In July 1993, Johnny Martinez, then 20, entered a convenience store
in Corpus Christi.
He used the store's restroom, shoplifted several items, and observed
that the clerk was the only other person in the store. He went back
out to his car, which was driven by Paul Wortman, 23, and waited.
After about 20 minutes, Martinez went back in to the store, put a
pocket knife to the throat of the 20-year-old clerk, Clay Peterson,
and demanded money.
After Peterson gave Martinez the contents of the store's cash
register -- $25.65 -- Martinez stabbed him eight times in the neck,
back, and shoulders. Wortman, watching what was happening inside the
store from his car, drove away. Martinez fled on foot. Peterson,
still conscious, called 911. He died soon afterward.
Martinez fled to a nearby motel. He then called police and admitted
to the crime. He waited there for police to arrive, and was arrested.
Martinez v. State, 924 S.W.2d 693 (Tex.Cr.App. 1996)
At his execution, Martinez made a lengthy final statement that was
critical of his original lawyers. "My trial lawyers -- they are the
ones that are killing me," he said. "I know I'm fixing to die, but
not for my mistakes. I'm dying for the mistakes of my lawyers."
Martinez also thanked Lana Norris, who did not attend the execution,
for her attempt to save his life. "It meant a lot to me," he said.
Concluding, he told his family, "I am fine, I am happy. I will see
you on the other side."
Texas Attorney General
Monday, May 20, 2002 - Johnny
Joe Martinez Scheduled to be Executed.
AUSTIN - Texas Attorney General John Cornyn
offers the following information on Johnny Joe Martinez, who is
scheduled to be executed after 6 p.m. on Wednesday, May 22, 2002.
Jan. 27, 1994, Johnny Joe Martinez was sentenced to death for the
capital murder of Clay Peterson during a robbery, which occurred in
Corpus Christi, Texas, on July 15, 1993. A summary of the evidence
presented at trial follows:
FACTS OF THE CRIME
On July 15, 1993, at approximately 3:20 a.m.,
Johnny Joe Martinez entered a 7-Eleven convenience store in Corpus
Christi and fatally stabbed the store's clerk with a pocketknife.
According to the store's security camera videotape, the clerk, 20-year-old
Clay Peterson, was working alone at the store when Martinez put a
pocketknife to his throat and demanded money.
complied with Martinez' orders and surrendered the money in the
store's cash register, Martinez stabbed Peterson about 10 times,
including twice in the neck. Peterson also sustained several
scratches to his neck and defensive wounds to his hands.
Martinez had previously visited the same
convenience store only 20 minutes before murdering Peterson. During
the initial visit, Martinez used the store's restroom and shoplifted
several items, then returned to his companion's waiting car and
contemplated how easy it would be to rob the store.
Martinez was indicted for the capital murder of
Clay Peterson on July 15, 1993, in the 347th Judicial District Court
of Nueces County, Texas. He pled "not guilty."
Trial on the merits began on Jan. 24, 1994, and
on Jan. 26, 1994, the jury returned a verdict of "guilty." Following
a separate punishment hearing, the same jury answered "yes" to the
future dangerousness special issue and found that no mitigating
circumstance warranted that Martinez be sentenced to life
imprisonment. Consequently, the trial court assessed punishment at
Martinez' conviction and sentence were
automatically appealed to the Texas Court of Criminal Appeals, but
the court affirmed and denied rehearing. Martinez did not seek
certiorari review in the Supreme Court.
On April 21, 1997, Martinez petitioned for state
habeas relief. The state habeas court recommended that relief be
denied, and on April 29, 1998, the Court of Criminal Appeals adopted
On July 23, 1998, Martinez filed a petition for
federal habeas corpus relief in the district court. The district
court entered a final judgment denying relief on Aug. 24, 1999, but
allowed Martinez to appeal the judgment to the Fifth Circuit Court
of Appeals. In a published decision issued June 22, 2001, the Fifth
Circuit affirmed the district court's denial of relief.
On Feb. 25, 2002, the Supreme Court denied
Martinez' petition for writ of certiorari. Martinez filed a
successive state writ in the Court of Criminal Appeals on or about
April 12, 2002. The Court of Criminal Appeals denied Martinez's
successive state writ on May 1, 2002.
On May 15, 2002, Martinez filed in the U.S.
Supreme Court an application for a stay of execution and another
petition for a writ of certiorari. A second successive state writ
was filed on May 16, 2002, in the Court of Criminal Appeals.
PRIOR CRIMINAL HISTORY
Martinez has no prior criminal history.
Texas Execution Information
Center by David Carson
Johnny Joe Martinez, 29, was executed by lethal
injection on 22 May in Huntsville, Texas for the robbery and murder
of a convenience store clerk.
In July 1993, Johnny Martinez, then 20, entered a
convenience store in Corpus Christi. He used the store's restroom,
shoplifted several items, and observed that the clerk was the only
other person in the store. He went back out to his car, which was
driven by Paul Wortman, 23, and waited.
After about 20 minutes, Martinez went back in to
the store, put a pocket knife to the throat of the 20-year-old clerk,
Clay Peterson, and demanded money. After Peterson gave Martinez the
contents of the store's cash register -- $25.65 -- Martinez stabbed
him eight times in the neck, back, and shoulders. Wortman, watching
what was happening inside the store from his car, drove away.
Martinez fled on foot. Peterson, still conscious, called 911. He
died soon afterward. Martinez fled to a nearby motel. He then called
police and admitted to the crime. He waited there for police to
arrive, and was arrested.
The killing was caught on video tape by a store
Martinez said that he knew he had wounded
Peterson, but did not know the wounds were fatal. He said that he
called 911 to request an ambulance for Peterson and, as he was being
arrested, asked police whether the victim was going to be alright.
A jury convicted Martinez -- who had no prior
criminal history and no record of violence -- of capital murder in
January 1994 and sentenced him to death. According to Martinez'
prison admission record, Paul Joseph Wortman was also charged with
capital murder, but this information was not corroborated by any
In appeals, Martinez' lawyer argued that his
death sentence was unwarranted because Martinez was not shown to be
a future danger to society. Under Texas law, the jury must believe a
defendant to be a future danger in order to impose a death sentence.
Prosecutors stated that the brutal nature of the killing, as seen in
the video tape, proved that Martinez was dangerous. The Texas Court
of Criminal Appeals upheld his conviction and sentence in May 1996
by a 5-4 vote. All of his subsequent appeals in state and federal
court were denied.
About three weeks before Matinez' execution, he
met with Peterson's mother, Lana Norris, at her request. They met,
accompanied by Martinez' lawyer, for about four hours in the chapel
of the Polunsky Unit in Livingston.
After that session, Norris wrote
a letter to state parole officials asking them to commute the
killer's sentence to life in prison. "There is no doubt in my mind,
that to execute Mr. Martinez would be a double crime against society.
Here is a young man that has truly repented and regrets his actions,"
she wrote. Norris also requested an opportunity to meet with the
members of the Texas Board of Pardons and Paroles in person.
In a death row interview, Martinez said that he
was drunk and high on marijuana the night that he killed Peterson.
"I was young, stupid," he said. "There's not one day I don't think
about what I did. I wish I could bring him back." He said that he
was "very grateful" for the letter Norris wrote on his behalf, and
receiving her forgiveness "lifted a tremendous weight off my
Nevertheless, he said that wished more attention
was being paid to his claim that his original appeals lawyer was
incompetent. "I haven't had the chance to show my case," he said. "You
know, everybody is now focusing on this letter. Why not focus on my
Despite Norris' plea, she did not get to meet
with the members of the parole board. In an unusually close 8-7
vote, the board voted against recommending clemency for Martinez.
At his execution, Martinez made a lengthy final
statement that was critical of his original lawyers. "My trial
lawyers -- they are the ones that are killing me," he said. "I know
I'm fixing to die, but not for my mistakes. I'm dying for the
mistakes of my lawyers."
Martinez also thanked Lana Norris, who did
not attend the execution, for her attempt to save his life. "It
meant a lot to me," he said. Concluding, he told his family, "I am
fine, I am happy. I will see you on the other side." Johnny Martinez
was pronounced dead at 6:30 p.m.
Convicted Killer Executed for Slaying of Store
By Michael Graczyk -
May 23, 2002
HUNTSVILLE -- Convicted killer Johnny Joe
Martinez was executed Wednesday evening for fatally stabbing a
Corpus Christi convenience store clerk nine years ago.
In a lengthy final statement, Martinez was
apologetic and bitter, blaming his state-appointed appeals lawyers
for his death. "I know I'm fixing to die, but not for my mistakes,"
Martinez said. "My trial lawyers, they are the ones who are killing
Martinez had insisted that his initial appeals
lawyers were incompetent and inexperienced and failed to take the
proper steps to get him off death row. Late appeals, including some
to the Supreme Court this week, were rejected.
