Robert Fratta moves for a certificate of appealability (“COA”) to appeal the denial of his petition for writ of habeas corpus under 28 U.S.C § 2254. Because his claims are procedurally defaulted and he cannot overcome the default, the motion is denied.I.Fratta was convicted of capital murder in 1997 for the murder of his wife Farah Fratta.[1] He was granted federal habeas corpus relief in 2007.[2] He was again convicted and sentenced to death. The Texas Court of Criminal Appeals (“TCCA”) affirmed on direct appeal and denied his state habeas petition.[3]Fratta then filed a petition for habeas relief in federal court, asserting nineteen grounds. The district court denied the petition, finding three claims unmeri- torious and the other sixteen procedurally defaulted and unexhausted.[4]According to the state, Fratta employed Joseph Prystash to murder Farah. Prystash in turn employed Howard Guidry to carry out the murder, with Prystash serving as the getaway driver. Prystash’s girlfriend, Mary Gipp, provided testimony linking the three men together and to the murder.[5]II.“A [COA] may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Where a petition is dismissed on procedural grounds, the petitioner must also demonstrate “that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id.Fratta essentially requests we issue COAs on five questions: (1) whether Texas law regarding hybrid representation is an independent and adequate state law ground to default claims; (2) if his claims are defaulted, whether he overcomes that default with a showing of actual innocence; (3) whether his claims are exhausted; (4) whether there was insufficient evidence for conviction; and (5) whether the indictment was constructively amended via an allegedly erroneous jury instruction. Because Texas law regarding hybrid representation is an independent and adequate state ground such that Fratta pro- cedurally defaulted his insufficiency and constructive-amendment claims, and that Fratta cannot overcome default with a showing of actual innocence, we need not reach requests three through five.III.The adequacy and independence of a state procedural rule are reviewed de novo. Reed v. Scott, 70 F.3d 844, 846 (5th Cir. 1995). To be independent, the “state court opinion [must] clearly and expressly indicate[ ] that its judgment is independent of federal law.” Id. To be adequate, the state procedural rule must be “firmly established at the time it was applied,” such that it is “‘strictly or regularly followed by the cognizant state court . . . [and] strictly or regularly applied evenhandedly to the vast majority of similar claims.’” Id. (brackets and emphasis in original). There is “a presumption of adequacy when the state court expressly relies on [a state procedural rule] in deciding not to review a claim for collateral relief.”[6] And “an occasional act of grace by a state court in excusing or disregarding a state procedural rule does not render the rule inadequate.” Amos v. Scott, 61 F.3d 333, 342 (5th Cir. 1995). When determining the adequacy of a procedural bar, “we must emphasize the application of the bar to the specific constitutional claim at issue.” Reed, 70 F.3d at 846-47. The petitioner bears the burden of “demonstrating] that the state has failed to apply the procedural bar rule to claims identical or similar to those raised by the petitioner himself.” Stokes v. Anderson, 123 F.3d 858, 860 (5th Cir. 1997).[7]Fratta contests the adequacy of Texas’s hybrid-representation bar.[8] In 1977, the TCCA announced, in a case involving the defendant’s right to cross-examine a witness himself, that “[t]here is no constitutional right in Texas to hybrid representation partially pro se and partially by counsel.” Landers v. State, 550 S.W.2d 272, 280 (Tex. Crim. App. 1977). Three years later, that principle was definitively extended to the filing of pro se briefs on appeal.[9] The rule was thus firmly established by the time the TCCA utilized it in Fratta’s 2011 appeal.[10]In his appellate brief, Fratta cites several cases to illustrate that the hybrid-representation rule is not regularly applied. In those cases, the state court peeked at the pro se brief to determine whether it “reveals [an] error which should be considered in the interest of justice.”[11] In two of the cases, the court made no reference to what claims the pro se brief alleged,[12] and Fratta provides no indication that the defendants raised claims similar or identical to Fratta’s. And, three of the cases Fratta cites do not involve claims similar to his.[13]In response to this panel’s request for supplemental briefing on “whether Texas state courts have regularly applied the hybrid-representation bar to claims identical or similar” to Fratta’s, Fratta identifies six intermediate appellate cases[14] involving insufficiency claims where the court noted the hybrid-representation bar and chose to invoke its discretion to peek at the petition in the interest of justice.