FRED BIERY, District Judge.
Petitioner Geronimo Rene Gutierrez filed this action pursuant to 28 U.S.C. § 2254 challenging his April, 2002 Bexar County conviction in cause no, 2001-CR-1577 for capital murder and sentence of death. For the reasons set forth below, petitioner is not entitled to federal habeas corpus relief or a Certificate of Appealability from this Court.
On March 27, 2011, a Bexar County grand jury indicted petitioner on a single count of capital murder, to wit, intentionally causing the death of Rick Marin on or about May 29, 1999, by shooting Mr. Marin with a deadly weapon, namely a firearm, and intentionally causing Rick Marin's death while in the course of committing and attempting to commit the offense of robbery upon him.
The guilt-innocence phase of petitioner's capital murder trial began on April 1, 2002. The Texas Court of Criminal Appeals summarized the relevant testimony presented during the guiltinnocence phase of petitioner's capital murder trial as follows:
Gutierrez v. State, No. 74,341, 2004 WL 3092763, at *1-2 (Tex. Crim. App. Apr. 21, 2004) (Footnote omitted).
On April 12, 2002, the jury returned its verdict, unanimously finding petitioner guilty of capital murder as charged in the indictment.
The punishment phase of petitioner's trial began on April 15, 2002. The prosecution called: (1) one of petitioner's probation officers who testified petitioner has twice been placed on probation, had been sent to a zero tolerance boot camp after failing a urinalysis, and was on probation at the time of his capital offense,
The defense presented testimony from: (1) a Bexar County criminal courts supervisor that petitioner had been arrested in March, 2001 and had never made bond,
On April 18, 2002, the jury returned its verdict at the punishment phase of petitioner's capital murder trial, finding unanimously beyond a reasonable doubt there is a probability petitioner would commit criminal acts of violence that would constitute a continuing threat to society and unanimously taking into consideration all of the evidence, including the circumstances of the offense, the petitioner's character and background, and the petitioner's personal moral culpability, there were insufficient mitigating circumstances or circumstance to warrant a sentence of life imprisonment be imposed.
Petitioner appealed.
On March 1, 2002, petitioner filed his first state habeas corpus application, asserting that: (1) petitioner's trial counsel rendered ineffective assistance by (a) failing to have a mitigation expert appointed to assist the defense team, (b) failing to have a psychologist appointed to assist the defense team, (c) failing to adequately investigate petitioner's background and present available mitigating evidence, and (d) failing to present evidence showing petitioner is mentally retarded, and (2) petitioner is exempt from execution by virtue of the Supreme Court's holding in Atkins v. Virginia forbidding the execution of mentally retarded individuals.
On June 16, 2008, the state habeas trial court issued its findings of fact and conclusions of law, determining that (1) petitioner's trial counsel did not request the assistance of a mitigation specialist but did obtain the services of an investigator, (2) petitioner's trial counsel investigated petitioner's background, interviewed petitioner's mother, common law wife, employer, and various other acquaintances, (3) petitioner was unable to furnish his trial counsel with the names of any good character witnesses, (4) attorney David Bays was unaware of any information showing petitioner was mentally retarded, (5) petitioner and his mother both represented to Mr. Bays that petitioner was not retarded, (6) attorney Bays did not discover any information showing petitioner had any significant limitations in adaptive behavior, (7) attorney Bays believed petitioner's poor academic performance was a function of disinterest rather than inability, (8) petitioner tested at an IQ of 91 just before his fourteenth birthday, (9) petitioner admitted to a long history of alcohol and drug abuse, including marijuana, cocaine, heroin, and smoking cigarettes dipped in paint thinner and embalming fluid, (10) Dr. Rosin believes petitioner displays many of the traits of a person with anti-social personality disorder, (11) persons with anti-social personality disorder are likely to pose more of a danger to others than persons who do not possess such personalities, (12) IQ testing performed by Dr. Kern and relied upon by Dr. Sparks found petitioner had a verbal score of 65, a performance score of 85, and a full scale of 72, (13) petitioner is not mildly mentally retarded, (14) petitioner's adaptive behavior is above the level of ability for a person with mental retardation, (15) petitioner failed to present any evidence showing what additional mitigating information a mitigation specialist would have furnished to defense counsel, (16) petitioner's attorneys did a thorough job investigating petitioner's background, (17) petitioner is not mentally retarded, (18) testimony at trial regarding petitioner's recent low IQ scores would likely have opened the door to testimony regarding petitioner's anti-social personality disorder and history of drug abuse, and (19) petitioner's offense required forethought, planning, and complex execution of purpose above the level of ability possessed by a person with mental retardation.
