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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-40556
JOSE ELIGIO DE LA CRUZ,
Petitioner-Appellant,
VERSUS
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
For the Southern District of Texas
January 22, 1998
Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:
Death row inmate Jose De La Cruz appeals the district court's
final judgment denying De La Cruz' petition for writ of habeas
corpus. We affirm.
I.
Nine years ago, Jose De La Cruz stabbed Domingo Rosas to
death. The Friday night before the murder De La Cruz was a guest
in Rosas' home and played a drinking game called "quarters" with
Rosas until early Saturday morning. After leaving Rosas' home, De

La Cruz returned and killed Rosas in order to steal Rosas'
television, VCR and stereo, a theft which yielded him approximately
$80.
De La Cruz was observed Saturday morning driving around with
a television in his car. Later that day, De La Cruz and his friend
Michael Rios tried to sell a television to Michael's uncle, Joe
Rios. Joe Rios declined but directed the pair to Ray and Irma
Flores, who paid De La Cruz $80 for Rosas' belongings.
Later that night, De La Cruz was arrested for public
intoxication. The arresting officer found De La Cruz staggering in
the road, near a borrowed car that De La Cruz had run into a ditch.
De La Cruz smelled like paint and seemed intoxicated. The officer
placed De La Cruz in the patrol car. Inside the ditched car, the
officer discovered a large blood-stained knife and a bottle of
medicine prescribed to Rosas. When the officer returned to the
patrol car, De La Cruz volunteered that the knife was his and
repeatedly asked whether it would be returned. De La Cruz then
announced at his booking that he was Domingo Rosas, the victim.
De La Cruz was released from jail, only to be arrested again
a few days later. This time, De La Cruz entered Rosas' bank and
attempted to withdraw money using Rosas' bank identification card.
The bank, knowing that Rosas was dead, notified the police, and De
La Cruz was arrested on suspicion of murder.
After his arrest for Rosas' murder, De La Cruz told his trial
counsel that he did not commit the murder, but had delivered the
stolen property to a "fence." Counsel explained that the state
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might be willing to arrange a plea agreement if De La Cruz could
recover the stolen property. Counsel also explained that any deal
with the state would be unenforceable unless De La Cruz was being
truthful about his role. Thereafter, and without finalizing any
plea agreement, De La Cruz led police to some of the stolen
property, which was recovered with De La Cruz' fingerprints. In
addition to the stolen television, the state produced overwhelming
evidence of De La Cruz' guilt at trial. For example, De La Cruz'
clothing and the knife recovered from the ditched car were both
stained with type-A blood, the same blood type as Rosas. Moreover,
blood spatters on De La Cruz' pants indicated that the wearer had
forcefully stabbed a seated victim. De La Cruz does not raise any
issue of actual innocence.
De La Cruz' victim, Rosas, was disabled at the time he was
murdered. Rosas had been pierced through the face and into the
brain with a television antennae at the age of three. As a result,
Rosas was partially paralyzed on his right side and was unable to
walk well without a leg brace. Rosas was required to take daily
medication to control spasms in his right side and suffered a
mental impairment, having the mental and emotional constitution of
a teenager. Finally, although Rosas was able to perform occasional
work in his mother's restaurant, he collected social security
benefits and required a significant amount of daily care from his
sister and mother in order to survive. There is no dispute that
the state relied heavily upon Rosas' disabled condition at both the
guilt and punishment phase of De La Cruz' trial.
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II.
In June 1988, De La Cruz was convicted and sentenced to death
in Texas state court. Four years later, the Texas Court of
Criminal Appeals affirmed his conviction. De La Cruz v. State, No.
70,502 (Tex. Crim App. Mar. 11, 1992). In October 1992, the
Supreme Court denied De La Cruz' petition for writ of certiorari.
De La Cruz v. Texas, 113 S. Ct. 149 (1992).
In December 1993, De La Cruz filed a petition for habeas
corpus relief in Texas state court. In January 1995, De La Cruz
amended his petition to reflect an investigation conducted by his
present counsel. In February 1995, the trial court recommended
that De La Cruz' petition be denied. The Court of Criminal Appeals
adopted the trial court's recommendation and denied De La Cruz'
petition in March 1995.