He apologized to the parents of his victim, Clay
Peterson. Peterson's mother, Lana Norris, lobbied for his sentence
to be reduced to a life term. "I want to thank you," he said,
referring to Norris. "It meant a lot to me." His voice shaking,
Martinez said he failed to call his own mother Wednesday. "Tell my
mother I love her, too. I didn't call her because I just couldn't,"
Board Affirms Killer's Execution by One Vote
sad about it,' says victim's mom, who had sought life for inmate
By Diane Jennings - Dallas Morning News
May 21, 2002
Despite a plea from the mother of the man he
murdered nine years ago, Johnny Joe Martinez fell short by one vote
Monday in his request for commutation of his death sentence. The
Texas Board of Pardons and Paroles voted 9-8 to reject life
imprisonment for Mr. Martinez and 12-5 against a temporary reprieve.
The one-vote margin is unusual in a death case.
Mr. Martinez is scheduled to be executed at 6
p.m. Wednesday for the 1993 stabbing death of 20-year-old
convenience store clerk Clay Peterson in Corpus Christi. Mr.
Peterson's mother, Lana Norris, had written the board this month
asking that members commute the death sentence to life. "Please do
not cause another mother to lose her son to murder, needlessly!" she
wrote. Monday afternoon, she said she supported whatever decision
the board made, "even though we're sad about it." "We will be
praying for Johnny and for his family," Ms. Norris added.
Ms. Norris wrote the letter, at Mr. Martinez's
request, after a lengthy and intense face-to-face mediation session
with him on death row in Livingston. Mr. Martinez's mother, Mary Lou
Chavera, started crying when informed of the board's vote. "My son
lost?" she asked. "So he will be executed? Oh, my God."
Members of the board said death penalty decisions
are always difficult. Ms. Norris' letter was a factor, but not the
determining one, in their respective decisions, they said. Member
Paddy Burwell said he voted to commute Mr. Martinez's sentence
because he didn't agree that Mr. Martinez was a danger to society.
Mr. Martinez, who was 20 at the time of the crime, had no previous
criminal record. He considered Ms. Norris' letter carefully, he
said, but, "You have to watch the emotion thing." He said the
mother's feelings weren't the only consideration. Mr. Burwell said
he hoped the close vote would make people realize "we work these
things hard, and we're not 'rubber stamping,' [which is] what we've
Board member Filiberto Reyna said he voted
against commutation because "my perspective is more of a societal
issue than just the wishes of the victim's family." "I try to look
at every aspect of the case," he said. "Unfortunately, in the past
we've been accused of basically rubber stamping things. I think
sometimes people get the impression I'm sitting at home in my
bathrobe drinking my breakfast coffee, [saying] 'Fax this down
there.' That's not the case at all." Board members generally vote by
fax instead of meeting in person.
A public hearing was not held in the Martinez
case because not enough board members requested one, Chairman Gerald
Garrett said last week. Mr. Garrett also voted to deny a commutation
or reprieve for Mr. Martinez but declined to explain why. "We're at
a point right now that is always delicate," he said.
rendered our decisions, and the date still looms ahead. And
litigation is always a strong possibility, so I'm not going to
pontificate on this." Commutations, recommended by the board and
approved by the governor, are rarely granted in a death case. Mr.
Garrett said he could recall only one in recent years.
Mr. Martinez's lawyer, David Dow, was stunned by
the close vote. "I am gratified that eight members of the board
voted to recommend that Mr. Martinez's life be spared, but eight
votes do not accomplish justice in this case," he said. Mr. Dow has
said repeatedly that the merits of Mr. Martinez's case have never
been reviewed by an appellate court because the previous appellate
lawyer appointed by the court had little experience in post-conviction
work and did little on the case. "I am appalled that nine members of
the board ... would vote to execute someone whose access to the
courts has been repeatedly and consistently denied," he said.
Mr. Dow filed a lawsuit on behalf of Mr. Martinez
and two other death row inmates with the 5th U.S. Circuit Court of
Appeals on Monday, claiming that their civil rights were violated by
the appointment of incompetent attorneys for state appeals.
has two pleadings on file with the U.S. Supreme Court. A separate
effort was rejected by the Texas Court of Criminal Appeals on Monday.
Mr. Dow said it was heartbreaking to lose a bid to save someone from
the death chamber by one vote. "In a way, it's easier to lose by a
decisive margin than by a close vote," he said. "I was prepared to
be outraged by a decision of 12-5 or 11-6, but a 9-8 decision, I
think, indicates pretty strongly that the complaint that Mr.
Martinez had about whether he's received access to the judicial
process in this case was not an invented or an exaggerated claim."
The Nueces County district attorney's office,
which prosecuted Mr. Martinez, could not be reached for comment on
the board's vote. Death row inmates typically are moved from the
Polunsky Unit in Livingston to Huntsville, where the execution
chamber is housed, the day before a scheduled execution.
Executing Johnny Joe
By David Dow - Deathrow.at
JOHNNY MARTINEZ - Execution date: 5/22/2002.
My client, Johnny Joe Martinez, is scheduled to
be executed in Texas on May 22. In 1994, he committed murder, and he
has been remorseful literally since the moment he did so.
Immediately after stabbing Clay Peter-son, a clerk at a convenience
store in Corpus Christi, he dialed the 911 operator to call for an
ambulance for his victim and then turned himself in. After waiting
for the police to come pick him up, the first thing he inquired
about was the condition of the man he had stabbed. The man had died.
There were no warning signs that Martinez would
commit this murder. He had never before been convicted or even
arrested for any crime. He had never acted violently, even when, as
a young man, he was taunted for his effeminate characteristics. But
on one night, drunk and in the company of another man, he took a
The death penalty is not designed for men like
Martinez. The Supreme Court held twenty-five years ago that it is
not permissible for a state to execute someone simply because that
person commits murder. It is necessary for the state to establish
something in addition to the murder: the crime was unusually
horrific, or that the murderer will likely kill again. Neither of
these criteria justifies the execution of Martinez. So why is he on
The simple answer is that his lawyers made two
costly mistakes. Death penalty trials occur in two stages. First,
the state must establish that the defendant committed the act for
which he is being charged.
If the defendant is found guilty, then,
at the second stage, the punishment phase, the state’s task is to
provide evidence that the defendant should be executed. The defense
lawyer’s task at the punishment phase is to persuade the jury that
the defendant is worth saving, that he has redeeming qualities. This
is not to excuse the commission of the murder, but to justify a life
sentence rather than the death penalty.
At Martinez’s trial, the state did not introduce
any punishment phase evidence at all, for there was nothing to
introduce. Martinez did not have a checkered past. He was not a
career criminal. He was not a defendant whom the jurors could easily
regard as a savage animal rather than a human being.
Yet the state
requested the death penalty, and that meant Martinez’s lawyer had to
do something. He did not. He barely put on a case at all. He did
more than nothing, but not nearly enough. That was the first
mistake. As a consequence, the jury sentenced Martinez to death.
One might think, in view of the fact that
Martinez is set to be executed next month, that some court has
determined that Martinez’s trial lawyer was not in fact as inept as
I have suggested. If one were to reach that conclusion, one would be
wrong. No court at any level–neither state nor federal–has ever
addressed the question of whether Martinez’s trial lawyer was
The tragically surreal reason is that Martinez had the
misfortune of having a second lawyer who was even worse than the
The lawyer appointed to represent Martinez in his
habeas corpus appeals had never handled a death penalty appeal
before. The role of that lawyer, like the job of all death penalty
habeas lawyers, was to point out exactly how the trial lawyer had
been ineffective. Habeas lawyers proceed by first determining what
the trial lawyer could have done, but didn’t.
lawyer, however, conducted no such inquiry. He filed legal pleadings
that demonstrated that he had no familiarity with death penalty
litigation, an unusually arcane area of law. He never once
challenged the competence of the trial lawyer in the documents he
filed in state court. That was the second mistake. No state court
addressed the competence of Martinez’s trial lawyer, because
Martinez’s habeas lawyer neglected to ask the state court to do so.
Once the case made its way to federal court,
which is when I became involved in the litigation, it was too late.
The federal courts will not consider an issue that is not first
presented to the state courts. Martinez’s new lawyers implored the
federal courts to create an exception to this rule for cases where
the state habeas lawyer’s incompetence was the only reason the case
did not come before a state court. But the federal courts declined
Martinez’s plea and ruled against him, because they viewed
themselves as bound by previous decisions of the Supreme Court.
result is a man on death row in Texas who would not be there if he
had received competent legal representation at his trial. That is my
opinion. No court has agreed with that assessment, but no court has
disagreed with it either, because no court has been willing to
I have told my client that his lawyers have not
given up, and that we plan to ask the Supreme Court to review the
case if the state’s highest court once again turns us down. But I
have also told him that he should prepare himself for the worst.
Courts are not fond of death penalty appeals, at least when the
death row inmate does not claim that he is innocent, and Martinez
has admitted from the outset that he made a terrible mistake. Yet he
is on the precipice of losing his life not because of his mistake,
but because of those of his lawyers.
David R. Dow is a professor at the University of
Houston Law Center. His book, Machinery of Death (edited with Mark
Dow), will be published in May by Routledge.
PLEASE READ... The contents of this web page
carefully because although it mainly concerns me, it also reflects
the story of others who are in the same situation as I am or worse.
As you read on you will learn the difference between my pleading for
help and the many others pleading for help.
I'm a Texas Death Row innate who is pleading for
help from you and others in the free world. I'm at the end of my
appeals and my lawyer has advised me to prepare for the worst
because the State of Texas is getting an execution date for the
middle of next year ready for me. I knew the time would come, but
like everyone here we hope it never does and I wasn't expecting it
this soon. So not only am I preparing mentally for it, I'm also at
work now to die with dignity and pride.
