Petition for Writ of Certiorari — Joe Michael Luna, Petitioner v. Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division
Supreme Court briefAug 12, 2021
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No. _____
_______________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________________________
JOE MICHAEL LUNA,
Petitioner,
v.
BOBBY LUMPKIN, DIRECTOR,
Respondent.
______________________________
On Petition for Writ of Certiorari to the
United States Court of Appeals for the Fifth Circuit
______________________________
APPENDIX TO PETITION FOR A WRIT OF CERTIORARI
______________________________
STUART LEV
Counsel of Record
Federal Community Defender Office
for the Eastern District of Pennsylvania
Curtis Center, Suite 545-West
601 Walnut Street
Philadelphia, PA 19106
(215) 928-0520
stuart_lev@fd.org
Dated: August 12, 2021
Index to Appendix
Appendix A – Panel Order of the United States Court of Appeals for the Fifth
Circuit Denying Petition for Rehearing (March 17, 2021) .............................. A1
Appendix B – Panel Order of the United States Court of Appeals for the Fifth
Circuit Affirming Judgement of the United States District Court
(Oct. 22, 2020) ................................................................................................... A3
Appendix C – Panel Order of the United States Court of Appeals for
the Fifth Circuit Granting Motion for Certificate of
Appealability (Oct. 24, 2019) .......................................................................... A12
Appendix D – Order of the United States District Court for the Western
District of Texas Dismissing Petition for Writ of Habeas Corpus and
Declining to Issue Certificate of Appealability (Sept. 24, 2018) ................... A26
Appendix E – Order of the Texas Court of Criminal Appeals Denying
Application for Writ of Habeas Corpus (April 22, 2015) ............................. A102
Appendix F – Order of the District Court of Bexar County, Texas
Recommending Denial of Application for Writ of Habeas Corpus
(Sept. 25, 2014) .............................................................................................. A103
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 19-70002
FILED
October 22, 2020
Lyle W. Cayce
Clerk
JOE MICHAEL LUNA,
Petitioner-Appellant
v.
BOBBY LUMPKIN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION
Respondent-Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:15-CV-451
Before DENNIS, GRAVES, and COSTA, Circuit Judges. *
GREGG COSTA, Circuit Judge: **
Joe Michael Luna admitted guilt at his capital murder trial. On the
remaining question of punishment, Luna told the jury that he posed a
continuing danger and wanted the death penalty. The jury followed his wish
and sentenced Luna to death.
After Luna unsuccessfully sought relief in state court, he filed a federal
habeas petition. The district court denied the petition, and we authorized an
* Judge Dennis concurs in the judgment only.
** 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.
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appeal on only one issue: whether his trial counsel was constitutionally
deficient in his investigation and presentation of mitigation evidence. Under
the demanding standard to obtain federal habeas relief on claims a state court
rejected, we affirm.
I.
We detailed the facts of this case at the certificate of appealability stage,
Luna v. Davis, 793 F. App’x 229 (5th Cir. Oct. 24, 2019), so we provide only a
summary here. Luna strangled Michael Andrade, a premed college student, to
death while burgling Andrade’s apartment. He pleaded guilty before the jury
at the beginning of trial. The state trial court then held a one-phase trial after
which it instructed the jury to find Luna guilty based on his plea and asked it
to answer the special issues relevant to the death penalty.
The state presented evidence showing that Luna would continue to be
dangerous. In addition to extensive testimony establishing his violent past,
the state showed that Luna continued to plot serious crimes while in jail
awaiting trial. He told his cellmate about a plan to escape using the trial judge
as a “human shield.” This was not just talk; Luna had obtained and hidden a
handcuff key in a bar of soap.
At the conclusion of the state’s case, Luna testified on his own behalf and
against his attorney’s advice. Luna told the jury he wanted the death penalty.
Although he expressed remorse for his crimes, he testified that previous
incarceration had not rehabilitated him and future incarceration would only
“make [him] worse.”
He also said that he did not “blame none of [his]
circumstances.” On cross examination, Luna stated there was no mitigating
evidence “whatsoever” that should keep the jury from sentencing him to death.
Following Luna’s testimony, his attorney called two other witnesses.
Margaret Drake, a social worker and mitigation specialist, had interviewed
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Luna, his mother, his former stepmother, and two aunts. She testified that
Luna had an unstable childhood, that he was probably physically abused, and
that many of his family members had criminal histories and mental illnesses.
The jury also received Drake’s five-page report, which detailed Luna’s
childhood and highlighted that he may have been sexually abused.
A
forensic
psychiatrist,
Brian
Skop,
assessed
Luna’s
future
dangerousness. Skop, who had interviewed Luna, testified that the defendant
had a history of substance dependency, an impulsive personality, and
antisocial personality disorder. Despite these challenges, Skop concluded that
Luna would likely be at a lower risk for violence as time passed.
The defense then rested, and the jury answered the special issues in
favor of the death penalty.
After exhausting his direct appeals, Luna sought habeas relief in state
court. As relevant to our appeal, Luna argued that his childhood sexual abuse
was immediately apparent from Drake’s report. Luna’s theory was that failing
to further investigate the abuse and present it in the form of oral testimony
was constitutionally deficient. He also provided an affidavit from Dr. Jack
Ferrell, which stated that Luna suffered from mental illnesses Skop did not
discuss, including schizophrenia, depression, and substance abuse. The state
habeas court held both that Luna’s counsel provided adequate assistance and
that, if any failure occurred, it did not prejudice Luna.
Luna then sought habeas relief in federal district court on several
grounds. The district court denied relief and a certificate of appealability. He
next sought a certificate of appealability from us, which we granted only on
whether “his trial counsel was constitutionally ineffective for failing to
investigate and present additional mitigating evidence,” particularly “(1) that
his mother knew of and was willing to testify about sexual and physical abuse
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he suffered as a child; and (2) that a thorough examination of his psychological
state would have revealed that he suffers from a variety of mental health
problems, including schizophrenia, depression, and PTSD.” Luna, 793 F. App’x
at 232.
II.
Because the state courts adjudicated Luna’s ineffective assistance claim
on the merits, 28 U.S.C. § 2254(d) provides the governing standard. Under
that provision, federal courts may grant habeas relief only if the state court’s
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 “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).
Luna argues that the state court unreasonably applied Strickland v.
Washington, 466 U.S. 668 (1984), and its progeny.
With the Antiterrorism and Effective Death Penalty Act framing our
review, we turn to the question of whether the state court unreasonably
rejected Luna’s Strickland claim. There is a Sixth Amendment violation if
counsel’s performance was constitutionally deficient and that deficiency
prejudiced the defendant.
Strickland, 466 U.S. at 688, 694, 700.
To be
“deficient,” trial counsel’s performance must be objectively unreasonable. Id.
at 687–88.
Deficient performance prejudices the defendant if there is a
reasonable probability that the outcome of the defendant’s trial would have
been different but for the deficient representation. Id. at 694. Because a
unanimous jury verdict was necessary to sentence Luna to death, the prejudice
inquiry reduces to whether there is a reasonable chance that a single juror
would not have voted for the death penalty if counsel’s performance had met
constitutional standards. Wiggins v. Smith, 539 U.S. 510, 537–38 (2003).
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We assume, without deciding, that Luna’s counsel fell below the
constitutional minimum in failing to investigate and present all mitigating
evidence. See, e.g., Andrus v. Texas, 140 S. Ct. 1875, 1881–82, 1885–87 (2020)
(holding that counsel’s failure to present mitigating evidence constituted
deficient performance). The remaining question is whether the state court’s
prejudice determination—that there was no reasonable probability that
additional evidence of Luna’s sexual abuse and mental illness would have
caused a juror to vote differently—was unreasonable.
It may be that a state court judge could have found prejudice in Luna’s
case. To determine whether a failure to present mitigation evidence prejudiced
a defendant, courts “reweigh the evidence in aggravation against the totality
of available mitigation evidence.” Wiggins, 539 U.S. at 534. 1 Courts have
found prejudice when counsel failed to present childhood abuse and mental
health problems as mitigating evidence. See, e.g., Porter v. McCollum, 558 U.S.
30, 41, 43 (2009) (“It is unreasonable to discount to irrelevance the evidence of
1 Luna argues that the district court’s application of this standard was inappropriate
because Texas does not require jurors to balance aggravating and mitigating evidence. Texas
requires Luna’s jury to determine “whether there is a probability that the defendant would
commit criminal acts of violence that would constitute a continuing threat to society,”
considering “all evidence admitted at the guilt or innocence stage and the punishment stage,
including evidence of the defendant’s background or character or the circumstances of the
offence that militates for or mitigates against the imposition of the death penalty.” TEX.
CODE CRIM. PROC. ANN. art. 37.071, § 2(b)(1), (d)(1). If the jury answers that question “yes,”
as it did, Texas further requires them to determine “[w]hether, taking into consideration all
of the evidence, including the circumstances of the offence, the defendant’s character and
background, and the personal moral culpability of the defendant, there is a sufficient
mitigating circumstance or circumstances to warrant that a sentence of life imprisonment
without parole rather than a death sentence be imposed.” Id. art. 37.071, § 2(e)(1). Both
charges instruct juries to consider all evidence, mitigating or aggravating. Weighing all
evidence is necessary to both questions, so our review—determining whether there is a
reasonable probability a juror would have voted against the death penalty but for inadequate
counsel—does as well. See Andrus, 140 S. Ct. at 1885–87 (recognizing in a Texas case that
this prejudice inquiry requires a court to reweigh the mitigation evidence—what was
presented at trial as well as what should have been—against the aggravating evidence (citing
Williams v. Taylor, 529 U.S. 362, 397–98 (2000)).
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[defendant’s] abusive childhood . . . .”); Rompilla v. Beard, 545 U.S. 374, 391–
92 (2005)
(defendant
suffered
from
schizophrenia,
“extreme
mental
disturbance,” and childhood physical abuse). And Luna points to significant
mitigating evidence that could have been presented, including his mother’s
potential testimony that Luna was a victim of childhood sexual abuse, and that
he suffered from schizophrenia and other mental illness. Luna also has direct
evidence that concerns about his mental health were on the jury’s mind: during
deliberations the jury asked for the “psychiatric report of Dr. Skop,” though the
judge could not give it to them because that report had not been admitted.
But it is not enough for Luna to show that a judge looking at prejudice
on a blank slate could rule in his favor. AEDPA requires Luna to show that a
reasonable judge would have had to reach that result. Harringon v. Richter¸
562 U.S. 86, 102 (2011) (explaining that AEDPA’s relitigation bar allows
federal courts to grant relief only when “there is no possibility fairminded
jurists could disagree that the state court’s decision conflicts with this Court’s
precedents”). That he cannot do.
Several factors allow a judge to reasonably distinguish this case from
others in which there was prejudice from counsel’s failure to present mitigating
evidence of mental illness and childhood trauma. The most obvious one is
Luna’s own testimony. He told the jury he could not rehabilitate, that the
death penalty was appropriate, and that no mitigating evidence existed to
compel a contrary conclusion.
The Supreme Court has found that trial
counsel’s failure to present mitigating evidence did not prejudice a defendant
in analogous circumstances. See Schriro v. Landrigan, 550 U.S. 465, 475–80
(2007) (denying habeas relief when the defendant testified no mitigating
evidence existed, instructed his attorney to present none, and told the
sentencing court to “bring [the death penalty] right on”).
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That unusual feature of this case alone is likely enough to require us to
defer to the state court’s “no prejudice” determination. But there is more.
Luna’s asking the jury to give him the death penalty should not obscure the
other strong aggravating evidence that existed. He committed a cold-blooded
murder. He had an extensive and violent criminal history, including multiple
home invasions. In some of those he pressed a gun against victims’ heads. In
one, he blindfolded family members and tied their wrists and feet with duct
tape. In yet another, he wrapped residents up in bedsheets and left them
underneath a Christmas tree. Then there is Luna’s postarrest scheme for a
jail break in which he would use the judge as a human shield if the escape did
not go as planned.
On the mitigation side of the ledger, the evidence Luna argues his
counsel should have presented was largely cumulative of what the jury did
hear.
Drake’s testimony established that Luna suffered physical abuse,
endured an unstable childhood, and had many family members with criminal
histories and substance abuse disorders.
Luna now argues that further
investigation would have revealed further childhood physical and sexual
abuse. But while the jury did not hear oral testimony about sexual abuse, it
did have Drake’s report, mentioning that Luna’s uncle may have molested him
as a child. Likewise, Skop testified that Luna had mental health issues,
including difficulty moderating impulses, substance abuse, and antisocial
personality disorder. To be sure, the evidence of schizophrenia and sociopathy
that Luna says should have been presented is more serious than the conditions
Skop described. But all of these conditions address whether Luna was fully in
control of his actions. The additional evidence of mental health problems is
different in degree, but not in kind. That further distinguishes this case from
ones in which the Supreme Court has found unpresented mitigation evidence
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to be prejudicial under the lens of AEDPA deference. See, e.g., Porter, 558 U.S.
at 41−43; Rompilla, 545 U.S. at 382.
To sum up, a state court may have been able to conclude that the failure
to present mitigating evidence of sexual abuse and mental health conditions
prejudiced the outcome of Luna’s trial. But for the reasons we have explained,
at best for Luna, prejudice was debatable under de novo state court review.
That means the state court did not have to find prejudice. As a result, its “no
prejudice” ruling was not unreasonable, and we lack authority to grant federal
habeas relief.
III.
Luna also appeals the district court’s refusal to hold an evidentiary
hearing. He does not need a certificate of appealability on this issue. Norman
v. Stephens, 817 F.3d 226, 234 (5th Cir. 2016). But we will consider the issue
only if it is “corollary to” the constitutional violation on which we authorized
an appeal. See id. (quoting Alix v. Quarterman, 309 F. App’x 875, 878 (5th Cir.
2009) (per curiam)); see also Alix, 309 F. App’x at 878 (“[N]on-constitutional
claims are only considered to the extent that they are connected to a claim on
which a COA is granted.”). Insofar as Luna appeals the district court’s denial
of a hearing to establish either the inadequate assistance of state habeas
counsel, or the inadequacy of his trial counsel for grounds other than those we
granted a certificate of appealability on, his appeal is not properly before us.
See id.
As for his hearing request on the Strickland “mitigation evidence” claim
on which we did allow an appeal, the district court did not abuse its discretion
in denying a hearing. As we have held, the state court’s determination that
the lack of mitigation evidence did not prejudice Luna was not unreasonable
even if we assume that his trial counsel was ineffective. Questioning his
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counsel in court would not demonstrate that trial counsel prejudiced Luna.
“[A]n evidentiary hearing is not required on issues that can be resolved by
reference to the state court record.”
Schriro, 550 U.S. at 474 (quotation
omitted).
***
The judgment is AFFIRMED.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 19-70002
United States Court of Appeals
Fif h Circuit
FILED
October 24, 2019
JOE MICHAEL LUNA,
Lyle W. Cayce
Clerk
Petitioner - Appellant
v.
LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent - Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:15-CV-451
Before DENNIS, GRAVES, and COSTA, Circuit Judges.
PER CURIAM:*
A jury convicted Joe Michael Luna of capital murder and sentenced him
to death. Following denials of his direct appeal and habeas petition in the state
courts, he raised fifteen claims in a federal habeas petition. The district court
denied them all and denied a certificate of appealability (COA). Luna now
* 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.
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requests from this court a COA on four of his federal claims. We grant one and
deny three.
I.
Luna used a crawl space connected to his girlfriend’s apartment to sneak
into Michael Andrade’s apartment in the middle of the night. Intending a
burglary, he thought Andrade’s apartment would be empty. It was not. Luna
found Andrade sitting up in bed, held him at gunpoint, and tied him up. After
collecting items from around the apartment, Luna began to worry that
Andrade would speak to the police, connect the intruder to the crawl space,
and thus connect Luna to the crime. So Luna strangled Andrade to death.
Andrade was in his fourth year as a premed student at St. Mary’s in San
Antonio.
At the beginning of his trial, Luna pleaded guilty in front of the jury.
The court then held a one-phase trial that included evidence relevant to both
guilt and punishment, followed by an instruction that the jury find Luna guilty
and answer the special issues relevant to the death penalty: whether Luna
would be a danger in the future, and, if so, whether mitigating circumstances
warranted a sentence of life in prison rather than death. See TEX. CODE CRIM.
PROC. art. 37.071.
Among other things, the state’s evidence included testimony about
Luna’s substantial criminal history, which included car thefts—one of which
involved Luna’s trying to run a police officer over with the car; a carjacking
that ended with Luna and his companions leaving the victim bound with duct
tape in the woods; and multiple home invasions during which Luna tied up
families at gunpoint while he robbed them. There was also evidence that Luna
had been plotting an escape at some point between his arrest and trial.
