrez claimed he was denied due process by the prosecution's failing to disclose potential-juror Rosemary Harrell had been arrested for, and convicted of, theft in 1979 of an amount less than five dollars. Subsequently, she served as a juror.

Both courts analyzed this claim under the well-known Brady framework: as stated supra, a claimant must show the prosecution suppressed favorable evidence material to the outcome of the trial. Brady, 373 U.S. at 87, 83 S.Ct. 1194. Under Brady, evidence is “material” if there is a reasonable probability the result of the proceeding would have been different had the evidence been disclosed; a reasonable probability is one sufficient to undermine confidence in the outcome. Martin v. Cain, 246 F.3d 471, 477 (5th Cir.), cert. denied, 534 U.S. 885, 122 S.Ct. 194, 151 L.Ed.2d 136 (2001).

Gutierrez claims prosecutorial misconduct-conduct barred by the due-process clause. See, e.g., Brady, 373 U.S. at 85-88, 83 S.Ct. 1194. Although he insists both courts erred in applying Brady, he does not explain why it is not the proper standard. In any event, Gutierrez' framing of the issue is quite similar to the Brady standard.

He maintains: “The issue ... involves the obligations of the prosecutor, under the Due Process Clause[,] ... to disclose to the trial court and defense[,] material evidence [that] raises questions about whether a juror is categorically excludable from the jury”. (Emphasis added.)

Gutierrez does not claim such misconduct requires automatic reversal and remand for a new trial. See, e.g., United States v. Huey, 76 F.3d 638, 639 (5th Cir.1996) (where Batson v. Kentucky's rule against the use of peremptory strikes based on race, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), had been violated, reversal and remand for new trial without analysis of prejudice to the defendant). Indeed, not all prosecutorial misconduct requires Batson-like reversal.

The prosecution's failure to disclose information about a prospective juror is not exculpatory, material evidence under Brady. Jones v. Butler, 864 F.2d 348, 355 (5th Cir.1988), cert. denied, 490 U.S. 1075, 109 S.Ct. 2090, 104 L.Ed.2d 653 (1989). Irrespective of the name utilized by the state-habeas and district courts for their analysis of this claim, a review for prejudice vel non was required.

For example, in Johnson v. Cabana, our court held: where a prosecutor potentially knew a juror had made a false statement on a juror questionnaire, namely that she did not have a relative in the same jail as the defendant, there was no showing of prejudice. 818 F.2d 333, 343 (5th Cir.), cert. denied, 481 U.S. 1061, 107 S.Ct. 2207, 95 L.Ed.2d 861 (1987).

Furthermore, the Supreme Court has directed that claims for prosecutorial misconduct in a state conviction are reviewed deferentially. See, e.g., Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974) (prosecutorial misconduct must have “so infected the trial with unfairness as to make the resulting conviction a denial of due process”).

Part of the following facts were developed at the state-habeas evidentiary hearing, at which Gutierrez' trial counsel and the lead prosecutor testified. As part of the jury selection for Gutierrez' trial in 1998, Harrell responded to her jury questionnaire that she had never been “charged or arrested with any type of shoplifting or theft offense”.

Before questioning her during voir dire, however, the lead prosecutor, having performed a criminal background check, learned: almost 20 years earlier, Harrell had been arrested in 1979 for theft under five dollars.

Accordingly, during voir dire, the prosecutor questioned Harrell about the incident. She responded she believed it had been “totally dismissed”. The prosecutor also asked her “to the best of [her] recollection” whether she paid a fine or attended a court hearing. She responded “no”.

During jury selection, the prosecutor conducted further research into Harrell's prior arrest, contacting the municipal court in the county where it had occurred. An individual at that court told the prosecutor Harrell had neither a conviction for the theft offense nor an active case against her, but that her bond had been forfeited. Based on that information, the prosecutor concluded Harrell likely did not have a conviction for the charge. The prosecutor was provided a letter to that effect but did not remember showing it to Gutierrez' counsel.

Gutierrez' counsel's questioning of Harrell during voir dire did not relate to her prior theft arrest. As noted, she was selected as a juror.

After holding the evidentiary hearing, the state-habeas court made detailed findings, including: (1) there was no evidence Harrell had been convicted of theft in connection with her 1979 shoplifting charge; (2) her bond forfeiture did not make her ineligible to serve on a jury, or subject her to a successful for-cause challenge; (3) the prosecution's alleged failure to disclose the bond-forfeiture evidence did not constitute “favorable” Brady evidence; and (4) even if the evidence was favorable, there was no reasonable likelihood that the result of Gutierrez' trial would have been different.

