Cannady v. Dretke

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
March 22, 2006
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 05-70030
_______________________
ROGELIO REYES CANNADY,
Petitioner-Appellant,
versus
DOUG DRETKE, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent-Appellee.
On Appeal from the United States District Court
for the Southern District of Texas
Corpus Christi Division
No. 2:01-CV-00273
Before JONES, Chief Judge, and BARKSDALE and PRADO, Circuit Judges.
PER CURIAM:*
Rogelio Reyes Cannady was convicted and sentenced to
death for murdering Leovigildo Bombale Bonal while Cannady was in
prison serving two life sentences for prior murders he committed.
After he exhausted state remedies, Cannady filed a federal petition
for a writ of habeas corpus. The district court denied relief and
refused to grant a certificate of appealability (“COA”).

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2
Cannady now seeks a COA from this court on four issues:
ineffective assistance of trial counsel; whether his claim of
ineffective assistance of counsel concerning his defense of actual
innocence was procedurally defaulted; the district court’s denial
of an evidentiary hearing; and Cannady’s ex post facto challenge to
Texas Penal Code § 19.03(a)(6). We deny the request for a COA on
all issues.
I. BACKGROUND
On October 10, 1993, while serving two consecutive life
sentences for murders he committed in 1990, Cannady beat his
cellmate, Bonal, to death with a padlock attached to the end of his
belt. The prison guards found Bonal lying on the cell floor with
his hands tied behind his back with a belt. Cannady had no
apparent wounds or injuries, but his boots and clothing were
covered with blood. He neither complained of injuries nor looked
as if he had been assaulted in any way.
Blood was splattered and smeared on the cell walls, the
bedding of both bunks, and the furniture. Concealed in a pair of
boots, the officers found a belt and the face of a combination
lock. The body of the lock had been dumped in the cell’s commode.
Patricia Graham of the Texas Department of Public Safety
Crime Lab analyzed the blood splatters and testified that their
velocity indicated that the victim had been beaten. Patterns were

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created on the ceiling by blood flying off a weapon, possibly a
combination lock. Graham also discerned that someone stomped in a
puddle of blood or stomped on the victim lying in the blood or that
the victim’s head bounced up and down in the blood. Additionally,
Graham had collected samples of blood from the cell, the belt, and
Cannady’s and Bonal’s clothing. All blood samples were Type B and
belonged to the same person. Bonal had Type B blood; Cannady has
Type O blood.
Bonal’s autopsy revealed numerous lacerations and
abrasions on the scalp and face as well as lacerations, abrasions,
and swelling on the arms, hands, and one leg. A circular imprint
that matched the combination lock was found on his torso. He
suffered two skull fractures and extensive hemorrhaging over the
scalp and in the brain. One of the skull fractures was slightly
circular in nature. The medical examiner matched the injuries to
the lock retrieved from the cell. He also testified that it would
take a fair amount of force to cause the fatal fractures and
injuries Bonal sustained and that Bonal’s injuries were consistent
with homicide from the impact of a lock and from being stomped on
by a person wearing boots.
Notwithstanding the gruesome evidence, Cannady testified
that he killed Bonal in self-defense for fear of being raped. He
asserted, among other things, that shortly after Bonal became his

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2 On June 2, 1994, Cannady was indicted for capital murder. At a
pretrial hearing on January 27, 1995, the trial court quashed the capital
allegations in the indictment on the grounds that the prior offenses occurred
4
cellmate, Bonal sat down near him and started rubbing Cannady’s
leg. Bonal also made several sexually suggestive comments to him,
that, to Cannady, were especially ominous in a prison setting.
On the night of the killing, Cannady testified that he
woke up when he thought he heard someone call “chow time.” He
allegedly got up to look out of the cell, but when he turned around
he saw Bonal touching himself sexually. At that point, he
confronted Bonal and hit him in the face. It seemed to Cannady
that Bonal was trying to reach for something so Cannady grabbed his
lock and attached it to his belt. Cannady then hit Bonal,
believing Bonal was reaching for a weapon, and kept hitting Bonal
because Bonal kept coming toward him. Cannady admitted that he hit
and kicked Bonal repeatedly and used a weapon fashioned from a lock
and a belt. He also admitted dismantling the weapon and tying
Bonal’s hands after Bonal became unconscious, both of which
measures were allegedly done to prevent Bonal from striking back.
Cannady’s counsel stipulated in open court in the
guilt/innocence phase that Cannady had committed two murders in
1990 for which he was serving two consecutive life sentences at the
time of Bonal’s killing. The life sentences formed the legal
predicate for a capital murder verdict.2 The Texas Court of

