Revised February 8, 1999

UNITED STATES COURT OF APPEALS For the Fifth Circuit

___________________________

No. 98-40977 ___________________________

United States of America,

Plaintiff-Appellee,

VERSUS

Juan Raul Garza,

Defendant-Appellant.

___________________________________________________

Appeal from the United States District Court for the Southern District of Texas ___________________________________________________ January 14, 1999

Before DAVIS, SMITH, and WIENER, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Defendant-Appellant Juan Raul Garza has applied for a

certificate of appealability ("COA") to challenge the district

court’s order denying his

motion to vacate his

sentence. For reasons that follow, his application for a COA is

denied.

I.

The factual and procedural history of this case was discussed

in detail in our previous opinion on direct appeal. See United

States v. Garza,

(5th Cir. 1995). Therefore, only

those parts of the history immediately relevant to Garza’s application for a COA are set forth here.

In July 1993, a federal jury convicted Garza of operating a

continuing criminal enterprise ("CCE"), three counts of killing in

furtherance of the CCE, and five violations of drug and money

laundering laws. At sentencing, the Government introduced

aggravating factors evidence of four unadjudicated murders in

Mexico in which Garza was involved. The jury sentenced Garza to

death for the three counts of killing in furtherance of the CCE,

and to prison terms for the other crimes.

Garza’s conviction and sentence were affirmed by this Court on

direct appeal in a lengthy written opinion.

Garza petitioned

for rehearing, and rehearing was denied. United States v. Garza,

(5th Cir. 1995) (table). Garza then petitioned the Supreme

Court for a writ of certiorari, which was denied. United States v.

Garza,

(1996). In December 1997, Garza filed a motion

to vacate his sentence under

. The district court

denied relief. United States v. Garza, Civil Action No. B-97-273

(S.D. Tex. Apr. 9, 1998). Garza then filed a motion for relief from

judgment under FED. R. CIV. P. 60(b) and a separate motion to alter

and amend judgment under FED. R. CIV. P. 59(e). The district court

denied both motions, and denied Garza a COA. Garza subsequently

filed a notice of appeal and the present application for a COA.

II.

This Court may not take an appeal from the denial of a

motion unless either the district court or this Court

issues a COA.

(c)(1)(B). The standard we follow in

2 determining whether to issue a COA is set forth in the

Antiterrorism and Effective Death Penalty Act of 1996.

et seq. To obtain a COA, Garza must make a substantial showing

of the denial of a constitutional right.

(c)(2);

see also United States v. Kimler,

, 431 n. 1 (5th Cir.

1998). Garza need not establish that he will win on the merits in

order to obtain a COA; he need only demonstrate that the questions

he raises are debatable among reasonable jurists. United States v.

Rocha,

, 227 n. 2 (5th Cir. 1997).

III.

Garza raises two constitutional questions in his application

for a COA.1 First, he argues that this Court violated his Eighth

Amendment right to meaningful appellate review. He contends that

the violation occurred when this Court affirmed his death sentence

on direct appeal without addressing his challenge to the sentencing

evidence regarding his involvement in the four unadjudicated

murders in Mexico. He cites this Court’s "meticulous" review of all

other issues as evidence that the Court overlooked the challenge to

1 Garza also argues as a preliminary matter that the district court’s order should be remanded because the district court did not give him notice and opportunity to respond to the Government’s answer under FED. R. CIV. P. 56(c), and because the district court did not make findings of fact and conclusions of law under

. These arguments are unpersuasive. The text of

expressly authorizes the district court to dispose of a motion summarily where "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." That is plainly what happened here. The fact that the Government filed an answer on its own initiative does not deprive the district court of its statutory authority to dispose of a meritless motion summarily.

3 the aggravating factors evidence, thereby denying him his

constitutional right to full consideration of every issue raised on

review. We disagree.

A litigant’s right to have all issues fully considered and

ruled on by the appellate court does not equate to a right to a

full written opinion on every issue raised. United States v.

Pajooh,

(5th Cir. 1998). Even though this Court

did not expressly discuss Garza’s challenge to the aggravating

factors evidence, the issue nonetheless received full consideration

and a ruling. This is apparent from the Court’s opinion on direct

review. The opinion begins with a clear, general finding of "no

reversible error" affirming both Garza’s conviction and his

sentence. Garza,

. Moreover, the opinion

specifically states with respect to the aggravating factors

evidence that "Garza has shown no error."

. Each of

these statements is broad enough to encompass Garza’s challenge to

the aggravating factors evidence.2 It is evident that the Court

simply felt that the argument did not merit individual attention.

We therefore conclude that Garza has failed to make a substantial

showing that his right to meaningful appellate review was denied.

Second, Garza argues that he was denied due process of law at

the punishment stage of his trial. This argument again centers on

2 Garza challenges the phrase "no reversible error" as inadequate, and urges that we require the following language instead: "We reject all of the claims and all of the remaining claims." We decline to require such talismanic formalities. The Court’s finding of "no reversible error" was sufficient to indicate full consideration of all issues raised on appeal.

4 the aggravating factors evidence of Garza’s involvement in the four

unadjudicated murders in Mexico. Garza contends that he did not

have a fair opportunity to deny or to explain the Government’s

evidence, because he had no right to compulsory process or subpoena

in Mexico and therefore no ability to procure favorable witnesses

or to protect against the suppression, destruction, or fabrication

of evidence by Mexican authorities. Garza further contends that the

Government had a duty under the Due Process Clause to use its power

to obtain exculpatory evidence that Garza could not subpoena from

the Mexican government, and to disclose that evidence to Garza.

This argument is unconvincing.

Under Brady v. Maryland,

,

,

(1963), the Government is required to turn over to a

defendant any exculpatory or impeachment evidence in the

Government’s possession. Here, the Government turned over to Garza

every document that it received from Mexico, including the police

reports, investigative reports, and certified translations of the

autopsy reports. Garza was given express notice that the Government

intended to rely on the extraneous murders at sentencing, was

provided full pretrial discovery of all evidence in the

Government’s possession, and was given the opportunity to cross-

examine all witnesses presented by the Government at sentencing.

There is no question, and indeed Garza does not even contest, that

the Government satisfied its duty under Brady.

The Government is under no obligation to conduct a defendant’s

investigation or to make a defendant’s case for him. United States

5 v. Aubin,

(5th Cir. 1996). Vague allegations of

unidentified favorable witnesses and unspecified exculpatory

evidence simply will not suffice to show a violation of due

process. Garza has therefore failed to make a substantial showing

that his right to due process of law was denied.

IV.

For the reasons stated above, no jurist of reason could find

that Garza was denied his constitutional rights to meaningful

appellate review or due process of law. Garza has failed to make a

substantial showing of the denial of any constitutional right, so

his application for a COA must be

DENIED.

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