The district court held: under AEDPA, Gutierrez had not, by the requisite clear-and-convincing evidence, rebutted the state-habeas court's factual findings. USDC Opn., 392 F.Supp.2d at 835-37. According the deference required by AEDPA to these detailed findings, the court held the state-habeas decision was “an objectively reasonable application of clearly established federal law”. Id. at 852.

In his COA request, Gutierrez notes that Texas' Constitution and Code of Criminal Procedure require any prospective juror who has been convicted of, or is currently under a charge of, theft be excused from jury service. Tex. Const. Art. XVI, § 2; Tex.Code Crim. Pro. Art. 35.16(a)(2). He further insists that state law also requires the dismissal “of any juror who ‘appears' to be disqualified to serve as a juror because of a conviction for theft”. Because the prosecutor knew Harrell might have been convicted of theft, Gutierrez maintains his due-process rights were violated by the failure to disclose this information.

For COA purposes, reasonable jurists would not debate that, under AEDPA, the district court concluded correctly that, in holding Gutierrez had not stated a meritorious Brady claim, the state-habeas decision was not unreasonable because: evidence of Harrell's bond forfeiture was not favorable evidence that would have sustained a for-cause challenge; and, even if the evidence was favorable, Gutierrez has not shown how Harrell's replacement would have voted in jury deliberations concerning Gutierrez' conviction and/or sentence.

Again, irrespective of the state-habeas and district courts' classifying this as a Brady claim, that does not render the state-habeas decision unreasonable under AEDPA or the district-court decision debatable by reasonable jurists. Each court was required to consider whether any alleged prosecutorial misconduct was prejudicial to Gutierrez' trial.

As discussed infra, any alleged prosecutorial misconduct concerning Harrell's selection as a juror did not deny Gutierrez an impartial jury. In fact, for several reasons, including Harrell's Catholic faith, as discussed infra, Gutierrez' counsel wanted her on the jury. In any event, for COA purposes, Gutierrez has not adequately shown pursuant to AEDPA that he was prejudiced by the alleged prosecutorial misconduct, or that it “so infected [his] trial with unfairness as to make [his] conviction a denial of due process”. DeChristoforo, 416 U.S. at 643, 94 S.Ct. 1868. Moreover, this claim is not “adequate to deserve encouragement to proceed further”. Slack, 529 U.S. at 484, 120 S.Ct. 1595.

B. Next, Gutierrez seeks a COA for whether he was denied an impartial jury, in violation of the Sixth and Fourteenth Amendments, because: (1) Harrell made a material misstatement that she had never been arrested or convicted of a crime of theft; and (2) the prosecution successfully challenged Gerald Becker for cause, based solely on his religious beliefs, in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) (holding prospective jurors may not be excused from jury service in a capital case because, based on religious beliefs, they voice general objections to the death penalty).

1. In both his state and federal habeas petitions, Gutierrez claimed Harrell made a material misrepresentation when she stated: in the jury questionnaire, that she had never been charged, or arrested, with theft or shoplifting; and, during voir dire, that, although she had been charged with theft in 1979, the charges had been dismissed, and she had not been arrested. Gutierrez asserted Harrell had been arrested, charged, and convicted of theft, making her ineligible for jury service under Texas law.

Furthermore, under McDonough Power Equipment, Inc. v. Greenwood, Gutierrez claimed his due-process rights were violated, because his trial counsel did not make a for-cause challenge based on Harrell's voir-dire answers. 464 U.S. 548, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984) (holding due process violated where a potential juror's failure to answer a material question on voir dire deprived the defendant of information permitting a valid for-cause challenge).

The state-habeas court held Gutierrez had procedurally defaulted this claim because he did not raise it on direct appeal. Alternatively, it held: no judgment of conviction had been entered against Harrell; during voir dire, Harrell had responded truthfully, to the best of her knowledge; and, even if she had been disqualified under Texas law for jury service, this potential error did not warrant reversal because Gutierrez neither made a timely objection nor established he suffered significant harm as a result.

The district court likewise denied relief, noting: the state-habeas court was correct in concluding the claim had been procedurally defaulted, USDC Opn., 392 F.Supp.2d at 835; and, under Texas law, it is well settled that an otherwise final conviction may not be collaterally attacked because a jury member was statutorily disqualified. Id. at 834 (citing Ex Parte Bronson, 254 S.W.2d 117 (Tex.Crim.App.1952)).