On October 1, 2008, the Texas Court of Criminal Appeals denied petitioner's first state habeas corpus application in a written order in which that court expressly adopted the findings and conclusions of the trial court. Ex parte Geronimo Gutierrez, WR-70,152-01, 2008 WL 4417161 (Tex. Crim. App. Oct. 1, 2008).
Petitioner filed his original petition for federal habeas corpus relief in this Court on September 30, 2009 (ECF no. 8). Petitioner field his first amended petition on February 12, 2010 (ECF no. 28). In an Order issued August 31, 2010, this Court granted petitioner's motion to stay this cause to permit petitioner to return to state court and exhaust available state court remedies on new claims and new evidence which petitioner's federal habeas counsel represented had not yet been presented to the state courts (ECF no. 45).
On or about February 4, 2011, petitioner filed his second state habeas corpus application in which he asserted (1) once again that he is mentally retarded and therefore exempt from execution under the Supreme Court's holding in Atkins v. Virginia, (2) the prosecution violated the Supreme Court's holding in Brady v. Maryland by withholding from the defense mitigating information showing that petitioner delivered more auto parts to Ramon Martinez than petitioner had previously agreed to furnish (specifically a transmission and additional headers) for the same price the men had agreed upon for the motor alone, (3) petitioner's trial counsel rendered ineffective assistance at the punishment phase of trial by (a) failing to conduct an adequate investigation into petitioner's mental health, (b) failing to retain the services of a mitigation specialist, (c) waiving opening statement at the punishment phase of trial, and (d) failing to obtain a mental health evaluation of petitioner, and (4) petitioner's initial state habeas counsel was ineffective by (a) failing to adequately investigate petitioner's background and present all available mitigating evidence, (b) filing a boiler-plate state habeas corpus application, (c) failing to call witnesses to testify anecdotally about petitioner's adaptive behavior deficits, (d) failing to visit with petitioner prior to filing petitioner's first state habeas corpus application, (e) failing to call petitioner's mother to testify at the state habeas writ hearing, (f) failing to call Manuel Torres to testify during the state habeas writ hearing regarding petitioner's lack of sophistication and limited skills as a mechanic, (g) failing to call petitioner's former teachers Louise Kerr and Kyle McQuilkin to testify during petitioner's first state writ hearing, and (h) failing to call petitioner's co-worker Richard Woodward to testify regarding petitioner's limited intellectual abilities and adaptive behavior skills.
In an unpublished order issued October 23, 2013, the Texas Court of Criminal Appeals held petitioner's subsequent application failed to satisfy the requirements of Article 11,071, § 5(a) and summarily dismissed the application as an abuse of the writ without considering the merits of the claims. Ex parte Geronimo Gutierrez, WR-70,152-02, 2013 WL 5773415 (Tex. Crim. App. Oct. 23. 2013).
After this Court lifted its stay on April 25, 2014, petitioner filed his second amended petition, in which he argued: (1) he is exempt from execution because he is mentally retarded and (2) his trial counsel rendered ineffective assistance in connection with the punishment phase of petitioner's trial by (a) failing to request the assistance of a mitigation specialist, (b) failing to obtain all of petitioner's school records, (c) waiving an opening statement at the punishment phase of trial, (d) meeting with petitioner for only 9.6 hours prior to trial, (e) failing to more thoroughly investigate petitioner's background and mental health, (f) failing to retain the services of a mental health professional to evaluate petitioner's IQ, and (g) conducting an inadequate investigation into petitioner's background, and (3) petitioner's state habeas counsel rendered ineffective assistance during petitioner's initial state habeas corpus proceeding by failing to adequately investigate, develop, and present evidence showing petitioner is mentally retarded (ECF no. 70).
On October 6, 2014, respondent filed an answer to petitioner's second amended petition and argued therein that: (1) petitioner failed to prove he is intellectually disabled, (2) petitioner procedurally defaulted on a portion of his ineffective assistance claims, only a portion of which were included in petitioner's initial state habeas corpus application, (3) petitioner's trial counsel were not ineffective for failure to investigate and present a defense based upon mental retardation (or intellectual disability) because such a defense would have opened the door to evidence showing petitioner's anti-social personality, (4) petitioner is not permitted to present new evidence in support of his exhausted ineffective assistance and mental retardation claims under the holding in Cullen v. Pinholster, and (5) errors in petitioner's initial state habeas corpus proceeding, including ineffective assistance by petitioner's initial state habeas corpus counsel, do not furnish an independent basis for federal habeas corpus relief (ECF no. 77).