I'm trying to reach out to
you and others who have the compassion and care which is enough to
help me raise needed funds to pay for my burial. I need people like
you that are willing to buy my artwork because my family can not
afford the 5 thousand or so to bury me. I can get buried here on the
prison grounds, but I don't want to because they lay you to rest in
a small box naked with a small white cross with your number on it.
Prisoners do all this burying thing. I want to to go back home and
get buried with the family I love, know and love me.
I hope you can understand my predicament and what
I 'm trying to do. I know I will not be able to raise the 5 thousand
or so I'll need by drawing so I will rely on donations as well.
Since I don't have a savings account to where the financial help,
could be sent I'm relying on my mother's address. I need your help
in this, I really do. I hope you can understand why I need your
help. Please buy a drawing from me or donate something to help pay
for my burial.
If you can help in any way, please sent it to my
mother's address and call her as well and let her know that she is
not alone in this. We all are in this together. I'm going to do my
part and draw till I can not no more. I will be drawing nice Indian
black / white portraits on 15 by 20 illustration boards. If you
donate 100.00 dollars or more I will send a portrait to you. For
people that can not afford that and still give for my burial fund
and wish to receive a picture, feel free to write me and let me know
I will do my best to get you one as well.
Mary Lou Chavera
c/o Johnny Martinez's Burial Fund
1220 N. 17th., Apt. 58
Please read on to learn more of the background of
my case . . .
a. State Proceedings
In January of 1994, I was convicted of capital
murder and sentenced to death for the killing of Mr.Peterson, a 7-11
clerk, during the early morning of July 15, 1993. The evidence
showed that after a night of heavy drinking at several nightclubs,
robbed a Corpus Christi, Texas 7-11 and threatened the clerk with a
small pocketknife, and stabbed him quickly before leaving,
inflicting a fatal wounds. Immediately after leaving the store, ran
to a nearby beach and collapsed, sobbing for approximately ten
minutes. Then walked to a hotel lobby, called the police and turned
myself in. The police arrived and took me into custody.
I expressed concern for the victim's condition,
and tried to help the police locate the murder weapon, which I had
thrown away while running from the store. Once I reached the station
house, I asked to speak to a police officer immediately. The officer
who took my statement described me as "upset and very remorseful." I
was convicted of capital murder based on my statement and a
surveillance videotape partially depicting the crime.
At the punishment phase of the trial, the state
presented no evidence. I had no prior contact with the criminal
justice system whatsoever, and District Attorney's investigators
could find no evidence that I had ever committed any other violent
acts. The state relied soley on the nature of the crime to support a
finding of future dangerousness, which is required in order to
authorize a death sentence under Texas law.
The defense called some
of my family members and friends , who testified to my non-violent
character and mentioned that I had never known my natural father and
that I grew up in a government housing project. The remarks were
superficial, taking up only 37 pages of the trial record.
presented no rebuttal case. Once the trial was over I proceeded on
an appeal of my death sentence. The first step of the appeal is at
the Courts of Criminal Appeals (C.C.A.). Once there my death
sentence was upheld by a fragmented 5-4 vote of the C.C.A. in 1996.
On this vote three judges of the CCA dissented at length in two
seperate opinions, arguing that the evidence was constitutionally
insufficient to support the jury's finding of future dangerousness.
My second step of my appeal a Corpus Christi
lawyer ("state habeas counsel") was then appointed on March 13,
1997, to file a state postconviction application on my behalf
pursuant to TEX. CODE. CRIM. PROC.ANN.ART.11.071, which requires the
CCA "under rules and standards adopted by the court, to appoint
competent counsel" to indigent death row inmates for state
The statute requires counsel to "investigate
extraditiously. . .the factual and legal grounds for the filing of
an application for a writ of habeas corpas." On April 9, 1997, state
habeas counsel wrote me advising me that he had heen appointed and
was locating the transcript of my case. On June 9, 1997, state
habeas counsel wrote me and told me that he had started to "wade
through" the record and had identified a few potential issues.
Counsel closed the letter by promising to "get up there (to visit)
sometime soon." However state habeas counsel never visited me and
rejected all of my telephone calls. In fact, after this last letter,
state habeas counsel did not communicate with me in any form for
almost eight months.
To prepare my writ, the state habeas lawyer read
the record. He hired no experts or investigators, never spoke to my
family menbers or friends, and performed no investigation himself,
except possibly for a brief telephone call to trial counsel. On
September 8, 1997, state habeas counsel filed my application. It
briefed four claims.
The first two claims generally repeat arguments
raised and decided during direct appeal; the remaining two claims
assert juy selection errors. The application does not bolster the
two already-decided claims with new facts or legal briefing, and
does not explain why the record-based jury-selection claims could
not have been raised on direct appeal. My entire Application is six
pages long and he did not send me a copy of this pleading when it
The State filed an Answer to the Amended
Application on October 18, 1997. On November 11, 1997, state habeas
counsel filed proposed findings of fact and conclusions of law. This
document was two pages long. Once again, state habeas counsel did
not send me a copy of this pleading when it was filed. On November
24, 1997, the state filed its Proposed Findings of Fact and
Conclusions of Law. I having had no communication from my lawyer for
months, wrote him on February 9, 1998:
excerpts from my letters I wrote him on different
occasions . . .
I would like to know the status of my appeal.
when I referred back to the last letter I received from you which is
dated June 9, 1997, ) You mentioned that you would advise me of any
further developments in my appeal. so I am wondering if there has
been any new developments on my appeal or has anything helpful
Please get back with me as soon as possible and
let me know what is going on with my Habeas Corpus appeal, please
keep me informed of any and all things dealing with my appeal
Mr. Rhodes, please don't get me wrong, I am not
trying to sound pushy or anything like that, it's just that I'm in
the dark here and my life is on your hand, I am putting all my faith
and hope in you , so please keep me informed and lets stay in touch
State habeas counsel ignored this letter. On
February 19, 1998, the state habeas court signed the State's
findings of fact and conclusions of law verbatim, extinguishing my
right to develop facts to support my clams in state court. I
remained unaware of this development, because state habeas cousel
did not communicate the fact of the trial court's ruling.
On February 23, 1998, I again wrote state habeas
I wrote you a letter on the 9th of this month and
I still have not heard from you. I want you to get in touch with my
family so they can help you look into some very important things
that-- will benefit and help me in my case. Have you hired the
investigator I told you to Mr. Rhode so he can talk to numerous
helpful witnesses. Theirs one particular witness I want you to talk
to and his name is Santos Leal... I Irnow if you file a motion for
investigator funds to the C.C.A. they will grant it and supply
$2,500 for us to hire one. These things I'm telling you are very
important issues I want you to raise. Their are numerous witnesses
that I beleive will help me on my State Habeas Corpus Write we just
need to get a hold of them.
In respond to this letter, state habeas counsel
sent me the first communication I had received from him in almost
eight months. It consisted of a two sentence letter accompanied by
copies of the habeas application that had been filed months before
and the trial judges findings of fact and conclusions of law. By
this time, my case hd been transferred to the CCA for appellate
On April 29, 1998 the Court of Criminal Appeals
denied all relief in a Cursory two page Order. Judge Charles Baird
Applicant is represented by counsel appointed by
this Court. The instant application is five and one half pages long
and raises four challenges to the conviction. The trial record is
never quoted. Only three cases are cited in the entire application,
and no cases are cited for the remaining two claims for relief.
Those claims comprise only of 17 lines with three inches of margin.
It is a proven fact that it takes at least a
little over 500 hours to investigate a capital case and that is
still not thoroughly, I wasn't aware of none of this.
After reading Judge Baird's dissenting opinion
calling his performance into question and calling for a hearing into
his competence, state Habeas counsel, without consulting me, filed
on May 5, 1998, a Motion for Reconsideration asking to withdraw from
the case. State habeas counsel admitted: "Petitioner Johnny
Martinez's attorney...has handled many direct appeals but has never
handled a post-conviction writ of a death penalty case and therefore
must humbly agree with the dissenting opinion in this case (without
joining in its reasoning) that merits of this application should not
State habeas counsel sent me a copy of the Motion for
Reconsideration. As soon as I received these documents and realized
what state habeas counsel had done on my behalf, I wrote the CCA and
asked them to allow me another opportunity to seek habeas relief :
The (state habeas application filed on my behalf)
didn't raise any issues from the record or elsewhere that I sent him
and told him I wanted raised and preserved.
In the Motion to Reconsider that Mr Rhodes filed
to the Criminal Courts of Appeal on May 5, 1998, he practically
admits that he didn't know what he was doing in handling a State
Habeas Corpus Writ. He is also requesting to be allowed to withdraw
from my case without even consulting me at all...Therefore I pray
that you will appoint me a competent attorney. An Attorney that
knows how a State Habeas Corpus Writ proceedings process works and a
few months to give him to file my State Habeas Corpus Writ.
Shortly after, I wrote state habeas counsel,
asking him to withdraw and file an affidavit attesting to his
ineffictiveness because that was the "the only way I can think of to
get another chance at my State Habeas Corpus Writ proceedings."