Therefore, the district court held: because the state-habeas court's factual findings were reasonable and its conclusions were not an unreasonable application of clearly-established federal law, Gutierrez was not entitled to federal habeas relief. Id. at 837. It further held: because the state-habeas court reasonably determined Harrell did not testify falsely and was not disqualified from jury service under Texas law, the state-habeas court's application of McDonough was objectively reasonable. Id. at 837, 841.

Gutierrez maintains it is debatable among reasonable jurists whether Harrell was dishonest about her theft conviction, and whether that conviction would have subjected her to a for-cause challenge. He does not contest, however, the district court's holding the claim was procedurally defaulted. Accordingly, he fails to satisfy the above-described two-prong standard for obtaining a COA when a district-court procedural ruling is at issue.

2. In his state and federal habeas petitions, Gutierrez claimed he was denied an impartial jury by the trial court's granting the prosecution's for-cause challenge against prospective juror Becker. During voir dire, Becker stated repeatedly that, because of his Catholic faith, he would find it “very difficult, if not virtually impossible, ... to impose [the death penalty]”. (As noted above, even though Gutierrez now challenges Harrell's having served on the jury, one reason Gutierrez' trial counsel wanted her as a juror was because of that faith.)

Becker also stated: during the trial's penalty phase, and based on his religious beliefs, he would be “more inclined to say ... there is sufficient mitigat[ing evidence]” not to impose a death sentence. Based on these, and other, statements, such as his religious beliefs would interfere with his ability to fairly answer a special issue, the prosecution made, and the trial court granted, the for-cause challenge. (The trial court initially denied the motion and heard additional examination on the issue.)

Because Gutierrez failed to raise this issue on direct appeal, the state-habeas court held it was procedurally defaulted. In the alternative, it held this Witherspoon claim lacked merit because, under “ Adams v. Texas, [448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980) ], a venireman may be struck if his views prevent or substantially impair the performance of his duties as a juror in accordance with the court's instructions and the juror's oath”. Ex Parte Gutierrez, at 10.

The district court held this Witherspoon claim procedurally defaulted. USDC Opn., 392 F.Supp.2d at 822. Furthermore, it held that, Becker's having repeatedly made clear his death-penalty views would not enable him to impose that penalty and having never stated he could set aside those beliefs: Gutierrez had not presented clear and convincing evidence to rebut the state-habeas court's factual findings, id. at 825; and, based on those findings, that court's application of Witherspoon and Adams was not contrary to, nor an unreasonable application of, clearly-established federal law, id. at 823.

In his COA request, Gutierrez maintains this claim was not procedurally defaulted; in the alternative, he claims he has made the requisite cause-and-prejudice showing for this claim to be considered. Citing Ex Parte Frazier, 67 S.W.3d 189, 190 (Tex.Crim.App.2001), Gutierrez claims Texas courts have not consistently held that a legitimate claim, not raised on direct appeal, is procedurally defaulted for habeas purposes. Furthermore, he maintains that, because he has made a colorable IAC claim, discussed infra, this shows the requisite cause and prejudice to enable the claim to be considered.

Pursuant to the above-stated two-prong test for obtaining a COA concerning a district-court's procedural ruling, Gutierrez must show, inter alia, that reasonable jurists would debate whether that ruling was correct. He has not done so. In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner 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. Aguilar v. Dretke, 428 F.3d 526, 532-33 (5th Cir.2005), cert. denied, --- U.S. ----, 126 S.Ct. 2059, 164 L.Ed.2d 793 (2006).

Ex Parte Gardner, 959 S.W.2d 189 (Tex.Crim.App.1996), held a state-habeas petitioner may not raise for the first time in his petition a constitutional error occurring at trial. The Gardner rule is “an adequate state ground capable of barring federal habeas review”. Aguilar, 428 F.3d at 535. Furthermore, as discussed infra, Gutierrez has not made, through his related IAC claim, a cause-and-prejudice showing. Again, he fails to satisfy the above-discussed two-prong test for obtaining a COA to contest the district court's procedural ruling.

C. Gutierrez seeks a COA for whether the trial court constitutionally erred in failing to grant him a severance during the penalty phase. He concedes: he did not raise this severance-denial claim on direct appeal and instead raised it for the first time in his state-habeas proceedings.

The state-habeas court held the claim was procedurally defaulted because it was not raised on direct appeal. In the alternative, it held: the trial court's instruction to the jury that all the evidence must be considered individually with respect to each of the two defendants prevented any prejudice resulting from evidence admitted about Gutierrez' co-defendant, Arroyo; and the Eighth Amendment's mandate for individual sentencing was not violated.