When the prosecution rested, and against his counsel’s advice, Luna
testified on his own behalf. He said that he had pleaded guilty because he had
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decided to get right with God. He also expressed remorse for his crimes,
particularly the murder. Luna then testified that he wanted the death penalty.
He said that a prior stint in prison had not rehabilitated him, and he expected
that a lifetime in prison would only “make me worse than I am now.”
The defense called two other witnesses. The first was Margaret Drake,
a clinical social worker and mitigation specialist, who had prepared a
“psychosocial assessment” after talking to Luna and his relatives.
Her
testimony included potentially mitigating evidence, including that Luna’s
mother moved around a lot, requiring him to frequently change schools; that
his father was largely absent from his young life; that a “number” of Luna’s
relatives were “involved” in substance abuse, and an “unusual number” of them
had criminal histories; that some members of Luna’s family suffered from
“mental difference[s]” ranging from depression or schizophrenia to Down’s
Syndrome or seizure disorders; and that Luna has at least one son, as well as
a “very good relationship” with his former girlfriend’s son. Drake also testified
that one of Luna’s mother’s boyfriends was “quite violent” and that they were
“often very much afraid of him.”
Dr. Brian Skop, a forensic psychiatrist, also testified.
He had
interviewed Luna and conducted an intelligence screening test that showed an
IQ of 89, “in the low average range.” The remainder of Skop’s testimony on
direct examination had to do with future dangerousness.
On cross
examination, the prosecutor asked why Skop “didn’t do the normal thing that
you do where you make diagnoses about—for the different axes.” 1
Skop
explained that he had been asked to analyze only Luna’s future dangerousness.
1 This presumably referred to the then-prevailing categorization of mental disorders
along particular “axes.” See AMERICAN PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL
MANUAL OF MENTAL DISORDERS (4th ed. 2000).
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The defense then rested. The jury answered the special issues in favor
of the death penalty.
II.
We may authorize an appeal from the denial of a habeas petition “only if
the applicant has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). That means reasonable jurists “could disagree”
with the district court’s analysis or could conclude the issues otherwise
“deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S.
322, 327 (2003). In a capital case, any doubt is resolved in favor of granting a
COA. Hughes v. Dretke, 412 F.3d 582, 588 (5th Cir. 2005).
For any claim adjudicated on the merits in state court, the COA
“debatability” standard is considered through the lens of deference given by
the Antiterrorism and Effective Death Penalty Act of 1996. Prystash v. Davis,
854 F.3d 830, 835 (5th Cir. 2017). AEDPA allows a federal court to grant
habeas relief only if the state court’s conclusions of law were “contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.”
28 U.S.C.
§ 2254(d)(1). AEDPA requires deference to the state court’s findings of fact,
too, unless they were unreasonable. Id. § 2254(d)(2).
A.
Luna’s first claim is that his trial counsel was constitutionally ineffective
for failing to investigate and present additional mitigating evidence.
He
contends (1) that his mother knew of and was willing to testify about sexual
and physical abuse he suffered as a child; and (2) that a thorough examination
of his psychological state would have revealed that he suffers from a variety of
mental health problems, including schizophrenia, depression, and PTSD.
To prevail on this claim, Luna will ultimately have to show not only that
his counsel’s investigation into his background and mental health was
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objectively unreasonable, but also a reasonable probability that at least one
juror would have voted against the death penalty if aware of the mitigating
evidence a reasonable investigation would have turned up. See Wiggins v.
Smith, 539 U.S. 510, 520–21, 537 (2003).
Counsel is presumed to have
rendered adequate assistance. See Strickland v. Washington, 466 U.S. 668,
690 (1984). That presumption, plus AEDPA deference, means federal courts
are “doubly deferential” when reviewing whether counsel’s assistance was
constitutionally deficient. Cullen v. Pinholster, 563 U.S. 170, 189–90 (2011).
Despite the demanding standard of review, and keeping in mind that any
doubts at the COA stage in a capital case should be resolved in favor of allowing
the appeal, we conclude that reasonable jurists could debate the outcome of
this claim. Accordingly, we grant a COA on the ineffective assistance claim.
B.
Luna’s second claim raises his due process right to be present at critical
proceedings. See Kentucky v. Stincer, 482 U.S. 730, 745 (1987). He argues that
he should have been in the courtroom when the trial judge excused prospective
jurors before voir dire. 2
At the threshold, the Director argues that Luna procedurally defaulted
this claim by failing to raise it on direct appeal, as Texas law requires for claims
like this one. See Ex parte Nelson, 137 S.W.3d 666, 667 (Tex. Crim. App. 2004)
(en banc). The state habeas court, 3 in addition to making a merits finding,
denied this claim under that adequate and independent state procedural rule.
See Aguilar v. Dretke, 428 F.3d 526, 535 (5th Cir. 2005). Ordinarily, that would
Luna casts this claim both in terms of due process and in terms of his Sixth
Amendment confrontation right. But there is no confrontation right when there are no
witnesses to confront. United States v. Thomas, 724 F.3d 632, 642 (5th Cir. 2013).
3 Unless otherwise noted, the Texas Court of Criminal Appeals adopted, in an
unreasoned opinion, the findings and conclusions of the state district court (which we call the
“state habeas court”). Ex parte Luna, 2015 WL 1870305 (Tex. Crim. App. Apr. 22, 2015).
2
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preclude federal habeas relief. Davila v. Davis, 137 S. Ct. 2058, 2064 (2017).
Luna, however, argues that his direct appellate counsel was constitutionally
ineffective by failing to raise this claim. Procedural defaults can be excused,
and one way to excuse a default is to show it resulted from ineffective
assistance. Id. at 2064–65. 4 Whether Luna’s appellate counsel was deficient
is largely bound up with the merits of the underlying claim, so we look to the
merits. See Amador v. Quarterman, 458 F.3d 397, 410–11 (5th Cir. 2006)
(explaining that appellate counsel need only bring “[s]olid, meritorious
arguments”).
It is not altogether clear what happened as there is no transcript of the
pre-voir dire assembly. But it appears that a fraction of the venire panel was
“excused” at that time. Typically at a “general assembly” venire members are
“qualified on their ability to serve and exemptions and excuses are heard,”
before they are “sent to the individual courts trying the cases.” See Jasper v.
State, 61 S.W.3d 413, 423 (Tex. Crim. App. 2001). The general assembly is not
part of the trial and there is no constitutional right to be present. Moore v.
State, 999 S.W.2d 385, 399 (Tex. Crim. App. 1999).
But Luna says the process in his cases was not the typical general
assembly because the excused potential jurors had already been assigned to
his case. See Jasper, 61 S.W.3d at 423 (“assum[ing]” that the right to be
present had attached when “the trial judge assigned to preside over appellant’s
trial appears to have functioned as a general assembly judge over prospective
jurors already assigned to [the] appellant’s specific case” (emphasis in
original)). The federal district court rejected that argument. 5
4 Contrary to the Director’s position, Luna preserved this excuse by arguing it on state
habeas. See Hatten v. Quarterman, 570 F.3d 595, 605 (5th Cir. 2009).
5 We do not discuss the state habeas court’s merits finding on this claim because the
Texas Court of Criminal Appeals vacated it. Luna, 2015 WL 1870305.
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We need not delve into whether the excused jurors had been technically
assigned to Luna’s case. The due process question is whether Luna’s presence
at the proceeding would have been helpful to his defense. See United States v.
Gagnon, 470 U.S. 522, 526 (1985) (“[The] presence of a defendant is a condition
of due process to the extent that a fair and just hearing would be thwarted by
his absence, and to that extent only.” (quoting Snyder v. Massachusetts, 291
U.S. 97, 107–08 (1934)). And that inquiry turns on the reasons the prospective
jurors were dismissed. Defendants have the right to be present at voir dire,
for instance, because they can help decide what questions to ask prospective
jurors or how to exercise peremptory challenges. United States v. Curtis, 635
F.3d 704, 715 (5th Cir. 2011); United States v. Gordon, 829 F.2d 119, 124 (D.C.
Cir. 1987).
What evidence there is indicates that the prospective jurors dismissed
before voir dire were dismissed for reasons having nothing to do with Luna’s
case. The trial judge’s first remark, once the remaining prospective jurors were
gathered with Luna and counsel, was that one prospective juror had “been
working for like two days straight” but “really didn’t want to be excused.” The
judge then announced the case, introduced the parties, and described in detail
how capital trials work in Texas, as well as the questionnaires the jurors would
be asked to fill out. If the judge had already excused jurors for case-specific
reasons, he would already have provided them that information.
By all
appearances, the jurors were excused for hardships and possibly statutory
exemptions or disqualifications. See TEX. CODE CRIM. PROC. art. 35.03.
Unlike the role defendants and their counsel have in exercising
peremptory strikes during voir dire, judges determine whether jurors are
excused for hardships or exemptions (sometimes these exemptions are granted
before venire members show up for jury duty). Id. So the defendant’s presence,
or lack thereof, when the judge considers jurors’ requests to be excused would
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seem to make no difference.
Cf. Gagnon, 470 U.S. at 527 (holding that
defendants had no right to be present during judge’s in-chambers questioning
of a juror during which defendants “could have done nothing had they been”
present). 6
So we doubt that Luna has a due process claim because he was absent
from the pre-voir dire proceeding.
But we need not decide whether that
question meets the COA threshold because it is beyond debate that any error
was harmless.
See Brecht v. Abrahamson, 507 U.S. 619, 637–38 (1993)
(explaining that on federal habeas review, nonstructural errors in a state trial
are harmless unless they “had substantial and injurious effect or influence in
determining the jury’s verdict”).
There is no indication that an excused
potential juror was more favorable to Luna than those who ultimately sat.
Neither is there any indication that a juror was excused improperly. See
Jasper, 61 S.W.3d at 424 (describing trial court’s “broad discretion to excuse
prospective jurors for good reason”). And even if there were reason to think
that a favorable potential juror was excused improperly, Luna’s presence
would not have put that person on the jury. As we have already explained,
unlike with voir dire, the defendant has no role to play in excusing prospective
jurors for hardships, exemptions, or disqualifications.
6 To be clear, the defendant’s presence may be helpful, and the defendant may thus
have a right to be present, during some pre-voir dire hearings on juror dismissals. But that
is only when the potential dismissals are for reasons particular to the defendant, as when
prospective jurors are excused because they are “friends or supporters” of the defendant. See
United States v. Bordallo, 857 F.2d 519, 522–23 (9th Cir. 1988). During those types of
proceedings, the defendant can offer insight into the facts potentially warranting dismissal.
Not so during proceedings on requests to be excused, which are granted or denied without
regard to the case a prospective juror is assigned to. United States v. Greer, 285 F.3d 158,
167–68 (2d Cir. 2002); see also Cohen v. Senkowski, 290 F.3d 485, 489–90 (2d Cir. 2002)
(distinguishing examination of prospective jurors about exposure to the defendant’s case,
during which the defendant has a right to be present, from examination of prospective jurors
about excusals for hardships).
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Perhaps recognizing that he cannot show the decision to excuse jurors
impacted the outcome of his case, Luna’s only response is that the error was
structural and thus not subject to the harmless error rule. But there is a
wealth of precedent going the other way. See Rushen v. Spain, 464 U.S. 114,
117–18, 121 (1983) (holding that defendant’s absence during judge’s
communication with juror was harmless). This court and others have held that
absence during voir dire can be harmless. United States v. Alikpo, 944 F.2d
206, 209–10 (5th Cir. 1991) (conducting harmless error analysis but holding
that defendant’s absence was not harmless); see also United States v. RiveraRodriguez, 617 F.3d 581, 604 (1st Cir. 2010); United States v. Riddle, 249 F.3d
529, 535 (6th Cir. 2001). If absence from voir dire can be harmless, then
absence from pre-voir dire excusals certainly can. Indeed, the two cases on
which Luna most relies for this claim held that the defendant’s absence when
jurors were dismissed was harmless beyond a reasonable doubt. Bordallo, 857
F.2d at 523; Jasper, 61 S.W.3d at 423–24.
Any possible error, which again we doubt existed in the first place, was
harmless. We thus deny a COA on this claim.
C.
Luna’s third claim argues that the trial court erroneously concluded that
a juror’s views on the death penalty warranted striking the juror for cause. See
Witherspoon v. Illinois, 391 U.S. 510, 521–22 (1968). As with his previous
claim, Texas law required Luna to bring this one on direct appeal. See Nelson,
137 S.W.3d at 667; Aguilar, 428 F.3d at 535. In addition to denying this claim
on the merits, both the state habeas court and the district court ruled that
Luna procedurally defaulted on this claim by failing to raise it on direct appeal.
But unlike on the previous claim, Luna makes no attempt on this one to
excuse his procedural default or to show that failure to consider this claim
would work a fundamental miscarriage of justice. That alone means we should
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deny a COA. Norman v. Stephens, 817 F.3d 226, 231–32 & n.2 (5th Cir. 2016);
see also Clark v. Collins, 19 F.3d 959, 966 (5th Cir. 1994).
In any event, even if his default were excused, Luna’s Witherspoon claim
is not reasonably debatable. Prospective jurors in capital cases cannot be
dismissed for cause “simply because they voiced general objections to the death
penalty or expressed conscientious or religious scruples against its infliction.”
Witherspoon, 391 U.S. at 522. Exclusion is proper only if “the juror’s views
would prevent or substantially impair the performance of his duties as a juror
in accordance with his instructions and his oath.” Wainwright v. Witt, 469 U.S.
412, 424 (1985) (quotation omitted).
To be sure, for much of the challenged juror’s voir dire testimony, he
sounded like an ideal capital juror. He repeatedly stated that whether he could
impose the death penalty would depend on “the circumstances” and that there
would be “a lot of variables involved.” He might, for instance, be “sway[ed]” if
the victim was a child, elderly, or disabled, or if the crime was “heinous” or
“brutal[].” The juror also said that the motive for the crime might influence
him.
But at one point, he said that if the victim was not young, elderly, or
disabled, he “really d[idn’t] think” he could vote to impose the death penalty.
And ultimately, his voir dire ended with the following:
Q: And you were there, and you have found somebody guilty of
capital murder beyond a reasonable doubt. And then you have
heard whatever other evidence might be presented. And you knew
that the answers to the questions were such that the result would
be death, would you be able to do it?
A: I’m sorry I’m so ambivalent, but I don’t think I could.
THE COURT: What was your answer? I don’t think I could?
A: I don’t think I could.
The trial judge then granted the state’s motion to strike the juror for cause.
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Viewed against the juror’s prior statements indicating a willingness to
vote for the death penalty in appropriate circumstances, his last statements
raise an ambiguity. And because the trial judge takes into account firsthand
impressions of the juror’s demeanor—impressions not apparent in an appellate
record—we defer to the trial judge’s resolution of that ambiguity. Uttecht v.
Brown, 551 U.S. 1, 7, 9–10 (2007). Indeed, our review is “doubly deferential”
because AEDPA adds another layer. White v. Wheeler, 136 S. Ct. 456, 460
(2015). 7
That much deference means that reasonable jurists could not debate the
merits of this claim. AEDPA requires deference to strikes for cause in cases
with substantially less equivocation. See White, 136 S. Ct. at 459, 461–62
(holding that trial judge had discretion to strike juror who said he could not be
“absolutely certain” that he could consider the death penalty, but later
“expressed his belief that he could consider all the penalty options”); Uttecht,
551 U.S. at 15–17 (holding that juror’s answers “on their face” permitted trial
court to strike juror for cause, when juror “stated six times that he could
consider the death penalty or follow the law” but interspersed those statements
with “more equivocal” ones about how he would have to give it “some thought”).
We accordingly deny a COA on this claim.
D.
Luna’s last claim is a challenge to the constitutionality of Texas’s jury
instructions for capital cases. To impose a death sentence, a Texas jury must
7 Luna argues that the district court erred in applying section 2254(e)(1) of AEDPA,
under which a state court’s findings of fact are presumed correct, a presumption that can be
rebutted only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). According to Luna,
section 2254(d)(2)—which requires deference unless the state court’s finding was
“unreasonable”—should apply to Witherspoon claims. But this court recently deemed it
“prudent” to apply both subsections. Smith v. Davis, 927 F.3d 313, 324 (5th Cir. 2019). We
ultimately need not define the degree of deference with exactitude because its precise
articulation does not make a difference in this case.
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answer “yes” on a future dangerousness question and “no” on a mitigation
question.
TEX. CODE CRIM. PROC. art. 37.071.
Luna challenges the jury
instructions on the mitigation question. Texas courts instruct capital juries
that they must answer the mitigation question.
A “no” answer must be
unanimous, and at least 10 jurors must agree on a “yes” answer. Id. § 2(f). If
the jury is unable to reach an answer, the defendant receives a life sentence.