State Habeas Counsel refused to comply, and counsels request to the
CCA to withdraw from the case (which was seconded by me) was denied,
because he filed the wrong papers and when he did it right time had
b. Federal Habeas Proceedings (3rd Step of my
During federal habeas proceedings, my lawyers Ms.
Simonson and Mr. Andrew Hammel investigated my background. All of my
family members and friends confirmed that trial counsel prepared for
the punishment phase of the trial by gathering them together and
asking them two or three general questions about me.
in an affidavit submitted to the district court (but not admitted
into the record,) later confirmed that this was the extent of his
investigation. He stated that he failed to thoroughly investigate my
background because he believed he would prevail on the future-
dangerousness special issue, and felt that any mitigating
information would endanger this goal. When our retained investigator
explained the importance of mitigating evidence to them and
questioned them seperately in detail , they volunteered considerably
more mitigation evidence - all of which they would have been willing
to testify about had they known it was relevent.
Based on this
investigation, my lawyers asserted that trial counsel's inadequete
preperation for the punishment phase of his trial constituted
ineffective assistance of counsel (IAC) in violation of the Sixth
Amendment to the United States Constitution. My lawyers asserted
that the error was especially likely to have harmed me in light of
the weakness of the state's punishment phase case.
This claim was unexhausted because it had not
been presented to the state courts. The federal district, in
accordance with recent Fifth Circuit interpretations of [Coleman V.
Thompson, 501 US. 722 (1991), refused to review the claim. The Court
held that the claim was procedurally defaulted, and that no "cause"
could be shown to excuse the default because ineffective assistance
of postconviction counsel cannot constitute "cause."
court noted that it was "not unmoved" by the "harsh" consequences of
the rule (given state habeas counsel's inadequacy), but opined that
it was "bound" to apply existing precedent. The District Court
granted a certificate of appealability as to all issues. Which is
very unusual in a capital case.
My appeal as it stands now revolves primarily
around the validity of the District Court's default of the claims.
My. federal appeal has been litigated from the beginning with the
overriding goal of preparing a thorough record of state
postconviction counsel's performance. My case is an ideal posture
for several reasons:
1. The record surrounding State habeas counsels
performance is essentially undisputed. None of my specific factual
assertions concerning state habeas counsels performance was
contested by the Attorney General.
2. The IAC claim overlooked by state habeas
counsel could not have been advanced during direct appeal
proceedings, both because it would have required extra - record
factual development and because my solo trial counsel also
represented me alone on direct appeal (1st step of appeal.)
3. The IAC claim was not presented to the state
court and not ruled on by the federal court. Therefore there is no
"alternative" merits ruling" which later courts can cite to soften
the blow of the procedural default.
4. As the letters excerpted above show, I
constantly prodded my lawyer to perform extra-record investigation,
and even prodded the lawyer to contact my family members and friends,
who later proved to be valuable sources of information.
5. The District Court's grant of a certificate of
appealability as to all issues, which is rare in Texas capital
cases, significantly increases the likelihood of oral argument and
an opinion more reasoned and an opinion more reasoned and thorouhg
than would otherwise be the case.
Finally, my counsel consulted with experienced
habeas litigators and presented the district court with every
possible argument for the expansio of the right to counsel in state
postconviction. These arguments were summarized and dismissed in the
District Courts order as mere attempts to repackage my Sixth
Amendment arguments. THEY HAVE YET TO BE MEANINGFULLY ADDRESSED BY
ANY COURT. Among the arguments presented were :
1. The COLEMAN exception should be addressed and
expanded by the Court.
2. I was denied "meaningful access to the courts"
under the reasoning of Justice Kennedy's opinion in [Murray V.
Giarratano1 492 r~.s. 1 (1989)].
3. The State of Texas, by promising me
"effective" counsel and then breaking that promise, frustrated my
reasonable reliance interests and thus violated Due Process. This
constitutional violation can serve as "cause" to excuse my
4. Due process has also been violated because I'm
being punished by forfeiture of meaning access to a vital stage of
appellate review without any showing of wrongdoing on my part.
5. Permitting certain inmates to be SELECTIVELY
denied access to competent counsel and thereby to state and federal
habeas review violates Equal Protection and fosters the kind of
arbitrariness which the Eighth Amendment forbids in capital
6. By promising me competent counsel and then
breaking that promise, the State created an "objective factor '
external to the defense," which prevented me from complying with its
procedural rules, thereby supplying "cause" to excuse the default.
7. The state's broken promise of competent
counsel created a set of circumstances which rendered state habeas
proceedings ineffective to protect my rights, thereby excusing
exhaustion ( and nullifying procedural default.)
8. Because I took all reasonable steps necessary
to try and prod my lawyer into investigating my case and presenting
my claims to the state courts, I cannot be held to have "failed to
develop" the factual basis for my claims in state court.
9. State habeas counsel's conduct demonstrated
the " gross negligence" necessary to permit me to disavow the agency
component of the attorney client relationship and thereby reject the
limits impose on my representation by state habeas counsel.
10. Application of COLEMAN in these circumstances
would pervert principles of state-federal comity by permitting
states to deprive condemned inmates of federal review of their
claims by appointing incompetent counsel to represent them at the
state level. The most important step of them all.
11. The drastically increased importance of
meaningful state habeas review in light of the AEDPA and other
reforms counsels a re assesmant of procedural default jurisprudence.
The purpose of making so many arguments is to
provide the Fifth Circuit (4th step of appeal) with an avenue to
grant merits review to me without necessarily requiring the court to
confronting the issue of weather the Sixth Amendment guarantees
competent state postconviction counsel (a proposition they have
emphatically rejected in all previous cases). My counsel is not
aware of another case in which the issue has received the amount of
briefing and development as it has in this case.
Unfortunately, there are dozens of Texas capital
appeals in which the petitioners have received assistance comparable
to (or even more superficial than) mine. These cases are being
processed through state court quickly, and will be reaching Fifth
Circuit district courts very soon. Thus, any positive development in
my case in the Fifth Circuits jurisprudence would have immediate far
reaching consequences and may help prevent the approaching flood of
Texas cases in which condemned inmates will be executed without
having recieved any meaningful postconviction review.
You the people can do something to help me by
alerting the governor of Texas and letting him know that I have let
to be meaningully address by any court and that I shouldn't be
denied that. It is not my fault for being appointed an incompetent
counsel that his courts gave me in state court to do my state habeas
PLEASE HELP IN ANY WAY YOU CAN. My last thread is
HOPE, I'm depending on you and others in the free world to help me
get laid to rest with dignity and pride.
THANK YOU AND GOD BLESS YOU
Johnny J. Martinez
Martinez v. State,
924 S.W.2d 693 (Tex.Cr.App. 1996)
Looking at the evidence in the light most
favorable to the jury's verdict, the record reveals the following
facts. Appellant took the stand on his own behalf at the guilt/innocence
phase of trial. According to appellant, he and a friend left
Kingsville around 5:15 p.m. on July 14, 1993, and headed toward
Corpus Christi. They stopped on the way out of town to buy a 12-pack
of beer and began drinking it.
After they arrived in Corpus, and over the course
of the evening, the pair stopped at a number of nightclubs and
allegedly consumed multiple alcoholic drinks. They were soon joined
by a third person.
The trio was headed to yet another club when they
met a man named Ernest Wortmann and engaged him in conversation.
Wortmann decided to join the trio at the next nightclub. However,
Wortmann was having car trouble, so appellant rode with him in case
his car broke down along the way.
By the time the group closed down the last bar,
appellant had allegedly consumed twelve to thirteen alcoholic drinks.
Appellant testified that he had not eaten anything prior to the trip
and that he did not eat any food at the nightclubs.
According to appellant, the group then decided to
go to a park on North Beach. Appellant again rode with Wortmann and
the two stopped at a 7-11 convenience store where the deceased was
working the early morning shift of July 15, 1993.
Upon arriving at the 7-11, Wortmann entered the
store and asked to use the telephone. Wortmann then apparently went
back outside and told appellant that the car needed to cool down.
Appellant suggested that the two go to the beach, but entered the
store first to use the restroom.
Before leaving the store, appellant and Wortmann
are seen on the security videotape shoplifting several items. Back
outside, appellant and Wortmann engaged in conversation and Wortmann
allegedly told appellant that he was recently out of prison for
robbing stores. Appellant jokingly suggested that he rob the 7- 11.
While standing by the car, the two discussed how
easy it would be to rob the store, so appellant decided to rob it.
Appellant testified that, while he normally did not carry a knife,
he had a small knife with him that evening. He stated that he
entered the store with the intent to *695 steal money, but only
intended to use the knife to scare the clerk.
The videotape then depicted appellant re-entering
the store. Appellant is shown apparently asking the deceased for
something and when the deceased partially turned away, appellant
grabbed him around the neck and put the knife to his throat.
Appellant then forced the deceased around the counter and into the
cash register area.
The video revealed that appellant had one arm in
a choke hold around the deceased's neck and his other hand pressing
the knife into the deceased's throat. The deceased opened the cash
register and appellant took the money. Appellant then stabbed the
deceased approximately two or three times before the deceased fell
facedown and motionless on the floor. Appellant then thrust the
knife into the deceased's back several more times before exiting the
When asked why he stabbed the deceased, appellant
answered, "I don't know. That's a question I will never be able to
answer." He said that he did not intend to kill the deceased. In
fact, he told the jury that he did not even remember stabbing the
deceased as many times as he did.