In denying relief, the district court held: Gutierrez' severance claim was procedurally defaulted; in the alternative, the claim had no merit because, under Zafiro v. United States, 506 U.S. 534, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993), the trial of co-defendants should be severed “only if there is a serious risk that a joint trial [, inter alia,] would compromise a specific trial right of one of the defendants”. 506 U.S. at 539, 113 S.Ct. 933.

Furthermore, the district court noted that, under Zafiro, proper jury instructions can be sufficient to prevent prejudice where the penalty for each co-defendant is being considered during the same proceeding. Along this line, the district court held: because the trial court instructed the jury to consider evidence individually for each defendant to whom it pertained, and because the evidence was not so complicated that the jury could not have compartmentalized it, severance was not required. USDC Opn., 392 F.Supp.2d at 827-29.

In his COA request, Gutierrez reiterates his claim that the Eighth Amendment required severance because there was overwhelming aggravating evidence presented during the penalty phase against Arroyo, and much less aggravating evidence presented against him. Furthermore, he contends he has shown the requisite cause and prejudice to overcome any procedural default.

As discussed, a federal-habeas petitioner must not have procedurally defaulted his claim for relief. Furthermore, because we do not grant a COA on Gutierrez' IAC claim related to the severance-motion denial, addressed below, the requisite cause and prejudice has not been shown. He fails to satisfy the two-prong standard for receiving a COA concerning a district-court procedural ruling.

D. Next, Gutierrez requests a COA for his claim that his appellate counsel was constitutionally ineffective under Strickland for failing to challenge on appeal: the for-cause dismissal of Becker; and the severance-denial at the penalty phase.

1. Concerning his claim in his state and federal habeas petitions that his appellate counsel was constitutionally ineffective for failing to appeal the for-cause dismissal, Gutierrez contends the prosecution made the challenge based on Becker's religious beliefs, discussed supra. The state-habeas court held: (1) the trial court's granting the for-cause challenge was not unconstitutional in the light of Witherspoon; and (2) Gutierrez failed to show counsel's not raising this issue on appeal constituted IAC.

The district court held similarly: Becker's exclusion was consistent with Witherspoon and its progeny, [and] even if erroneous, was nonetheless reasonable under clearly established federal law.... For similar reasons, there was nothing unreasonable with the state habeas court's determination that the failure of petitioner's state appellate counsel to pursue a Witherspoon claim on direct appeal did not cause the performance of said counsel to fall below an objective level of reasonableness. USDC Opn., 392 F.Supp.2d at 883.

Finally, the court noted that Gutierrez had failed to show, under Strickland, how appellate counsel's not raising this issue caused Gutierrez prejudice because there is “no reasonable probability that, but for [this failure], the outcome of [his] direct appeal would have been any different”. Id. at 884.

Gutierrez maintains he made a colorable IAC claim because: the state court's factual determination that Becker's religious views would have precluded him from serving on the jury is not supported by the record; appellate counsel's failure to raise this issue is inexplicable and was objectively unreasonable; and resulting prejudice is shown because an automatic reversal is required where a for-cause challenge is erroneously granted under Witherspoon.

Of course, appellate counsel need not, and should not, raise every non-frivolous issue on appeal. E.g., Smith v. Robbins, 528 U.S. 259, 288, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). As reflected earlier in describing the bases for the for-cause challenge, reasonable jurists would not debate that the district court correctly concluded the state-habeas court was not unreasonable in holding appellate counsel's performance did not fall below an objectively reasonable standard. Furthermore, this claim does not “deserve encouragement to proceed further”. See Slack, 529 U.S. at 484, 120 S.Ct. 1595.

2. Concerning Gutierrez' claim that his appellate counsel rendered IAC for failing to appeal the penalty-phase severance-denial, the state-habeas court held: because there were proper jury instructions and the evidence presented was not too difficult to be compartmentalized, a severance was not constitutionally required; appellate counsel's performance was not objectively unreasonable for failing to raise this non-meritorious claim; and Gutierrez failed to show there is a reasonable probability that, but for counsel's failing to raise this issue, the result of his appeal would have been different.

The district court likewise held that, under AEDPA, the following state-court determinations were not unreasonable in the light of clearly-established federal law: a severance was not required under state and federal law; appellate counsel's performance was not deficient for failing to raise this issue; and no prejudice resulted from counsel's failing to do so. USDC Opn., 392 F.Supp.2d at 885-86.