Id. § 2(g). But Texas law forbids the court or counsel from informing the jury
“of the effect of a failure of a jury to agree” on the special issues. Id. § 2(a)(1).
Luna argues that jurors should be told about this possible outcome.
The Texas Court of Criminal Appeals, on direct appeal, rejected Luna’s
constitutional challenge to these instructions, as it has before. Luna v. State,
268 S.W.3d 594, 609 & n.40 (Tex. Crim. App. 2008). This court, too, has already
held that three of the Supreme Court cases Luna raises do not clearly establish
that the jury must be informed of the effect of its inability to reach an answer.
See Druery v. Thaler, 647 F.3d 535, 544 (5th Cir. 2011) (holding that Caldwell
v. Mississippi, 472 U.S. 320 (1985), does not implicate Texas’s capital jury
instructions); Hughes, 412 F.3d at 594 (rejecting challenge based on Mills v.
Maryland, 486 U.S. 367 (1988), and holding that “no clearly established federal
law calls into doubt the Texas death penalty statute”); Webb v. Collins, 2 F.3d
93, 96 (5th Cir. 1993) (rejecting challenge based on Andres v. United States,
333 U.S. 740 (1948), under analogous Teague doctrine).
Luna does rely on two Supreme Court cases this court appears not to
have addressed in considering this question, but neither debatably establishes
clearly established law undermining Texas’s capital jury instructions. Luna
cites a portion of Wiggins v. Smith that refers to the standard for showing
prejudice in ineffective-assistance claims arising from capital cases—namely,
a reasonable probability that at least one juror would have voted against death.
539 U.S. 510, 537 (2003).
That says nothing about what must be
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communicated to a capital jury. And Jenkins v. United States, 380 U.S. 445
(1965), is “off the table as far as [AEDPA] is concerned” because it was based
on the Court’s supervisory powers over federal courts, not the Constitution.
Early v. Packer, 537 U.S. 3, 10 (2002).
We thus deny a COA on Luna’s challenge to Texas’s capital jury
instructions.
***
We GRANT a COA on Luna’s claim for ineffective assistance of trial
counsel during the investigation and presentation of mitigating evidence. We
DENY COAs on Luna’s other claims.
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United States Court of Appeals
FIFTH CIRCUIT
OFFICE OF THE CLERK
LYLE W. CAYCE
CLERK
TEL. 504-310-7700
600 S. MAESTRI PLACE,
Suite 115
NEW ORLEANS, LA 70130
October 24, 2019
MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW:
No. 19-70002
Joe Luna v. Lorie Davis, Director
USDC No. 5:15-CV-451
Enclosed is the opinion entered in the case captioned above.
Sincerely,
LYLE W. CAYCE, Clerk
By:
Nancy F. Dolly, Deputy Clerk
504-310-7683
Ms. Jeannette Clack
Ms. Katherine D. Hayes
Mr. Stuart Lev
Mr. Peter James Walker
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
JOE MICHAEL LUNA,
Petitioner,
v.
LORIE DAVIS, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent.
§
§
§
§
§
§
§
§
§
§
§
CIVIL NO. SA-15-CA-451-XR
* DEATH PENALTY CASE *
MEMORANDUM OPINION AND ORDER
Petitioner Joe Michael Luna initiated this federal habeas corpus action pursuant to 28
U.S.C. § 2254 to challenge the constitutionality of his 2006 Bexar County conviction and
sentence of death for the capital murder of Michael Andrade. Currently before the Court is
Petitioner’s Amended Petition for Writ of Habeas Corpus (ECF No. 22), as well as Respondent’s
Answer (ECF No. 30) and Petitioner’s Reply (ECF No. 40) thereto. Having carefully considered
the record and pleadings submitted by both parties, the Court concludes Petitioner is not entitled
to federal habeas corpus relief or a certificate of appealability.
I. Background
A.
The Offense
In February 2005, Petitioner was staying with his girlfriend, Maria Solis, at The Hollows
apartment complex in San Antonio, Texas. While there, Petitioner planned to burglarize several
other apartments while the occupants were away by utilizing an attic crawl space that was
accessible via Solis’s apartment; however, upon further investigation, Petitioner found he could
only access the neighboring apartment of Michael Andrade, a pre-med senior at nearby St.
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Mary’s University. On February 17, 2005, Petitioner entered Andrade’s apartment by using the
attic crawl space to access Andrade’s bedroom closet. Petitioner thought the apartment was
empty at the time and was surprised to find Andrade asleep in the bedroom when he entered.
Andrade, awakened by the sounds coming from his closet, was immediately confronted by
Petitioner, dressed in a stolen black police SWAT uniform and ski mask, pointing a gun at him.
Petitioner forced Andrade to lie on the bed, tied him up with a cut-up bed sheet, and told
Andrade that he would not hurt him and only wanted to rob him.
Petitioner then began
collecting items from the apartment and placing them in his truck parked outside.
During the robbery, Petitioner began to worry that Andrade would speak to police and
tell them that Petitioner entered from the attic, which would eventually lead them to Solis’s
apartment. Petitioner decided he had to kill Andrade, so he got behind Andrade, put his arms
around Andrade’s neck, and strangled him to death. Petitioner then attempted to cover his tracks
by vacuuming Andrade’s apartment and wiping for prints. He also tried to burn down the
apartment by setting small fires near the closet, the front door, and next to Andrade’s body. The
fire did not destroy the apartment, however, because Petitioner had closed all of the doors and
windows in the apartment and the fire eventually went out.
Petitioner became a suspect in Andrade’s murder a few days later when the police
received an anonymous tip on Crime Stoppers. On February 21, 2005, Petitioner was arrested at
Solis’s apartment. Police found Andrade’s camcorder and car keys inside the apartment. Police
also found a stolen police vest, a black ski mask and gloves, a loaded .32 automatic handgun, a
shotgun and shells, maps and information about Belize and Mexico, and notes about “going
south.” In addition, fibers found inside a vacuum cleaner and on Petitioner’s clothing were
consistent with the insulation found in Andrade’s attic and fibers from Andrade’s bed sheet.
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B.
The Trial
On January 5, 2006, Petitioner was indicted for the capital murder of Michael Andrade. 2
CR 258-59. 1 At the commencement of his trial six weeks later, Petitioner entered a plea of
guilty to the offense of capital murder as charged in the indictment. 13 RR 6. Before accepting
the plea, the trial court admonished Petitioner as to the consequences of his plea and then
inquired whether defense counsel believed Petitioner had a rational and factual understanding of
the proceedings against him. 13 RR 10-13. Counsel responded affirmatively and indicated that,
in his opinion, Petitioner was mentally competent to waive his rights and enter a guilty plea. The
parties then agreed to a unitary proceeding where both parties would submit evidence concerning
Petitioner’s punishment, after which the jury would be instructed to find Petitioner guilty and
consider only the punishment phase special issues. The jury then heard testimony from fiftyeight witnesses presented by the prosecution followed by three witnesses presented on behalf of
the defense, including Petitioner.
1.
Evidence Presented by the State
The State began the proceedings by presenting several witnesses who testified regarding
the discovery of Andrade’s body and subsequent investigation into his murder. 13-14 RR.
These witnesses established for the jury the nature and circumstances of the crime. The jury was
then presented with evidence concerning Petitioner’s escalating pattern of violence from the time
he was fourteen years old until his incarceration for Andrade’s murder at age twenty-five.
As a juvenile, Petitioner pulled a gun on his middle school principal on the first or second
day of the seventh grade in September 1993, was expelled, and was placed on two years of
intensive supervised probation with the Bexar County Juvenile Probation Department. 15 RR 31
Throughout this opinion, “CR” refers to the Clerk’s Record of Petitioner’s trial while “RR” refers to the
Reporter’s Record. Both are preceded by volume number and followed by the relevant page numbers.
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23. One of Petitioner’s probation officers, Tony Martinez, testified that Petitioner displayed
behavioral problems, assaultive behavior, and substance abuse issues. Id. 24. He was evaluated
by Dr. J. O. Sherman in August 1994, who concluded Petitioner suffered from conduct disorder
and substance abuse but did not have a thought disorder or major affective disturbance. Id. at
33-35. Petitioner was referred to several different treatment facilities for therapy and substance
counseling but was discharged from each facility within weeks for either assaultive behavior or
absconding. Id. at 24-29. As a result, Petitioner was committed to the Texas Youth Commission
(TYC), a juvenile detention facility, in July 1995. Petitioner was paroled twice from TYC but
was revoked both times for failing to comply with the terms of his parole. Id. at 30-32.
Petitioner was ultimately released from TYC in October 1997 when he turned eighteen.
The State then presented evidence that, as an adult, Petitioner carried out an almost
unabated string of increasingly violent offenses leading up to Andrade’s murder:
December 1997
Petitioner stole a 1996 Cadillac and later attempted to pawn golf clubs that
had been in the car. The owner of the car spotted it at the pawn shop and
called his son, who then confronted Petitioner at the store. A fight broke
out, and police were dispatched to investigate and break up the fight. The
responding officer, Officer Juan Torres, was injured in the altercation and
had to be sent to the hospital in an ambulance. He later had to retire
because of an injury he sustained while trying to detain Petitioner. 15 RR
54-72.
January 1998
Petitioner stole a 1998 pink Z-28 Camaro. A few days later, Petitioner
stole a 1991 brown Pontiac four door, but was eventually spotted and
pulled over by Officers Roy Naylor and Richard Schoenberger. As the
officers approached the vehicle, Petitioner tried to run one of them over
while he fled the scene. Less than half a mile down the road Petitioner
lost control of the car and crashed into a phone pole. He fled on foot, but
was later apprehended. Petitioner was arrested for assault of a public
servant and unauthorized use of a vehicle. 15 RR 73-95, 110-19.
May 1998
Petitioner was placed on probation for the above offenses and was
assigned to sixty days in a Zero Tolerance Boot Camp. Petitioner was also
given six months of intensive supervision with the gang unit due to his
membership in the “La Raza” street gang. At the Boot Camp, Petitioner
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was disciplined for two separate altercations with other residents, and was
eventually terminated from the program for absconding in July 1998. 15
RR 96-101.
July 1998
A week later, Petitioner broke into the apartment of Phillip Settles and his
thirteen-year-old daughter. Settles was awakened in the middle of the
night by his barking dog and found an individual jumping out of his
daughter’s bedroom window. Fingerprints taken at the scene were later
matched to Petitioner. Petitioner’s probation was revoked and he was
convicted of burglary of a habitation, assault on a public servant, and three
counts of unauthorized use of a vehicle. He received two five-year
sentences for the first two counts and a two-year sentence for each of the
unauthorized use counts. 15 RR 101-19.
March 2004
Petitioner was released from prison in August 2003. Six months later,
Petitioner carjacked Candido Tovar at gunpoint in his work truck around
three o’clock in the morning while Tovar was driving to work. Petitioner
asked for money, but when he discovered Tovar did not have any, he
forced Tovar to drive to a secluded area where Petitioner and his
companions bound him with duct tape. The men left Tovar on his knees
in the woods, but he was able to roll to the side of the road where someone
eventually stopped to help him. 16 RR 9-34.
June 2004
Petitioner and his companions entered the home of Brooke Envick through
the garage but left after her dog began to bark. That same night, the group
broke into the home of Michael McGloughlin while he, his wife, and twoyear-old daughter were asleep. McGloughlin awoke early in the morning
to the sound of someone walking around upstairs. After finding someone
in his home, McGloughlin ran back to the bedroom and tried to close the
door, but the suspect knocked the door completely off its hinges and
pointed a sawed-off shotgun at the family. The three suspects bound the
adults with torn bedsheets while their daughter watched, then went about
the house collecting items to take. The suspects took several items,
including a computer, a camcorder, two cars, and the family dog. 16 RR
36-117.
A week later, Petitioner robbed Ruy D’Amico and his family at gunpoint
in their home. D’Amico rose early in the morning to go to work and was
confronted by Petitioner in the hallway pointing a silver handgun at his
head. Petitioner gathered D’Amico and his family, made them lay facedown on the floor, and tied them up with torn bedsheets and duct tape.
Similar to the previous robberies, the suspects then gathered various
expensive items while the terrified victims prayed for their lives. The
suspects then placed the stolen items in the D’Amico’s car and left in it.
16 RR 118-186.
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August 2004
Petitioner broke into the home of Jennifer Weise while she was asleep.
She was awakened by the sound of creaking stairs but did not move from
her bed as she heard someone enter her room. The person looked around
and then left, but she stayed still until she heard the sound of her Dodge
Durango leaving the garage. 17 RR 14-25.
December 2004
Just before Christmas Petitioner burglarized the home of Phillip Dreyer, a
Lieutenant with the Bexar County Sheriff’s Department,. Dreyer returned
home from work around midnight to find his home ransacked and
numerous work items stolen, including two rifles, two shotguns,
ammunition, knives, a laptop, a bulletproof vest, two raid jackets, and a
hazardous materials suit. Some of these items were later recovered in
Maria Solis’s apartment. 17 RR 26-34.
January 2005
Around a week later, Petitioner and a cohort robbed Vicky Calsada, her
roommate, and her roommate’s sixteen-year-old son at gunpoint. The two
men were wearing all black, including ski masks, and were armed with
shotguns. Again, the victims were forced onto the ground and tied up with
torn bedsheets. The suspects stole jewelry, $2,900 in cash, and a handgun,
as well as Calsada’s puppy. The handgun was also recovered the
following month in Maria Solis’s apartment. 17 RR 35-52.
After hearing evidence concerning Petitioner’s violent past, the jury was presented with
evidence concerning Petitioner’s behavior following his arrest for Andrade’s murder in February
2005. Raymond Valero, a former cellmate of Petitioner’s at the Bexar County Jail, testified that
Petitioner confessed to him the details of Andrade’s murder and expressed no remorse for the
crime. Petitioner also told him that he had planned to use a shotgun to “shoot his way out” when
police came to arrest him for Andrade’s murder but that he did not have enough time to get to his
gun. Petitioner also told Valero that he planned to marry Solis to prevent her from testifying
against him and that he had a plan to use the judge as a “human shield” to escape if his trial did
not go well. He also showed Valero a handcuff key he kept hidden in a bar of soap that was later
recovered by Bexar County jailers. 17 RR 61-118.
Lastly, the State presented the testimony of Andrade’s mother, father, sister, and college
friend to demonstrate the devastating impact his murder had upon each of their lives. 17 RR
125-37; 18 RR 16-29. The State closed by presenting the jury with evidence that Petitioner had a
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short-term sexual relationship with his fourteen-year-old neighbor in June of 2004 after she had
run away from home. Petitioner—24 years old at the time—was aware of the girl’s age. 18 RR
30-51.
2.
Evidence Presented by the Defense
Against the advice of counsel, Petitioner took the stand to testify on his own behalf. 18
RR 58-117. Petitioner began by saying he was testifying to set the record straight and was not
there to plead for his life. Petitioner stated he was responsible for his circumstances and did not
blame his childhood or believe there was anything mitigating about his past to warrant a life
sentence. According to Petitioner, a death sentence would be appropriate for him, as a life in
prison would only make him worse. Petitioner stated he pled guilty to get right with God and to
give justice to Andrade’s family.
On cross-examination, Petitioner admitted to murdering Andrade and described how the
killing took place. Petitioner stated he felt no remorse after the murder and confessed to Maria
Solis that he committed the robbery and murder because he was bored. Petitioner also admitted
he had been given several chances to turn his life around but failed to take advantage of those
opportunities. Petitioner testified he was guilty of all of the offenses enumerated by the State
along with numerous other offenses unknown to law enforcement. In all, Petitioner estimated he
had committed between 25-30 burglaries and aggravated robberies and also admitted to selling
cocaine. According to Petitioner, he was addicted to the adrenalin rush of “going into a house
when somebody was there and taking everything they owned.” Petitioner finished by stating he
knew the punishment for capital murder when he committed the crime and he was not trying to
trick the jury into giving him a life sentence by asking for a death sentence.
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Following Petitioner’s testimony, the defense presented the testimony of Margaret Drake,
a licensed clinical social worker and mitigation expert. 19 RR 3-33. In preparing a psychosocial report on Petitioner, she interviewed Petitioner on five occasions, met with his mother
three or four times, and met with two of his aunts, his sister, and a former stepmother. She also
reviewed Petitioner’s TYC records. Ms. Drake testified that Petitioner moved around a lot as a
child and had a very difficult upbringing. A number of Petitioner’s family members abused
drugs and alcohol and were abusive toward the children. There was also a history of mental
health issues and criminal behavior in Petitioner’s family.
Petitioner’s father had little
involvement in his life, which led to a sense of rejection and alienation. Ms. Drake also testified
that Petitioner was intelligent, likeable, and tended to do better during the times he was
incarcerated at TYC and the Bexar County Jail. She admitted, however, that Petitioner had been
given many chances for counseling and treatment to help him turn his life around but he ignored
those opportunities and chose a life of crime instead.
