Juan Ignacio Blanco  


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Classification: Murderer
Characteristics: Robbery
Number of victims: 1
Date of murder: July 15, 1993
Date of arrest: Same day (surrenders)
Date of birth: November 20, 1972
Victim profile: Clay Peterson, 20 (convenience store clerk)
Method of murder: Stabbing with knife
Location: Nueces County, Texas, USA
Status: Executed by lethal injection in Texas on May 22, 2002


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)

Final Meal:


Final Words:

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.

On 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:


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.

Though Peterson 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 death.

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 the recommendation.

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.


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 camera.

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 other reports.

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 shoulders."

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 case?"

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 Clerk

By Michael Graczyk - Houston Chronicle

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 me."

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," he said.


Board Affirms Killer's Execution by One Vote

'We're 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 been called."

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.

"We have 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.

He also 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 -

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 life.

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 death row?

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 ineffective.

The tragically surreal reason is that Martinez had the misfortune of having a second lawyer who was even worse than the first.

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.

Martinez’s habeas 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.

The 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 examine it.

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.

Mothers address:

Mary Lou Chavera
c/o Johnny Martinez's Burial Fund
1220 N. 17th., Apt. 58
Kingsville, Texas
78363 U.S.A.

Please read on to learn more of the background of my case . . .

1. Background

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.

The state 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 postconviction appeals.

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 was filed.

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 surfaced.

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 proceedings,O.K.

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 O.K.

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 counsel:

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 review.

On April 29, 1998 the Court of Criminal Appeals denied all relief in a Cursory two page Order. Judge Charles Baird dissented :

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 be reached."

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 already expired.

b. Federal Habeas Proceedings (3rd Step of my appeal)

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.

Trial counsel, 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."

The district 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 procedural default.

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 proceedings.

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 writ.

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.


Johnny J. Martinez
# 999089
Polunsky Unit


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 store.

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.


United States Court of Appeals for the Fifth Circuit

255 F.3d 229

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:

Petitioner-Appellant 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 Wortmann,1 an individual Martinez had met earlier that evening at a nightclub.

Martinez testified 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.

Martinez testified 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 store.

At approximately 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.

Martinez then 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.

After committing 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 intoxicated.

The arresting 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.2

Martinez testified 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.

David Martinez, 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.

David Martinez 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.

The State 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 Criminal Procedure,3 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 Proceedings

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. 1996).4 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.

Four judges 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.5 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.

In addition, 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 court.

On April 29, 1998, pursuant to Article 11.071, § 9(f), the CCA denied relief. One judge dissented, stating:

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 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:

Petitioner [sic] 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 for Reconsideration.6

On May 20, 1998, the CCA denied the Motion for Reconsideration.7 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 Proceedings

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 thirty-five years.

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 issues.

Martinez timely 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 state law.


"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).

Further, because 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, 326-27 (1997).


On appeal, Martinez argues first that he was denied effective assistance of counsel in violation of the Sixth Amendment during both the punishment phase of trial8 and the state habeas proceedings.9 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 by precedent.

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).10 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, 9 (1992).11 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).12

Martinez's 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 753.13

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 756,14 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 Coleman.

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).

Despite this 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.15 We hold, therefore, that Martinez's ineffective assistance of counsel claim is procedurally barred and deny his claim for relief.


Martinez's second 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, unconstitutional.

Martinez focuses 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.16 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).17

Martinez's 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.18 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 Martinez's case.

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 Court explained:

A state-court 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.

(Terry) Williams, 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 omitted).

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.

Pre-AEDPA, a 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),19 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.20

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.21 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 to society.

Therefore, under 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 claim.


Martinez also 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).

Martinez contends 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 § 2254(i).22

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 Amendment.

Federal habeas 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 relief:

Because 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 violation.

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 court.




There is some discrepancy on the proper given name of Mr. Wortmann. The State refers to him as "Paul Wortmann." In the direct appeal of this case, the Texas Court of Criminal Appeals refers to him as "Ernest Wortmann." We adopt the latter designation.


For example, Martinez claimed that the 7-Eleven convenience store where the crime occurred was the fourth that he and Wortmann had gone to that night. The evidence shows, however, that only one 7-Eleven store exists in the area. Martinez also claimed that when he put the knife to Peterson's neck, Peterson "started fighting with me, and he was a lot bigger than I am, and I stabbed him in the neck. I dropped the knife and he tried to grab me. I grabbed the knife again, and stabbed him, again, in the back." This description of the murder is refuted by the videotape. In addition, Martinez claimed that he had traveled to Corpus Christi that day by bus, a fact he later admitted was untrue and an attempt to protect the friends with whom he had been out that evening. Finally, Martinez provided several conflicting stories about whether he chose to get into Wortmann's car after the murder or whether Wortmann actually drove away, abandoning Martinez at the scene of the crime.