On December 1, 2014, petitioner filed a reply to respondent's answer in which petitioner expressly abandoned his Atkins claim. Petitioner argued his procedural default on portions of his ineffective assistance claim resulted from the ineffective assistance of his initial state habeas corpus counsel in failing to present all of the mitigating evidence available at the time of petitioner's trial which had been attached to petitioner's second state habeas corpus application (ECF no. 82).
Because petitioner filed his federal habeas corpus action after the effective date of the AEDPA, this Court's review of petitioner's claims for federal habeas corpus relief is governed by the AEDPA. Penry v. Johnson, 532 U.S. 782, 792 (2001). Under the AEDPA standard of review, this Court cannot grant petitioner federal habeas corpus relief in this cause in connection with any claim that was adjudicated on the merits in state court proceedings, unless the adjudication of that claim either: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Brown v. Payton, 544 U.S. 133, 141 (2005); Williams v. Taylor, 529 U.S. 362, 404-05 (2000); 28 U.S.C. § 2254(d).
The Supreme Court has concluded the "contrary to" and "unreasonable application" clauses of Title 28 U.S.C. Section 2254(d) (1) have independent meanings. Bell v. Cone, 535 U.S. 685, 694 (2002). Under the "contrary to" clause, a federal habeas court may grant relief if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or the state court decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Brown v. Payton, 544 U.S. at 141; Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) ("A state court's decision is `contrary to' our clearly established law if it `applies a rule that contradicts the governing law set forth in our cases' or it `confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.'"). A state court's failure to cite governing Supreme Court authority does not, per se, establish the state court's decision is "contrary to" clearly established federal law: "the state court need not even be aware of our precedents, `so long as neither the reasoning nor the result of the statecourt decisions contradicts them.'" Mitchell v. Esparza, 540 U.S. at 16.
Under the "unreasonable application" clause, a federal habeas court may grant relief if the state court identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the petitioner's case. Brown v. Payton, 544 U.S. at 141; Wiggins v. Smith, 539 U.S. 510, 520 (2003). A federal court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." McDaniel v. Brown, 558 U.S. 120, 132-33 (2010) ("A federal habeas court can only set aside a state-court decision as `an unreasonable application of . . . clearly established Federal law,' § 2254(d) (1), if the state court's application of that law is `objectively unreasonable.'"); Wiggins v. Smith, 539 U.S. at 520-21. The focus of this inquiry is on whether the state court's application of clearly established federal law was objectively unreasonable; an "unreasonable" application is different from a merely "incorrect" one. Schriro v. Landrigan, 550 U.S. 465, 473 (2007) ("The question under the AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable — a substantially higher threshold."); Wiggins v. Smith, 539 U.S. at 520; Price v. Vincent, 538 U.S. 634, 641 (2003) ("it is the habeas applicant's burden to show that the state court applied that case to the facts of his case in an objectively unreasonable manner").
As the Supreme Court has explained:
Bobby v. Dixon, ___ U.S. ___, ___, 132 S.Ct. 26, 27, 181 L. Ed. 2d 328 (2011) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)).
Legal principles are "clearly established" for purposes of AEDPA review when the holdings, as opposed to the dicta, of Supreme Court decisions as of the time of the relevant state-court decision establish those principles. Yarborough v. Alvarado, 541 U.S. 652, 660-61 (2004) ("We look for `the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'"); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). Under the AEDPA, what constitutes "clearly established federal law" is determined through review of the decisions of the United States Supreme Court, not the precedent of the federal Circuit Courts. See Lopez v. Smith, ___ U.S. ___, ___, 135 S.Ct. 1, 2, 190 L. Ed. 2d 1 (2014) (holding the AEDPA prohibits the federal courts of appeals from relying on their own precedent to conclude a particular constitutional principle is "clearly established").
The AEDPA also significantly restricts the scope of federal habeas review of state court fact findings. Section 2254(d) (2) of Title 28, United States Code, provides federal habeas relief may not be granted on any claim that was adjudicated on the merits in the state courts unless the state court's adjudication of the claim resulted in a decision based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Wood v. Allen, 558 U.S. 290, 301 (2010) ("[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance."); Williams v. Taylor, 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 v. Allen, 558 U.S. at 301; Rice v. Collins, 546 U.S. 333, 341-42 (2006).