Finally, the defense presented the testimony of Dr. Brian Skop, a clinical and forensic
psychiatrist who evaluated Petitioner’s potential for future danger just prior to his trial. 19 RR
34-54. As part of his evaluation, Dr. Skop reviewed Petitioner’s TYC and TDCJ records as well
as Petitioner’s trial testimony. Dr. Skop determined Petitioner’s I.Q. to be 89 and believed
Petitioner suffers from anti-social personality disorder as well as some traits of borderline
personality disorder and narcissistic personality disorder. Although he believed Petitioner would
constitute a future danger if released back into society, Dr. Skop stated Petitioner would be less a
danger if he were confined in prison. This is so partly because Petitioner’s substance abuse
problem would be lessened in prison due to treatment and decreased availability, and because
prison is a controlled environment that could effectively control his impulsive behavior. Dr.
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Skop also cited the fact that a person’s risk of violence decreases as they age and Petitioner
would have access to treatment for his mental disorders while incarcerated.
Following this testimony, on March 8, 2006, the trial court instructed the jury to return a
guilty verdict on the issue of Petitioner’s guilt or innocence. 20 RR 19-20. The jury was then
instructed on the punishment special issues and heard closing argument by counsel. Id. at 21-50.
After deliberations, the jury returned its verdict, finding unanimously (1) beyond a reasonable
doubt there was a probability 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, background, and personal
moral culpability, there were insufficient mitigating circumstances to warrant a sentence of life
imprisonment rather than a death sentence. Id. at 53-54.
C.
Post-conviction Proceedings
Petitioner appealed his conviction and sentence, raising twenty-five points of error in his
direct appeal brief. In an opinion issued October 29, 2008, the Texas Court of Criminal Appeals
(TCCA) affirmed Petitioner’s conviction and sentence. Luna v. State, 268 S.W.3d 594 (Tex.
Crim. App. 2008), cert. denied, 558 U.S. 833 (2009). The United States Supreme Court denied
Petitioner’s petition for writ of certiorari on October 5, 2009. Luna v. Texas, 558 U.S. 833
(2009).
While his direct appeal was still pending, Petitioner was appointed counsel—attorney
Michael Gross—to represent him in pursuing state habeas corpus relief. In December 2008, Mr.
Gross filed a state habeas application on Petitioner’s behalf in the trial court raising a total of five
claims for relief. These five claims were later fleshed out in a nearly three-hundred page
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amended application filed by Mr. Gross in June 2009. Supp. SHCR at 1-297. 2 The state trial
court held an evidentiary hearing on Petitioner’s claims in November 2012, hearing testimony
from several of Petitioner’s family members as well as his two court-appointed trial attorneys,
Michael Granados and Mario Trevino. The state trial court then issued its findings of fact and
conclusions of law recommending that state habeas corpus relief be denied. I SHCR at 203-59.
In an order dated April 22, 2015, the TCCA adopted all but three of the trial court’s findings of
fact and conclusions of law and denied Petitioner state habeas corpus relief. Ex parte Luna, No.
70,511-01, 2015 WL 1870305 (Tex. Crim. App. 2015).
One year following the denial of state habeas relief, Petitioner filed his initial federal
habeas corpus petition in this Court (ECF No. 13) and amended the petition six months later on
October 21, 2016 (ECF No. 22). Respondent answered the amended petition on June 19, 2017
(ECF No. 30), to which Petitioner has responded (ECF No. 40). This case is thus ripe for
adjudication.
II. Claims for Relief
As raised in Petitioner’s Amended Petition (ECF No. 22), the following allegations are
now before the Court:
1.
Petitioner received ineffective assistance of trial counsel by counsel’s
failure to investigate, develop, and present compelling mitigation evidence
at the punishment phase of trial;
2.
Trial counsel were ineffective for failing to investigate Petitioner’s
experiences while incarcerated in TYC;
3.
The State violated Brady v. Maryland, 373 U.S. 83 (1963) and Napue v.
Illinois, 360 U.S. 264 (1959) when it failed to disclose the horrific
conditions Petitioner endured while incarcerated at TYC facilities and
2
Throughout this opinion, “SHCR” refers to the State Habeas Clerk’s Record while “Supp. SHCR” refers to
the Supplemental State Habeas Clerk’s Record. Both are preceded by volume number and followed by the relevant
page numbers.
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presented false evidence that such facilities were rehabilitative and
supportive;
4.
The trial court violated Petitioner’s due process rights by failing to
conduct an adequate inquiry into his mental status despite information that
raised doubts regarding his competency;
5.
Trial counsel were ineffective for failing to investigate and present
evidence of Petitioner’s incompetency;
6.
Petitioner’s guilty plea was not knowing, intelligent, and voluntary;
7.
Petitioner’s absence from the courtroom for a critical proceeding when the
trial court excused nearly a quarter of the venire panel off the record
violated his Sixth, Eighth, and Fourteenth Amendment rights;
8.
The trial court violated Petitioner’s right to an impartial jury and due
process by excluding two venire members for cause because they voiced
general objections to the death penalty or expressed conscientious or
religious scruples against its infliction;
9.
Petitioner’s due process rights were violated when the shackles he was
wearing were specifically brought to the jury’s attention by the bailiff and
by the trial court’s decision to continue shackling Petitioner during his
own testimony;
10.
Trial counsel were ineffective for failing to investigate and impeach
prosecution witness Raymond Valero;
11.
Trial counsel were ineffective for failing to object to the State’s admission
and recitation of Dr. J.O. Sherman’s 1994 psychological report of
Petitioner in violation of Petitioner’s Sixth Amendment right to confront
witnesses against him;
12.
The trial court’s ad hoc proceeding—in which the jury simultaneously
considered evidence of Petitioner’s guilt/innocence of the charged offense
and his individual characteristics bearing on punishment—violated the
Eighth and Fourteenth Amendments by failing to adequately guide the
jury’s discretion and ensure that Petitioner’s death sentence was not
arbitrarily or capriciously imposed;
13.
Petitioner was denied his rights to due process and a jury trial when the
jury failed to unanimously determine beyond a reasonable doubt the fact
that exposed Petitioner to the punishment of death;
14.
Petitioner was tried and sentenced to death under a statutory scheme that
violates the Sixth, Eighth and Fourteenth Amendments in the following
ways:
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15.
A.
Special Issue Number One [future dangerousness] is
unconstitutionally vague and fails to adequately channel the jury’s
discretion or narrow the class of defendants sentenced to death;
B.
Special Issue Number Two [mitigation] is unconstitutional because
it (1) instructs the jury that ten or more jurors must agree to a
sentence of life, and (2) fails to require that the jury’s findings on
this issue be made beyond a reasonable doubt;
C.
Petitioner’s death sentence is inconsistent with the evolving
standards of decency that mark the progress of a maturing society;
and
The cumulative prejudicial effect of the above errors at both the guilt
phase and punishment phase denied Petitioner due process of law and the
effective assistance of counsel.
III. Standard of Review
The standard of review a federal court applies depends on the state court’s treatment of
the federal claims. When claims have not been adjudicated on their merits by the state court, the
federal court should apply a de novo standard of review to the claims. Hoffman v. Cain, 752
F.3d 430, 437 (5th Cir. 2014). If the claims were adjudicated on the merits, however, federal
courts should apply the deferential standard of review provided by the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA). 28 U.S.C. § 2254(d). Under this heightened
standard, a writ of habeas corpus should be granted only if a state court’s adjudication of a claim
(1) resulted in a decision that is contrary to or an unreasonable application of clearly established
federal law as determined by the United States Supreme Court, or (2) resulted in a decision that
is based on an unreasonable determination of the facts in light of the record before the state
court. Harrington v. Richter, 562 U.S. 86, 100-01 (2011). This standard is difficult to meet and
“stops short of imposing a complete bar on federal court relitigation of claims already rejected in
state proceedings.” Richter, 562 U.S. at 102 (citing Felker v. Turpin, 518 U.S. 651, 664 (1996)).
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With regard to § 2254(d)(1), the Supreme Court has concluded the “contrary to” and
“unreasonable application” clauses have independent meanings. Bell v. Cone, 535 U.S. 685, 694
(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. Brown v. Payton, 544 U.S. 133, 141 (2005); (Terry) Williams v. Taylor,
529 U.S. 362, 413 (2000). An “unreasonable application” occurs 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. Brown, 544 U.S. at 141; Wiggins v. Smith, 539
U.S. 510, 520 (2003).
A federal habeas court’s inquiry into unreasonableness should always be objective rather
than subjective, with a focus on whether the state court’s application of clearly established
federal law was “objectively unreasonable” and not whether it was incorrect or
erroneous. McDaniel v. Brown, 558 U.S. 120 (2010); Wiggins, 539 U.S. at 520-21. Even a
strong case for relief does not mean the state court’s contrary conclusion was unreasonable,
regardless of whether the federal habeas court would have reached a different
conclusion. Richter, 562 U.S. at 102. Instead, a petitioner must show that the decision was
objectively unreasonable, which is a “substantially higher threshold.” Schriro v. Landrigan, 550
U.S. 465, 473 (2007); Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003). So long as “fairminded
jurists could disagree” on the correctness of the state court’s decision, a state court’s
determination that a claim lacks merit precludes federal habeas relief. Richter, 562 U.S. at 101
(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). In other words, to obtain federal
habeas relief on a claim previously adjudicated on the merits in state court, Petitioner must show
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that the state court’s ruling “was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Id. at 103; see also Bobby v. Dixon, 565 U.S. 23, 24 (2011).
Through §§ 2254(d)(2) and (e)(1), the AEDPA also significantly restricts the scope of
federal habeas review of state court fact findings. Similar to a state court’s determination
regarding clearly established federal law, a state court’s factual determination is not
unreasonable under § 2254(d)(2) “merely because the federal habeas court would have reached a
different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010); (Terry)
Williams, 529 U.S. at 410 (“[A]n unreasonable application of federal law is different from an
incorrect application of federal law.”). Even if reasonable minds reviewing the record might
disagree about the factual finding in question (or the implicit credibility determination
underlying the factual finding), on habeas review, this does not suffice to supersede the trial
court’s factual determination. Wood, 558 U.S. at 301; Rice v. Collins, 546 U.S. 333, 341-42
(2006). In addition, § 2254(e)(1) supplements the deference afforded to state court factual
determinations under § 2254(d)(2) by providing that a state court’s determination of a particular
factual issue “shall be presumed to be correct,” and that a petitioner “shall have the burden of
rebutting the presumption by clear and convincing evidence.” Wood, 558 U.S. at 293; Rice, 546
U.S. at 338-39 (“State-court factual findings, moreover, are presumed correct; the petitioner has
the burden of rebutting the presumption by ‘clear and convincing evidence.’”). 3
Finally, the Fifth Circuit has held that a federal habeas court’s review under AEDPA
must focus exclusively on the ultimate decision reached by the state court and not evaluate the
3
This standard, while “arguably more deferential” to state courts than the “unreasonable determination”
standard of § 2254(d)(2), pertains only to a state court’s determinations of particular factual issues. Blue v. Thaler,
665 F.3d 647, 654 (5th Cir. 2011) (citing Miller-El v. Cockrell, 537 U.S. 322, 341-42 (2003)). On the other hand,
§ 2254(d)(2) pertains to a state court’s decision as a whole. Id.
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quality, or lack thereof, of the state court’s written opinion supporting its decision.
See
Maldonado v. Thaler, 625 F.3d 229, 239 (5th Cir. 2010) (federal habeas review of a state court’s
adjudication involves review only of a state court’s decision, not the written opinion explaining
the decision); Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc) (holding a federal
court is authorized by § 2254(d) to review only a state court’s decision and “not on whether the
state court considered and discussed every angle of the evidence”); Santellan v. Cockrell, 271
F.3d 190, 193 (5th Cir. 2001) (holding that it is the state court’s “ultimate decision” that is to be
tested for unreasonableness, “not every jot of its reasoning”). Indeed, state courts are presumed
to know and follow the law. Woodford v. Visciotti, 537 U.S. 19, 24 (2002). Even where the state
court fails to cite to applicable Supreme Court precedent or is unaware of such precedent, the
AEDPA deferential standard of review nevertheless applies “so long as neither the reasoning nor
the result of the state-court decision contradicts [Supreme Court precedent].”
Mitchell v.
Esparza, 540 U.S. 12, 16 (2003) (citing Early v. Packer, 537 U.S. 3, 8 (2002)).
IV. Analysis
A.
Several of Petitioner’s Claims are Unexhausted and Procedurally Barred.
As listed previously, Petitioner raises a total of fifteen allegations (not including subparts)
in his amended federal petition. Respondent contends a majority of these allegations—claims 2,
3, 5, 6, 9, 10, 14(b)(2), 14(c), and 15, in particular—have not been presented to the Texas Court
of Criminal Appeals for review either on direct appeal or during Petitioner’s state habeas
proceedings.
Federal habeas relief is therefore precluded on these unexhausted allegations
because they are considered procedurally defaulted.
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1.
The procedural default doctrine
The AEDPA requires that a prisoner exhaust his available State remedies before raising a
claim in a federal habeas petition. See § 2254(b)(1)(A) (stating that habeas corpus relief may not
be granted “unless it appears that . . . the applicant has exhausted the remedies available in the
courts of the State”). The exhaustion requirement is satisfied if the substance of the federal
habeas claim was presented to the highest state court in a procedurally proper manner. Baldwin
v. Reese, 541 U.S. 27, 29-32 (2004); Moore v. Cain, 298 F.3d 361, 364 (5th Cir. 2002). In
Texas, the highest state court for criminal matters is the TCCA. Whitehead v. Johnson, 157 F.3d
384, 387 (5th Cir. 1998). To properly exhaust a claim the petitioner must “present the state
courts with the same claim he urges upon the federal courts.” Picard v. O’Connor, 404 U.S.
270, 276 (1971).
Petitioner readily admits he did not raise the instant claims in the TCCA, and, as such,
those claims are unexhausted.
Martinez v. Johnson, 255 F.3d 229, 238 (5th Cir. 2001).
However, if Petitioner were to return to state court to satisfy the exhaustion requirement and the
state court would now find the claims procedurally barred, the unexhausted claims would be
considered procedurally barred from federal habeas review. See Keeney v. Tamayo-Reyes, 504
U.S. 1, 9-10 (1992) (holding an unexhausted claim is procedurally defaulted for federal habeas
purposes if the claim would now be procedurally barred by state court); Coleman v. Thompson,
501 U.S. 722, 735 n.1 (1991) (same).
In this case, Petitioner is unable to return to state court to present any unexhausted claims
because doing so would be barred by Texas’ abuse of the writ doctrine codified in Article
11.071, Section 5(a) of the Texas Code of Criminal Procedure. 4 Fuller v. Johnson, 158 F.3d
4
Article 11.071, Section 5(a) provides that a state court may not consider the merits of, or grant relief on,
claims presented in a successive state habeas application unless the legal or factual issues were unavailable at the
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903, 906 (5th Cir. 1998). The Fifth Circuit has consistently held that Texas’ abuse of the writ
doctrine is an independent and adequate state procedural bar foreclosing federal habeas review of
unexhausted claims. See Williams v. Thaler, 602 F.3d 291, 305-06 (5th Cir. 2010) (holding a
petitioner’s claims were procedurally defaulted because if the petitioner returned to state court,
the court would not consider the merits under Article 11.071, § 5(a)); Rocha v. Thaler, 626 F.3d
815, 832 (5th Cir. 2010); Beazley v. Johnson, 242 F.3d 248, 264 (5th Cir. 2001). As a result,
Petitioner’s unexhausted claims are deemed procedurally defaulted in federal court. O’Sullivan
v. Boerckel, 526 U.S. 838, 848 (1999); Bagwell v. Dretke, 372 F.3d 748, 755 (5th Cir. 2004).
Federal habeas relief on the basis of a procedurally defaulted claim is barred unless the
petitioner can demonstrate cause for the default and actual prejudice arising from the default or
demonstrate the failure to consider the claim will result in a fundamental miscarriage of justice.
Coleman, 501 U.S. at 750; Barrientes v. Johnson, 221 F.3d 741, 758 (5th Cir. 2000). Petitioner
makes no attempt to show a “fundamental miscarriage of justice” will result from the Court’s
dismissal of these claims.
Instead, Petitioner repeatedly cites the Supreme Court cases of
Martinez v. Ryan, 566 U.S. 1 (2012) and Trevino v. Thaler, 569 U.S. 413 (2013) to establish that
the alleged ineffectiveness of his post-conviction counsel constitutes cause to overcome the
default. But as discussed below, Petitioner fails to make this showing.