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before the effective date of the law that made the offense a capital crime. The
State appealed and on January 4, 1996, the Court of Appeals for the Thirteenth
Judicial District of Texas reversed the trial court’s ruling and reinstated the
capital allegations. State v. Cannady, 913 S.W.2d 741, 743-44 (Tex. App. 1996).
5
Criminal Appeals affirmed Cannady’s conviction and sentence,
Cannady v. State, 11 S.W.3d 205 (Tex. Crim. App. 2000), and
dismissed his application for a writ of habeas corpus, Ex Parte
Cannady, No. 25,462-02 (Tex. Crim. App. May 23, 2001). Another
state habeas application was dismissed as an abuse of the writ.
Ex Parte Cannady, No. 25,462-03 (Tex. Crim. App. Oct. 22, 2003).
Cannady filed a state federal habeas corpus petition,
summary judgment was granted for the State and the court refused to
grant a COA on any of the issues he raised. Cannady now seeks a
COA from this court in order to appeal the adverse judgment.
II. DISCUSSION
To obtain a COA under AEDPA, which governs this case,
Cannady must make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-El v.
Cockrell, 537 U.S. 322, 336, 123 S. Ct. 1029, 1039 (2003).
Thus, he “must demonstrate that reasonable jurists could
find the district court’s resolution of his constitutional claims
debatable or that reasonable jurists could conclude that the issues
presented are adequate to deserve encouragement to proceed
further.” Martinez v. Dretke, 404 F.3d 878, 884 (5th Cir. 2005)

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(citing Miller-El, 537 U.S. at 336, 123 S. Ct. at 1039). “This
threshold inquiry does not require full consideration of the
factual or legal bases adduced in support of the claims.” Id.
Rather, it only “requires an overview of the claims in the habeas
petition and a general assessment of their merits.” Id.
Nevertheless, “[b]ecause the present case involves the death
penalty, any doubts as to whether a COA should issue must be
resolved in [the defendant’s] favor.” Hernandez v. Johnson, 213
F.3d 243, 248 (5th Cir. 2000).
Upon a grant of COA, however, AEDPA imposes a deferential
standard of federal court review with respect to claims adjudicated
on the merits in state court. To obtain habeas relief, a
petitioner must demonstrate that the state courts’ decision was
contrary to, or involved an unreasonable application of, clearly
established federal law, as determined by the Supreme Court of the
United States; or that the decision 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). In federal court
review, a state court’s factual findings are presumed to be
correct, and this presumption can only be rebutted by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1).
Against these background criteria, we address each of
Cannady’s issues.

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A. Ineffective Assistance of Counsel
To establish a violation of the Sixth Amendment right to
counsel, Cannady must show that his counsel’s representation was
deficient, and the deficiency prejudiced his defense. Strickland
v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984).
Deficient legal representation is that which falls below an
objective standard of reasonableness, measured against prevailing
professional norms and viewed under the totality of the
circumstances. Id. at 687-88, 104 S. Ct. at 2064. Judicial
scrutiny of counsel’s performance must be highly deferential, and
we must “indulge a strong presumption that counsel’s conduct falls
within a wide range of reasonable professional assistance.” Id. at
689, 104 S. Ct. at 2065. Cannady’s ineffectiveness claim here
rests on five contentions.
1. Failure to advise
Cannady first contends that his trial counsel failed to
advise him to accept the State’s offer of a plea bargain that would
have spared him the death penalty in exchange for a sentence of
sixty years. This contention contradicts the state habeas court
findings, which were made following a three day hearing. The
district court, applying AEDPA’s presumption of correctness, relied
on the state habeas court findings that: (1) Cannady had received
and rejected an offer to plead guilty to capital murder in exchange