In addition, Section 2254(e) (1) provides a petitioner challenging state court factual findings must establish by clear and convincing evidence that the state court's findings were erroneous. Schriro v. Landrigan, 550 U.S. at 473-74 ("AEDPA also requires federal habeas courts to presume the correctness of state courts' factual findings unless applicants rebut this presumption with `clear and convincing evidence.'"); Rice v. Collins, 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.'"); Miller-El v. Dretke, 545 U.S. 231, 240 (2005) ("[W]e presume the Texas court's factual findings to be sound unless Miller-El rebuts the `presumption of correctness by clear and convincing evidence.'"); 28 U.S.C. §2254(e) (1). It remains unclear at this juncture whether Section 2254(e)(1) applies in every case presenting a challenge to a state court's factual findings under Section 2254(d) (2). See Wood v. Allen, 558 U.S. at 300 (choosing not to resolve the issue of Section 2254(e)(1)'s possible application to all challenges to a state court's factual findings); Rice v. Collins, 546 U.S. at 339 (likewise refusing to resolve the circuit split regarding the application of Section 2254(e)(1)).
However, the deference to which state-court factual findings are entitled under the AEDPA does not imply an abandonment or abdication of federal judicial review. See Miller-El v. Dretke, 545 U.S. at 240 (the standard is "demanding but not insatiable"); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) ("Even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. Deference does not by definition preclude relief.").
Finally, in this Circuit, a federal habeas court reviewing a state court's rejection on the merits of a claim for relief pursuant to the AEDPA must focus exclusively on the propriety of the ultimate decision reached by the state court and not evaluate the quality, or lack thereof, of the state court's written opinion supporting its decision. See 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), cert. denied, 132 S.Ct. 124 (2011); Pondexter v. Dretke, 346 F.3d 142, 148 (5th Cir. 2003) (holding the precise question before a federal habeas court in reviewing a state court's rejection on the merits of an ineffective assistance claim is whether the state court's ultimate conclusion was objectively reasonable), cert. denied, 541 U.S. 1045 (2004); 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 the written opinion explaining that decision), cert. denied, 537 U.S. 1104 (2003).
In his first claim for relief in his second amended petition, petitioner argued he is mentally retarded and therefore, exempt from execution under the Supreme court's holding in Atkins v. Virginia, 536 U.S. 304 (2002), which held the Eighth Amendment precludes the execution of mentally retarded capital murderers.
Moreover, whether a petitioner is intellectually disabled is a question of fact. Henderson v. Stephens, 791 F.3d 567, 579 (5th Cir. 2015), petition for cert. filed, Feb. 3, 2016 (no. 15-7974). Petitioner has failed to allege any facts and has not furnished any clear and convincing evidence showing the state habeas court's factual findings rejecting petitioner's Atkins claim on the merits in the course of petitioner's initial state habeas corpus proceeding were in any respect erroneous. On the contrary, the new school records and other information furnished by petitioner in the course of his second state habeas corpus proceeding fully support the state habeas court's conclusion in petitioner's initial state habeas corpus proceeding that petitioner is not intellectually disabled.
In his third claim for relief in his second amended petition, petitioner argues his initial state habeas counsel rendered ineffective assistance by failing to adequately investigate, develop, and present evidence showing petitioner is mentally retarded.
In his second claim for relief in his second amended petition, petitioner argues that his trial counsel rendered ineffective assistance in connection with the punishment phase of petitioner's capital murder trial by failing to conduct a thorough investigation into mitigating evidence.
The Sixth Amendment entitles criminal defendants to "the effective assistance of counsel," i.e., legal representation that does not fall below an objective standard of reasonableness in light of prevailing professional norms and the circumstances of the defendant's case (Wong v. Belmontes, 558 U.S. 15, 16-17 (2009); Bobby v. Van Hook, 558 U.S. 4, 7 (2009)); and gives rise to a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different (Porter v. McCollum, 558 U.S. 30, 38-40 (2009); Wong v. Belmontes, 558 U.S. at 19-20).
The constitutional standard for determining whether a criminal defendant has been denied the effective assistance of trial counsel, as guaranteed by the Sixth Amendment, was announced by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984):
To satisfy the first prong of Strickland, i.e., establish that his counsel's performance was constitutionally deficient, a convicted defendant must show that counsel's representation "fell below an objective standard of reasonableness." Wiggins v. Smith, 539 U.S. 510, 521 (2003); Williams v. Taylor, 529 U.S. 362, 390-91 (2000). In so doing, a convicted defendant must carry the burden of proof and overcome a strong presumption that the conduct of his trial counsel falls within a wide range of reasonable professional assistance. Strickland v. Washington, 466 U.S. at 687-91. Courts are extremely deferential in scrutinizing the performance of counsel and make every effort to eliminate the distorting effects of hindsight. See Wiggins v. Smith, 539 U.S. at 523 (holding the proper analysis under the first prong of Strickland is an objective review of the reasonableness of counsel's performance under prevailing professional norms which includes a context-dependent consideration of the challenged conduct as seen from the perspective of said counsel at the time). "No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant." Bobby v. Van Hook, 558 U.S. at 7; Strickland v. Washington, 466 U.S. at 688-89. It is strongly presumed counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland v. Washington, 466 U.S. at 690.