[15] As to Fratta’s claim of improper amendment of the indictment, he identifies three similar cases.[16]Though Fratta points to a handful of cases over the last thirty years that raise claims similar or identical to his, those few exceptions—all but one by intermediate appellate courts[17]—”do[] not render the rule inadequate.”[18] “[A]fter all, ‘regularly’ is not synonymous with ‘always’ and ‘strictly’ is not synonymous with ‘unanimously.’” Amos, 61 F.3d at 342.Fratta does not show that reasonable jurists would disagree with the district court’s ruling that his claims are procedurally defaulted. We thus need not reach either the exhaustion issue or the merits “unless [Fratta] can demonstrate cause for the default and actual prejudice” or can “demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).IV.Fratta requests we grant a COA on whether he demonstrated a fundamental miscarriage of justice by raising a meritorious actual-innocence claim under Schlup v. Delo, 513 U.S. 298 (1995). “[T]enable actual-innocence gateway pleas are rare.” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). To prove actual innocence, Floyd must show that “in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” Schlup, 513 U.S. at 329. “The gateway should open only when a petition presents ‘evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.’” Perkins, 569 U.S. at 401 (quoting Schlup, 513 U.S. at 316).A defendant must show “new reliable evidence . . . not presented at trial.” Schlup, 513 U.S. at 324. Examples of “new reliable evidence” are “exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence.” Id. “The habeas court must make its determination concerning the petitioner’s innocence in light of all the evidence, including that alleged to have been illegally admitted . . . and evidence tenably claimed to have been wrongly excluded or to have become available only after the trial.”[19] We must “make a probabilistic determination about what reasonable, properly instructed jurors would do” after considering all of the evidence. Id. at 329.Fratta proffers, as “new reliable evidence,” ballistic testing that he claims excludes, as the murder weapon, the .38 Charter Arms caliber revolver that he purchased. The ballistics report states,Examinations have been completed on these items and it was determined that the submitted fired lead bullets and fragments contain insufficient definite and consistent individual characteristics to effect an identification. Test fired bullets fired in the [Charter Arms .38 caliber revolver] were found [to] bear inconsistent characteristics from the barrel.That report was made in March 1995 and was known to Fratta before the second trial. In fact, Fratta attempted to introduce the report at trial, but it was ruled inadmissible hearsay.This court has yet to weigh in on the circuit split concerning what constitutes “new” evidence. The nature of the split over “new” is based on whether the evidence must be “newly discovered” or “newly presented.”[20] We still need not weigh in on that discussion because the ballistic report is not “new” under either standard. Fratta possessed the report at the time of his second trial, and he presented it to the court, even though it was ultimately ruled inadmissible.[21]Regardless, even assuming that the ballistics report was “new,” that new evidence is not “so strong” that it undermines our confidence in the jury’s verdict. We are allowed to weigh that “new” evidence against “old” evidence, even old inadmissible evidence, because “the emphasis on ‘actual innocence’ allows the reviewing tribunal also to consider the probative force of relevant evidence that was either excluded or unavailable at trial.”[22]Prystash, the “middleman,” confessed that Fratta solicited him to kill Fratta’s wife and provided him a gun to do so, and that he in turn solicited Guidry to perform the act. Though that confession was deemed inadmissible at trial, we can consider it at this stage for the reasons articulated above. Further, Gipp testified at the second trial that Prystash was friends with Fratta; Fratta began calling Prystash in the weeks and days leading up to the murder; Prystash and Guidry (her next door neighbor) were friendly; Prystash “talk[ed] to [her] about killing Farah Fratta”; Prystash told her what day he would kill Farah (Wednesday, the day Farah was murdered); Prystash told her he was “the middle man to find someone that would kill Farah”; Prystash left with Guidry the evening of the murder; she saw Prystash and Guidry return together on the evening of the murder; she saw Prystash stash a gun the evening of the murder; Prystash told her “they had killed her”; and Prystash was promised a jeep “for his part in this murder.”No reasonable jurist would disagree that Fratta fails to prove actual innocence. He thus cannot overcome procedural default, and we need not reach his other requests.The motion for a COA is DENIED.