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for an agreement by the State not to seek the death penalty;
(2) Cannady’s counsel did inform him of an offer of sixty years in
exchange for a plea to noncapital murder, which offer Cannady
declined because the indictment for capital murder had been quashed
by the trial court and his counsel thought that the ruling would be
upheld by the appellate court; (3) Cannady was unwilling to plead
guilty to murder if the plea required a lengthy sentence; and
(4) after the Texas Supreme Court reinstated the capital
indictment, the State offered no further plea agreements. The
district court reasoned that, because the best offer made by the
State carried a term of sixty years, and Cannady was unwilling to
accept any plea with a lengthy sentence, he could not demonstrate
that his counsel’s alleged failure to communicate the offer caused
him any prejudice.
Cannady’s principal burden before the district court was
to rebut the State’s findings by clear and convincing evidence, 28
U.S.C. § 2254(e)(1), and the district court determined that he
failed to provide such evidence. At best, he selectively rehashed
the state habeas testimony without impugning the finding that his
attorney made him aware of the plea offer and he declined it.
Alternatively, the district court determined that the state court
reasonably concluded that even if Cannady’s counsel did not inform
him of the plea offer, the deficiency did not prejudice his defense

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because he was unwilling to accept a lengthy sentence. In light of
the presumption of correctness the district court was required to
accord the state court’s findings in reviewing the habeas petition,
Cannady has failed to make the required showing. Reasonable
jurists could not debate the district court’s resolution of this
claim.
2. Failure to stipulate
Cannady next argues that he was deprived of effective
legal assistance because his trial counsel failed to stipulate to
Cannady’s two prior murder convictions outside the jury’s presence.
Cannady argued to the district court and in his brief to this court
that the inaction by his counsel prejudiced his defense because a
stipulation would have avoided having two officers testify in the
penalty phase. The district court found no prejudice resulted from
counsel’s failure to stipulate, because the officers’ testimony
regarding Cannady’s prior crimes was clearly relevant to the
penalty phase issue of Cannady’s future dangerousness, and
therefore would not have been precluded by an earlier stipulation
to the murders. Reasonable jurists could not debate the district
court’s resolution of this claim.
3. Failure to object to officer’s testimony
Cannady next contends that he was deprived of effective
legal assistance because his trial counsel failed to object to

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“hearsay” testimony by two police officers in the penalty phase.
In determining Strickland prejudice in the penalty phase, “the
question is whether there is a reasonable probability that, absent
the errors, the sentencer . . . would have concluded that the
balance of aggravating and mitigating circumstances did not warrant
death.” Strickland, 465 U.S. at 695. The district court noted
that, by the time of sentencing, the jury knew that Cannady
previously had been convicted of two murders, and was serving life
sentences for those murders when he stomped and bludgeoned his
cellmate to death. Consequently, the court determined that even if
counsel had successfully objected to the officer’s testimony, there
was little probability that the jury would not have concluded that
Cannady posed a future danger or that the mitigating evidence
outweighed the evidence of future dangerousness. The district
court’s resolution of this claim is not debatable.
4. Failure to object to jury charge
Cannady urges that a COA is warranted because his trial
counsel failed to object to two errors in the punishment charge.
The trial court instructed the jury that if it sentenced Cannady to
life imprisonment, he would have to serve at least thirty-five
years before becoming eligible for parole. However, the law at the
time of trial rendered him ineligible for parole until he served
forty years. The district court determined that, although

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Cannady’s counsel should have objected to the erroneous charge, no
prejudice was caused by the error:
There is simply no reasonable probability that the jury
would have found a triple murderer, who they were
sentencing for a murder he committed while already
serving two life sentences for two prior murders, any
less dangerous if they knew that he would have to serve
40, rather than 35, years before becoming eligible for
parole. The very fact that he murdered Bonal while
serving two life sentences demonstrated that Cannady
posed a danger if sentenced to life imprisonment.
Cannady v. Dretke, No. C-01-273, slip op. at 25 (S.D. Tex. Apr. 29,
2005).
Cannady also asserts that counsel should have objected to
the punishment charge because it did not specify that the findings
on both special issues were to be beyond a reasonable doubt. In
the district court, Cannady argued that Ring v. Arizona, 536 U.S.
584, 122 S. Ct. 2428 (2002), and Apprendi v. New Jersey, 530 U.S.
466, 120 S. Ct. 2348 (2000), required the State to prove beyond a
reasonable doubt that there was nothing sufficiently mitigating
about Cannady to justify a life sentence. The district court noted
that neither Ring nor Apprendi had been decided at the time of
Cannady’s trial in 1997. The court then held that Cannady’s
counsel “did not render deficient performance by failing to
anticipate the Supreme Court’s decisions in cases decided
approximately three and five years after Cannady’s trial.”
Cannady, No. C-01-273, slip op. at 26. Even if Cannady’s