To satisfy the "prejudice" prong, a convicted defendant must establish a reasonable probability that, but for the objectively unreasonable misconduct of his counsel, the result of the proceeding would have been different. Wiggins v. Smith, 539 U.S. at 534; Strickland v. Washington, 466 U.S. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. Strickland v. Washington, 466 U.S. at 694.
In evaluating petitioner's complaints about the performance of his counsel under the AEDPA, i.e., those complaints which the state courts have addressed on the merits, the issue before this Court is whether the Texas Court of Criminal Appeals could reasonably have concluded petitioner's complaints about his trial counsel's performance failed to satisfy either prong of the Strickland analysis. Schaetzle v. Cockrell, 343 F.3d 440, 444 (5th Cir. 2003), cert. denied, 540 U.S. 1154 (2004). In making this determination, this Court must consider the underlying Strickland standard. Id. In those instances in which the state courts failed to adjudicate either prong of the Strickland test (such as those complaints the state courts summarily dismissed under the Texas writ-abuse statute or which petitioner failed to fairly present to the state courts), this Court's review of the unadjudicated prong is de novo. See Porter v. McCollum, 558 U.S. at 39 (holding de novo review of the allegedly deficient performance of petitioner's trial counsel was necessary because the state courts had failed to address this prong of Strickland analysis); Rompilla v. Beard, 545 U.S. at 390 (holding de novo review of the prejudice prong of Strickland required where the state courts rested their rejection of an ineffective assistance claim on the deficient performance prong and never addressed the issue of prejudice); Wiggins v. Smith, 539 U.S. at 534 (holding the same).
A habeas petitioner has the burden to prove both prongs of the Strickland ineffective assistance standard by a preponderance of the evidence. Rogers v. Quarterman, 555 F.3d 483, 489 (5th Cir.), cert. denied, 558 U.S. 839 (2009); Blanton v. Quarterman, 543 F.3d 230, 235 (5th Cir. 2008), cert. denied, 556 U.S. 1240 (2009). Under the well-settled Strickland standard, the Supreme Court recognizes a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Bell v. Cone, 535 U.S. 685, 698 (2002); Strickland v. Washington, 466 U.S. at 690.
During his first state habeas corpus proceeding, petitioner argued his trial counsel rendered ineffective assistance by failing to have a mitigation expert and a mental health expert appointed to assist the defense, failing to investigate petitioner's background for mitigating evidence, and failing to present evidence showing petitioner is mentally retarded.
Because petitioner has presented both exhausted and procedurally defaulted claims of ineffective assistance, this Court will undertake de novo review of all of petitioner's ineffective assistance claims. See Porter v. McCollum, 558 U.S. at 39 (holding de novo review of the allegedly deficient performance of petitioner's trial counsel was necessary because the state courts had failed to address this prong of Strickland analysis); Rompilla v. Beard, 545 U.S. at 390 (holding de novo review of the prejudice prong of Strickland required where the state courts rested their rejection of an ineffective assistance claim on the deficient performance prong and never addressed the issue of prejudice); Wiggins v. Smith, 539 U.S. at 534 (holding the same).
In evaluating prejudice in the context of the punishment phase of a capital trial, a federal habeas court must re-weigh all the aggravating evidence against the totality of available mitigating evidence (had the petitioner's trial counsel chosen a different course). Wong v. Belmontes, 558 U.S. at 20; Wiggins v. Smith, 539 U.S. at 534. Strickland does not require the State to "rule out" or negate a sentence of life in prison to prevail; rather, it places the burden on the defendant to show a "reasonable probability" that the result of the punishment phase of a trial would have been different. Wong v. Belmontes, 558 U.S. at 27. The prejudice inquiry under Strickland requires evaluating whether there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "The likelihood of a different result must be substantial, not just conceivable." Brown v. Thaler, 684 F.3d 482, 491 (5th Cir. 2012) (citing Harrington v. Richter, 562 U.S. 86 (2011)), cert. denied, 133 S.Ct. 1244 (2013).
