Cervantes Salazar v. Dretke (393 F. Supp. 2d 451, 2005)

MEMORANDUM OPINION AND ORDER DENYING RELIEF

BIERY, District Judge.

Petitioner Luis Cervantes Salazar filed this federal habeas corpus action pursuant to Title 28 U.S.C. Section 2254 challenging his September, 1998, Bexar County capital murder conviction and sentence of death. For the reasons set forth below, petitioner is not entitled to federal habeas corpus relief from this Court but is entitled to a Certificate of Appealability on a single claim.

I. Statement of the Case

A. The Offense and its Aftermath

There is no genuine dispute as to the operative facts of petitioner’s offense. During the early morning hours of October 11, 1997, petitioner crawled through the front window of the home of Martha Sanchez and Danny Ochoa at 250 Future in San Antonio, Texas, went into the kitchen where he obtained a pair of knives, and then proceeded to Martha’s bedroom where he stabbed her multiple times, at least twice fatally. When Martha’s ten-year-old son Erick Martinez awoke to the sound of a struggle, he went to his mother’s bedroom, where he observed the petitioner, whom Erick recognized as a former neighbor, stabbing his mother. As petitioner stabbed her, Martha screamed “Luis, why are you doing this? Leave me alone.” When Erick attempted to grab one of the knives, the petitioner turned and stabbed Erick in the chest. At that point, Martha yelled for Erick to go get help. Fleeing the house, Erick banged on the doors of several neighbors before he awoke Sylvia Montenegro. Sylvia sent her daughter’s boyfriend, Adrian Gonzales, to the victim’s house and telephoned the authorities. Adrian opened the screen door at the front of the victim’s house and coaxed Erick’s two-and-a-half-year-old sister Brianna from the front hallway out through the front door. Sylvia then arrived and directed Adrian to enter the house and attempt to locate Erick and Brianna’s six-month-old brother Timothy. When he entered the back bedroom, Adrian found a bloody knife laying on top of the apparently dead Martha on the floor between her bed and Timothy’s crib. Adrian picked up the knife and placed it on a paper towel on the coffee table in the living room, where police later found it. Adrian next removed a twisted blanket that was wrapped around Timothy’s neck and carried the still-breathing baby out to the front porch as police arrived. At the scene, Erick identified petitioner as his mother’s assailant to Sylvia, to another neighbor who arrived shortly thereafter, to a police officer, and to a paramedic. Emergency medical personnel then took Erick to the hospital where he was treated for his chest wound and where Erick gave a homicide detective a formal statement in which he once again identified petitioner as the person who had stabbed both himself and his mother.

Petitioner telephoned police on the evening following the murder from the home of a relative and surrendered without incident. Following his arrest, petitioner asked one police officer how the victim was doing and, when informed that she was dead, petitioner inquired whether he would receive life or death. Petitioner spontaneously asked another police officer whether someone who killed another person would “get the needle.”

B. The Indictment

On December 18, 1997, a Bexar County Grand Jury indicted petitioner in cause no. 97-CR-6077 on a single count of capital murder, alleging two theories of that offense: that petitioner intentionally and knowingly murdered Martha Sanchez by stabbing her with a deadly weapon, i.e., a knife, while in the course of committing or attempting to commit the predicate offenses of aggravated sexual assault and burglary.

C. Guilt-Innocence Phase of Trial

The guilt-innocence phase of petitioner’s trial began on September 8,1998.

1. Petitioner’s Account of the Events

Petitioner admitted during his trial testimony he had stabbed both Martha Sanchez and Erick Martinez but claimed he had mistakenly entered their home on the night in question due to his intoxicated condition and acted solely in self-defense. Petitioner denied possessing any intent to kill, denied the intent to burglarize, and denied that he had attempted to sexually assault Martha. Petitioner also testified he had fled the crime scene on a bicycle all the way to his residence in another part of the city.

However, petitioner admitted that several months before he moved out of the house adjacent to the victims’ home, he had made a sexual advance toward Martha which she rebuffed and resulted in Martha’s husband rebuking petitioner and warning him to stay away from Martha’s home. Petitioner also admitted he had told his wife that violence made him feel good and he had thought about killing people.

2. The Detached Phone Lines

The prosecution offered uncontested testimony from Martha’s husband that (1) at approximately 12:30 a.m. on the date of the murder he had telephoned Martha from his place of employment and the phone had worked perfectly but (2) the day after the murder, when he returned to remove items from the home, the phone was not working and (3) he noticed that both of the telephone lines leading into the house from a box in the back of the house had been cut or pulled loose. One of Martha’s neighbors also testified that both the phone lines at the back of Martha’s house had been cut. A San Antonio Police Officer testified that on October 12, 1997, he observed and photographed the telephone lines hanging loose at the rear of the house where he also observed and photographed a pair of footprints in the mud directly below the window into Martha’s bedroom. The prosecution also presented testimony and photographs showing the exterior fronts of the victim’s house and petitioner’s former residence next door were completely dissimilar.

3. The Verdict

On September 11, 1998, the jury returned its verdict, finding petitioner guilty of capital murder as charged in the indictment.

D. Punishment Phase of Trial

The punishment phase of petitioner’s trial commenced on September 21,1998.

1. The Prosecution’s Evidence

A retired San Antonio Police Officer testified about a series of armed robberies of convenience stores in South San Antonio that occurred over a three-to-four-day period in late-January through early-February, 1988 involving the same vehicle. A convenience store employee testified he was robbed at gun point on January 31, 1988, by a ski-masked robber whom he saw remove his ski-mask as the robber left the store and whom he later identified in a photo array as the petitioner. Several San Antonio Police Officers testified regarding three armed robberies that occurred in rapid succession on February 2, 1988, and culminated in a high speed chase which ended only when the suspect vehicle went out of control at a construction site, spun out, and struck a utility pole. The prosecution also presented testimony from a pair of eyewitnesses to two of the armed robberies on February 2, 1988, during one of which petitioner failed to wear his ski mask. Photographs of the heavily-damaged station wagon, both the petitioner and his accomplice-brother at the scene of the wreck, and various items found inside the station wagon were also admitted into evidence. Petitioner was indicted on four counts of aggravated robbery arising from the robberies on January 31 and February 2, 1988, entered guilty pleas to all four charges, and received deferred adjudication probation.

The prosecution also presented testimony from a mentally challenged young woman and others that, on May 17, 1991, the petitioner picked up the young woman, who was then an 18-year-old high school student, from her high school on the pretext of taking her to lunch, drove her to his home, and sexually assaulted her. Petitioner was indicted in cause no. 92-CR-0445 on a charge of sexual assault but, on April 11, 1994, entered a guilty plea to a lesser-included charge of misdemeanor assault with bodily injury and received a two-year, probated sentence.