According to testimony from the medical examiner,
the deceased received two stab wounds to the neck, both of which
were fatal. Each wound pierced an artery causing the deceased to
lose a great deal of blood in a very short period of time. Plus, one
wound to the top of the shoulder appeared somewhat irregular in that
it could have been caused by a twisting of the knife or by more than
one blow to the same area. Defensive cuts and scratches were
apparent on the deceased's hands. Before the deceased died, he was
able to call for an ambulance.
Appellant further told the jury that he got
scared after the stabbing and just started running. He stated that
he ran to the beach, got down on his hands and knees, and started
crying. He testified that he was not sure what he did with the knife,
but that he turned himself in shortly thereafter.
Appellant also admitted to the jury that he had
lied about several remarks he made in his statements to police.
Appellant is shown to have given conflicting statements at different
times as to the exact course of events after he exited the store. In
one, Wortmann was driving slowly in order for him to jump into the
car, while in another, Wortmann had taken off and appellant went
running after him.
A short while after the stabbing, Police Officer
Kureska was dispatched to the Sandy Shores Hotel in reference to an
individual who called the police saying he was involved in the
convenience store crime. Upon arriving at the hotel, the officer
entered the lobby and observed appellant sitting on a couch in the
presence of two security guards.
Kureska testified at trial that appellant was
very calm and quiet and seemed somewhat withdrawn. Kureska said
appellant was cooperative and did not appear to be under the
influence of alcohol. A hotel employee and one of the security
guards also confirmed that appellant did not appear to have the
smell of alcohol on his breath. The hotel employee further noted
that appellant's clothes did not appear sandy or wet. During the
trip to the police station, appellant asked Officer Ilse, "Is the
guy I stabbed dead?"
At the police station appellant was taken to a
room where he came into contact with Sergeant R.L. Garcia. Garcia
stated that appellant was angry and told the officer that he had
stabbed a man and wanted to talk to the officer "now." Garcia noted
that this was said in an insistent and demanding tone.
However, during the actual interview, appellant
was cooperative and understanding. Appellant even attempted to help
officers locate the knife he had used to stab the store clerk.
Garcia noted that appellant did smell of alcohol, but he did not
believe appellant was intoxicated.
At the punishment stage of trial, the State
presented no additional evidence. Appellant, on the other hand,
called long time friend, Verna Rodriguez, to testify to appellant's
non-violent character. However, Rodriguez also told the jury that
appellant grew up in a violent neighborhood and frequently got in
disputes with people in which he would argue verbally.
According to appellant's younger brother, David
Martinez, appellant dropped out of school in the 10th grade and
joined a job training program, but appellant never finished the
program. Martinez also recalled that his brother was involved in a
school fight. Finally, the county jail coordinator testified that
the jail did not have any "significant" problems with appellant. The
coordinator stated that appellant's jail record included three minor
write-ups including a "disagreement" with a guard.
Court of Appeals for the Fifth Circuit
255 F.3d 229
MARTINEZ, Petitioner - Appellant
GARY L JOHNSON,
DIRECTOR, TEXAS DEPARTMENT OF
INSTITUTIONAL DIVISION, Respondent -
Appeal from the
United States District Court for the Southern
District of Texas.
Before KING, Chief
Judge, and JONES and STEWART, Circuit Judges.
KING, Chief Judge:
Johnny Joe Martinez, a Texas death-row inmate,
appeals the district court's denial of his 28 U.S.C.
§ 2254 petition challenging his conviction and death
sentence. For the following reasons, we AFFIRM.
On July 15, 1993,
nineteen-year-old Johnny Joe Martinez robbed a
convenience store in Corpus Christi, Texas and
murdered Clay Peterson, a college student working
alone at the store. According to the facts developed
at trial, at approximately 3:00 a.m., Martinez drove
to the 7-Eleven convenience store with Ernest
an individual Martinez had met earlier that evening
at a nightclub.
to having consumed twelve to thirteen alcoholic
drinks during an evening spent frequenting
nightclubs. Martinez and Wortmann had left the last
nightclub near closing time, planning to meet
friends at a local park. As they were driving,
Wortmann's car began overheating.
Because of this
car trouble, they pulled into the 7-Eleven parking
lot. Martinez entered the convenience store and
asked Peterson where the restroom was located. After
using the restroom, Martinez proceeded to shoplift
several items from the store. Martinez exited the
store and rejoined Wortmann.
that as they waited for the car to cool down,
Wortmann told Martinez that he used drugs, needed
money, and was recently out of jail for robbing
convenience stores. Martinez testified that he
jokingly suggested to Wortmann that Wortmann should
rob the 7-Eleven. Martinez testified that the two
men then discussed how easy it would be to rob the
3:20 a.m., Martinez re-entered the store. The
security camera videotape shows Martinez asking
Peterson for something from the store. As Peterson
turned to retrieve the item, Martinez grabbed him
from behind and put a small pocket knife to his
throat. Martinez then forced Peterson around to the
cash register. Peterson opened the cash register and
allowed Martinez to remove the money.
stabbed Peterson in the neck once or twice, and
Peterson fell face first on the floor. When Peterson
tried to get up, Martinez stabbed him several more
times in the back. The evidence demonstrated that
Peterson was stabbed eight times. In addition, the
medical examiner testified that Peterson suffered
several scratches on his neck and defensive wounds
to his hands.
the crime, Martinez walked to a nearby beach. He
testified that he fell to his knees and cried.
Fifteen minutes after the murder, Martinez called
911 from a nearby motel, told the police dispatcher
that he had stabbed the clerk at the convenience
store, and announced that he would wait until police
arrived. He asked the dispatcher what had happened
to the man he had stabbed. Motel security testified
that Martinez appeared tired and slightly
officer testified, however, that Martinez did not
appear to be under the influence of alcohol. Upon
the officers' arrival, Martinez surrendered without
resistence. He cooperated with the officers as they
tried to find the murder weapon, which had been
thrown away after the murder. The arresting officer
described Martinez as cooperative and concerned
about what had happened. In the police car, Martinez
vomited. On the way to the station, Martinez asked
whether he had killed the store clerk.
At the police
station, Martinez confessed to killing Clay
Peterson. The officer who interviewed Martinez
described his demeanor as "upset" and "remorseful."
The officer noted that Martinez did smell of
alcohol, but he did not believe that Martinez was
intoxicated. Martinez tried to explain his actions,
fabricating stories and describing the murder in a
manner that would later prove untrue.
at the guilt-innocence phase of trial. He admitted
that there was no justification for what he did. He
insisted that he only intended to scare the clerk
with the knife and that he could not remember all of
his actions, including the stabbing. When asked on
cross-examination why he stabbed the deceased,
Martinez testified "I don't know. That's a question
I will never be able to answer." He expressed
bewilderment and remorse for his violent act. Based
on the overwhelming evidence, including his
confession and the security camera videotape,
Martinez was found guilty of capital murder on
January 26, 1994.
At the punishment
phase of trial, the State presented no evidence,
resting on the facts introduced at the guilt-innocence
phase. The defense called several witnesses to
demonstrate that Martinez had a non-violent
disposition. The defense introduced testimony from
Donna DeLeon, who supervised Martinez when he worked
with mentally retarded children at a local hospital.
DeLeon testified that Martinez was good with the
residents and did not have a violent character.
Verna D. Rodriguez,
a friend who had known Martinez for most of his life,
testified that she had never seen him behave
violently and that she was surprised that he had
committed the offense. Rodriguez also provided
information that, despite having grown up in a
violent neighborhood marked by poverty and abuse,
Martinez had never acted violently.
the petitioner's oldest brother, testified that
their natural father had not stayed with the family
and that their stepfather, Jesus Chavera, had been
murdered. David Martinez testified that he had never
known the petitioner to be involved with any
criminal activity and that he had never known the
petitioner to be violent except for a single school
fight in junior high school.
testified that he trusted petitioner to care for his
children and that there was nothing in the
petitioner's past that would have indicated the
possibility of a violent act. Frances B. Martinez,
the woman who helped raise the petitioner, testified
that he was "a good son," that she was surprised
that he had been arrested, and that there was
nothing in his past that would have indicated the
possibility of a violent act. Finally, Esequiel
Rodriguez, the Classification Coordinator and
Counselor for the Nueces County Jail, testified that
Martinez had adapted well to prison life and
displayed no serious behavior problems.
presented no rebuttal case. After consideration of
the special issues in Subsections 2(b) and 2(e) of
Article 37.071 set forth in the Texas Code of
the jury answered the future dangerousness special
issue (Subsection 2(b)) in the affirmative, and the
mitigation special issue (Subsection 2(e)) in the
negative. As a result of these answers, the trial
judge automatically sentenced Martinez to death. See
Tex. Code Crim. Proc. Ann. art. 37.071, § 2(g) ("If
the jury returns an affirmative finding on each
issue submitted under Subsection (b) of this article
and a negative finding on an issue submitted under
Subsection (e) of this article, the court shall
sentence the defendant to death.").