"To prevail on an ineffective assistance claim based upon uncalled witnesses, an applicant must name the witness, demonstrate that the witness would have testified, set out the content of the witness's proposed testimony, and show that the testimony would have been favorable." Gregory v. Thaler, 601 F.3d 347, 352 (5th Cir.), cert. denied, 562 U.S. 911 (2010). "An applicant `who alleges a failure to investigate on the part of his counsel must allege with specificity what the investigation would have revealed and how it would have altered the outcome of the trial.'" Id.
Federal habeas corpus petitioners asserting claims of ineffective assistance based on counsel's failure to call a witness (either a lay witness or an expert witness) satisfy the prejudice prong of Strickland analysis only by naming the witness, demonstrating the witness was available to testify and would have done so, setting out the content of the witness's proposed testimony, and showing the testimony would have been favorable to a particular defense. Woodfox v. Cain, 609 F.3d 774, 808 (5th Cir. 2010); Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009).
The bulk of the new evidence petitioner presents here in support of the ineffective assistance claims contained in his second amended petition is repetitive of the information about petitioner's background presented through Dr. Rosin during the evidentiary hearings held during petitioner's initial state habeas corpus proceeding. During petitioner's initial state habeas corpus proceeding his trial co-counsel, attorney David Bays, testified at great length regarding his investigation into petitioner's background. Specifically, attorney Bays testified that: (1) he was appointed February 1, 2001, and jury selection began February 28, 2002, (2) the trial court appointed Gilbert Carasco as defense investigator, (3) he visited with petitioner eight times at the BCADC, (4) he did not request appointment of a mitigation specialist because he conducted the mitigation investigation himself because he believed at the time of petitioner's trial that an experienced trial counsel and investigator could conduct a thorough background investigation and mitigation specialists tended to have an aura of hucksterism about them and were actually glorified investigators, (5) he looked into petitioner's whole background, (6) he looked for discovery in the prosecution's case file where he reviewed petitioner's school records, (7) he interviewed petitioner's mother, common law wife Ruth Molina, and other friends of petitioner, (8) the only indication he found that petitioner had any mental problems was that petitioner had been placed in special education in school, (9) this did not raise red flags for him because of the other information in petitioner's school records which showed petitioner's placement in special education was based upon petitioner's disruptive behavior not upon an inability to perform academically, (10) he discovered all of the information about petitioner's background contained in Dr. Rosin's report, including information showing petitioner had a history of marijuana and alcohol abuse, admitted to recreational use of cocaine and heroin, joined a gang, and sold drugs and stole merchandise in his late teens and early twenties, (11) the more he dug into petitioner's background, the more he became convinced the defense would have a difficult time presenting much in the way of mitigating evidence, (12) he never observed any conduct by petitioner which caused him to suspect petitioner was mentally retarded or had any mental problems at all, (13) he never had any problem communicating with petitioner and never found any other evidence suggesting petitioner was mentally retarded, (14) he never saw a need to have petitioner tested for intellectual disability (formerly mental retardation) or to have petitioner's mental health evaluated, (15) petitioner's school records showed he was abusive toward other students, teachers, and even parents, (16) he concluded petitioner was a rebellious young man who got into trouble with a lot of people and ended up quitting school after being sent to an alternative campus, (17) he never found any information which suggested the defense team might be able to raise a psychological defense or present mitigating evidence of mental health problems, (18) the defense team interviewed not only petitioner's mother and wife (whom attorney Bays believed to have been an accomplice to petitioner's capital offense) but also petitioner's employer and a variety of persons including Paul Lozano, Irene Escobedo Dominguez, Ramon Martinez, and Manuel Torres, (19) no one with whom the defense spoke ever suggested petitioner was mentally retarded, (20) the defense presented mitigating evidence through petitioner's mother and sister showing petitioner was not violent as a child, (21) the defense presented mitigating evidence through a jail guard showing petitioner had assisted the guard when the guard was attacked by another inmate, (22) he did not view evidence of voluntary intoxication as a mitigating factor because he believed the jury would likely view such evidence negatively, (23) he did not believe evidence showing the petitioner had been abused and behaved violently as a child would be helpful because the jury would likely believe such evidence showed a leopard could not change its spots, and (24) co-counsel attorney Michael Sawyer spoke with petitioner's mother and sister Claudia and called both to testify at the punishment phase of trial that petitioner had a loving wife and children and was gainfully employed.