A San Antonio Police Bike Officer testified: (1) he believed it would be very difficult to ride a bicycle from the location of Martha Sanchez’s murder at 250 Future to petitioner’s residence at 122 Ashland if one were intoxicated and (2) it would be extremely difficult to do so if one were intoxicated and it was still dark. The neighbor of Martha Sanchez, who had custody of Brianna the morning of the murder, testified: (1) Brianna had blood on her face, hands, leg, and pajamas and (2) Brianna told her “Bad man hurt Mommie” and “Mommie has lots of owies” while Brianna gestured and forced her leg into the neighbor’s stomach to illustrate what had happened. Martha’s mother testified: (1) Martha’s death had gravely affected their family, (2) since Martha’s murder, Brianna often begged to be held at night, and (3) both Brianna and Erick had experienced bad dreams since their mother’s murder. A clinical psychologist who had examined and treated Erick since his mother’s murder testified: (1) she felt strongly that Erick needed psychological assistance and (2) since the loss of his mother, Erick had been separated from his sister and brother and felt great sadness and anger.

2. The Defense’s Evidence

A long-time Mend of petitioner’s family-testified: (1) petitioner’s father was extremely violent, very possessive, beat petitioner’s mother, abused petitioner and his siblings, became extremely violent when drunk, but nonetheless was a hard worker, a responsible and loving father, and a good musician who provided for his family, (2) petitioner and his brother committed their armed robberies because their father was ill and unable to work and they needed money to pay the bills, (3) petitioner’s family was very close-knit and would rather steal than borrow money when they needed to pay their bills, and (4) he was unaware of petitioner’s sexual assault upon a mentally retarded girl.

Petitioner’s younger sister testified: (1) there was a lot of alcoholism and drug abuse in their family, (2) their father played in a band and taught his children to play, often abusing them in the process, hitting the boys when they didn’t play their instruments right, (3) their father often struck them with a piece of garden hose and also abused their mother, (4) at age six months, a doctor told their mother that petitioner would always be slow, (5) petitioner had always been helpful to her and her family, loaning her money and helping to work on her car, (6) petitioner and his brother committed their robberies to pay the phone bill because their father was on a life-support machine, (7) petitioner is devoted to his three children, (8) petitioner had a difficult time holding a job, (9) petitioner never cried when their father beat him, (10) Martha Sanchez was not terrified of petitioner but permitted petitioner to baby-sit her children, (11) their father taught them to defend themselves, and (12) she was unaware the petitioner had refused to participate in drug-treatment programs offered by the Bexar County Adult Probation Department.

Petitioner’s younger brother testified: (1) their father was abusive and they all had a difficult childhood, (2) their father would beat then until they bled but petitioner would never cry, (3) their father played in a band, drank when he played, and became violent with them when he drank, (4) all of the children in their family wanted out of their home as quickly as possible because of their father’s abuse, (5) their mother is disabled due to back problems but is a loving person who always tries to help others, (6) petitioner is loving toward their mother, gets along with their siblings, and helped out his family when they were living out of a truck, (7) petitioner had difficulties in school because he and his brothers were often up late playing in the family band their father led, (8) their father kept all the money the children earned playing in the family band, (9) their father often slapped their mother and would slap his sons when they rushed to defend their mother, both of which happened almost every weekend, (10) he never witnessed any problems between petitioner and Martha Sanchez, and (11) drugs were a problem for petitioner but he is nonetheless a good person who loves his children and family.

3. Rebuttal

The prosecution called Martha Sanchez’s husband who testified: (1) he had never left his children in petitioner’s care and (2) Sylvia Montenegro and her daughter were his and Martha’s baby-sitters.

4. The Verdict

On September 24, 1998, the jury returned its verdict at the punishment phase of trial, finding (1) beyond a reasonable doubt there was a probability the petitioner would commit criminal acts of violence that would constitute a continuing threat to society and (2) taking into consideration all of the evidence, including the circumstances of the offense, the petitioner’s character and background, and the petitioner’s personal moral culpability, there were insufficient mitigating circumstances to warrant a life sentence for petitioner Aceordingly, the trial court sentenced petitioner to death.

E. Direct Appeal

On March 3, 2000, petitioner filed his brief appealing his conviction and sentence. In an unpublished opinion issued April 24, 2001, the Texas Court of Criminal Appeals affirmed petitioner’s conviction and sentence. Petitioner did not thereafter file a petition for writ of certiorari seeking further review of his conviction and sentence by the United States Supreme Court.

F. State Habeas Corpus Proceeding

On October 25, 2000, petitioner filed an application for state habeas corpus relief. On December 18, 2001, petitioner filed a supplemental state habeas corpus application in which he argued his state appellate counsel had rendered ineffective assistance by failing to timely notify petitioner of the disposition of petitioner’s direct appeal by the Texas Court of Criminal Appeals so as to permit petitioner to seek review of his conviction and sentence on direct appeal by the United States Supreme Court.

On May 14, 2002, the state trial court held an evidentiary hearing in petitioner’s state habeas corpus proceeding. At that hearing, a Southwestern Bell employee testified that company had never received any reports of an inoperable or damaged telephone line at 250 Future after September 9, 1997. A pathologist (1) testified that, based on his review of autopsy photographs and autopsy records, one of the abrasions on Martha Sanchez’s thigh showed sufficient inflammation suggesting that it was from an injury that occurred more than a few minutes before her death, (2) testified there was no evidence Martha Sanchez had been sexually assaulted, (3) testified that he did not believe the pattern of Martha Sanchez’s injuries fit an attempted rape, but (4) admitted that pathology alone cannot validate or invalidate a theory of attempted sexual assault.

Petitioner’s former lead trial and appellate counsel testified at the same hearing: (1) at the time of petitioner’s trial, there was no independent source of information on a potential juror’s criminal history readily available, (2) nothing in venire member Clarita Gonzales’ criminal history information, furnished by the prosecution or juror questionnaire answers, suggested to him that she had been convicted of theft, (3) Ms. Gonzales’ questionnaire answers caused him to view her favorably as a potential juror, (4) he was surprised by the testimony of prosecution witnesses that the phone lines had been cut at the residence of Martha Sanchez despite the fact that crime scene photographs did show the lines had been pulled out or cut, (5) he sent his investigator to the phone company to get service records for that address, (6) he was also surprised by the medical examiner’s testimony suggesting Martha Sanchez’s injuries were consistent with attempted sexual assault, (7) he did not request appointment of a pathologist to assist the defense because there was no dispute as to the cause of death, (8) he usually requests an instruction directing the jury to reach a unanimous verdict regarding a particular theory of capital murder but did not do so in this case, (9) he was unaware of any legal basis to exclude testimony regarding the impact of the murder on the victim’s children because the children had witnessed the murder, and (10) petitioner turned down a plea bargain offer for a life sentence despite his efforts to urge petitioner to accept same.