A. State Court
On direct appeal
to the Texas Court of Criminal Appeals ("CCA"),
Martinez was again represented by trial counsel.
Martinez raised six claims, including a primary
challenge to the sufficiency of the evidence to
support the jury's answer of "yes" to the future
dangerousness special issue. On May 22, 1996, the
CCA affirmed the conviction and death sentence. See
Martinez v. State, 924 S.W.2d 693 (Tex. Crim. App.
The CCA methodically analyzed the relevant precedent
regarding future dangerousness and determined that
"a rational jury could have determined beyond a
reasonable doubt that appellant would be a
continuing threat to society." Id. at 698.
dissented from the affirmance of the death penalty,
arguing that the CCA had found such evidence
insufficient to support a finding of future
dangerousness in cases in which the facts were more
aggravated than the facts of the instant offense.
See id. at 699 (Baird, J., dissenting in part); id.
at 706 (Maloney, J., dissenting in part).
On March 13, 1997,
pursuant to Article 11.071 of the Texas Code of
Criminal Procedure, the CCA appointed Nathaniel
Rhodes to represent Martinez in his state habeas
corpus proceeding. Rhodes had not previously handled
a state habeas corpus petition. Rhodes first filed a
skeletal preliminary Application for a Writ of
Habeas Corpus. This application contained
boilerplate claims of generic constitutional error
and was submitted in an effort to toll statutes of
limitation that might arise as a result of a change
in federal habeas corpus law.
On September 8,
1997, Rhodes filed Martinez's Amended Original
Application for Habeas Corpus. The Amended
Application was only five and one-half pages long
and raised four claims. Two claims were repetitive
of arguments previously rejected on direct appeal.
The remaining two claims asserted record-based jury
selection errors, but did not explain why these
claims could not have been raised on direct appeal.
pursuant to Article 11.071, § 8(b), Rhodes submitted
proposed findings of fact and conclusions of law.
These findings were two pages long, lacked citations
to the record, and contained no case authority. The
State submitted proposed findings of fact and
conclusions of law with citations and legal
authority; these findings were adopted by the trial
On April 29, 1998,
pursuant to Article 11.071, § 9(f), the CCA denied
relief. One judge dissented, stating:
represented by counsel appointed by this Court. The
instant application is five and one half pages long
and raises four challenges to the conviction. The
trial record is never quoted. Only three cases are
cited in the entire application, and no cases are
cited for the remaining two claims for relief. Those
claims comprise only 17 lines with three inches of
margin. Under these circumstances, the merits of the
application should not be reached. Instead, this
matter should be remanded to the habeas court to
determine whether applicant has received effective
assistance of counsel.
Ex parte Martinez,
No. Civ.A. 36840-01, 977 S.W.2d 589 (Tex. Crim. App.
Apr. 29, 1998) (Baird, J., dissenting). Further, the
dissent noted in a footnote, "Our records reveal
that counsel did not seek reimbursement for any
travel or investigatory expenses, nor request any
expert assistance in preparing the application. The
same records reflect that counsel spent less than 50
hours preparing the application." Id. at 589 n.2.
Despite the fact
that motions for reconsideration or rehearing of
habeas decisions of the CCA are not permitted
pursuant to Texas appellate procedure, see Tex. R.
App. P. 79.2(d), Rhodes filed a Motion for
Reconsideration in the CCA, which reads in part:
attorney, Nathaniel G. Rhodes, has handled many
direct appeals but has never handled a post-conviction
writ of a death penalty case and therefore must
humbly agree with the dissenting opinion in this
case (without joining in its reasoning) that merits
of this application should not be reached. Also
Petitioners [sic] attorney requests that he be
allowed to withdraw from the case and another lawyer
be appointed to represent Petitioner in this cause.
Martinez did not
know of the CCA's denial of his state habeas
petition until he obtained a copy of Rhodes's Motion
On May 20, 1998,
the CCA denied the Motion for Reconsideration.
Rhodes failed to file a request for federal habeas
representation within the CCA's statutorily required
fifteen days from the denial of relief, as required
by Article 11.071, § 2(e). See Tex. Code Crim. Proc.
Ann. art 11.071, § 2(e). Instead, Rhodes filed
another motion to withdraw as counsel. The CCA
rejected this motion and advised Rhodes to comply
with the requirements of Article 11.071, § 2(e).
B. Federal Court
In the United
States District Court for the Southern District of
Texas, Rhodes filed a Motion to Withdraw as Attorney
of Record. On July 2, 1998, the district court
entered an Order denying the Motion, observing that
Rhodes's Motion had failed to establish that there
was a pending post-conviction proceeding on
Martinez's behalf. The district court order stated:
[T]he Court notes
that Movant Rhodes would be well-advised to file an
application for habeas corpus relief on behalf of
Johnny Joe Martinez and to file contemporaneously
with that application a motion to withdraw as
attorney of record, a motion to appoint new counsel,
and a motion for permission to supplement the
application at a later date.
On July 23, 1998,
Rhodes filed a federal Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254. Rhodes
submitted the Petition on a preprinted form designed
for pro se prisoners. The Petition was accompanied
by a Motion to Withdraw as Attorney of Record, in
which Rhodes stated that another attorney should be
appointed whose "background, knowledge, or
experience would enable him or her to properly
represent the Defendant."
The district court
initially denied the Motion to Withdraw, because
Rhodes paid the five-dollar filing fee accompanying
the Petition. This payment had the unintended effect
of undermining Martinez's ability to demonstrate his
indigent status. On September 17, 1998, however, the
district court granted Rhodes's Motion to Withdraw.
With new counsel,
Martinez raised six issues in his federal habeas
petition. Martinez claimed that (1) trial counsel
rendered ineffective assistance of counsel at the
punishment phase of trial in violation of the Sixth
Amendment by failing to adequately investigate and
present mitigating evidence; (2) trial counsel
rendered ineffective assistance at the punishment
phase of trial in violation of the Sixth Amendment
by failing to present relevant psychiatric evidence
concerning Martinez's future dangerousness and
mitigating factors; (3) the CCA unreasonably applied
clearly established federal law when it determined
that the jury's finding of future dangerousness was
supported by sufficient evidence; (4) the CCA denied
Martinez his Eighth Amendment right to meaningful
appellate review of his death sentence when it
deviated from precedent and held the evidence
sufficient to support the jury's positive answer to
the future dangerousness special issue; (5) the CCA
denied Martinez his state-created liberty interest
in meaningful appellate review of the future
dangerousness special issue when it deviated from
analogous precedent and rejected his challenge to
the sufficiency of the aggravating evidence; and (6)
the trial court denied Martinez his Eighth and
Fourteenth Amendment rights when it denied him the
opportunity to inform the jury that a sentence of
life would render him ineligible for parole for
On August 25,
1999, the district court denied all claims. The
district court found that Martinez's two punishment
phase ineffective assistance of counsel claims were
procedurally defaulted and that the incompetence of
state habeas counsel could not serve as "cause" to
excuse the procedural defaults. The district court
denied Martinez's claim that the evidence of his
future dangerousness was insufficient, applying the
test announced in Drinkard v. Johnson, 97 F.3d 751
(5th Cir. 1996), abrogation recognized by Beazley v.
Johnson, 242 F.3d 248, 256 (5th Cir. 2001).
The district court
found that, as a matter of federal law, there was no
reason why the events of the crime could not be
sufficient to support a finding of future
dangerousness. The district court also found that
because there is no clearly established federal
constitutional right requiring the CCA to follow its
own case law consistently, Martinez's Fourteenth
Amendment due process claim to meaningful appellate
review must fail. Finally, the district court found
that Martinez's request to inform the jury that he
would not be eligible for parole for thirty-five
years was foreclosed by precedent. The district
court granted a certificate of appealability on all
appealed, raising the three arguments now before
this court: (1) that his claim of ineffective
assistance of trial counsel was not procedurally
defaulted because Martinez could demonstrate "cause"
for the procedural default, (2) that Martinez was
arbitrarily sentenced to death in violation of the
Eighth Amendment when the CCA "unreasonably"
interpreted federal law concerning the sufficiency
of the evidence required to support a finding of
Martinez's future dangerousness, and (3) that
Martinez's due process rights under the Fourteenth
Amendment were violated by the failure of the CCA to
fairly and consistently review the sufficiency of
evidence of future dangerousness and to conduct that
review in accordance with prescribed standards of
III. STANDARD OF
"In a habeas
corpus appeal, we review the district court's
findings of fact for clear error and review its
conclusions of law de novo, applying the same
standard of review to the state court's decision as
the district court." Thompson v. Cain, 161 F.3d 802,
805 (5th Cir. 1998). Because the district court
granted summary judgment to the State, this court
must determine whether the record discloses any
genuine issues of material fact, such that would
preclude summary judgment in the State's favor. See
Meanes v. Johnson, 138 F.3d 1007, 1010 (5th Cir.
1998). "Summary judgment is proper only 'if the
pleadings, depositions, answers to interrogatories
and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to
any material fact and that the moving party is
entitled to judgment as a matter of law.'" Turner v.
Houma Mun. Fire & Police Civil Serv. Bd., 229 F.3d
478, 482 (5th Cir. 2000) (quoting Fed. R. Civ. P.
56(c)); see also Celotex Corp. v. Catrett, 477 U.S.