De La Cruz filed the instant petition for habeas corpus relief
in federal district court in February 1996. The district court
called two preliminary conferences to develop the issues presented
in De La Cruz' petition. The district court suggested particular
evidence that might be developed to support De La Cruz' claims and
set deadlines for the submission of additional evidence. The
district court also conducted an extensive evidentiary hearing with
respect to some of De La Cruz' claims, receiving testimony from
seven witnesses called by De La Cruz and six witnesses called by
the state. The district court subsequently entered a lengthy and
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detailed order explaining the reasons for its decision to deny
relief.
De La Cruz requested that the district court issue a
certificate of appealability, which was granted for certain issues.
De La Cruz' petition was filed before the April 1996 effective date
of the Antiterrorism and Effective Death Penalty Act. See Lindh v.
Murphy, 117 S. Ct. 2059 (1997). We therefore construe the district
court's grant of a limited certificate of appealability to be a
grant of an unlimited certificate of probable cause. Muniz v.
Johnson, __ F.3d __, ___, 1998 WL 1761 at *2 (5th Cir. Jan 2,
1998); East v. Johnson, 123 F.3d 235, 237 n.3 (5th Cir. 1997).
III.
De La Cruz appeals the district court's denial of his petition
for habeas corpus, raising the same six issues he presented to the
district court. First, De La Cruz maintains that the state
deprived him of due process by unfairly and inaccurately portraying
his victim as a "helpless cripple" deserving of the jury's mercy.
See Donnelly v. DeChristoforo, 94 S. Ct. 1868 (1974). De La Cruz
supports this argument with evidence that Rosas' physical abilities
were slightly greater than as portrayed in argument to the jury,
and that Rosas was convicted of robbery the year before he was
killed. Second, De La Cruz argues that the state violated the
dictates of Brady v. Maryland, 83 S. Ct. 1194 (1963) by failing to
physically surrender the state's file on Rosas' prior robbery
conviction. Third, De La Cruz claims that his trial counsel was
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constitutionally deficient because counsel acted upon De La Cruz'
story that he merely fenced Rosas' property without conducting an
independent investigation, and because counsel allowed De La Cruz
to lead police to the stolen property before a plea agreement was
finalized. See Bryant v. Scott, 28 F.3d 1411, 1415 (5th Cir.
1994). Fourth, De La Cruz contends that the arresting officer
interrogated him about the blood-stained knife without advising De
La Cruz of his right to remain silent. See Miranda v. Arizona, 86
S. Ct. 1602 (1966). Fifth, De La Cruz argues that he was
incompetent to stand trial because he was a long-time abuser of
spray paint inhalants and was under the influence of drugs at the
time of his trial. See Medina v. California, 112 S. Ct. 2572
(1992). Sixth, De La Cruz claims that his conviction was
unconstitutional because the jury was not given a definition for
the term "reasonable doubt." De La Cruz also objects that the
district court did not allow him to present additional evidence in
the evidentiary hearing to support all six of his claims. We
review the fact findings supporting the district court's denial of
De La Cruz' federal habeas corpus petition for clear error.
Barnard v. Collins, 958 F.2d 634, 636 (5th Cir. 1992). Questions
of law are reviewed de novo. Id.
The Court has considered the arguments of the parties, as
contained in the briefs and as presented at oral argument. The
Court has reviewed the relevant portions of the state and federal
components of the appellate record, including the transcripts of
the conferences and the evidentiary hearing held in the district
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court. Finally, the Court has considered the district court's
application of the relevant legal standards to De La Cruz' case.
Having completed that review, the Court concludes that the district
court's denial of De La Cruz' petition for writ of habeas corpus
relief is without error. De La Cruz' conviction and sentence of
death were not secured in violation of the Constitution or federal
law. Accordingly, the district court's denial of De La Cruz'
federal petition for writ of habeas corpus is in all respects
AFFIRMED.
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