The lead prosecutor at petitioner’s trial testified: (1) he maintained an open file policy in connection with petitioner’s trial, (2) he learned from a member of Martha’s family during trial preparations that the phone lines to the residence had been cut, (3) that information was not included in any police reports, (4) neither Clarita Gonzales’ juror questionnaire answers nor her voir dire answers revealed she had been convicted of theft, and (5) he went to 250 Future in the spring or summer of 1998 and observed the victim’s family had moved out.

The parties also stipulated to the admission of testimony and documentary evidence that had been introduced in a previous state habeas corpus proceeding challenging the manner in which grand jurors were selected in Bexar County.

On October 30, 2002, the state trial court issued an Order containing its findings of fact, conclusions of law, and recommendation that petitioner’s state habeas corpus application be denied. In an unpublished order issued February 12, 2003, the Texas Court of Criminal Appeals adopted the findings and conclusions of the state trial court and denied petitioner’s state habeas corpus application.

G. Proceedings in this Court

On December 5, 2003, petitioner filed a petition for federal habeas corpus relief in this Court in which he re-urged the same five claims for relief he had included in his state habeas corpus pleadings. (Docket entry no. 6.) On February 9, 2004, respondent filed an original answer and motion for summary judgment. (Docket entry no. 7.) On May 20, 2005, petitioner filed a response to respondent’s answer and motion for summary judgment and motion for factual development. (Docket entry no. 8/9.)

II. AEDPA Standard of Review

Because petitioner filed his federal habe-as corpus action after the effective date of the AEDPA, this Court’s review of petitioner’s claims for federal habeas corpus relief is governed by the AEDPA. Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 1918, 150 L.Ed.2d 9 (2001). Under the AEDPA standard of review, this Court cannot grant petitioner federal habeas corpus relief in this cause in connection with any claim that was adjudicated on the merits in state court proceedings, unless the adjudication of that claim either: (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. Williams v. Taylor, 529 U.S. 362, 404-05, 120 S.Ct. 1495, 1519, 146 L.Ed.2d 389 (2000); 28 U.S.C. § 2254(d).

The Supreme Court has concluded the “contrary to” and “unreasonable application” clauses of Title 28 U.S.C. Section 2254(d)(1) have independent meanings. Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 1850, 152 L.Ed.2d 914 (2002). Under the “contrary to” clause, a federal habeas court may grant relief if (1) the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or (2) the state court decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Mitchell v. Esparza, 540 U.S. 12, 15-16, 124 S.Ct. 7, 10, 157 L.Ed.2d 263 (2003) (“A state court’s decision is ‘contrary to’ our clearly established law if it ‘applies a rule that contradicts the governing law set forth in our cases’ or it ‘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.’ ”). A state court’s failure to cite governing Supreme Court authority does not, per se establish that the state court’s decision is “contrary to” clearly established federal law: “the state court need not even be aware of our precedents; ‘so long as neither the reasoning nor the result of the state-court decisions contradicts them.’ ” Mitchell v. Esparza, 540 U.S. at 16, 124 S.Ct. at 10.

Under the “unreasonable application” clause, a federal habeas court may grant relief if the state court identifies the correct governing legal principle from the Supreme Court’s decisions but unreasonably applies that principle to the facts of the petitioner’s case. Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 2534-35, 156 L.Ed.2d 471 (2003). A federal court making the “unreasonable application” inquiry should ask whether the state court’s application of clearly established federal law was “objectively unreasonable.” Wiggins v. Smith, 539 U.S. at 520-21, 123 S.Ct. at 2535. The focus of this inquiry is on whether the state court’s application of clearly established federal law was objectively unreasonable; an “unreasonable” application is different from a merely “incorrect” one. Wiggins v. Smith, 539 U.S. at 520, 123 S.Ct. at 2535; see Price v. Vincent, 538 U.S. 634, 641, 123 S.Ct. 1848, 1853, 155 L.Ed.2d 877 (2003)(“it is the habeas applicant’s burden to show that the state court applied that case to the facts of his case in an objectively unreasonable manner”). Legal principles are “clearly established” for purposes of AEDPA review when the holdings, as opposed to the dicta, of Supreme Court decisions as of the time of the relevant state-court decision establish those principles. Yarborough v. Alvarado, 541 U.S. 652, -, 124 S.Ct. 2140, 2147, 158 L.Ed.2d 938 (2004) (“We look for ‘the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.’ ”); Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 1172, 155 L.Ed.2d 144 (2003).

The AEDPA also significantly restricts the scope of federal habeas review of state court fact findings. A petitioner challenging state court factual findings must establish by clear and convincing evidence that the state court’s findings were erroneous. See Morrow v. Dretke, 367 F.3d 309, 315 (5th Cir.2004)(“The AEDPA requires that we presume correct the state court’s findings of fact unless the petitioner ‘rebuts the presumption of correctness by clear and convincing evidence.’ ”), cert. denied, — U.S. —, 125 S.Ct. 421, 160 L.Ed.2d 325 (2004); Pondexter v. Dretke, 346 F.3d 142, 146, 149 (5th Cir.2003) (holding that, pursuant to § 2254(e)(1), state court findings of fact are presumed correct and the petitioner has the burden of rebutting that presumption by clear and convincing evidence), cert. denied, 541 U.S. 1045, 124 S.Ct. 2160, 158 L.Ed.2d 736 (2004); Henderson v. Cockrell, 333 F.3d 592, 598 (5th Cir.2003)(holding the same), cert. denied, 540 U.S. 1163, 124 S.Ct. 1170, 157 L.Ed.2d 1208 (2004); 28 U.S.C. § 2254(e)(1).