2.
Martinez and Trevino are inapplicable to the instant proceedings.
Prior to Martinez, an attorney’s negligence in a postconviction proceeding could not
serve as “cause.” Coleman, 501 U.S. at 755. Martinez and Trevino carved out a “narrow”
time the previous application was filed or, but for a violation of the Constitution, no rational juror could have found
the applicant guilty or voted in favor of a death sentence. As discussed previously in this Court’s denial of
Petitioner’s request for stay and abatement (ECF No. 41 at 4), Petitioner freely admitted the majority of his
unexhausted claims “could and should have been raised in state post-conviction proceedings,” and provided no
viable argument demonstrating the remainder of his claims were previously unavailable. The unexhausted claims
would therefore be barred if Petitioner attempted to present them in a subsequent writ application in state court. See
Tex. Code Crim. Proc. art. 11.071, § 5(a).
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exception to the Coleman rule for claims asserting ineffective assistance of trial counsel (IATC).
Trevino, 569 U.S. at 422. Now, a petitioner may meet the cause element by showing (1) “that
habeas counsel was ineffective in failing to present those claims in his first state habeas
proceeding” and (2) “that his [IATC claim] is substantial—i.e., has some merit.” Garza v.
Stephens, 738 F.3d 669, 676 (5th Cir. 2013). Neither of these is satisfied in this case.
The majority of Petitioner’s defaulted claims are not eligible for the equitable exception
created by Martinez. Although Petitioner argues throughout his amended petition that, under
Martinez, state habeas counsel’s failure to investigate and plead each of the unexhausted claims
should constitute cause to excuse any default, Martinez is not a catchall excuse for the failure to
first raise a claim in state court. Rather, Martinez is a “narrow exception” that applies only to
IATC claims. Martinez, 566 U.S. at 9-18; see also Davila v. Davis, 137 S. Ct. 2058, 2065
(2017) (declining to extend Martinez to claims alleging ineffective assistance of appellate
counsel). The Coleman rule—holding that attorney negligence in post-conviction proceedings
does not establish cause—thus still applies to every claim except IATC claims. Id. at 15. In
other words, Martinez has no effect on any of Petitioner’s allegations other than his three
unexhausted IATC claims (claims 2, 5, and 10).
With regard to these IATC claims, however, Petitioner fails to establish that his habeas
counsel—Mr. Gross—was “ineffective in failing to present those claims in his first state habeas
proceeding.” Garza, 738 F.3d at 676. In the habeas context, allegations of ineffective assistance
are reviewed under the familiar two-prong test established in Strickland v. Washington, 466 U.S.
668 (1984).
Under Strickland, Petitioner must demonstrate (1) counsel’s performance was
deficient, and (2) this deficiency prejudiced his defense. 466 U.S. at 687-88, 690. Petitioner
contends Mr. Gross’s inadequacies stem from his failure to raise each of the unexhausted claims
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now presented in the amended federal habeas petition. But to establish deficient performance
under Strickland, a petitioner must do more than identify issues or claims that habeas counsel did
not raise and are now barred. Id. at 689 (“Even the best criminal defense attorneys would not
defend a particular client in the same way.”); Smith v. Murray, 477 U.S. 527, 535 (1986) (“[T]he
mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise
the claim despite recognizing it, does not constitute cause for a procedural default.”); see also
Hittson v. GDCP Warden, 759 F.3d 1210, 1265 (11th Cir. 2014) (“generalized allegations are
insufficient in habeas cases” to meet the Martinez exception). Indeed, a state habeas attorney
“need not (and should not) raise every nonfrivolous claim, but rather may select from among
them in order to maximize the likelihood of success on appeal” because “counsel cannot be
deficient for failing to press a frivolous point.” Vasquez v. Stephens, 597 F. App’x 775, 780 (5th
Cir. 2015) (unpublished) (citing Smith v. Robbins, 528 U.S. 259, 288 (2000)).
Furthermore, Petitioner has not shown that he was prejudiced by Mr. Gross’s allegedly
deficient performance—that is, “that there is a reasonable probability that he would have been
granted state habeas relief had the claims been presented in the first state habeas application.”
Barbee v. Davis, 660 F. App’x 293, 314 (5th Cir. 2016) (unpublished); Martinez v. Davis, 653 F.
App’x 308, 318 (5th Cir. 2016) (unpublished). The record in this case demonstrates that counsel
raised five multifaceted and well-briefed allegations in his state habeas petition that were
supported by affidavits from family, friends, and a psychologist he hired to evaluate Petitioner.
Supp SHCR at 1-297, 406-419. With the heavy deference given to Mr. Gross’s strategic choices
under Strickland, Petitioner has not shown a reasonable probability that the state habeas court
would have granted relief had counsel advanced his unexhausted claims, much less that the new
claims had a better chance of success than the claims raised by state habeas counsel during
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Petitioner’s state habeas proceedings. Accordingly, Petitioner has not shown that state habeas
counsel’s representation was either deficient or prejudicial enough to provide cause to overcome
the procedural bar of his unexhausted claims.
Finally, regardless of whether Petitioner establishes a valid claim of ineffective state
habeas counsel under Martinez, he still is not entitled to excuse the procedural bar because the
defaulted claims are also plainly meritless. Again, to overcome a default under Martinez, a
petitioner must also demonstrate that the underlying IATC claim “is a substantial one.”
Martinez, 566 U.S. at 14 (citing Miller-El, 537 U.S. at 322). “For a claim to be ‘substantial,’ a
petitioner ‘must demonstrate that the claim has some merit.’” Reed v. Stephens, 739 F.3d 753,
774 (5th Cir. 2014) (quoting Martinez, 566 U.S. at 14).
“Conversely, an ‘insubstantial’
ineffective assistance claim is one that ‘does not have any merit’ or that is ‘wholly without
factual support.’” Reed, 739 F.3d at 774 (quoting Martinez, 566 U.S. at 15-16).
As discussed in greater depth in Section IV(E) below, Petitioner fails to meet this criteria
as well. Consequently, Petitioner fails to establish cause under Martinez that would excuse his
unexhausted IATC claims from being procedurally defaulted. Petitioner is thus barred from
receiving federal habeas relief on these allegations.
B.
Brady and Napue (Claim 3)
Petitioner contends the State suppressed evidence that TYC, where Petitioner was
incarcerated for approximately three years as a juvenile, was dysfunctional and under
investigation for widespread allegations of child sexual abuse. ECF No. 22 at 71-78. Petitioner
also maintains the State presented false evidence at his trial that TYC was a supportive and
rehabilitative institution and that Petitioner failed to take advantage of these rehabilitative
opportunities. Id. at 78-81. Neither of these allegations was raised during Petitioner’s direct
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appeal or state habeas proceedings. Thus, as discussed in the previous section, both claims are
procedurally barred from federal habeas relief.
To overcome this procedural bar, Petitioner invokes Banks v. Dretke, 540 U.S. 668
(2004) to establish cause for the default. Again, a federal court “may consider the merits of a
procedurally defaulted claim if the petitioner shows ‘cause for the default and prejudice from a
violation of federal law.’” Canales v. Stephens, 765 F.3d 551, 562 (5th Cir. 2014) (quoting
Martinez, 566 U.S. at 10). Under Banks, a petitioner can show “cause” for the default of a Brady
allegation if “the reason for his failure to develop facts in state-court proceedings was the State’s
suppression of the relevant evidence.” 540 U.S. at 691. To show prejudice, a petitioner must
demonstrate that “the suppressed evidence is ‘material’ for Brady purposes.” See Rocha v.
Thaler, 619 F.3d 387, 394 (5th Cir. 2010). In other words, Petitioner must establish a valid
Brady claim in order to overcome his procedural default and prevail on the merits. As discussed
below, Petitioner fails to make this showing. 5
1.
The Brady Allegation
In Brady v. Maryland, the Supreme Court announced that due process requires the State
to disclose material, exculpatory evidence to the defense. 373 U.S. 83, 87 (1963). In order to
establish a Brady violation, Petitioner must demonstrate (1) the prosecution suppressed evidence,
(2) the evidence was favorable to the defense, and (3) the evidence was material to either guilt or
punishment. Banks, 540 U.S. at 691; Graves v. Cockrell, 351 F.3d 143, 153-54 (5th Cir. 2003).
The evidence is material only if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different. United States v.
Bagley, 473 U.S. 667, 684 (1985).
5
Petitioner fails to show that a finding of “cause and prejudice” under Banks would excuse the default of his
false evidence claim under Napue. As those are separate legal issues, Petitioner’s Napue allegation is procedurally
defaulted regardless of the outcome of his Brady allegation.
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Petitioner contends the State failed to disclose evidence that TYC was dysfunctional,
riddled with administrative and accountability issues, and regularly abused the children in its
care. Petitioner believes the State misled the jury by painting TYC as a rehabilitation facility
when in fact “TYC was a place of chaos, disorder, and violence, which offered little in the way
of rehabilitative possibilities to the juveniles it was supposed to serve.” ECF No. 22 at 62, 76.
But Petitioner also asserts that evidence of TYC’s alleged dysfunction was public information
that “had been well known as far back as 2003.” Id. at 62, 64. He even supports this assertion
with a declaration from his trial attorney and a report from an expert on juvenile justice in Texas.
ECF No. 23-1 at 32 (Declaration from attorney Mario Trevino stating that the problems at TYC
“had been publically known” prior to Petitioner’s trial); ECF No. 23-2 at 67 (Report of Dr.
William Bush acknowledging “the problems and failures of TYC were known to the public in
broad strokes” at the time of Petitioner’s trial). If such evidence was indeed widely known as
Petitioner asserts, it was also available to the defense and thus not suppressed within the meaning
of Brady. See Woodford v. Cain, 609 F.3d 774, 803 (5th Cir. 2010) (stating “there can be no
viable Brady claim when allegedly suppressed evidence was available to the defendant through
his own efforts”); Rector v. Johnson, 120 F.3d 551, 558-59 (5th Cir. 1997) (same).
Petitioner also contends the prosecution was aware of the massive child sexual abuse
scandal at TYC and the subsequent investigation by the Texas Rangers but failed to disclose this
potential Brady material to the defense. According to Petitioner, Bexar County prosecutors had
knowledge of the scandal because the Texas Rangers produced a report on the scandal that was
apparently seen by the Texas Attorney General’s Office as well as by certain individuals at TYC
and in the Ward County District Attorney’s Office. ECF No. 40 at 31-33. But again, Petitioner
concedes that the scandal and subsequent investigation became public news shortly after the
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investigation began in February 2005, a year before Petitioner’s trial. Accordingly, evidence of
the sexual abuse scandal was available to the defense through the use of reasonable diligence,
thus negating the Brady allegation. See Castillo v. Johnson, 141 F.3d 218, 223 (5th Cir. 1998)
(“Under Brady, the prosecution has no obligation to produce evidence or information already
known to the defendant, or that could be obtained through the defendant’s exercise of
diligence.”); Brown v. Cain, 104 F.3d 744, 750 (5th Cir. 1997) (same).
Alternatively, if the sexual abuse scandal was not public knowledge, Petitioner cannot
establish a valid Brady claim because there is no evidence that Bexar County prosecutors were
aware of the scandal and subsequent investigation. Petitioner correctly notes that knowledge of
potential Brady material is imputed to prosecutors if a member of the prosecution team has
knowledge of the Brady material. Avila v. Quarterman, 560 F.3d 299, 307 (5th Cir. 2009)
(citations omitted). Contrary to his assertion, however, a prosecutor’s office is not automatically
imputed with knowledge of an investigation by state law enforcement officials simply by virtue
of being a governmental agency. Instead, that determination is made on a “case-by-case analysis
of the extent of interaction and cooperation between the two governments.” Id. In this case, no
evidence has been presented indicating that the Bexar County District Attorney’s Office had any
interaction or cooperated in any way with the investigation by the Texas Rangers. Nor has
Petitioner presented evidence establishing that Bexar County had knowledge of the subsequent
report created by the Texas Rangers that was distributed to other governmental agencies. 6
Because Petitioner provides no evidence that the prosecution in his case suppressed evidence
within the meaning of Brady, his claim fails. See Murphy v. Johnson, 205 F.3d 809, 814 (5th
6
Although the prosecution did present the testimony of Juan DeLeon (15 RR 46-54), a Parole Officer with
TYC who supervised Petitioner’s parole in 1996, Respondent correctly points out that DeLeon’s employment with
TYC does not establish that he had any knowledge of the Texas Rangers’ investigation or subsequent report. Even
if he did have some knowledge, it would not be imputed to the prosecution. See Hill v. Johnson, 210 F.3d 481, 48889 (5th Cir. 2000) (suggesting that merely testifying as an expert witness for the State does not necessarily transform
an expert witness into an “arm of the state”).
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Cir. 2000) (finding petitioner is not entitled to habeas relief based on conclusory and speculative
allegations of a Brady violation).
Regardless, even assuming Petitioner can establish the above evidence was suppressed,
the Court concludes it was not material. Again, suppressed evidence is material “if there is a
reasonable probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” Bagley, 473 U.S. at 685. However, “[i]f the evidence
provides only incremental impeachment value, it does not rise to the level of Brady materiality.”
Miller v. Dretke, 431 F.3d 241, 251 (5th Cir. 2005). “The materiality of Brady material depends
almost entirely on the value of the evidence relative to the other evidence mustered by the state.”
Rocha, 619 F.3d at 396 (quoting United States v. Sipe, 388 F.3d 471, 478 (5th Cir. 2004)).
Petitioner contends the evidence of TYC’s scandal would have had substantial value by
“conveying to the jury the troubled, traumatic upbringing [he] had endured, including the time he
spent as a ward of the State of Texas.” ECF No. 40 at 34. Yet, Petitioner does not allege to have
witnessed any such abuse during his time at TYC or contend that he was the victim of such
abuse. Thus, evidence of a sexual abuse scandal at TYC in and of itself would seem to have only
incremental value, at best, and does not rise to the level of Brady materiality. The value of such
evidence is further diminished when considering Petitioner took the stand and testified before the
jury that he did not blame the circumstances of his childhood or the way he was raised for his
actions. 18 RR 59-117. Petitioner agreed that TYC offered him numerous opportunities to turn
his life around but he failed to take advantage of them, admitted to committing numerous violent
felonies both known and unknown to the prosecution, and asked the jury to give him the death
penalty because he knows he is a future danger and that no mitigating evidence warranted a life
sentence. Id.
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In addition, the jury heard evidence concerning the cold nature of Andrade’s murder,
including Petitioner’s own confession to the crime and the effect it has had on Andrade’s family
and friends.
See Section I(B), supra.
The jury also heard from numerous victims and
investigators about Petitioner’s ever-escalating pattern of violence that culminated in Andrade’s
murder in addition to hearing about Petitioner’s inability to reform his conduct while
incarcerated as both a juvenile and adult. Thus, given the overwhelming nature of the evidence
presented by the State at punishment, Petitioner fails to establish the result would have been
different had the State disclosed the TYC scandal and investigation prior to trial. Bagley, 473
U.S. at 685. Relief is therefore denied.
2.
The Napue allegation
In a related allegation, Petitioner contends the State presented false evidence that he was
given multiple chances to turn his life around through counseling and drug treatment at TYC but
failed to take advantage of these opportunities. In Napue v. Illinois, the Supreme Court held that
a criminal defendant is denied due process when the State knowingly uses perjured testimony or
allows false testimony to go uncorrected at trial. 360 U.S. 264 (1959); see also Giglio v. United
States, 405 U.S. 150 (1972). A petitioner seeking to obtain relief on such a claim must show that
(1) the testimony is false, (2) the State knew that the testimony was false, and (3) the testimony
was material. Kutzner v. Johnson, 242 F.3d 605, 609 (5th Cir. 2001); Pyles v. Johnson, 136 F.3d
986, 996 (5th Cir. 1998).
Citing the testimony of Tony Martinez, one of Petitioner’s juvenile probation officers,
Petitioner argues the jury was misled about the rehabilitative opportunities he was offered while
incarcerated at TYC. According to Petitioner, the testimony omitted certain facts known by the
State—namely, that TYC “was a jail for children focused on punishment rather than
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rehabilitation” which was plagued by rampant physical and sexual abuse. ECF No. 22 at 76.
But despite asserting the State gave the wrong impression, one that could have been corrected
with evidence of TYC’s dysfunction and abuse scandals, Petitioner has not shown that any
witness’s testimony was actually false. Martinez testified generally that the goal of probation for
juveniles was rehabilitation, but if they are incarcerated or their probation is revoked, they are
sent to TYC, a juvenile detention facility. 15 RR 17-22. He then testified about Petitioner’s
placement in several residential treatment facilities, and that each time Petitioner was expelled
within a few weeks for behavioral issues. Id. at 22-33. This evidence is neither misleading nor
false and was supported by Petitioner’s own testimony and that of his mitigation expert,
Margaret Drake. 18 RR 73-74; 19 RR 29-30. Moreover, for the reasons previously discussed,
the testimony was largely immaterial given the overwhelming nature of the evidence presented
by the State at punishment. Relief is therefore denied on Petitioner’s Napue claim.