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1 It is unlikely that a Ring challenge can be made to Texas’s procedure
of entrusting the jury alone with a capital punishment decision. Further,
Apprendi has yet to be applied to prior convictions.
2 See Schriro v. Summerlin, 542 U.S. 348, 358, 124 S. Ct. 2519, 2526
(2004) (“Ring announced a new procedural rule that does not apply retroactively
to cases already final on direct review.”); United States v. Brown, 305 F.3d
304, 310 (5th Cir. 2002) (holding that the procedural rule announced in Apprendi
is not retroactively applicable to AEDPA petitioners).
12
substantive claims have merit,1 the district court’s holding is not
debatable. Neither Ring nor Apprendi existed at the time Cannady’s
conviction became final, neither case applies retroactively,2 and
his counsel could not have been ineffective for failing to object
to issues based on Supreme Court cases that were yet to be decided.
Therefore, we need not grant a COA on this claim.
5. Failure to assess counsel errors cumulatively
Cannady seeks to magnify his individual ineffectiveness
claims with a plea of cumulative error. The district court
recognized that “cumulative error may provide a basis for habeas
relief if the cumulative effect of the errors was to deny the
defendant due process.” Cannady, No. C-01-273, slip op. at 26
(citation omitted). Such errors must “amount to ‘the failure to
observe that fundamental fairness essential to the very concept of
justice,’” and “‘must be of such quality as necessarily prevent a
fair trial.’” Id. (quoting Lisenba v. California, 314 U.S. 219,
236, 62 S. Ct. 280, 290 (1941)). In light of the fact that each of
Cannady’s ineffectiveness claims failed to satisfy at least one of

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the elements of Strickland, and considering the overwhelming
evidence that Cannady beat Bonal to death while serving life
sentences for two other murders, the district court reasonably
concluded that the alleged errors did not prevent a fair trial. As
reasonable jurists could not debate the district court’s resolution
of this contention, we will not issue a COA.
B. Procedural Default
Cannady challenges the district court’s finding that he
did not present to the state courts his claim of ineffective
assistance of counsel for failing to assert his actual innocence.
In consequence of his procedural default, the district court could
not review the claim unless refusal to do so would have resulted in
a miscarriage of justice. A miscarriage of justice, according to
the Supreme Court, is actual innocence, meaning “the prisoner must
show a fair probability that, in light of all the evidence . . .
the trier of the facts would have entertained a reasonable doubt of
his guilt.” Kuhlmann v. Wilson, 477 U.S. 436, 454 n.17, 106 S. Ct.
2616, 2627 n.17 (1986).
Cannady’s claim of actual innocence of capital murder was
based on self-defense. As the district court noted, under Texas
law a person may use self-defense if “he reasonably believes the
force is immediately necessary to protect himself against the
other’s use or attempted use of unlawful force,” but that the use

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of force is not justified “if the actor provoked the other’s use or
attempted use of unlawful force.” TEX. PENAL CODE § 9.31(a). The
court determined that Cannady was not legally justified in using
force, and therefore could not establish that actual innocence,
because (1) Cannady admitted at trial that Bonal was sitting on his
own bed when Cannady went over and struck him; (2) Cannady admitted
that Bonal did not first attack him; (3) Bonal did not begin to use
physical force until after Cannady attacked him; and (4) there was
no reasonable basis for Cannady to believe that the use of force
was immediately necessary to protect himself.
In light of the evidence in this case, reasonable jurors
could not entertain a reasonable doubt of his guilt, and reasonable
jurists could not debate the district court’s conclusion that
Cannady lacked legal justification in using force. In the absence
of any possible miscarriage of justice, Cannady’s underlying claim
of counsel error is procedurally defaulted. A COA is not
appropriate.
C. Evidentiary Hearing
Cannady next asserts that he is entitled to a COA to
contest the district court’s denial of an evidentiary hearing. The
court, however, held that none was required because Cannady did not
demonstrate any factual dispute whose favorable outcome would have
entitled him to relief, and each of his claims could be resolved by