Finally, in this Circuit, a federal habeas court reviewing a state court’s rejection on the merits of a claim for relief pursuant to the AEDPA must focus exclusively on the propriety of the ultimate decision reached by the state court and not evaluate the quality, or lack thereof, of the state court’s written opinion supporting its decision. See Pondexter v. Dretke, 346 F.3d at 148 (holding the precise question before a federal habeas court in reviewing a state court’s rejection on the merits of an ineffective assistance claim is whether the state court’s ultimate conclusion was objectively reasonable); Anderson v. Johnson, 338 F.3d 382, 390 (5th Cir.2003)(holding a federal habeas court reviews only a state court’s decision and not the opinion explaining that decision); Neal v. Puckett, 286 F.3d 230, 246 (5th Cir.2002) (en banc) (holding that a federal court is authorized by § 2254(d) to review only a state court’s decision and not the written opinion explaining that decision), cert. denied, 537 U.S. 1104, 123 S.Ct. 963, 154 L.Ed.2d 772 (2003).

III. Grand Jury Composition

A. The Claims

In his first claim for federal habeas corpus relief herein, petitioner argues that his constitutional right to indictment by a grand jury drawn from a fair cross-section of the community and his equal protection rights were violated when he was indicted by a Bexar County grand jury drawn exclusively from voter registration lists.

B. State Court Disposition

Petitioner fairly presented this same claim to the state courts during his state habeas corpus proceeding. The state ha-beas trial court (1) found petitioner had presented no evidence showing the ethnic composition of registered voters in Bexar County, Texas, (2) found petitioner failed to present any evidence showing the ethnic composition of any of the grand jury veni-res randomly selected by computer during the time period at issue, (3) found the manner by which names were drawn from the jury wheel in Bexar County was “totally race neutral,” (4) found petitioner had raised his complaint about the composition of his grand jury for the first time in a post-conviction, collateral proceeding, (5) concluded petitioner procedurally defaulted on his complaint regarding the composition of his grand jury by failing to either raise that same complaint via pretrial motion or on direct appeal, (6) concluded petitioner had failed to carry his burden of showing the pools from which Bexar County grand juries were selected, in his case or any others during the same time frame, were not proportional to the composition of Bexar County as a whole, and (7) conelud-ed petitioner had failed to establish that any under-representation of an identified group occurred as a result of “systematic” discrimination.

C. Procedural Default

Respondent correctly points out petitioner has procedurally defaulted on his fair cross-section and equal protection challenges to the composition of his grand jury.

1. General Principles

Procedural default occurs where (1) a state court clearly and expressly bases its dismissal of a claim on a state procedural rule and that procedural rule provides an independent and adequate ground for the dismissal or (2) the petitioner fails to exhaust all available state remedies and the state court to which he would be required to petition would now find the claims procedurally barred. Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d 640 (1991). In either instance, the petitioner is deemed to have forfeited his federal habeas claim. O’Sullivan v. Boerckel, 526 U.S. 838, 848, 119 S.Ct. 1728, 1734, 144 L.Ed.2d 1 (1999). However, such procedural defaults only bar federal habeas review when the state procedural rule that forms the basis for the procedural default was “firmly established and regularly followed” by the time it was applied to preclude state judicial review of the merits of a federal constitutional claim. Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850, 857-58, 112 L.Ed.2d 935 (1991).

The Supreme Court has recognized exceptions to the doctrine of procedural default where a federal habeas corpus petitioner can show “cause and actual prejudice” for his default or that failure to address the merits of his procedurally defaulted claim will work a “fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. at 750, 111 S.Ct. at 2565; Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989). To establish “cause,” a petitioner must show either that some objective external factor impeded the defense counsel’s ability to comply with the state’s procedural rules or that petitioner’s trial or appellate counsel rendered ineffective assistance. Coleman v. Thompson, 501 U.S. at 753, 111 S.Ct. at 2566; Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986) (holding that proof of ineffective assistance by counsel satisfies the “cause” prong of the exception to the procedural default doctrine). In order to satisfy the “miscarriage of justice” test, the petitioner must supplement his constitutional claim with a colorable showing of factual innocence. Sawyer v. Whitley, 505 U.S. 333, 335-36, 112 S.Ct. 2514, 2519, 120 L.Ed.2d 269 (1992).

2. Failure to File a Pretrial Motion to Quash

In the course of petitioner’s state habeas corpus proceeding, the trial court concluded petitioner had procedurally defaulted on his complaints regarding the composition of his grand jury by failing to present those claims in a pretrial motion to quash the indictment against him. As far back as 1979, the Fifth Circuit recognized as firmly established principles of Texas law the rules that (1) a defendant must raise a challenge to the composition of the grand jury at the earliest point possible and (2) when it is not possible to do so sooner, such a challenge may be raised before trial by a motion to quash the indictment. Rat- cliff v. Estelle, 597 F.2d 474, 476 (5th Cir.1979), cert. denied, 444 U.S. 868, 100 S.Ct. 143, 62 L.Ed.2d 93 (1979). Both before and after the Fifth Circuit’s holding in Ratcliff, the Texas Court of Criminal Appeals has regularly applied these same principles. See, e.g., Muniz v. State, 672 S.W.2d 804, 807-08 (Tex.Crim.App.1984) (holding pursuant to Article 19.27 of the Texas Code of Criminal Procedure a grand jury array must be challenged at the first opportunity, which ordinarily means when the grand jury is impaneled, but, if that is impossible, the grand jury array may be attacked in a motion to quash the indictment made before trial commences); Muniz v. State, 573 S.W.2d 792, 796 (Tex. Crim.App.1978) (holding that, when a challenge to the grand jury upon empaneling is not possible, the array can be attacked in a motion to quash the indictment before trial commences and that if the defendant had an opportunity to challenge the array when it was impaneled but did not do so, he may not challenge it at a later date), cert. denied, 442 U.S. 924, 99 S.Ct. 2850, 61 L.Ed.2d 291 (1979).

Petitioner was arrested on the date of his offense, i.e., October 11, 1997. Counsel were appointed to represent petitioner on October 15 and 22, 1997. The grand jury that returned the indictment against petitioner was impaneled in November, 1997. Petitioner was represented by counsel and had an opportunity to challenge the grand jury array at the time it was impaneled. More significantly, petitioner had ample opportunity to challenge the grand jury array through a pretrial motion to quash the indictment. Thus, under firmly established, regularly applied, state procedural principles, petitioner’s failure to challenge his grand jury array through a pretrial motion to quash precluded his subsequent challenges to same, made for the first time more than two years after his conviction. See Ratcliff v. Estelle, 597 F.2d at 476 (holding a Texas petitioner who waited almost two years after trial to raise the issue of grand jury composition procedurally defaulted on those claims); Muniz v. State, 573 S.W.2d at 796 (holding a defendant who was in custody and represented by counsel at the time his grand jury was impaneled but who filed no challenge to the array when it was impaneled and who waited until several months after the grand jury returned the indictment against him before filing his motion to quash failed to timely challenge the array).