317, 327 (1986).
Martinez filed his federal habeas petition after the
effective date of the Antiterrorism and Effective
Death Penalty Act of 1996 ("AEDPA"), Pub. L.
104-132, 110 Stat. 1214 (1996), the statute applies
to his case. See Lindh v. Murphy, 521 U.S. 320,
Martinez argues first that he was denied effective
assistance of counsel in violation of the Sixth
Amendment during both the punishment phase of trial
and the state habeas proceedings.
The district court denied relief on the trial-level
ineffective assistance of counsel claim without
reaching the merits. The district court held that
this claim was procedurally barred because it had
never been properly presented to the state courts.
The district court did express concern regarding the
"harsh" result of allowing the ineffective
assistance of state habeas counsel to insulate the
original ineffectiveness of state trial counsel;
however, the district court considered itself bound
The law is well
established that a state prisoner seeking to raise
claims in a federal petition for habeas corpus
ordinarily must first present those claims to the
state court and must exhaust state remedies. See 28
U.S.C. § 2254(b).
Martinez concedes that the ineffective assistance of
counsel claim regarding his trial counsel's
performance was not presented to the state courts on
direct appeal or in his state habeas petition and,
thus, is potentially procedurally barred for failure
to exhaust. See Keeney v. Tamayo-Reyes, 504 U.S. 1,
A petitioner may overcome such a procedural default,
however, and obtain federal habeas corpus review of
his barred claims on the merits, if he can
demonstrate cause for the defaults and actual
prejudice. See Jones v. Johnson, 171 F.3d 270, 277
(5th Cir. 1999).
argument is predicated on this "cause" exception to
the state exhaustion requirement. Martinez argues
that because of his state habeas counsel's damaging
ineffectiveness, which precluded him from
demonstrating his trial counsel's ineffectiveness at
the punishment stage, he can demonstrate cause
excusing the default and actual prejudice. See
Murray v. Carrier, 477 U.S. 478, 485 (1986).
Martinez relies on Coleman v. Thompson, 501 U.S. 722
(1991), to argue that the Supreme Court has not
explicitly closed off an ineffective assistance of
counsel claim concerning state habeas counsel when
the state habeas forum is "the first forum in which
a federal claim can be raised" in state court. See
id. at 755.
In Coleman, the
Supreme Court addressed a claim by a federal habeas
petitioner who was seeking to demonstrate cause to
excuse a procedural default that was the result of
the ineffective assistance of his state post-conviction
counsel. As an original matter, in the state habeas
trial court, Coleman argued that his first state
counsel was ineffective during trial, sentencing,
and direct appeal. Under state law, the state habeas
trial court was the first forum in which Coleman
could have raised this ineffective assistance claim.
See id. at 726-27.
The state habeas
trial court held an evidentiary hearing and rejected
the ineffectiveness claims. Coleman's state post-conviction
counsel then filed a notice of appeal from the
judgment of the state habeas trial court three days
after the deadline established by state law. Due to
this error, the state supreme court dismissed the
appeal. Coleman then petitioned the federal courts
for relief based on his state post-conviction
counsel's ineffective assistance in failing to
timely appeal the state habeas trial court's
judgment. See id.
The Supreme Court
first reviewed the general circumstances under which
an attorney's error can constitute cause. See id. at
752. The court found that, "[t]here is no
constitutional right to an attorney in state
postconviction proceedings," id. (citing
Pennsylvania v. Finley, 481 U.S. 551 (1987)), and "[c]onsequently,
a petitioner cannot claim constitutionally
ineffective assistance of counsel in such
proceedings." Id. Thus, Coleman must "bear the risk
of attorney error that results in a procedural
default." Id. at 752-53. Further, the Court defined
"cause" as "something external to the petitioner,
something that cannot fairly be attributed to him."
Id. at 753.
The Court then
considered Coleman's argument that there must be
some exception for those cases involving
constitutional claims that can only be raised for
the first time in state post-conviction proceedings.
See id. at 755 ("For Coleman to prevail, therefore,
there must be an exception to the rule of [Pennsylvania
v. ]Finley[, 481 U.S. 551 (1987),] and [Murray v. ]Giarratano[,
492 U.S. 1 (1989),] in those cases where state
collateral review is the first place a prisoner can
present a challenge to his conviction.").
The Court declined
to decide whether an exception exists because one
state court -- the state habeas trial court -- had
addressed Coleman's claim at the evidentiary hearing.
Because the effectiveness of Coleman's counsel
before the state habeas trial court was not at issue,
the Court needed only "to decide whether Coleman had
a constitutional right to counsel on appeal from the
state habeas trial court judgment." Id.
In deciding that
Coleman had no such right, the Court explained that
indigent defendants have a right to effective
appointed counsel in "the one and only appeal an
indigent has as of right," id. at 756,
and that because Coleman had been effectively
represented in the state habeas evidentiary hearing
on his trial ineffectiveness claim, he had received
his "one and only appeal." Id.
In the instant
case, Martinez presents the issue purportedly
reserved in Coleman. Martinez argues that he
possessed a constitutional right to effective
assistance of counsel in his first state habeas
corpus proceeding so that he could raise his claims
of ineffective assistance of trial counsel. Martinez
explains that because his trial counsel also
represented him on direct appeal, the state habeas
corpus proceeding was his first opportunity to
present his ineffective assistance of counsel claims.
Because Rhodes provided such deficient performance,
defaulting Martinez's claims without ever
communicating with his client, researching the law,
investigating, or developing an extra-record
argument, Martinez contends that he has established
cause to excuse his procedural default under
This court is
foreclosed by precedent from considering whether an
exception exists under the Coleman rule. See Beazley
v. Johnson, 242 F.3d 248, 256 (5th Cir. 2001); Jones
v. Johnson, 171 F.3d 270, 277 (5th Cir. 1999) ("The
law is well-established, however, that such error
committed in a post-conviction application, where
there is no constitutional right to counsel, cannot
constitute cause."); Callins v. Johnson, 89 F.3d
210, 212 (5th Cir. 1996) ("Callins contends that his
habeas attorney's alleged ineffectiveness
constitutes cause. We have already rejected that
argument. '[C]ounsel's ineffectiveness will
constitute cause only if it is an independent
constitutional violation.'" (quoting Coleman, 501
U.S. at 755)). These cases control our determination
that ineffective assistance of habeas counsel cannot
provide cause for a procedural default. We note that
other circuits have come to the same conclusion. See,
e.g., Mackall v. Angelone, 131 F.3d 442, 449 (4th
Cir. 1997) (en banc); Hill v. Jones, 81 F.3d 1015,
1025 (11th Cir. 1996) ("Thus, the possible exception
to Finley and Giarratano the Supreme Court noted in
Coleman simply does not exist in this circuit: a
petitioner may not rely on his collateral counsel's
ineffectiveness to excuse the procedural default of
a claim even when the state collateral proceeding
was the petitioner's first opportunity to raise the
claim."); Nevius v. Sumner, 105 F.3d 453, 460 (9th
Cir. 1996); Nolan v. Armontrout, 973 F.2d 615, 617
(8th Cir. 1992).
contrary authority, Martinez asks this court to "reevaluate"
its precedent in light of the changes engendered by
AEDPA and state habeas reforms, which have enhanced
the importance of competent state habeas counsel.
This panel may not undertake such a reevaluation, as
it is bound by controlling precedent.
We hold, therefore, that Martinez's ineffective
assistance of counsel claim is procedurally barred
and deny his claim for relief.
OF EVIDENCE DEMONSTRATING FUTURE DANGEROUSNESS
argument is that his death sentence was arbitrarily
imposed in violation of the Eighth Amendment.
Martinez contends that because there was
insufficient evidence presented at trial to support
the jury's affirmative answer to the special issue
on future dangerousness, the CCA's affirmance of his
death sentence based on legally insufficient
evidence was arbitrary and capricious and, thus,
his claim on the CCA's alleged failure to review
adequately the legal sufficiency of evidence,
arguing that the constitutionality of the Texas
death penalty statute, see Tex. Code Crim. Proc.
Ann. art. 37.071, is predicated on meaningful
appellate review to promote a non-arbitrary
application of the death penalty.
See Clemons v. Mississippi, 494 U.S. 738, 749
(1990); Jurek v. Texas, 428 U.S. 262, 276 (1976);
see also Parker v. Dugger, 498 U.S. 308, 321 (1991).
argument that his death sentence is arbitrary
because insufficient evidence exists to find future
dangerousness was presented to the state court, and
is, therefore, not procedurally barred.
In addressing this claim, we first set forth the
framework of 28 U.S.C. § 2254(d), as recently
explained in (Terry) Williams v. Taylor, 529 U.S.
362 (2000), and then apply this framework to
Under 28 U.S.C. §
2254(d), federal courts shall not grant relief for
any claim that was
adjudicated on the merits in State court proceedings
unless the adjudication of the claim (1) resulted in
a decision that was contrary to, or involved an
unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of
the United States; or
(2) resulted in a
decision that was based on an unreasonable
determination of the facts in light of the evidence
presented in the State court proceeding.
28 U.S.C. §
2254(d). The Supreme Court in (Terry) Williams
provided further clarification of these requirements.