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reference to the state court record. In this part of his COA
application, Cannady argues in a wholly conclusional fashion that
he has shown many issues of disputed fact entitling him to relief.
Neither in the district court nor in this court did
Cannady even attempt to satisfy the statutory requirements that
would justify an evidentiary hearing. See § 2254(e)(2). He
asserted no retroactive rule of constitutional law “that was
previously unavailable”, see § 2254(e)(2)(A)(i). Not one of
Cannady’s claims relied on a “factual predicate that could not have
been previously discovered through the exercise of due diligence.”
See § 2254(e)(2)(A)(ii). Finally, none of the facts underlying any
of Cannady’s claims would convince a reasonable jury that Cannady
is actually innocent of capital murder. See § 2254(e)(2)(B).
AEDPA prescribes a presumption of correctness for state factual
findings, which can only be rebutted by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1). The district court presumed the
correctness of the state court findings after determining that
Cannady could not rebut the presumption with clear and convincing
evidence. Therefore, because reasonable jurists could not find the
district court’s resolution of the need for an evidentiary hearing
debatable, or that the district court abused its discretion in
denying a hearing, we will not grant a COA.
D. Ex Post Facto

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3 TEXAS PENAL CODE § 19.03. Capital Murder
(a) A person commits an offense if the person commits murder as
defined under Section 19.02(b)(1) and:
. . .
(6) the person:
. . .
(B) while serving a sentence of life
imprisonment or a term of 99 years for an
offense under Section 20.04, 22.021, or
29.03, murders another.
16
Cannady argues that he is entitled to a COA on whether
the district court erred in denying relief on his ex post facto
challenge to TEXAS PENAL CODE § 19.03(a)(6). Section 19.03(a)(6)
makes it a capital crime when murder is committed by an inmate
serving a sentence of ninety-nine years or life imprisonment.3
Cannady contends that because an element of the capital murder
charge — his life sentences — occurred before the effective date of
the statute, the State is barred by the Ex Post Facto clause, U.S.
CONST. ART. I, § 9, cl. 3 AND ART. I § 10, cl. 1 , from applying this
statute to him.
The Texas Court of Criminal Appeals rejected this
argument, noting that the legislators’ intent in passing the law
was to deter inmates already serving long sentences from murdering
other inmates. State v. Cannady, 913 S.W.2d 741, 743-44 (Tex. App.
1996). The court held that the defendant’s status as an inmate
serving a sentence of ninety-nine years or life, rather than the
date of his prior convictions or the underlying offense, is an

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element of the § 19.03(a)(6) crime. Cannady fulfilled the
necessary status on and after the effective date of § 19.03(a)(6).
The district court reviewed the state court decision and
likened § 19.03(a)(6) to “recidivist, or ‘three strikes,’ statutes
which enhance penalties for crimes committed after the effective
date of the statute based on prior convictions.” Cannady,
No. C-01-273, slip op. at 33. In so doing, the court noted that
“[b]oth the Supreme Court and the Fifth Circuit have held that such
enhancements do not violate the Ex Post Facto clause,” id., and
should not be “viewed as either a new jeopardy or additional
penalty for the latest crime, which is considered to be an
aggravated offense because a repetitive one.” Id. (quoting Gryger
v. Burke, 334 U.S. 728, 732, 68 S. Ct. 1256, 1258 (1948). The
district court’s enhancement reasoning is perfectly apt.
In view of the Texas Court of Appeals decision and the
state record, the district court held that § 19.03(a)(6) did “not
retroactively punish Cannady’s prior offenses; rather, it
enhance[d] the possible penalty for his murder of Bonal because of
his then-current status as a convicted murderer serving two life
sentences,” and therefore § 19.03(a)(6) did “not violate the
constitutional prohibition against ex post facto lawmaking.” Id.
at 34. Reasonable jurists accordingly could not debate the
district court’s resolution of Cannady’s ex post facto claim.

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III. CONCLUSION
For the reasons discussed above, we deny Cannady’s
application for a COA on all claims and as such lack jurisdiction
to review the district court’s denial of habeas relief on these
claims. See Miller-El, 537 U.S. 335-36, 123 S.Ct. 1039.
COA DENIED.

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