3. Failure to Raise Point of Error on Direct Appeal

As the second basis for its conclusion that petitioner procedurally defaulted on his complaints regarding the composition of his grand jury, the state habeas trial court pointed out that petitioner had failed to raise a point of error on direct appeal presenting those challenges to his grand jury. The Fifth Circuit has recognized that this same procedural default rule was “firmly established” for federal procedural default purposes not only before the date the Texas Court of Criminal Appeals disposed of petitioner’s direct appeal (i.e., April 25, 2001) but also before the date petitioner filed his appellant’s brief (i.e., March 3, 2000). See Busby v. Dretke, 359 F.3d 708, 719 (5th Cir.2004)(holding the Texas Court of Criminal Appeals’ opinion in Ex parte Gardner, 959 S.W.2d 189, 199 (Tex.Crim.App.1996), modified on motion for rehearing on February 2, 1998, furnishes the foundation for this new state procedural rule), cert. denied; 541 U.S. 1087, 124 S.Ct. 2812, 159 L.Ed.2d 249 (2004); Finley v. Johnson, 243 F.3d 215, 219 (5th Cir.2001) (holding a federal habeas petitioner procedurally defaulted on an unexhausted newly discovered evidence theory supporting a Brady claim by failing to raise same on direct appeal); Soria v. Johnson, 207 F.3d 232, 249 (5th Cir.2000)(holding a federal habeas petitioner procedurally defaulted on a fair cross-section complaint by failing to raise it in a direct appeal that became final in 1997), cert. denied, 530 U.S. 1286, 121 S.Ct. 2, 147 L.Ed.2d 1027 (2000). At the time petitioner filed his appellant’s brief the law in Texas, as established on rehearing in Ex parte Gardner, required a convicted criminal defendant to present any and all claims then available as points of error on direct appeal. Id. For unknown reasons, petitioner’s appellate counsel failed to assert petitioner’s complaint regarding the composition of his grand jury as a point of error on direct appeal. Thus, petitioner has procedurally defaulted on this claim in this Court.

The Fifth Circuit recognizes a presumption that a state procedural rule is an adequate and independent basis for foreclosing federal habeas review and that the burden is on the petitioner to demonstrate otherwise, i.e., to show that a state procedural rule is not firmly established or regularly applied. Johnson v. Cain, 215 F.3d 489, 494 (5th Cir.2000); Hughes v. Johnson, 191 F.3d 607, 614 (5th Cir.1999), cert. denied, 528 U.S. 1145, 120 S.Ct. 1003, 145 L.Ed.2d 945 (2000); Sones v. Hargett, 61 F.3d 410, 416-17 (5th Cir.1995). Petitioner has made no effort to show that either of the two state procedural rules the state habeas court held barred review on the merits of petitioner’s federal complaints about the composition of his grand jury were not regularly applied in similar cases by the Texas Court of Criminal Appeals.

Thus, petitioner has twice procedurally defaulted on his federal complaints regarding the composition of his grand jury.

4. Exceptions Inapplicable

a. State Court’s Alternative Holding on the Merits Does Not Preclude a Finding of Procedural Default

Petitioner argues that because the state habeas court also reached the merits of his fair cross-section and equal protection challenges to the composition of his grand jury, procedural default does not preclude federal habeas review of same. However, the Supreme Court has clearly held that a state court opinion, such as that issued by the trial court in petitioner’s state habeas corpus proceeding, which plainly relies on a state procedural bar need not fear reaching the merits of a federal claim in an alternative holding. See Harris v. Reed, 489 U.S. at 264 n. 10, 109 S.Ct. at 1044 n. 10 (“By its very nature the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court’s judgment, even when the state court also relies on federal law.”). Furthermore, the Fifth Circuit expressly held in Soria v. Johnson, 207 F.3d at 249, that a state habeas court’s finding of procedural default on a jury composition claim (based on the petitioner’s failure to raise that claim on direct appeal) foreclosed federal habeas review of that claim even though the state habeas court alternatively rejected the petitioner’s federal claim on the merits. Thus, the fact the state habeas court also addressed the merits of petitioner’s fair cross-section and equal protection claims after plainly and clearly rejecting those same claims on state procedural grounds does not alter the preclusive effect of that court’s state procedural rulings. Soria v. Johnson, 207 F.3d at 249 n. 24 (“A state court expressly and unambiguously bases its denial of relief on a state procedural default even if it alternatively reaches the merits of a defendant’s claims”)(quoting Fisher v. Texas, 169 F.3d 295, 300 (5th Cir.1999)).

b. No “Cause and Actual Prejudice”

To establish “cause” for purposes of the “cause and actual prejudice” exception to the procedural default doctrine, a petitioner must show either that some objective external factor impeded his counsel’s ability to comply with the state’s procedural rules or that his trial or appellate counsel rendered ineffective assistance. Coleman v. Thompson, 501 U.S. at 753, 111 S.Ct. at 2566; Murray v. Carrier, 477 U.S. at 488, 106 S.Ct. at 2645. A showing of ineffective assistance can satisfy the “cause” prong of the “cause and actual prejudice” exception to the procedural default doctrine. Coleman v. Thompson, 501 U.S. at 753, 111 S.Ct. at 2566; Murray v. Carder, 477 U.S. at 488, 106 S.Ct. at 2645. Petitioner has presented this Court with allegations of ineffective assistance by his trial and appellate counsel. However, none of these assertions of ineffective assistance focus on the failure of his trial counsel to file a pretrial motion to quash the indictment against him or on the failure of his appellate counsel to challenge the composition of his grand jury on direct appeal. In sum, petitioner has alleged no specific facts showing his trial or appellate counsel rendered ineffective assistance when they failed to either file a pretrial motion to quash the indictment against petitioner or present a point of error on direct appeal challenging the composition of petitioner’s grand jury. Petitioner also alleges no facts showing that external impediment precluded his trial or appellate counsel from timely filing a pretrial motion to quash the indictment against petitioner or including a point of error challenging the grand jury composition in petitioner’s appellant’s brief. Thus, petitioner has failed to allege any facts showing that he can satisfy the. “cause and actual prejudice” exception to the procedural default doctrine.

c. No Fundamental Miscarriage of Justice

In order to satisfy the “miscarriage of justice” test, the petitioner must supplement his constitutional claim with a color-able showing of factual innocence. Sawyer v. Whitley, 505 U.S. 333, 335-36, 112 S.Ct. 2514, 2519, 120 L.Ed.2d 269 (1992). Supreme Court precedent recognizes a subtle difference in the manner in which this test is applied at the guilt-innocence and punishment phases of a capital trial.