First, regarding the "contrary to" language, the
decision will certainly be contrary to our clearly
established precedent if the state court applies a
rule that contradicts the governing law set forth in
our cases . . . [or] if the state court confronts a
set of facts that are materially indistinguishable
from a decision of this Court and nevertheless
arrives at a result different from our precedent.
529 U.S. at 405-06.
Regarding the "unreasonable
application" clause, the Court majority explained:
"A state-court decision that correctly identifies
the governing legal rule but applies it unreasonably
to the facts of a particular prisoner's case
certainly would qualify as a decision involv[ing] an
unreasonable application of . . . clearly
established Federal law." Id. at 407-08 (alterations
in original) (citations and internal quotations
The Court further
explained: "Under § 2254(d)(1)'s 'unreasonable
application' clause, then, a federal habeas court
may not issue the writ simply because that court
concludes in its independent judgment that the
relevant state-court decision applied clearly
established federal law erroneously or incorrectly.
Rather, that application must also be unreasonable."
Id. at 411.
The standard set
out in (Terry) Williams is an objective standard of
reasonableness. See id. at 409 ("[A] federal habeas
court making the 'unreasonable application' inquiry
should ask whether the state court's application of
clearly established federal law was objectively
unreasonable."). The Supreme Court's clarification
is especially relevant in the instant case because
this objective standard replaced the more subjective
standard, which was utilized by the district court
below. See Drinkard v. Johnson, 97 F.3d 751, 769
(5th Cir. 1996) (proposing a subjective "debatable
among reasonable jurists" standard), abrogation
recognized by Beazley v. Johnson, 424 F.3d 248, 256
(5th Cir. 2001).
This court has
recognized the Supreme Court's explicit criticism of
the Drinkard standard and has followed the objective
reasonableness standard as the controlling Supreme
Court authority. See Tucker v. Johnson, 242 F.3d
617, 620-21 (5th Cir. 2001); Moore v. Johnson, 225
F.3d 495, 501 n.1 (5th Cir. 2000). Having set out
the AEDPA framework, we must now apply it to
Martinez's particular legal challenge.
federal habeas court's review was limited to
determining whether the CCA's determination that the
evidence was sufficient to find that Martinez would
be a future danger to society "was so arbitrary or
capricious as to constitute an independent due
process or Eighth Amendment violation." See Lewis v.
Jeffers, 497 U.S. 764, 780 (1990).
In Jeffers, the
Supreme Court held that a federal habeas court
reviewing a state court's finding of an aggravating
factor should apply the "rational factfinder" test
established in Jackson v. Virginia, 443 U.S. 307,
323, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979),
to determine both whether the sentence violates the
Fourteenth Amendment's guarantee against arbitrary
deprivations of liberty and the Eighth Amendment's
prohibition against the arbitrary infliction of the
death penalty. See Jeffers, 497 U.S. at 782 ("[T]he
standard of federal review for determining whether a
state court has violated the Fourteenth Amendment's
guarantee against wholly arbitrary deprivations of
liberty is equally applicable in safeguarding the
Eighth Amendment's bedrock guarantee against the
arbitrary or capricious imposition of the death
penalty."). Therefore, because it was an appropriate
standard for safeguarding the Eighth Amendment's
guarantee against the arbitrary and capricious
application of the death penalty, the Jackson
standard was adopted.
This court has
employed the Jackson standard to assess the adequacy
of the evidence for a capital sentence in Texas
sentencing decisions in both pre-AEDPA and post-AEDPA
cases. See Hughes v. Johnson, 191 F.3d 607, 619 (5th
Cir. 1999) (assuming without deciding that the court
should apply Jackson to address the merits of a
challenge to the sufficiency of evidence supporting
a jury's answers to special issues at the penalty
phase of a death penalty trial); Green v. Johnson,
160 F.3d 1029, 1047 (5th Cir. 1998); Callins v.
Collins, 998 F.2d 269, 276 (5th Cir. 1993); Fierro
v. Lynaugh, 879 F.2d 1276, 1280 (5th Cir. 1989); see
also Flores, 210 F.3d at 469 (Emilio Garza, J.,
specially concurring) (recognizing that "future
dangerousness, like any other element of the crime,
must be proven beyond a reasonable doubt").
Under § 2254(d),
the limited question before this court is whether
the CCA's decision to reject Martinez's sufficiency
of the evidence claim in regard to future
dangerousness was an objectively unreasonable
application of the clearly established federal law
set out in Jackson.
We find that the CCA was not objectively
unreasonably in its application of the Jackson
standard. In upholding the sentence of death, the
CCA majority recognized that "[t]he circumstances of
the offense alone may be sufficient to sustain the
jury's affirmative answer to the issue on future
dangerousness." Martinez, 924 S.W.2d at 696.
In finding these
circumstances sufficient, the court relied on the
fact that Martinez stabbed the victim with a knife.
The court distinguished murders with knives from
those involving guns, by stating that "a knife -- a
weapon which, by virtue of its very nature, forces
the user to be in such close proximity to his victim
that he is often touching him or comes into contact
with him on each blow." Id.
In addition, the
CCA found that Martinez's admission at trial that he
and Wortmann discussed how easy it would be to rob
the store manifested an intent to use a deadly
weapon without regard to human life. Thus, the CCA
reasoned a jury could infer that the robbery was
planned, and coupled with the violent nature of the
murder, this could provide the basis for a finding
that Martinez would probably be a continuing threat
our limited AEDPA review, we conclude that the CCA
did not objectively unreasonably apply the Jackson
standard in determining, after a review of the
evidence in the light most favorable to the
prosecution, that a rational trier of fact could
find the essential elements of future dangerousness
beyond a reasonable doubt. See (Terry) Williams, 529
U.S. at 410. Accordingly, we deny Martinez's Eighth
AMENDMENT DUE PROCESS VIOLATIONS
argues that the State of Texas violated the
Fourteenth Amendment by arbitrarily depriving him of
his statutorily-created liberty interest in a
competent post-conviction counsel. This due process
challenge is analytically distinct from the Sixth
Amendment challenge. Martinez argues that Article
11.071, § 2(a) of the Texas Code of Criminal
Procedure guarantees that "[a]n applicant shall be
represented by competent counsel," Tex. Code Crim.
Proc. Ann. art. 11.071, § 2(a), and because Martinez
was an indigent death-row inmate, he had a "substantial
and legitimate expectation" in this requirement. See
Hicks v. Oklahoma, 447 U.S. 343, 345 (1980).
that because the State of Texas appointed Rhodes to
be his state habeas counsel and because Rhodes was
incompetent, this failure to provide competent
counsel was a deprivation of federal due process.
See Evitts v. Lucey, 469 U.S. 387, 396 (1985).
We are unpersuaded
by this argument for the reason that 28 U.S.C. §
2254(i) bars a federal habeas claim solely grounded
in "the ineffectiveness or incompetence of counsel
during . . . State collateral post-conviction
proceedings." 28 U.S.C. § 2254(i) ("The
ineffectiveness or incompetence of counsel during
Federal or State collateral post-conviction
proceedings shall not be a ground for relief in a
proceeding arising under section 2254."); see also
Beazley v. Johnson, 242 F.3d 248, 271 (5th Cir.
2001). Martinez has not provided this court with any
argument regarding why the due process argument
rests on anything other than the incompetence of
Rhodes during state post-conviction proceedings.
Because there is no other constitutional violation
to accompany this claim, it is foreclosed by §
As a final matter,
Martinez argues that he also has a Fourteenth
Amendment liberty interest in being treated fairly
and in a manner consistent with, and prescribed by,
Texas law. Martinez contends that because the CCA
routinely sets aside death sentences in cases in
which the evidence of future dangerousness is less
aggravating than in his case, he had an expectation
that he would be treated under the same standard.
Martinez has failed, however, to provide us with
legal authority demonstrating that such a federal
right to state court consistency has been found
cognizable in federal habeas under the Fourteenth
relief is reserved for the vindication of federal
constitutional rights. See Manning v. Blackburn, 786
F.2d 710, 711-12 (5th Cir. 1986). In the instant
case, Martinez has failed to demonstrate a liberty
interest in the consistent application of state
criminal law enforceable through the Due Process
Clause. As the Supreme Court recognized in Lewis v.
Jeffers, a state court's alleged misapplication of
its own sentencing factors cannot provide federal
habeas corpus relief does not lie for errors of
state law, . . . federal habeas review of a state
court's application of a constitutionally narrowed
aggravating circumstance is limited, at most, to
determining whether the state court's finding was so
arbitrary or capricious as to constitute an
independent due process or Eighth Amendment
497 U.S. 764, 780
(1990) (internal quotations and citations omitted).
As discussed previously in Part V, the standard for
determining an "arbitrary or capricious" action is
the Jackson rational factfinder test. Accordingly, a
Jackson analysis is the most appropriate framework
to analyze both Martinez's Fourteenth Amendment due
process and his Eighth Amendment claims. For the
same reasons as discussed in Part V supra, regarding
Martinez's Eighth Amendment argument, we find
Martinez's Fourteenth Amendment argument fails to
provide him with relief.
For the foregoing
reasons, we conclude Martinez is not entitled to
habeas corpus relief. The claims that were not
procedurally defaulted are without merit.
Accordingly, we AFFIRM the judgment of the district