For his COA request premised on his claim appellate counsel was constitutionally deficient for failing to raise the severance-denial issue, Gutierrez insists that, because the aggravating evidence against him consisted primarily of prior, non-violent property crimes, and that against Arroyo concerned substantially more violent conduct, appellate counsel's performance was not objectively reasonable. He maintains he suffered prejudice as a result because, under the Eighth Amendment's harmless error standard, the appeals court would have been required to reverse his conviction.

As discussed supra, Gutierrez did not make the requisite showing he was denied a constitutional right to individual sentencing because his severance motion was denied. Accordingly, it is not debatable among reasonable jurists that the district court correctly concluded the state-habeas court was not unreasonable in holding appellate counsel's performance was not objectively unreasonable for failing to raise a non-meritorious claim.

E. Gutierrez seeks a COA for the following claims, which he admits are procedurally-defaulted because he did not raise them in his state-habeas proceedings: trial counsel IAC; juror misconduct; and due-process violations for a possible undisclosed agreement between a prosecution witness and the State, and the suppression of impeachment evidence relating to a prosecution witness.

He maintains the state-habeas court's denial of sufficient funding to investigate these claims creates cause and prejudice for the procedural default. (Along this line, as discussed in part II.F. below, Gutierrez challenges the district court's denial of investigative assistance.)

Gutierrez moved in the state-habeas trial court for funding to investigate the factual bases for these potential claims. It granted him $3000 of the requested $6500 ($1500 of which was granted seven days before his state-habeas petition was due). Despite this funding,

Gutierrez claimed in his state-habeas petition he was not able to sufficiently develop the facts to state cognizable claims for relief. The state-habeas court held Gutierrez: had not contended any of the grounds for investigation were meritorious; and had not produced any witnesses to testify about the limitations on his investigative ability. Therefore, it held these claims procedurally defaulted.

Likewise, the district court denied habeas relief, holding: a federal court is not an alternative forum for the development of the factual bases for a claim; Gutierrez would only be entitled to a federal evidentiary hearing upon showing the claim relies on a new rule of constitutional law or the facts could not have been previously discovered through the exercise of due diligence, and those facts would show, by clear and convincing evidence, Gutierrez was actually innocent of the offense, see 28 U.S.C. § 2254(e)(2); and Gutierrez had been afforded a full opportunity at the state-habeas evidentiary hearing to develop the factual basis for his claims. USDC Opn., 392 F.Supp.2d at 890-91.

Gutierrez maintains a COA should issue on whether he can show cause and prejudice, based on insufficient funding, for procedurally defaulting on these claims in the state-habeas court. Reasonable jurists, however, would not debate that the district court was correct in concluding that the state-habeas court was not unreasonable in holding them procedurally defaulted.

As the district court noted: “Petitioner alleges no specific facts showing his state habeas counsel exercised due diligence to investigate, develop, and present any of [his] unexhausted claims herein to [the] state habeas court”. Id. at 891. Accordingly, Gutierrez fails to satisfy the two-prong standard for obtaining a COA for the district court's procedural ruling.

F. In the final point for consideration, Gutierrez contests the district court's denial of his motion for investigative assistance to develop the procedurally-defaulted claims discussed above in part II.E. Pursuant to 21 U.S.C. § 848(q)(9), a district judge, in a capital case, “upon a finding that investigative, expert, or other services are reasonably necessary for the representation of the defendant”, may authorize funding for such services. “This court has held that a COA is not necessary to appeal the denial of funds for expert assistance.” Smith v. Dretke, 422 F.3d 269, 288 (5th Cir.2005).

Instead, we review for an abuse of discretion the denial of § 848(q) funding. Id. As Smith noted, [t]his court has upheld the denial of such funding when a petitioner has (a) failed to supplement his funding request with a viable constitutional claim that is not procedurally barred, or (b) when the sought-after assistance would only support a meritless claim, or (c) when the sought after assistance would only supplement prior evidence. Id. (internal citation omitted; emphasis added).

Gutierrez has not shown the district court abused its discretion in failing to grant additional investigative assistance. “[Gutierrez'] right under 21 U.S.C. § 848(q)(9) to the assistance of experts where reasonably necessary to press his habeas claims does not entitle him to a federal evidentiary hearing when he has failed to ... develop his evidence in state court”. Turner v. Johnson, 106 F.3d 1178, 1184 n. 16 (5th Cir.1997) (internal citations omitted); see also Riley v. Dretke, 362 F.3d 302 (5th Cir.2004) (holding petitioner cannot show a substantial need for investigative assistance when the claims he seeks to pursue are procedurally barred), cert. denied, 543 U.S. 1056, 125 S.Ct. 866, 160 L.Ed.2d 781 (2005).

III. For the foregoing reasons, a COA is DENIED.