To satisfy the “factual innocence” standard at the guilt-innocence phase of a capital trial, a petitioner must establish a fair probability that, considering all of the evidence now available, the trier of fact would have entertained a reasonable doubt as to the defendant’s guilt. See Sawyer v. Whitley, 505 U.S. at 335-40, 112 S.Ct. at 2517-19 (holding that to show “actual innocence” in the context of a capital sentencing scheme, one must show by clear and convincing evidence that, but for the constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state statute and that “factual innocence” means a fair probability that, in light of all the evidence, the trier of the facts would have entertained a reasonable doubt as to the defendant’s guilt). In other words, to satisfy the “factual innocence” standard, a petitioner must establish a fair probability that, considering all of the evidence now available, the trier of fact would have entertained a reasonable doubt as to the defendant’s guilt. Id. The “factual innocence” test, therefore, requires the Court to give consideration to the all of the evidence now available to the Court on the issue of the petitioner’s guilt or innocence. The defendant must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him. Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 1611, 140 L.Ed.2d 828 (1998).

The Supreme Court has held that a showing of “actual innocence” is made in connection with the punishment phase of a capital murder trial when a petitioner shows by clear and convincing evidence that, but for constitutional error, no reasonable juror would have found petitioner eligible for the death penalty under applicable state law. Sawyer v. Whitley, 505 U.S. at 346-48, 112 S.Ct. at 2523. The Supreme Court explained in Sawyer v. Whitley that this “actual innocence” requirement focuses on those elements which render a defendant eligible for the death penalty and not on additional mitigating evidence that was prevented from being introduced as a result of a claimed constitutional error. Sawyer v. Whitley, 505 U.S. at 347, 112 S.Ct. at 2523.

Petitioner has alleged no specific facts sufficient to satisfy the factual innocence standard at either phase of his capital trial. The evidence of petitioner’s guilt was overwhelming, especially when one views that evidence in the light most favorable to the jury’s verdict, which implicitly rejected petitioner’s proffered explanation for his offense. Likewise, petitioner has alleged no facts showing that, but for any identified constitutional error during his trial, no reasonable juror would have found petitioner eligible for the death penalty under applicable state law. Thus, petitioner has failed to satisfy the fundamental miscarriage of justice exception to the procedural default doctrine.

D. No Merits

1. State Court Disposition

Alternatively, the state habeas court concluded petitioner had failed to carry his burden of showing that Bexar County’s process for selecting his grand jury, or grand juries generally, either resulted in the under-representation of Hispanics on Bexar County grand juries or that any such under-representation was the result of systematic exclusion of Hispanics from grand jury service. The state habeas court also concluded petitioner had failed to demonstrate that any under-representation of Hispanics on Bexar County grand juries was the product of intentional discrimination.

2. Clearly Established Federal Law

a. Equal Protection and State Grand Jury Selection

Few principles of federal constitutional law have been more consistently and uniformly applied over time than the Supreme Court’s pronouncement in Strauder v. West Virginia, 100 U.S. 303, 307-10, 10 Otto 303, 25 L.Ed. 664 (1879), that excluding otherwise qualified persons from service on grand juries solely on the basis of their race violates the equal protection guarantee of the Fourteenth Amendment. See Vasquez v. Hillery, 474 U.S. 254, 261-62, 106 S.Ct. 617, 622-23, 88 L.Ed.2d 598 (1986) (recognizing that indictment of a criminal defendant by a grand jury from which members of a racial group purposefully have been excluded violates the defendant’s right to equal protection of the laws); Rose v. Mitchell, 443 U.S. 545, 556, 99 S.Ct. 2993, 3000, 61 L.Ed.2d 739 (1979) (because discrimination on the basis of race in selection of grand jurors “strikes at the fundamental values of our judicial system and our society as a while,” indictment by a grand jury from which members of a racial group purposefully have been excluded violates equal protection principles); Castaneda v. Partida, 430 U.S. 482, 492, 97 S.Ct. 1272, 1279, 51 L.Ed.2d 498 (1977) (it is a denial of equal protection to try a defendant under an indictment issued by a grand jury from which all persons of his race or color have, solely because of that race or color, been excluded by the State); Alexander v. Louisiana, 405 U.S. 625, 628, 92 S.Ct. 1221, 1224, 31 L.Ed.2d 536 (1972) (“For over 90 years, it has been established that a criminal conviction of a Negro cannot stand under the Equal Protection Clause of the Fourteenth Amendment if it is based on an indictment of a grand jury from which Negroes were excluded by reason of their race.”); Arnold v. North Carolina, 376 U.S. 773, 774, 84 S.Ct. 1032, 1032, 12 L.Ed.2d 77 (1964); Eubanks v. Louisiana, 356 U.S. 584, 585, 78 S.Ct. 970, 972, 2 L.Ed.2d 991 (1958)(“a criminal defendant is denied the equal protection of the laws guaranteed by the Fourteenth Amendment if he is indicted by a grand jury or tried by a petit jury from which members of his race have been excluded because of their race.”); Reece v. Georgia, 350 U.S. 85, 87, 76 S.Ct. 167, 169, 100 L.Ed. 77 (1955) (“The indictment of a defendant by a grand-jury from which members of his race have been systematically excluded is a denial of his right to equal protection of the laws.”); Hernandez v. Texas, 347 U.S. 475, 477, 74 S.Ct. 667, 670, 98 L.Ed. 866 (1954) (“it is a denial of equal protection of the laws to try a defendant of a particular race or color under an indictment issued by a grand jury, or before a petit jury, from which all persons of his race or color have, solely because of that race or color, been excluded by the State, whether acting through its legislature, its courts, or its executive or administrative officers.”); Cassell v. Texas, 339 U.S. 282, 287, 70 S.Ct. 629, 632, 94 L.Ed. 839 (1950) (plurality held that a long practice of grand jury selection in which the number of Negroes who served was limited to a number (one) that was considered proportional to the overall percentage of Negroes in the county population was forbidden by equal protection principles); Patton v. Mississippi, 332 U.S. 463, 465, 68 S.Ct. 184, 186, 92 L.Ed. 76 (1947) (exclusion of Negroes from grand and petit juries because of their race denies Negro defendants their equal protection rights under the Fourteenth Amendment); Hill v. Texas, 316 U.S. 400, 404, 62 S.Ct. 1159, 1160, 86 L.Ed. 1559 (1942) (evidence showing the total exclusion of Negroes from grand and petit juries in a county for sixteen years constituted a prima face case of equal protection violation); Smith v. Texas, 311 U.S. 128, 129, 61 S.Ct. 164, 165, 85 L.Ed. 84 (1940) (the intentional and systematic exclusion of Negroes from grand jury service solely on account of race and color violated equal protection rights); Pierre v. Louisiana, 306 U.S. 354, 357, 59 S.Ct. 536, 538, 83 L.Ed. 757 (1939) (exclusion from grand or petit jury service on account of race is forbidden by the Fourteenth Amendment); Norris v. Alabama, 294 U.S. 587, 589, 55 S.Ct. 579, 580, 79 L.Ed. 1074 (1935) (holding that, regardless of whether the mechanism employed to achieve the result, i.e., be it statutory, judicial, or administrative, the total exclusion of all persons of the African race from service on grand juries violates equal protection); Rogers v. Alabama, 192 U.S. 226, 231, 24 S.Ct. 257, 259, 48 L.Ed. 417 (1904); Carter v. Texas, 177 U.S. 442, 447, 20 S.Ct. 687, 689, 44 L.Ed. 839 (1900); Neal v. Delaware, 103 U.S. 370, 396, 13 Otto 370, 26 L.Ed. 567 (1880). In fact, invidious discrimination in the selection of grand jurors so undermines the structural integrity of the criminal tribunal that such claims are not amenable to harmless error analysis. Vasquez v. Hillery, 474 U.S. at 263-64, 106 S.Ct. at 623 (plurality holding of four Justices). A majority of the Supreme Court has held the rule in Strauder and its progeny is so fundamental that the rule and reasoning of Stone v. Powell does not foreclose federal habeas review of such claims. Rose v. Mitchell, 443 U.S. at 560-61, 99 S.Ct. at 3002.