At trial, Martinez admitted that he "lied on the [police] statement because I was trying to make something justified [sic] what I did."


See Tex. Code Crim. Proc. Ann. art. 37.071 (Vernon 2001). Subsections 2(b) and 2(e) read in relevant part:

(2) (b) On conclusion of the presentation of the evidence, the court shall submit the following issues to the jury:

(1) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; . . . .

. . . .

(e)(1) The court shall instruct the jury that if the jury returns an affirmative finding to each issue submitted under Subsection (b) of this article, it shall answer the following issue:

Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed.

Tex. Code Crim. Proc. Ann. art. 37.071, § (2)(b), (e).


The CCA's decision will be discussed in more detail in Part V infra.


The first claim repeated the insufficiency of the evidence to find future dangerousness argument raised and decided on the direct appeal. The second claim repeated the argument that Martinez's death sentence was unconstitutional because the jury was not informed that if it were to sentence him to life imprisonment, Martinez would be required to serve a minimum of thirty-five years. Rhodes acknowledged that this issue had been rejected by the Supreme Court and the CCA.


In response to receiving the Motion to Reconsider, Martinez wrote the CCA to request another lawyer. On May 8, 1998, Martinez wrote the clerk of the CCA, informing the court of the ineffectiveness of his state-appointed counsel:

I'm writing you this letter concerning my State Habeas Corpus proceedings. My lawyer Nathaniel G. Rhodes filed my State Habeas Corpus Writ obviously and intentionally knowing that he had no clue of how to prepare a proper one. That so call [sic] brief was affirmed on April 29, 1998. He admits to the courts he has handled many Direct Appeals, but never has handled a State Habeas Corpus Writ of a death penalty case.

Sir, I need help with this situation and My State Habeas Corpus proceedings, Nathaniel G. Rhodes did nothing for me while he has been on my case. I have tried many times to contact him with no responds [sic]. The only time he contacted me was when he told me he was appointed to my case. He wouldn't except [sic] my phone calls or answer my letters.

I'm asking to have my State Habeas Corpus proceeding reconsidered. I need to refile it because my lawyer was incompetent to do so. I'm asking to have a competent lawyer appointed to me to refile a legitimate application for me and a few months to do it in.

Attorney, Mr. Rhodes has committed a grave error by not presenting or preserving any issues I had asked him to in my State Habeas Corpus writ. . . .

To document his attempts at communication with Rhodes, Martinez attached a letter written to Rhodes that provides suggestions on how Rhodes could investigate extra-record leads for the state habeas petition. A series of letters from Martinez to Rhodes, included in the record, encouraged the preservation of legal issues necessary to collaterally attack his death sentence.


During the interim, on May 11, 1998, Martinez had written Rhodes inquiring into the status of his already denied habeas petition. Martinez specifically requested Rhodes to ensure that certain issues were presented so that he could preserve those issues in his federal writ of habeas corpus. Martinez stated, "Sir, in the motion you filed you said this was your first time you ever filed a State Habeas Corpus Writ, so understandably did not know exactly how to prepare the brief. Sir there were many things not presented in the brief that I really wanted to be raise [sic] so it could also be preserved for my Federal Writ."


Martinez contends that his trial counsel failed to investigate the possibility of mitigating evidence, including "conduct[ing] a thorough investigation of the defendant's background," (Terry) Williams v. Taylor, 529 U.S. 362, 396 (2000), and thus failed to present available mitigating evidence in the punishment stage. Martinez argues that trial counsel met only once with his family and asked only superficial questions. Therefore, trial counsel did not even begin an investigation into whether there was a possibility of helpful mitigating evidence. Martinez argues that this failure to investigate cannot be a strategic choice. Federal habeas counsel has included numerous signed and notarized affidavits demonstrating the existence of substantial and easily accessible mitigating evidence relating to a history of sexual abuse, physical abuse, his mother's drug addiction to heroin, and other potentially mitigating circumstances.

Martinez argues that trial counsel did not introduce any pure mitigation evidence at the punishment stage of trial. Martinez states that the punishment phase witnesses only addressed Martinez's lack of past violent behavior and did not attempt to develop other mitigation evidence that would have provided a more complete picture of his difficult personal circumstances and childhood. Martinez thus argues that this failure to make a reasonable investigation into the existence of possible mitigation evidence and the failure to present such evidence constituted deficient performance under Strickland v. Washington, 466 U.S. 668, 691-92 (1984), and prejudice under Strickland and (Terry) Williams, 529 U.S. at 396-97. Further, Martinez argues that because the State presented no punishment phase evidence, coupled with the fact that Martinez's youth, intoxication, remorse, cooperation with the police, and history of non-violent behavior countenanced against the death penalty, this error affected the outcome of his sentence. Therefore, the omission of mitigating evidence, which went directly to one of the two special issues, was especially prejudicial and negatively affected his ultimate sentence.