C.
The Guilty Plea (Claim 6)
Petitioner next contends his guilty plea was not knowing, voluntary, and intelligent
because it was the result of mental illness and brain damage. Specifically, Petitioner states his
mental health issues—Post-traumatic Stress Disorder (PTSD), depression, and suicidality—and
the organic brain damage he developed as a juvenile impeded his ability to make a voluntary and
rational decision. Petitioner did not raise this claim during his state court proceedings and is
therefore procedurally barred from federal habeas corpus relief. See Section IV(A), supra.
Petitioner has not shown cause and prejudice or a fundamental miscarriage of justice in order to
overcome this procedural bar. Regardless, even when reviewed under a de novo standard of
review, Petitioner’s claim lacks merit.
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A guilty plea is valid only if entered voluntarily, knowingly, and intelligently, “with
sufficient awareness of the relevant circumstances and likely consequences.” Bradshaw v.
Stumpf, 545 U.S. 175, 183 (2005). To be voluntary, a plea must not be the product of “actual or
threatened physical harm, or . . . mental coercion overbearing the will of the defendant.” Austin
v. Davis, 876 F.3d 757, 783 (5th Cir. 2017) (citing Matthew v. Johnson, 201 F.3d 353, 365 (5th
Cir. 2000)). To be knowing and intelligent, a defendant must have “real notice of the true nature
of the charge against him.” Bousley v. United States, 523 U.S. 614, 618 (1998) (internal
quotation marks omitted); see also Ables v. Scott, 73 F.3d 591, 592 n.2 (5th Cir. 1996) (finding
that knowing the consequences of a guilty plea means only that the defendant knows “the
maximum prison term and fine for the offense charged”). When determining whether a plea is
voluntary, knowing, and intelligent, a court should consider all relevant circumstances, including
whether the defendant: (1) had notice of the charges against him; (2) understood the
constitutional protections he was waiving; and (3) had access to competent counsel. Austin, 876
F.3d at 783; Montoya v. Johnson, 226 F.3d 399, 404 (5th Cir. 2000).
Petitioner does not allege that his guilty plea was the result of any force, threat, or
coercion. Instead, he contends his mental health issues and organic brain damage hindered his
ability to make a voluntary and rational decision. Other than the unexhausted reports from
experts who evaluated Petitioner ten years after his trial, however, Petitioner provides little
persuasive evidence he suffers from either PTSD or brain damage. ECF No. 23-2 (reports of Dr.
Pablo Stewart and Dr. Barry Crown). And the assertion that he suffered from depression and
suicidality at the time of his trial appears to derive mostly from the fact that Petitioner pled guilty
and sought the death penalty during his testimony, ECF No. 22 at 96, an idea that was directly
rebutted by Petitioner’s own expert on direct examination. See 19 RR 42 (stating Petitioner
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sought the death penalty because he did not want to be in prison the rest of his life, not because
“he’s suffering from a major depression or anything, or he’s suicidal”).
Even assuming Petitioner suffered from brain damage and mental illness, those facts
alone would not render him incompetent to plead guilty. See Austin, 876 F.3d at 780 (“A history
of suicidality and depression . . . does not render a defendant incompetent to plead guilty.”)
(citations omitted); United States v. Mitchell, 709 F.3d 436, 440 (5th Cir. 2013) (finding “the
presence or absence of mental illness or brain disorder is not dispositive” as to competency).
Nor would it render his guilty plea invalid.
The record in this case indicates Petitioner’s plea was a voluntary and intelligent choice.
Before accepting his guilty plea, the trial court admonished Petitioner regarding the following
consequences of his plea: (1) only two punishments were available—a life or death sentence; (2)
all non-jurisdictional defects in his proceeding would be waived; and (3) the jury would be
instructed to find him guilty and would then decide which punishment would be assessed. 13
RR 10-13. Petitioner responded “I understand” to each of the admonishments given by the trial
court and indicated that his plea was voluntary and not the result of any threats, coercion, or
promises. Id. The trial court also asked defense counsel whether, in his opinion, Petitioner had
“a rational and factual understanding of the proceedings,” if he was able “to assist in the
preparation of any possible defenses,” and if he was “mentally competent” to waive his rights
and enter a guilty plea. Id. at 11-12. Counsel responded unequivocally “yes” to each of these
questions. Id.
Petitioner clearly demonstrated an understanding of the charges against him and the
possible consequences, as well as an ability to make strategic choices and to communicate
clearly with counsel and the trial court. Petitioner’s formal declarations in open court during his
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plea proceedings carry a strong presumption of verity and constitute a formidable barrier to any
subsequent collateral attack. Blackledge v. Allison, 431 U.S. 63, 74 (1977); United States v.
Kayode, 777 F.3d 719, 729 (5th Cir. 2014).
“The subsequent presentation of conclusory
allegations which are unsupported by specifics is subject to summary dismissal.” Blackledge,
431 U.S. at 74. Petitioner has not provided sufficient evidence or argument to overcome this
strong presumption, much less establish that his guilty plea was an involuntary and irrational
decision. The Court would therefore deny relief de novo even if it were not barred by the
procedural default doctrine.
D.
Competency (Claim 4)
Petitioner next asserts he was deprived of due process by the trial court’s failure to
conduct an adequate inquiry into his competency as required by Pate v. Robinson, 383 U.S. 375
(1966). Under Pate, a trial court must hold a competency hearing when there is evidence before
the court that objectively creates a bona fide question as to whether the defendant is competent to
stand trial. 383 U.S. at 385. Petitioner contends that, despite ample evidence that raised
questions about his competency, the trial court failed to order a mental health evaluation or
competency hearing in violation of his due process rights. This allegation was rejected by the
TCCA during Petitioner’s direct appeal proceedings. Luna, 268 S.W.3d at 598-600. Relief is
now denied in federal court because the state court’s adjudication was neither contrary to nor an
unreasonable application of Pate.
1.
Background
The trial court inquired into Petitioner’s competency on three different occasions during
Petitioner’s trial. The facts surrounding these inquiries were adequately summarized by the
TCCA on direct appeal:
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The trial court inquired about [Petitioner]’s competency several times
during the proceedings. When [Petitioner] initially pleaded guilty to the charges
in the indictment, the trial court admonished him of the consequences of his plea.
[Petitioner] stated that he understood the admonishments, that his plea was not the
result of threats or promises, and that he was satisfied with the assistance of
defense counsel. The trial court asked defense counsel if [Petitioner] had “a
rational and factual understanding of the proceedings,” if he was “able to assist in
the preparation of any possible defenses,” and if he was “mentally competent” to
waive his rights and enter a guilty plea. Defense counsel replied to all of these
questions in the affirmative.
[Petitioner] later testified at trial, against the advice of defense counsel.
Outside the presence of the jury, defense counsel questioned [Petitioner] about his
decision to testify and his awareness of the consequences of doing so. [Petitioner]
repeatedly indicated an understanding of the consequences of his decision to
testify. The trial court asked defense counsel if he believed that [Petitioner] had
“a rational and factual understanding of the proceedings” and was “mentally
competent” to waive his Fifth Amendment rights and to testify in front of the jury.
Defense counsel replied in the affirmative. The trial court also questioned
[Petitioner], who said that he understood his Fifth Amendment right not to testify
and the consequences of waiving that right. He also acknowledged that no one
threatened him or coerced him to testify.
The trial court again inquired about [Petitioner]’s competency prior to
closing arguments, when [Petitioner] consented to the seating of an alternate
juror. Defense counsel stated that he was not in favor of seating the alternate
juror because she was, in his opinion, “extremely pro-death sentence.” The trial
court then questioned defense counsel and [Petitioner] as follows:
THE COURT: [Defense counsel], are you confident that your
client—I’ve asked this before, but as to this issue—has a rational
and factual understanding of the issues we’re dealing with this
morning?
[DEFENSE COUNSEL]: He does. There’s no doubt about that. I
think Doctor Skop has testified, also, as to his mental condition.
THE COURT: And in your opinion is he mentally competent at
this time to be able to make that type of a decision?
[DEFENSE COUNSEL]: Yes, he is.
***
THE COURT: Right. [Petitioner], do you understand everything
we’ve done up here?
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[PETITIONER]: I understand.
THE COURT: Do you have any questions about anything we’ve
gone over?
[PETITIONER]: No.
THE COURT: Were you able to effectively communicate with
your attorney this morning regarding not only the issue of the
lawyer—or the juror’s being ill this morning, but the issues related
to the alternate and her feelings on the death penalty?
[PETITIONER]: I did.
THE COURT: Do you have any questions?
[PETITIONER]: No.
Luna, 268 S.W.3d at 599-600.
2.
Analysis
Petitioner contends that the above inquiries were insufficient to reasonably assess his
competency because the trial court made no attempt to determine the motivation behind his
decision to plead guilty or the status of his mental health. According to Petitioner, there was
ample evidence of his incompetency available to the trial court, including his “surprise” guilty
plea, his failure to follow counsel’s advice, the contents of his testimony, and his history of
depression, suicidality, possible mental illness, substance abuse, and limited functioning. To
obtain relief on a Pate procedural due process allegation, a petitioner does not have to establish
he was incompetent 7 to stand trial; rather, he need only establish that the trial judge should have
ordered a hearing to determine his competency. Roberts v. Dretke, 381 F.3d 491, 497 (5th Cir.
2004).
The inquiry is whether the trial judge received information which, objectively
7
The Supreme Court has explained that the two-part test for competence is (1) whether a defendant has “a
rational as well as factual understanding of the proceedings against him;” and (2) whether the defendant “has
sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.” Indiana v.
Edwards, 554 U.S. 164, 170 (2008) (citing Dusky v. United States, 362 U.S. 402 (1960)).
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considered, “should reasonably have raised a doubt about the defendant’s competency and
alerted [the court] to the possibility that the defendant could neither understand the proceedings
or appreciate their significance, nor rationally aid his attorney in his defense.” Id. (quoting Lokos
v. Capps, 625 F.2d 1258, 1261 (5th Cir. 1980)).
Although the Supreme Court has not articulated a general standard for the nature or
quantum of evidence necessary to trigger a competency hearing, it has focused on three factors
that should be considered: (1) the existence of a history of irrational behavior; (2) prior medical
opinions; and (3) the defendant’s bearing and demeanor at the time of trial. United States v.
Flores-Martinez, 677 F.3d 699, 706–07 (5th Cir. 2012); Williams, 819 F.2d at 607. Petitioner
carries the burden of showing, by clear and convincing evidence, that a Pate violation occurred.
Wheat v. Thigpen, 793 F.2d 621, 629 (5th Cir. 1986). Petitioner fails to meet this burden.
a.
Irrational Behavior
Petitioner asserts his decision to “unexpectedly” plead guilty constitutes evidence of his
incompetency. Petitioner argues the unexpected nature of the plea indicates an irrational and
impulsive decision that was contrary to his best interests. The record does not support this
assertion. To the contrary, Petitioner’s own testimony indicates the decision to plead guilty was
not a “spur of the moment thing” and was made “quite a while back.” 18 RR 74. Petitioner
explained that he had communicated this decision to his family prior to the beginning of trial. Id.
Trial counsel was aware of the decision for at least two or three days prior to trial and met with
Petitioner several times to try to persuade him otherwise. 1 SHCR at 498-99.
Petitioner contends that his failure to follow counsel’s advice should also have raised a
doubt as to his competency. But the fact that Petitioner chose not to follow counsel’s advice or
disagreed with his defense team does not necessarily indicate an inability to understand the
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proceedings or consult with his attorneys. See United States v. Simpson, 645 F.3d 300, 306 (5th
Cir. 2011) (finding a defendant is not incompetent “merely because he refuses to cooperate [with
counsel]”). Moreover, the fact that counsel disagreed with this decision or that the Petitioner’s
decisions were “motivated by [his] desire to obtain a death sentence” is largely irrelevant. This
Court’s focus is not on Petitioner’s legal acumen, but whether there was sufficient information
before the trial court that, objectively considered, should have raised a doubt about his
competency. Roberts, 381 F.3d at 497. The Fifth Circuit has expressly “decline[d] to adopt a
per se rule that, as a matter of law, a trial court must doubt a capital punishment defendant’s
competency, or conclude that such defendant does not understand the proceedings against him or
appreciate their significance . . . simply because it is obvious to the court that the defendant is
causing his trial to be conducted in a manner most likely to result in a conviction and the
imposition of the death penalty.” Id. at 498. Thus, the fact that Petitioner, contrary to counsel’s
advice, chose to plead guilty and request a death sentence is not evidence that he may be
incompetent to stand trial or that the trial court should have held a competency hearing.
b.
Prior Medical Opinion
Petitioner next argues the trial court should have been aware of “red flags” that called his
competency into question, including his history of possible mental illness, depression, suicidal
ideation, substance abuse, and limited intellectual functioning. Yet, the only medical opinion
before the trial court was the testimony of Dr. Skop, who testified that Petitioner’s I.Q. was 89
and that “it doesn’t appear that [Petitioner] is suffering from a major depression or anything, or
suicidal.” Petitioner fails to demonstrate that he suffered from any mental health issue that
would prevent him from understanding the proceedings, much less that such evidence was before
the trial court and should have triggered a more substantive inquiry into his mental status.
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Even assuming Petitioner suffered from depression and mental health issues at the time,
such issues do not necessarily raise an objective doubt as to his competency because “the
presence or absence of mental illness or brain disorder is not dispositive” as to competency.
United States v. Mitchell, 709 F.3d 436, 440 (5th Cir. 2013) (citing Mata v. Johnson, 210 F.3d
324, 329 n.2 (5th Cir. 2000)); see also Walton v. Angelone, 321 F.3d 442, 460 (4th Cir. 2003)
(“Not every manifestation of mental illness demonstrates incompetence to stand trial; rather, the
evidence must indicate a present inability to assist counsel or understand the charges.”) (citation
omitted). Likewise, Petitioner’s substance abuse issues would not require a hearing because
evidence of drug addiction does not by itself require a finding of incompetency. Holmes v. King,
709 F.2d 965, 968 (5th Cir. 1983).
c.
Demeanor at Trial
Finally, Petitioner cites his “bizarre and sometimes rambling” testimony at trial as
evidence of his potential incompetency, arguing that the damaging testimony evinced a desire to
ensure his own death. Although Petitioner clearly stated his desire was for the jury to sentence
him to death, his testimony articulating the reasons for this request was anything but irrational.
Petitioner stated that he had found religion in prison and a sentence of death would help him
focus on God and prevent him from hurting others. He further explained that his decision to
plead guilty was the result of his desire to “turn [his] life over to God” and to give justice to the
family of his victim. He also did not want to spend the rest of his life in prison because it would
just make him a worse person, whereas a death sentence would enable him to focus his attention
“on getting strengthened spiritually” without getting sidetracked. Thus, far from being impulsive
or irrational, Petitioner’s testimony demonstrated coherent and well-reasoned explanations for
choosing to plead guilty, testify on his own behalf, and seek the death penalty as punishment.
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Nothing about Petitioner’s testimony raised a doubt about his competency or ability to
understand the proceedings. Roberts, 381 F.3d at 497.
Perhaps more significantly, neither of Petitioner’s counsel (Michael Granados and Mario
Trevino) raised the issue of competency prior to trial or expressed concern about Petitioner’s
ability to communicate or understand the proceedings against him. To the contrary, on several
occasions counsel expressed the opinion that Petitioner was mentally competent to waive his
rights and enter a plea. 13 RR 11; 18 RR 54; 20 RR 7. As trial counsel is often the best source
of information about a defendant’s competency, this failure to raise any sort of issue concerning
Petitioner’s competency is persuasive evidence in and of itself that no violation occurred.
Medina v. California, 505 U.S. 437, 450 (1992); Reese v. Wainwright, 600 F.2d 1085, 1092 (5th
Cir. 1979).
Thus, Petitioner’s testimony did not indicate a lack of rationality, understanding,
or ability to communicate that should have alerted the trial court to potential competency issues.
In sum, this Court’s review of each of the three factors to be considered under Pate
indicates that no bona fide question as to Petitioner’s competency existed that would warrant a
competency hearing. Petitioner fails to establish that the state court’s rejection of this claim was
unreasonable. Relief is therefore denied.
E.
Trial Counsel Claims (Claims 1, 2, 5, 10, and 11).