To be entitled to federal habeas relief based on a claim of discriminatory selection of grand jurors, i.e., an equal protection violation, the petitioner must show the procedure employed “resulted in substantial under-representation” of the members of a race or another identifiable group. Rose v. Mitchell, 443 U.S. at 565, 99 S.Ct. at 3005; Castaneda v. Partida, 430 U.S. at 494, 97 S.Ct. at 1280.

While the vast majority of the Supreme Court’s opinions applying the equal protection principle first recognized in Strauder have addressed claims that members of a criminal defendant’s racial or ethnic group were systematically and purposefully excluded from grand jury service, even a cursory examination of the Supreme Court’s recent equal protection jurisprudence convinces this Court that standing to assert such an equal protection claim is not limited to members of the allegedly excluded group. See Campbell v. Louisiana, 523 U.S. 392, 400-01, 118 S.Ct. 1419, 1424-25, 140 L.Ed.2d 551 (1998) (holding that a white defendant had standing to complain about the alleged exclusion of blacks from his grand jury); Powers v. Ohio, 499 U.S. 400, 410-16, 111 S.Ct. 1364, 1370-74, 113 L.Ed.2d 411 (1991) (holding a criminal defendant could complain about the race-based exclusion of jurors effected through peremptory challenges whether or not the defendant and the excluded jurors shared the same race). The test for determining whether this standard has been satisfied has four components.

First, the petitioner must establish the excluded group is a recognizable, distinct class singled out for different treatment under state law, as written, or as applied. Rose v. Mitchell, 443 U.S. at 565, 99 S.Ct. at 3005; Castaneda v. Partida, 430 U.S. at 494, 97 S.Ct. at 1280. The Supreme Court’s unanimous opinion in Hernandez v. Texas included an insightful discussion of the nature of this inquiry:

Throughout our history differences in race and color have defined easily identifiable groups which have at times required the aid of the courts in securing equal treatment under the laws. But community prejudices are not static, and from time to time differences from the community norm may define other groups which need the same protection. Whether stick a group exists within a community is a question of fact. When the existence of a distinct class is demonstrated, and it is further shown that the laws, as written or as applied, single out that class for different treatment not based on some reasonable classification, the guarantees of the Constitution have been violated.

Hernandez v. Texas, 347 U.S. at 478, 74 S.Ct. at 670 (emphasis added).

Second, the petitioner must establish the degree of under-representation was substantial, usually by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors over a significant period of time. Rose v. Mitchell, 443 U.S. at 565, 99 S.Ct. at 3005; see Castaneda v. Partida, 430 U.S. at 494, 97 S.Ct. at 1280 (“This method of proof, sometimes called the ‘rule of exclusion,’ has been held to be available as a method of proving discrimination in jury selection against a delineated class.”). The Supreme Court’s opinion in Castaneda cited Hernandez v. Texas as authority for the use of the exclusion method for proving discrimination. Castaneda v. Partida, 430 U.S. at 494, 97 S.Ct. at 1280. In Hernandez, the Supreme Court faced a record establishing: (1) 14% of the county population were of Hispanic surnames, (2) 11% of the males over age 21 had such names, (3) 6 or 7 percent of the freeholders on the tax rolls were of Mexican descent, yet (4) for 25 years, there was no record of any Mexican-Ameriean citizen serving as members of a jury commission, grand jury, or petit jury. Hernandez v. Texas, 347 U.S. at 481, 74 S.Ct. at 672. Needless to say, the Supreme Court had no difficulty determining such a showing fulfilled the petitioner’s duty to establish a prima facie case of discrimination. Id., 347 U.S. at 481-82, 74 S.Ct. at 672. In so doing, the Supreme Court relied upon its holding in Norris v. Alabama, in which the Supreme Court faced another record showing the total exclusion of all Negroes from jury service despite ample evidence that such persons “constituted a substantial segment of the population of the jurisdiction” over an extended period of time, which also constituted prima facie proof of the systematic exclusion of Negroes from jury service. Id., 347 U.S. at 480, 74 S.Ct. at 671. The record in Norris revealed: (1) the total county population was 36,881, (2) that total including 2,688 Negroes, (3) 666 Negro males were included among the county’s 8,801 males over age 21, yet (4) no witness called to testify before the trial court, including several county officials responsible for supervising jury trials, could recall even a single Negro ever having served on a grand or petit jury in the county’s history. Norris v. Alabama, 294 U.S. at 590-92, 55 S.Ct. at 580-81. The Supreme Court has held “substantial” the following discrepancies: 79% of county population was Mexican-American but only 39% of such persons served as grand jurors over an 11-year period (Castaneda v. Partida, 430 U.S. at 495, 97 S.Ct. at 1280); 60% of population were Negroes but only 37% of grand jurors (Turner v. Fouche, 396 U.S. 346, 357, 90 S.Ct. 532, 539, 24 L.Ed.2d 567 (1970)); 27.1% of those on tax rolls were Negroes but only 9.1% of those on grand jury venires (Whitus v. Georgia, 385 U.S. 545, 550-51, 87 S.Ct. 643, 646-47, 17 L.Ed.2d 599 (1967)); 24.4% of tax lists but only 4.7% of grand jury lists (Sims v. Georgia, 389 U.S. 404, 407, 88 S.Ct. 523, 525, 19 L.Ed.2d 634 (1967)); 19.7% of tax lists but only 5% of jury list (Jones v. Georgia, 389 U.S. 24, 25, 88 S.Ct. 4, 5, 19 L.Ed.2d 25 (1967)).