Moreover, at no point has petitioner presented any evidence establishing the nature or scope of the investigation into petitioner's background conducted by petitioner's trial co-counsel-attorney Michael Sawyer-the attorney who called and questioned the defense witnesses presented during the punishment phase of petitioner's capital murder trial. This Court has previously noted that, when a criminal defendant is represented at trial by multiple attorneys, it is incumbent upon a defendant asserting ineffective assistance of counsel who wishes to overcome the presumption of reasonableness afforded trial counsel's decision-making to present evidence showing what information both of his trial counsel, i.e. the entire defense team, had available to them prior or at the time of trial:
Bartee v. Quarterman, 574 F.Supp.2d 624, 649 (W.D. Tex. 2008), CoA denied, 339 F. App'x 429 (5th Cir. July 31, 2009), cert. denied, 559 U.S. 1009 (2010).
Other than attorney Bays' testimony during petitioner's initial state habeas corpus proceeding, petitioner furnishes this Court with no factual allegations or any evidence showing what information was available to his trial co-counsel attorney Sawyer or discovered by the courtappointed defense investigator relating to petitioner's background. Petitioner presents new evidence which offers a more complete view of petitioner's school records, but these new school records furnished by petitioner in support of his second amended petition only bolster the reasonableness of the decisions reached by attorney Bays prior to petitioner's trial. Attorney Bays testified at length regarding the information about petitioner's background available to him prior to and at the time of trial. The bulk of the new affidavits and school records furnished by petitioner as attachments or exhibits to his second amended petition fully support attorney Bays' beliefs that presentation of mitigating evidence focusing on petitioner's limited intellectual capabilities would have opened the door to a wide range of potentially devastating documentary evidence and expert testimony regarding petitioner's lengthy history of alcohol, narcotics, and substance abuse and petitioner's history of disruptive, anti-social behavior while in school. Attorney Bays' conclusion that evidence showing petitioner was borderline mentally retarded (or possessed simply below average intellectual capability) or had a history of long term drug and substance abuse could have proven as hurtful as helpful at the punishment phase of petitioner's trial was objectively reasonable. See Chanthakoummane v. Stephens, 816 F.3d 62, 70 (5th Cir. 2016) (holding trial counsel was not ineffective for failing to present double-edged evidence at punishment phase of capital murder trial), cert. filed, May 31, 2016 (no. 15-9536); Hopkins v. Cockrell, 325 F.3d 579, 586 (5th Cir.) (holding trial counsel did not render ineffective assistance by failing to present evidence at punishment phase of capital murder trial showing the defendant was functioning at a below average intelligence level and had abused alcohol and drugs), cert. denied, 540 U.S. 963 (2003). "This Court has held that a tactical decision not to pursue and present potential mitigating evidence on the ground that is doubleedged in nature of objectively reasonable." Hopkins v. Cockrell, 325 F.3d at 586.
The Supreme Court has recognized that evidence of mental retardation is necessarily doubleedged in nature in that while it might be viewed as diminishing the defendant's moral blameworthiness, it also tends to show the defendant cannot learn from his mistakes and, therefore, might pose a substantial risk of future dangerousness. See Penry v. Lynaugh, 492 U.S. 302, 324 (1989) ("Penry's mental retardation and history of abuse is thus a two-edged sword: it may diminish his blameworthiness for his crime even as it indicates that there is a probability that he will be dangerous in the future."). The Fifth Circuit has long recognized the double-edged nature of evidence showing a criminal defendant was voluntarily intoxicated at the time of an offense or had a history of voluntary substance abuse—and the heavy deference which must be given to a trial counsel's decision not to introduce such evidence. See, e.g., Boyle v. Johnson, 93 F.3d 180, 188 (5th Cir. 1996) (holding trial counsel did not render ineffective assistance by choosing not to introduce evidence of a defendant's drug and alcohol abuse which "had a double-edged quality"), cert. denied, 519 U.S. 1120 (1997); Mann v. Scott, 41 F.3d 968, 984 (5th Cir. 1994) (holding counsel's decision not to introduce "double-edged" evidence of defendant's low intelligence or abusive childhood was entitled to a heavy measure of deference and did not constitute deficient performance), cert. denied, 514 U.S. 1117 (1995).