Petitioner raises several IATC claims asserting that his trial counsel were ineffective prior
to or during Petitioner’s sentencing proceeding. Two of these allegations—that counsel failed to
investigate and present mitigating evidence (Claim 1) and that counsel failed to object to the
report of Dr. J. O. Sherman (Claim 11)—were raised and rejected during Petitioner’s state
habeas proceedings.
As discussed below, Petitioner fails to demonstrate the state court’s
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rejection of the claims was contrary to, or an unreasonable application of, Supreme Court
precedent. 8
The remainder of Petitioner’s IATC claims allege: counsel failed to investigate
Petitioner’s experiences in TYC (Claim 2); counsel failed to investigate and present evidence of
Petitioner’s incompetency (Claim 5); and that counsel failed to properly impeach Raymond
Valero (Claim 10). Petitioner has not exhausted these claims in state court and they are therefore
procedurally barred from federal habeas review.
See Section IV(A), supra.
Although he
references Martinez and Trevino to establish cause to excuse the procedural default, as discussed
below, Petitioner fails to show the underlying IATC claims are substantial. Even when reviewed
under a de novo standard, Petitioner’s IATC claims lack merit. Relief is therefore denied on
each claim.
1.
The Strickland Standard of Review
IATC claims are reviewed under Strickland’s familiar two-prong test requiring a
petitioner to demonstrate counsel’s performance was deficient and this deficiency prejudiced his
defense. 466 U.S. at 687-88, 690. According to the Supreme Court, “[s]urmounting Strickland’s
high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010).
Strickland’s first prong “sets a high bar.” Buck v. Davis, 137 S. Ct. 759, 775 (2017). “To
demonstrate deficient performance, the defendant must show that, in light of the circumstances
8
Petitioner contends this Court should not apply AEDPA’s presumption of correctness to the state habeas
court’s factual findings because the state court’s order was largely a verbatim adoption of the State’s proposed
findings and conclusions. ECF No. 22 at 16-17. In another context, the Supreme Court has criticized the “verbatim
adoption of findings of fact prepared by prevailing parties, particularly when those findings have taken the form of
conclusory statements unsupported by citation to the record.” Anderson v. City of Bessemer City, 470 U.S. 564, 572
(1985); see also Jefferson v. Upton, 560 U.S. 284, 294-95 (2010) (“Although we have stated that a court’s verbatim
adoption of findings of fact prepared by prevailing parties should be treated as findings of the court, we have also
criticized that practice.”) (quotation omitted). The Fifth Circuit, however, has rejected the argument that habeas
findings adopted verbatim from those submitted by the State are not entitled to deference. See Basso v. Stephens,
555 F. App’x 335, 342, 343 (5th Cir. 2014) (unpublished); Green v. Thaler, 699 F.3d 404, 416 n. 8 (5th Cir. 2012).
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as they appeared at the time of the conduct, ‘counsel’s representation fell below an objective
standard of reasonableness’ as measured by ‘prevailing professional norms.’” Rhoades v. Davis,
852 F.3d 422, 431-32 (5th Cir. 2017) (quoting Strickland, 466 U.S. at 687-88). This requires the
Court to “affirmatively entertain the range of possible ‘reasons . . . counsel may have had for
proceeding as they did.’” Cullen v. Pinholster, 563 U.S. 170, 196 (2011). “A conscious and
informed decision on trial tactics and strategy cannot be the basis for constitutionally ineffective
assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious
unfairness.” Cotton v. Cockrell, 343 F.3d 746, 752-53 (5th Cir. 2003). As such, counsel is
“strongly presumed to have rendered adequate assistance and made all significant decisions in
the exercise of reasonable professional judgment.” Burt v. Titlow, 571 U.S. 12, 17 (2013)
(quoting Strickland, 466 U.S. at 690).
To satisfy Strickland’s second prong, the defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different. In conducting a Strickland prejudice analysis, a court must “consider all the
relevant evidence that the jury would have had before it if [trial counsel] had pursued the
different path.” Wong v. Belmontes, 558 U.S. 15, 20 (2009) (per curiam). However, the question
“is not whether a court can be certain counsel’s performance had no effect on the outcome or
whether it is possible a reasonable doubt might have been established if counsel [had] acted
differently.” Richter, 562 U.S. at 111-12 (emphasis added) (citing Wong, 558 U.S. at 27).
Rather, the “likelihood of a different result must be substantial, not just conceivable.” Id.
Finally, where the IATC claims raised by Petitioner were adjudicated on the merits by the
state court, this Court must review these claims under the “doubly deferential” standards of both
Strickland and Section 2254(d). Woods v. Etherton, 136 S. Ct. 1149, 1151 (2016) (citing
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Pinholster, 563 U.S. at 190); Knowles v. Mirzayance, 556 U.S. 111, 112 (2009) (same). Such
claims are considered mixed questions of law and fact and are analyzed under the “unreasonable
application” standard of 28 U.S.C. § 2254(d)(1). Gregory v. Thaler, 601 F.3d 347, 351 (5th Cir.
2010). In reviewing these claims, the “pivotal question” is not “whether defense counsel’s
performance fell below Strickland’s standards, but whether “the state court’s application of the
Strickland standard was unreasonable.” Richter, 562 U.S at 101. That is to say, the question to
be asked in this case is not whether counsel’s actions were reasonable, but whether “there is any
reasonable argument that counsel satisfied Strickland’s deferential standard.” Id. at 105.
2.
The Mitigation Investigation (Claims 1, 2)
Petitioner’s first two claims for relief allege that trial counsel were ineffective for failing
to investigate and present mitigating evidence to the jury. In his first allegation, Petitioner
contends counsel failed to discover and present evidence of his dysfunctional, abusive, and
chaotic childhood, or evidence of the brain damage, PTSD, and depression that resulted from this
upbringing. This allegation was raised and rejected during Petitioner’s state habeas corpus
proceedings, 9 and Petitioner fails to demonstrate that this adjudication was contrary to, or an
unreasonable application of, clearly established federal law.
In Petitioner’s second claim for relief, he raises a similar allegation—that counsel’s
mitigation investigation was deficient because they did not properly investigate his experiences
in TYC to refute the notion that TYC was a supportive and rehabilitative institution. Had they
9
Although Petitioner’s allegation was raised during his state habeas proceedings, Petitioner attempts to
bolster the claim in federal court with several new exhibits that were not presented to the state court. Because
Petitioner “must overcome the limitation of § 2254(d)(1) on the record that was before that state court,” this Court
will not consider this evidence as it pertains to Petitioner’s first claim. Pinholster. 563 U.S. at 181-82. Petitioner
also attempts to bolster the claim with a new allegation concerning counsel’s failure to discover evidence of
“organic brain damage” that was not presented to the state court. But claims are not exhausted “if a petitioner
presents new legal theories or entirely new factual claims in his petition to the federal court.” Wilder v. Cockrell,
274 F.3d 255, 259 (5th Cir. 2001). Thus, for the reasons discussed in Section IV(A), supra, Petitioner’s allegation is
unexhausted and procedurally defaulted to the extent it raises this new assertion.
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done so, Petitioner attests, counsel could have presented evidence that TYC was a place of
“chaos, disorder, and violence, which offered little in the way of rehabilitative possibilities” to
rebut the State’s “false characterization” that Petitioner failed to take advantage of the
opportunity for rehabilitation while at TYC. This allegation was not presented to the state court
and is therefore procedurally barred from federal habeas relief. Aside from the procedural bar,
the claim lacks merit for the reasons discussed below.
In preparing for the penalty phase of a death penalty trial, “counsel must either (1)
undertake a reasonable investigation or (2) make an informed strategic decision that investigation
is unnecessary.” Charles v. Stephens, 736 F.3d 380, 389 (5th Cir. 2013). However, lawyers
generally need not go “looking for a needle in a haystack,” especially when they have “reason to
doubt there is any needle there.” Maryland v. Kulbicki, 136 S. Ct. 2, 4-5 (2015) (per curiam)
(citing Rompilla v. Beard, 545 U.S. 374, 389 (2005)).
Instead, counsel’s decision not to
investigate a particular matter “must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to counsel’s judgments.” Wiggins, 539
U.S. at 522. When the alleged omission is failure to investigate something in particular, a court
must look at “the known evidence” and whether it “would lead a reasonable attorney to
investigate further.” Id. at 527.
In reviewing such claims, it is important to remember that counsel’s performance need
not be optimal to be reasonable. Richter, 562 U.S. at 104; Yarborough v. Gentry, 540 U.S. 1, 8
(2003) (per curiam) (finding a defendant is entitled to “reasonable competence, not perfect
advocacy”). “Just as there is no expectation that competent counsel will be a flawless strategist
or tactician, an attorney may not be faulted for a reasonable miscalculation or lack of foresight or
for failing to prepare for what appear to be remote possibilities.” Richter, 562 U.S. at 110. For
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this reason, every effort must be made to eliminate the “distorting effects of hindsight.”
Strickland, 466 U.S. at 689.
Accordingly, there is a strong presumption that an alleged
deficiency “falls within the wide range of reasonable professional assistance.” Feldman v.
Thaler, 695 F.3d 372, 378 (5th Cir. 2012) (quoting Strickland, 466 U.S. at 689)).
The record in this case supports the state court’s conclusion that Petitioner’s trial counsel
conducted a very thorough mitigation investigation into Petitioner’s background and childhood.
I SHCR at 254. To assist in the investigation, counsel obtained two experts: Margaret Drake, a
licensed clinical social worker and mitigation expert, and Dr. Brian Skop, a clinical and forensic
psychiatrist. During her investigation, Ms. Drake interviewed Petitioner several times, met with
his mother three or four times, and met with two of his aunts, his sister, and a former stepmother.
Ms. Drake then testified about the results of her investigation, which included most of what
Petitioner now faults counsel for failing to uncover. 19 RR 3-33. For instance, Ms. Drake
testified about Petitioner’s difficult upbringing and exposure to substance abuse, violence,
instability, criminal behavior, neglect, rejection by his father, and family members with mental
health issues. See Section I(B), supra. Although no further evidence was presented on these
issues, any additional testimony regarding Petitioner’s chaotic childhood would only have been
cumulative of evidence already presented at trial. Parr v. Quarterman, 472 F.3d 245, 258 (5th
Cir. 2006).
The record also demonstrates that counsel’s investigation into TYC was reasonable.
Both Ms. Drake and Dr. Skop testified that they had obtained and reviewed Petitioner’s TYC
records prior to evaluating Petitioner. 19 RR 7, 25, 36. Although Petitioner contends counsel
should have investigated further to uncover evidence of TYC’s dysfunction in order to refute
testimony concerning the rehabilitative opportunities offered by TYC, Petitioner fails to cite
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anything in the record that would have alerted counsel or their experts that such evidence existed.
Indeed, if TYC was a “place of chaos, disorder, and violence,” as he now asserts, Petitioner
himself would have been the best source of this information.
Under Strickland, the
reasonableness of counsel’s actions is substantially influenced by information supplied by the
defendant, and the reasonableness of investigative decisions depends on this information. 466
U.S. at 691. Because Petitioner failed to disclose such information, trial counsel’s investigation
was not deficient. See Ransom v. Johnson, 126 F.3d 716, 723 (5th Cir. 1997) (holding that
whether or not counsel’s investigation is reasonable may critically depend on the information
provided by the defendant).
Finally, this Court rejects Petitioner’s implication that trial counsel was obligated to hire
additional experts to find evidence of organic brain damage, PTSD, and depressive disorder.
Strickland does not require counsel to “canvass[] the field to find a more favorable defense
expert.” Dowthitt v. Johnson, 230 F.3d 733, 748 (5th Cir. 2000). To the contrary, counsel was
entitled to rely on the opinions of their own mental health experts in deciding what defensive
theories to pursue.
See, e.g., Turner v. Epps, 412 F. App’x 696, 702 (5th Cir. 2011)
(unpublished) (“Counsel should be permitted to rely upon the objectively reasonable evaluations
and opinions of expert witnesses without worrying that a reviewing court will substitute its own
judgment . . .”) (quoting Smith v. Cockrell, 311 F.3d 661, 676-77 (5th Cir. 2002), overruled in
part on other grounds, Tennard v. Dretke, 542 U.S. 274 (2004)).
Because there was no
“objective indication” that Petitioner suffered from brain damage, counsel will not be labeled
deficient for failing to pursue this avenue of mitigation.
See Earp v. Cullen, 623 F.3d 1065,
1076-77 (9th Cir. 2010) (finding that an expert’s “failure to diagnose a mental condition does not
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constitute ineffective assistance of counsel, and [Petitioner] has no constitutional guarantee of
effective assistance of experts”) (emphasis in original).
Regardless, even assuming counsel was deficient in failing to investigate and present
certain evidence, Petitioner fails to demonstrate that the results of the proceeding would have
been different had counsel discovered such evidence. Strickland, 466 U.S. at 694 (finding that,
in order to demonstrate prejudice, a petitioner “must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different”). When the missing evidence is weighed against the aggravating evidence presented at
trial, it is clear Petitioner was not prejudiced from any alleged deficiencies in counsel’s
investigation.
Id. at 698 (finding no prejudice due to State’s overwhelming evidence on
aggravating factors supporting the death penalty); Russell v. Lynaugh, 892 F.2d 1205, 1213 (5th
Cir. 1989) (finding no ineffective assistance “[g]iven the weakness of such testimony when
juxtaposed with the overwhelming evidence of guilt, the horrifying nature of the crime, and the
abundant impeachment material available to the State”).
As detailed in Section I(B), Petitioner took the stand and testified before the jury that he
did not blame the circumstances of his childhood or the way he was raised for his behavior. 18
RR 59-117. Petitioner agreed that TYC offered him numerous opportunities to turn his life
around but that he failed to take advantage of them. He also asked the jury to give him the death
penalty because he knew he is a future danger and that no mitigating evidence warranted a life
sentence. Petitioner then described in detail how he murdered Andrade in cold blood and
admitted to at least 25-30 other burglaries or aggravated robberies that he committed because he
was addicted to the adrenaline rush. Prior to this testimony, the jury heard extensive evidence
concerning Petitioner’s criminal history and propensity for violence, as well as evidence
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regarding Petitioner’s inability to reform his conduct while incarcerated as both a juvenile and
adult. Thus, given Petitioner’s testimony and the overwhelming evidence establishing his future
dangerousness and lack of mitigating circumstances, Petitioner fails to establish the result would
have been different had counsel discovered the evidence in question. As Petitioner fails to
establish either prong of the Strickland inquiry, relief is denied.
3.
Competency (Claim 5)
In his fifth claim, Petitioner argues his trial counsel were ineffective for failing to
investigate evidence of his incompetency or request an inquiry into his mental state. According
to Petitioner, counsel were obligated to inquire into his competency for the same reasons the trial
court was—Petitioner’s mental health issues, depression, suicidal ideation, history of substance
abuse, and his decision not to follow counsel’s advice. Petitioner’s allegation, which was not
raised in the state court and is thus unexhausted and procedurally defaulted, also does not meet
either prong of the Strickland analysis on de novo review.
The record in this case indicates that counsel had several conversations with their client
and that they never doubted his competency to waive his rights and plead guilty. 13 RR 11; 18
RR 54; 20 RR 7. In fact, counsel informed the trial court of their belief that Petitioner had a
rational understanding of the proceedings against him and had no problem communicating with
them about the case. Id. As such, Petitioner fails to establish that his trial counsel’s performance
was deficient for the same reasons that the trial court did not violate Pate by failing to hold a
competency hearing—Petitioner’s behavior was hardly irrational, but rather reflected a sincere
desire to repent, give justice to the families of those he has harmed, and strengthen his faith and
relationship with God. Based on their conversations with Petitioner, there was nothing before
trial counsel to lead them to question Petitioner’s competency, nor was any concern raised from
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Dr. Skop, the defense team’s expert. It is thus clear counsel considered the issue and made the
reasonable decision not to pursue the issue. A conscious and informed decision on trial tactics
and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is
so ill chosen that it permeates the entire trial with obvious unfairness. Cotton v. Cockrell, 343
F.3d 746, 752-53 (5th Cir. 2003).
Moreover, this claim of ineffectiveness is undermined by the discussion from Section
IV(C). That is, Petitioner’s trial counsel could not have been deficient in failing to discover his
alleged incompetence where there was nothing before either the trial court or counsel indicating
that Petitioner was actually incompetent. “There can be no deficiency in failing to request a
competency hearing where there is no evidence of incompetency.” Carter v. Johnson, 131 F.3d
452, 464 (5th Cir. 1997) (quoting McCoy v. Lynaugh, 874 F.2d 954, 964 (5th Cir. 1989)).
Petitioner thus fails to demonstrate the first prong of the Strickland test.