Third, a selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing. Rose v. Mitchell, 443 U.S. at 565, 99 S.Ct. at 3005; Castaneda v. Partida, 430 U.S. at 494, 97 S.Ct. at 1280. The Supreme Court has emphasized that selection procedures which offer ample opportunity for consideration of the race of potential grand jurors by those making the selection decision can combine with a showing of statistical divergence from the breakdown of the population to support a finding of discrimination. See Alexander v. Louisiana, 405 U.S. at 630-31, 92 S.Ct. at 1225 (pointing out: (1) the racial designation of potential jurors appeared on all questionnaires returned by them because different color cards were attached to the returned questionnaires for Negroes and Whites and (2) at two critical junctures in the selection process where disproportionate elimination of Negroes occurred, the racially identifying markers were visible to jury commissioners); Avery v. Georgia, 345 U.S. 559, 560-61, 73 S.Ct. 891, 892, 97 L.Ed. 1244 (1953) (juror cards of different color were prepared for Negroes and Whites from segregated tax lists and no Negroes had appeared on the final jury); Whitus v. Georgia, 385 U.S. at 548-49, 87 S.Ct. at 645-46 (all-white jury resulted from selection of jurors from a one-volume tax digest divided into separate sections for Negroes and Whites and black taxpayers had a “c” after their names and 42% of county population and 27% of taxpayers were Negro but only 9% of petitioner’s jury venire).

Finally, once the foregoing prima facie case is established, the burden shifts to the State to rebut the prima facie case. Rose v. Mitchell, 443 U.S. at 565, 99 S.Ct. at 3005; Castaneda v. Partida, 430 U.S. at 495, 97 S.Ct. at 1280.

In the course of its equal protection opinions, the Supreme Court has taken care to point out the Fifth Amendment’s provision for presentment or indictment by a grand jury has never been held obligatory for the States. Alexander v. Louisiana, 405 U.S. at 633, 92 S.Ct. at 1226-27.

b. Fair Cross-Section Requirement

The Sixth Amendment guarantees a criminal defendant the right to have his or her jury chosen from a venire or panel representing a fair cross-section of the community. Taylor v. Louisiana, 419 U.S. 522, 527-30, 95 S.Ct. 692, 696-97, 42 L.Ed.2d 690 (1975). The Supreme Court reached its holding in Taylor by recognizing: (1) “the Sixth Amendment’s provision for jury trial is made binding on the States by virtue of the Fourteenth Amendment” (Taylor v. Louisiana, 419 U.S. at 526, 95 S.Ct. at 696); (2) “the American concept of the jury trial contemplates a jury drawn from a fair cross section of the community” (Id., 419 U.S. at 527, 95 S.Ct. at 696); (3) the selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial (Id., 419 U.S. at 528, 95 S.Ct. at 697). Interestingly, the Supreme Court cited its long line of equal protection cases outlawing the purposeful exclusion of racial and ethnic groups from service on grand and petit juries in support of its interpretation of the Sixth Amendment’s fair cross-section requirements. The Supreme Court has acknowledged its holding in Taylor announced a new rule of constitutional criminal procedure. Taylor v. Louisiana, 419 U.S. at 535-36, 95 S.Ct. at 700 (“until today no case had squarely held that the exclusion of women from jury venires deprives a criminal defendant of his Sixth Amendment right to trial by an impartial jury drawn from a fair cross section of the community.”).

The fair cross-section requirement exists separate and apart from either of the Equal Protection rights recognized in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), or in the long line of Supreme Court opinions discussed above in Section III.D.2.a. See Holland v. Illinois, 493 U.S. 474, 478-83, 110 S.Ct. 803, 806-08, 107 L.Ed.2d 905 (1990) (distinguishing the principles governing the Supreme Court’s equal protection case law forbidding the systematic discriminatory exclusion of identifiable groups from grand juries and petit jury venires from the Sixth Amendment’s fair cross-section of the community requirement and holding that the latter did not prohibit the use of peremptory challenges in an allegedly racially discriminatory manner akin to the Equal Protection Clause’s prohibition recognized in Batson).

The Supreme Court has repeatedly refused to extend the Sixth Amendment’s fair cross-section requirement to the selection of a petit jury once a jury panel or venire has been constituted that satisfies this requirement. See Holland v. Illinois, 493 U.S. at 486-87, 110 S.Ct. at 810-11 (holding the Sixth Amendment’s fair cross-section requirement does not mirror the Equal Protection Clause’s proscription against racial discrimination in the exercise of peremptory challenges); Teague v. Lane, 489 U.S. at 314-15, 109 S.Ct. at 1077-78 (recognizing the denial of the right to a fair cross-section of the community in a jury venire does not undermine the fundamental fairness that must underlie a criminal conviction); Lockhart v. McCree, 476 U.S. 162, 173, 106 S.Ct. 1758, 1765, 90 L.Ed.2d 137 (1986) (“We have never invoked the fair-cross-section principle to invalidate the use of either for-cause or peremptory challenges to prospective jurors, or to require petit juries, as opposed to jury panels or venires, to reflect the composition of the community at large.”).

A criminal defendant has standing to challenge an exclusion resulting in a violation of the fair-cross-section requirement, whether or not he is a member of the excluded class. Duren v. Missouri, 439 U.S. 357, 359 n. 1, 99 S.Ct. 664, 666 n. 1, 58 L.Ed.2d 579 (1979); Taylor v. Louisiana, 419 U.S. at 526, 95 S.Ct. at 695-96. The Supreme Court has emphasized its construction of the Sixth Amendment does not deprive the States of the opportunity to grant exemptions from jury service in cases of special hardship or incapacity or to persons engaged in particular occupations whose uninterrupted performance of their duties is critical to the community’s welfare. See Taylor v. Louisiana, 419 U.S. at 534, 95 S.Ct. at 700 (“States are free to grant exemptions from jury service to individuals in case of special hardship or incapacity and to those engaged in particular occupations the uninterrupted performance of which is critical to the community’s welfare.”); Id., 419