According to the affidavits filed in support of Martinez's federal habeas petition, during the entirety of the state habeas proceedings, Rhodes did not once meet with Martinez or contact him by telephone. According to Martinez, over the one year of representation, Rhodes sent Martinez only two one-page letters, one on April 9, 1997, and one on June 9, 1997. Martinez also asserts the following evidence of ineffectiveness: (1) Rhodes did not respond to any of Martinez's letters, nor did he accept or return any of Martinez's phone calls; (2) Rhodes did not hire an investigator or an expert to develop extra-record evidence; (3) Rhodes did not send Martinez any of the copies of documents he filed on his client's behalf; (4) Rhodes never provided Martinez a copy of the actual state writ of habeas corpus application; (5) Rhodes did not inform Martinez that his writ application had been denied and did not provide Martinez with a copy of Judge Baird's dissent inquiring about the competency of state habeas counsel; (6) Rhodes admitted to lacking the "background, knowledge, or experience" to properly represent Martinez; (7) Rhodes spent a total of 43.8 hours on the state habeas death penalty case, primarily reviewing the record; (8) the state habeas application prepared by Rhodes raised claims previously denied on direct appeal; (9) the actual petition is only five and one-half pages long; and (10) Rhodes did not incorporate any extra-record facts into the state habeas application, including the now-challenged claim of ineffective assistance of state trial counsel.


Contrary to Martinez's assertion, under these facts, failure to provide "competent" counsel for a state habeas petition does not fall under the general catch-all exception provided in 28 U.S.C. § 2254(b)(1)(B)(ii).


In addition, under Texas law, any attempt by Martinez to file a second state habeas corpus application would be dismissed as an abuse of the writ. See Tex. Code Crim. Proc. Ann. art. 11.071, § 5(a) (2001).


Martinez does not raise an argument based on the "fundamental miscarriage of justice" exception. See Coleman v. Thompson, 501 U.S. 722, 750 (1991).


The Court further defined this external factor by quoting from Murray v. Carrier, 477 U.S. 478, 488 (1986):

[W]e think that the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule. For example, a showing that the factual or legal basis for a claim was not reasonably available to counsel, . . . or that some interference by officials . . . made compliance impracticable, would constitute cause under this standard.

Coleman, 501 U.S. at 753 (alterations in original) (internal citations and quotations omitted).


The Court relied on Douglas v. California, 372 U.S. 353, 358 (1963) (establishing that an indigent criminal defendant is entitled to appointed counsel in his first appeal as of right and that this entitlement encompasses a right to effective assistance of counsel).


While we need not decide the issue, we note that Martinez's Coleman exception claim may be barred by Teague v. Lane, 489 U.S. 288, 301 (1989).


As a general matter, Martinez is correct that the Supreme Court has stressed that state courts must provide meaningful appellate review of death sentences. See Clemons v. Mississippi, 494 U.S. 738, 749 (1990) ("[T]his Court has repeatedly emphasized that meaningful appellate review of death sentences promotes reliability and consistency."); Flores v. Johnson, 210 F.3d 456, 459 (5th Cir. 2000) (Emilio Garza, J., specially concurring) ("Sentencing procedures for capital crimes, . . . must be created and enforced in a way that ensures 'that the punishment will [not] be inflicted in an arbitrary and capricious manner.'" (quoting Gregg v. Georgia, 428 U.S. 153, 189 (1976))).


The State argues that the Constitution does not require appellate review of Martinez's death sentence, and thus, no constitutional error can be alleged based on a failure to provide meaningful appellate review. The State relies on Tuilaepa v. California for the proposition that "the sentencer may be given unbridled discretion in determining whether the death penalty should be imposed after it has found that the defendant is a member of the class made eligible for that penalty." 512 U.S. 967, 979-80 (1994) (internal quotations and citations omitted). The State's reliance on Tuilaepa is misplaced. Tuilaepa involved a vagueness challenge to the definitions of California's penalty-phase aggravating factors and, therefore, did not address the adequacy of appellate review of the sufficiency of evidence issue Martinez now raises. Further, the State's argument misconstrues the nature of Martinez's claim, which is not directed at the jury, but at the CCA's alleged failure adequately to review the legal sufficiency of evidence required to demonstrate future dangerousness "beyond a reasonable doubt."