Regardless, Petitioner cannot establish he was prejudiced by counsel’s failure to
investigate because Petitioner was found competent by the trial court. 20 RR 19 (“It plainly
appearing to the Court that [Petitioner] is mentally competent, and that he makes this plea freely
and voluntarily, his plea is by the Court received.”). This finding of fact is presumed correct
under § 2254(e)(1) and Petitioner has failed to overcome that presumption by clear and
convincing evidence. It necessarily follows that Petitioner was not prejudiced by trial counsel’s
failure to contest his competency, as he cannot establish the results of his proceeding would have
been different had counsel inquired into his competency. See Mays v. Stephens, 757 F.3d 211,
216 (5th Cir. 2014) (finding no prejudice where there is no evidence of incompetency).
Petitioner cannot make the showing of prejudice necessary under Strickland’s second prong and
is therefore denied relief on his IATC allegation.
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4.
Testimony of Raymond Valero (Claim 10)
Petitioner next alleges trial counsel was ineffective for failing to properly impeach
prosecution witness Raymond Valero regarding his alleged membership in the Mexican Mafia
street gang. Valero met Petitioner while they were incarcerated at the Bexar County Jail and
testified that Petitioner confessed many crimes and criminal plans to him during their
incarceration together, including the underlying murder. Petitioner also confessed to Valero his
original plan to “shoot his way out” if police had arrested him and his plan to escape during trial
by using the judge as a “human shield.” Petitioner argues Valero embellished his testimony and
asserts trial counsel was ineffective on cross-examination by only insinuating that Valero was
lying about his gang membership instead of impeaching him on the issue.
Petitioner’s allegation does not meet either prong of the Strickland analysis. A petitioner
alleging that an investigation is deficient must show what the investigation would have
uncovered and how the petitioner’s defense would have benefited from this information. Nelson
v. Hargett, 989 F.2d 847, 850 (5th Cir. 1993); Lockhart v. McCotter, 782 F.2d 1275, 1282 (5th
Cir. 1986).
Petitioner argues counsel should have uncovered evidence of Valero’s gang
membership.
He does not, however, establish that any part of Valero’s testimony was
embellished or made up, much less explain how affirmative evidence of Valero’s gang
membership would have assisted counsel in impeaching such testimony. The record shows that
counsel thoroughly cross-examined Valero on his alleged gang membership, heroin addiction,
and numerous felony convictions, as well as the fact that Valero received a reduced sentence in
exchange for his testimony. It is unclear how evidence of Valero’s gang membership would
have impeached Valero’s credibility any more than counsel’s cross-examination.
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Regardless, even assuming counsel was deficient in failing to discover evidence of
Valero’s gang membership, Petitioner fails to demonstrate that the results of the proceeding
would have been different had counsel discovered such evidence. Strickland, 466 U.S. at 694.
Petitioner claims he can demonstrate prejudice because the State’s case for future dangerousness
was predicated “in large part on the lies told by Valero.” ECF No. 40 at 53. This is simply not
true. As demonstrated in this Court’s previous summary of the trial testimony (Section I(B)), the
State’s case for future dangerousness was predicated almost entirely on Petitioner’s numerous
violent felonies and inability to reform his conduct while incarcerated. Valero’s testimony was a
small part of the State’s overwhelming evidence of Petitioner’s future dangerousness which
established Petitioner’s extensive criminal history and an escalating pattern of violence. In
addition, the jury heard testimony concerning the heinous nature of the capital murder for which
Petitioner plead guilty, including from Petitioner himself, who agreed he was indeed a future
danger to society. Thus, there is no merit to Petitioner’s bald assertion that the results of the
punishment phase would have been different had counsel impeached Valero’s testimony more
thoroughly with evidence of an alleged gang membership.
5.
Dr. Sherman’s Report (Claim 11)
In Petitioner’s final IATC allegation, he asserts trial counsel were ineffective for failing
to object to the admission and recitation of Dr. J. O. Sherman’s 1994 psychological report of
Petitioner.
Dr. Sherman’s report, admitted and read to the jury during the testimony of
Petitioner’s juvenile probation officer, Jose Martinez, included Dr. Sherman’s impressions of
Petitioner’s mental and emotional health at the time.
Petitioner contends this evidence is
testimonial and should have been barred from trial under the Confrontation Clause and Crawford
v. Washington, 541 U.S. 36, 59 (2004).
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Petitioner raised this allegation on state habeas, and an evidentiary hearing was held on
this (and other) issues. During the hearing trial counsel testified that he did not object to
Petitioner’s voluminous juvenile records being admitted, which included Dr. Sherman’s report,
because there was favorable evidence in them that showed Petitioner “truly tried to do the right
thing.” The state habeas court later rejected Petitioner’s claim, finding trial counsel’s decision
not to object to the records and Dr. Sherman’s report was a reasonable trial strategy. I SHCR at
253-54. Petitioner fails to overcome the presumption that counsel’s decision was the product of
“reasonable professional judgment.” Titlow, 571 U.S. at 17.
Petitioner does not establish that counsel’s decision to allow the records was “so ill
chosen that it permeates the entire trial with obvious unfairness.” Cotton, 343 F.3d at 752-53.
As the state court found, counsel’s choice comported with their strategy to be completely open
and honest about Petitioner’s past transgressions. I SHCR at 253-54. On federal habeas review,
this Court is mindful that “Strickland does not allow second guessing of trial strategy and must
be applied with keen awareness that this is an after-the-fact inquiry.” Granados v. Quarterman,
455 F.3d 529, 534 (5th Cir. 2006). In other words, simply because counsel’s strategy was not
successful does not mean counsel’s performance was deficient. Avila v. Quarterman, 560 F.3d
299, 314 (5th Cir. 2009).
Because there is a “reasonable argument that counsel satisfied
Strickland’s deferential standard,” Petitioner’s allegation fails. Richter, 562 U.S at 105.
Even if Petitioner could establish that counsel’s failure to object constituted deficient
performance, he still fails to demonstrate that the results of the proceeding would have been
different had an objection been successful. Strickland, 466 U.S. at 694. Contrary to Petitioner’s
assertion, Dr. Sherman’s report was only a small part of the State’s overwhelming evidence of
Petitioner’s future dangerousness.
There is virtually no chance the results of Petitioner’s
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punishment phase would have been different had the report been effectively excluded.
Accordingly, relief is denied.
F.
General Assembly and Voir Dire (Claims 7, 8)
In Petitioner’s seventh claim for relief he argues the trial court excused, off the record,
nearly a quarter of the voir dire panel while Petitioner was absent from the courtroom, in
violation of his constitutional right to be present during “critical proceedings.” In his eighth
claim, Petitioner challenges the exclusion of two prospective jurors for cause because they
voiced general objections to the death penalty.
Petitioner raised the majority of these
allegations 10 in the state court during his state habeas proceedings which were considered and
ultimately rejected by the TCCA. He fails to demonstrate that the state court’s adjudication of
these claims was either contrary to or involved an unreasonable application of clearly established
federal law.
1.
Both claims are Gardner-barred
In rejecting both of the above allegations the state habeas court found both claims
procedurally barred and alternatively meritless. Citing Ex parte Nelson, 137 S.W.3d 666, 667
(Tex. Crim. App. 2004), the state court found Petitioner’s claims to be procedurally defaulted
because Petitioner could have raised the claims on direct appeal. I SHCR at 207, 211. The
TCCA later adopted the state habeas court’s findings and denied Petitioner’s application. Ex
parte Luna, 2015 WL 1870305. Based on this procedural history, both of Petitioner’s claims are
now procedurally barred.
10
As he does in Claim 7 of his amended federal petition, Petitioner argued during his state habeas
proceedings that his absence from the courtroom during a “critical proceeding” violated his due process and
confrontation rights. See Supp. SHCR at 16-22. Petitioner did not, however, argue that his absence violated his
right to a complete defense under United States v. Cronic, 466 U.S. 648 (1984), or that the trial court’s failure to
make a record of the proceeding violated his Eighth and Fourteenth Amendment rights as he does now. Again,
claims are not exhausted “if a petitioner presents new legal theories or entirely new factual claims in his petition to
the federal court.” Wilder, 274 F.3d at 259. Thus, these allegations are unexhausted and procedurally defaulted for
the reasons discussed in Section IV(A), supra.
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Under the doctrine of procedural default, this Court is precluded from reviewing “claims
that the state court denied based on an adequate and independent state procedural rule.” Davila,
137 S. Ct. at 2064. The state habeas court’s finding of procedural default constitutes such a
denial. The state court determined Petitioner’s allegations to be procedurally defaulted under
Nelson, 137 S.W.3d at 667, a case which in turn relies on Ex parte Gardner, 959 S.W.2d 189,
199 (Tex. Crim. App. 1998). This rule from Gardner—which bars consideration of claims that
could have been but were not raised on direct appeal—is “an adequate state ground capable of
barring federal habeas review.” Aguilar v. Dretke, 428 F.3d 526, 535 (5th Cir. 2005) (citing
Busby v. Dretke, 359 F.3d 708, 719 (5th Cir. 2004)).
2.
Petitioner’s absence during general assembly (Claim 7)
The Supreme Court has held that “a defendant is guaranteed the right to be present at any
stage of the criminal proceeding that is critical to its outcome if his presence would contribute to
the fairness of the proceeding.” Kentucky v. Stincer, 482 U.S. 730, 745 (1987). The Court has
also recognized that voir dire “is a critical stage of the criminal proceedings, during which the
defendant has a constitutional right to be present.” Gomez v. United States, 490 U.S. 858, 873
(1989). In this case, Petitioner contends his right to be present at a critical voir dire proceeding
was violated when the trial court excused 33 of 140 members 11 of the venire panel for unknown
reasons in a proceeding that was off the record and outside the presence of the defense.
Petitioner’s claim fails, however, because the trial court’s ruling did not occur at a critical
proceeding or during voir dire, but rather during the general assembly where prospective jurors
are initially summoned.
11
As the sole support for this allegation, Petitioner refers to defense counsel’s notes regarding the jury panel
which were apparently attached to his state habeas petition as Exhibit D. As it is the policy of the TCCA not to copy
jury information into the record, however, this Court is without a copy of the referenced jury list. In the interests of
justice and expediency, the Court will assume the list is as Petitioner states.
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In Jasper v. State, the TCCA explained what happens when prospective jurors are first
summoned:
Generally, when prospective jurors are initially summoned, they are
assembled in a general jury pool or general assembly. [citation omitted].
Members of the general assembly are qualified on their ability to serve and
exemptions and excuses are heard and ruled on by the judge presiding over the
general assembly. Prospective jurors who are not disqualified, exempt, or
excused are divided into trial panels and sent to the individual courts trying the
cases. At that point, attorney voir dire will result in the jury that will ultimately
hear the case.
61 S.W.3d 413, 422-23 (Tex. Crim. App. 2001).
Contrary to Petitioner’s assertion, the general assembly portion of jury selection is not
part of Petitioner’s trial under Texas law; therefore, he was not entitled to be present. Id. at 423
(citing Chambers v. State, 903 S.W.2d 21, 31 (Tex. Crim. App. 1995)). This is so because
“prospective jurors who are summoned to a general assembly have not been assigned to any
particular case [and][t]he judge presiding over the general assembly is assigned for that purpose
only at that time and has no given case in mind.” Chambers, 903 S.W.2d at 31. Although
Petitioner asserts he was entitled to be present because “the entire general assembly was assigned
to [his] case,” ECF No. 40 at 44, nothing from the record supports this assertion. In fact, the
record indicates the opposite. See 2 RR 4-15 (first day of voir dire where trial judge introduces
the parties and relevant legal principles involved to the jury for the first time).
As noted by Respondent, Petitioner cites no Supreme Court precedent holding that a
defendant has a constitutional right to be present during the general assembly. Nor has Petitioner
shown that the complained-of proceeding was a part of voir dire during which he has a
constitutional right to be present. United States v. Thomas, 724 F.3d 632, 642 (5th Cir. 2013)
(finding the right to be present at a jury empanelment is protected by the Due Process Clause);
Chambers, 903 S.W.2d at 31 (explaining that “voir dire examination” in Texas refers to the
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examination of prospective jurors after they have been assigned to a particular court and case
from the general assembly”). Consequently, Petitioner fails to demonstrate that the state court’s
rejection of this claim was unreasonable.
Furthermore, Petitioner has not shown that his presence during the summary dismissal of
the potential jurors would have been helpful. The core concern of the right to courtroom
presence is that a defendant’s “absence might frustrate the fairness of the proceedings . . . .”
Faretta v. California, 422 U.S. 806, 820 n.15 (1975). But due process does not require the
defendant’s presence when it would be “useless or only slightly beneficial.”
Snyder v.
Massachusetts, 291 U.S. 97, 106-07 (1934). Petitioner has not established that he “could have
done [anything] had [he] been at the [hearing] nor would [he] have gained anything by
attending.” Stincer, 482 U.S. at 747 (alterations in original). Petitioner’s absence therefore did
not violate his due process rights because his “presence would be useless, or the benefit but a
shadow. . .” Id. at 745 (citing Snyder, 291 U.S. at 106-07).
Finally, in order to grant federal habeas relief, the trial error must have a substantial and
injurious effect or influence in determining the jury’s verdict. Hopkins v. Cockrell, 325 F.3d
579, 583 (2003) (citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). As a general rule, a
trial court’s erroneous venire rulings do not constitute reversible constitutional error “so long as
the jury that sits is impartial.” Jones v. Dretke, 375 F.3d 352, 355 (5th Cir. 2004) (citing United
States v. Martinez-Salazar, 528 U.S. 304, 313 (2000)). Petitioner makes no argument that an
unqualified or biased juror sat on his jury. As result, even if Petitioner could demonstrate that
the trial court erred in dismissing prospective jurors outside of his presence at general assembly,
relief would still be denied because the error was harmless. Brecht, 507 U.S. at 637-38.
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3.
Removal of Prospective Jurors (Claim 8)
Claim 8 pertains to the removal of prospective jurors Harold Franklin and Barbara Ann
Torres during voir dire. According to Petitioner, the prospective jurors were excluded from the
jury simply because they voiced general objections to the death penalty in violation of
Witherspoon v. Illinois, 391 U.S. 510 (1968) and Wainwright v. Witt, 469 U.S. 412 (1985).
Under the Witherspoon-Witt rule, “a veniremember may not be excluded from sitting on a capital
jury simply because she voices general objection to the death penalty or expresses conscientious
or religious scruples against its infliction.” Ortiz v. Quarterman, 504 F.3d 492, 500 (5th Cir.
2007) (citation omitted). Rather, a potential juror may be removed for cause if the individual’s
views “prevent or substantially impair the performance of his duties as a juror in accordance with
his instructions and his oath.” Witt, 469 U.S. at 424 (citing Adams v. Texas, 448 U.S. 38, 45
(1980)). A venire member must be willing not only to accept that the death penalty is, in certain
circumstances, an acceptable punishment, but also to answer the statutory questions “without
conscious distortion or bias.” Mann v. Scott, 41 F.3d 968, 981 (5th Cir. 1994) (citing Adams,
448 U.S. at 50).
Excusing a juror for cause in violation of the Witherspoon-Witt standard is reversible
error and not subject to harmless error review. Gray v. Mississippi, 481 U.S. 648, 668 (1987).
This standard does not require that a juror’s bias be proved with “unmistakable clarity,”
particularly because such determinations “cannot be reduced to question-and-answer sessions
which obtain results in the manner of a catechism.” Witt, 469 U.S. at 426. Whether a juror is
excludable for bias under the Witherspoon-Witt standard is a question of fact subject to
deferential review under AEDPA. 28 U.S.C. § 2254(e)(1); Ortiz, 504 F.3d at 501. For this
reason, a reviewing court, “especially federal courts considering habeas petitions, owe deference
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to the trial court, which is in a superior position to determine the demeanor and qualifications of
a potential juror.” Uttecht v. Brown, 551 U.S. 1, 22 (2007); Witt, 469 U.S. at 424-26.
Harold Franklin
Petitioner first contends that prospective juror Franklin was removed “because he initially
might have expressed a general abstract objection against the death penalty.” ECF No. 22 at
100. Despite Franklin repeatedly expressing doubts about whether he could honestly answer the
special issues knowing it could result in a death sentence, Petitioner argues Franklin “could not
have been clearer” in expressing that he could follow the law after carefully considering the
particular facts of the case. Id. The record does not evince any clarity on Franklin’s part
concerning his ability to follow the law. See 3 RR 4-23. To the contrary, it reflects that
Franklin’s reservations toward the death penalty would substantially impair his ability to make
an impartial decision.
In response to the only question before him—whether he would be able to honestly
answer the special issues knowing that it could result in a death sentence—Franklin vacillated
and repeatedly doubted his ability to impose the death penalty because of his personal moral
beliefs. Id. at 12 (“. . . but not knowing the circumstances, it would be very difficult for me to
actually say that I coul
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