The district court concluded that the Eighth and Fourteenth Amendments impose a constitutional floor on the sufficiency of evidence required to sustain the jury's verdict on the special issue of future dangerousness, see Jackson v. Virginia, 443 U.S. 307, 323 (1979), and that the CCA was required to review that determination. We agree. The Supreme Court has established that meaningful appellate review of death sentences is fundamental to the constitutional application of death penalty statutes. See Parker v. Dugger, 498 U.S. 308, 321 (1991); Clemons, 494 U.S. at 749 ("We have emphasized repeatedly the crucial role of meaningful appellate review in ensuring that the death penalty is not imposed arbitrarily or irrationally."); Pulley v. Harris, 465 U.S. 37, 54 (Stevens, J., concurring); see also Flores v. Johnson, 210 F.3d 456, 459 (5th Cir. 2000) (Emilio Garza, J., specially concurring). Most notably in Jurek, the Supreme Court upheld the Texas death penalty statute in part because of the meaningful appellate review provided by the CCA. See Jurek, 428 U.S. at 276 ("By providing prompt judicial review of the jury's decision in a court with statewide jurisdiction, Texas has provided a means to promote the evenhanded, rational, and consistent imposition of death sentences under law. Because this system serves to assure that sentences of death will not be 'wantonly' or 'freakishly' imposed, it does not violate the Constitution."). While the State is correct that Martinez is not entitled to a "proportionality review" of his death sentence, see Pulley, 465 U.S. at 53, the issue is whether the CCA reviewed the sufficiency of evidence to prove future dangerousness under the constitutional standard set out in Jackson, 443 U.S. at 323. As we discuss infra in the text, this court has applied the Jackson standard to sufficiency of evidence challenges in the context of Texas's special issues. See Hughes v. Johnson, 191 F.3d 607, 619 (5th Cir. 1999); 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).


The district court found that Martinez's amended state habeas corpus application did reference that the CCA had reached different decisions in indistinguishable cases and that "[t]hese two cases when taken together render the Texas Capital Murder Statute subject to the same flaw as previous laws which were held unconstitutional. That is, they allow for arbitrary infliction of the death penalty without standards of review." The district court also found that because the application explicitly cited the Fourteenth Amendment (which incorporates the Eighth Amendment) and adopted by reference the dissenting opinions on direct review that discuss the federal constitutional requirements raised in the petition (including Jackson, 443 U.S. at 323), these issues were fairly presented to state courts. See Gartrell v. Lynaugh, 833 F.2d 527, 528-29 (5th Cir. 1987). We also proceed under this reasoning.


Under Jackson, a conviction violates the United States Constitution if "upon the record evidence adduced at trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." 443 U.S. at 324. As discussed in footnote 17 supra and in the text infra, this court has applied Jackson to sentencing factors that must be proved beyond a reasonable doubt.


The rationale for this rule is that a state court's finding of an aggravating circumstance in a particular case "is arbitrary and capricious if and only if no reasonable sentencer could have so concluded." Jeffers, 497 U.S. at 783.


While the Jackson case is not directly cited in the CCA's majority opinion, courts have recognized that "state appellate courts must apply at least the same constitutional standard [as federal courts] when reviewing convictions for sufficiency of the evidence." See Gomez v. Acevedo, 106 F.3d 192, 197 n.5 (7th Cir.) ("Although Jackson's specific holding is limited to federal habeas review, the Court's opinion indicates a similar duty for state appellate courts. The Court stated generally, for example, that a conviction in state court 'cannot constitutionally stand' where no rational trier of fact could find guilt beyond a reasonable doubt.'" (citing Jackson, 443 U.S. at 317-18)), vacated on other grounds by 522 U.S. 801 (1997). Thus, state courts have either adopted the Jackson standard or interpreted their own sufficiency standards as consistent with Jackson. The CCA has evaluated the sufficiency of evidence to find future dangerousness under a Jackson standard. See, e.g., Wilson v. State, 7 S.W.3d 136, 142 (Tex. Crim. App. 1999) (evaluating future dangerousness based on the Jackson standard); Martinez, 924 S.W.2d at 700 (Baird, J., dissenting in part) ("When reviewing the sufficiency of the evidence to sustain the death penalty, we employ the standard announced in Jackson."). Therefore, our review of the CCA's decision is properly framed as whether that decision constitutes an "unreasonable application" of Jackson.


In similar fashion, because we interpret Martinez's argument that he has been denied meaningful access to the courts under the First and Fourteenth Amendments as a claim grounded solely in his ineffective assistance of state habeas counsel, § 2254(i) bars relief.


The victim

20-year-old Clay Peterson.



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