Petitioner has not identified specific facts or any evidence reasonably available at the time of his capital murder trial which shows it was objectively unreasonable for his defense team to rely upon school records showing petitioner scored a 91 on an IQ test in 1991 and the information made available to the defense team prior to trial from petitioner, his family, and his friends regarding petitioner's background's formation when the defense team decided not to request a mental health evaluation of petitioner or the appointment of a mental health expert to evaluate petitioner. Petitioner's defense team did have the assistance of a court-appointed investigator and did review petitioner's school records contained in the prosecution's case file and did interview the petitioner, his mother and sister, a former employer, and several of petitioner's acquaintances. At the time of petitioner's April, 2002 capital murder trial, the Supreme Court has not yet held that a finding of mental retardation exempts a convicted capital murderer from a sentence of death, and it was generally recognized that evidence of low intellectual capability was double-edged in nature. The Supreme Court did not hand down its decision in Atkins v. Virginia, 536 U.S. 304 (2002), until June 20, 2002. Under such circumstances, petitioner's trial counsel cannot reasonably be faulted for failing to retain the services of a mitigation specialist and independent mental health expert to investigate whether petitioner suffered from mental retardation or low intellectual capability. See United States v. Fields, 565 F.3d 290, 296 (5th Cir.) ("Clairvoyance is not a required attribute of effective representation."), cert. denied, 553 U.S. 914 (2009).
Bell v. Cone, 535 U.S. at 698 (quoting Washington v. Strickland).
Petitioner's jury was faced with only two special issues at the punishment phase of his April, 2002 capital murder trial. The first asked whether the evidence showed beyond a reasonable doubt that there was a probability the petitioner would commit criminal acts of violence which posed a continuing threat to society (the so-called "future dangerousness" special issue). The second special issue asked whether, considering all of the evidence, including the circumstances of petitioner's offense and the petitioner's character, background, and personal moral culpability, there was a sufficient mitigating circumstance, or sufficient mitigating circumstances, which warranted the imposition of a life sentence. Thus, unlike capital sentencing juries in many other jurisdictions, petitioner's jury was not asked to weigh specific aggravating factors against mitigating evidence.
At the time of petitioner's April, 2002 capital murder trial, the rule in Atkins was not the law of the land. As explained above, evidence which shows a capital murder defendant suffered from mental retardation is highly double-edged in nature in that, while it might be viewed as diminishing the defendant's moral blameworthiness, it also tends to show the defendant cannot learn from his mistakes and, therefore, might pose a substantial risk of future dangerousness. Penry v. Lynaugh, 492 U.S. at 324. Petitioner has alleged no specific facts or furnished any evidence showing it was objectively unreasonable for his defense team to forego investigation into whether petitioner was mentally retarded in anticipation of petitioner's April, 2002 capital murder trial.
Insofar as petitioner argues his trial counsel should have requested the appointment of a mitigation specialist as a matter of course, that argument is non sequitur. The first prong of Strickland analysis focuses on the objective reasonableness of the strategic and tactical decisions made by trial counsel, not on the subjective correctness of trial counsel's assumptions about the availability or propriety of additional investigative resources. See Hinton v. Alabama, 134 S.Ct. 1081, 1088 (2014) ("Under Strickland, we first determine whether counsel's representation `fell below an objective standard of reasonableness.'"); Loden v. McCarty, 778 F.3d 484, 494 (5th Cir.) ("To show deficient performance, `the defendant must show that counsel's representation fell below an objective standard of reasonableness.'" Reed v. Stephens, 739 F.3d 753, 773 (5th Cir.2014) (quoting Strickland 466 U.S. at 688)), cert. denied, 136 S.Ct. 402 (2015). Counsel's performance is judged based on prevailing norms of practice, and judicial scrutiny of counsel's performance must be highly deferential to avoid "the distorting effects of hindsight." Loden v. McCarty, 778 F.3d at 494; Carty v. Thaler, 583 F.3d 244, 258 (5th Cir. 2009), cert. denied, 559 U.S. 1106 (2010).
Petitioner's defense team included an investigator, and they conducted an investigation into petitioner's background which included: (1) review of petitioner's school records including an IQ test score from 1991 indicating petitioner had scored a 91 on a full scale test, (2) multiple interviews with petitioner and his mother and sister Claudia, and (3) interviews with petitioner's common law wife, former employer, and many of petitioner's acquaintances, including Ramon Martinez and Manuel Torres. Petitioner has alleged no specific facts or provided any evidence, showing it was objectively unreasonable for his defense team to rely upon the information available through those sources to conclude that further inquiry into petitioner's mental health and intellectual capabilities would likely prove of little value in terms of producing mitigating evidence. Contrary to the opinions expressed during petitioner's initial state habeas corpus proceeding by petitioner's expert witness,
The Supreme Court has emphasized that "`counsel has wide latitude in deciding how best to represent a client. . . .'" Ward v. Stephens, 777 F.3d 250, 264 (5th Cir.), cert. denied, 136 S.Ct. 86 (2015); Clark v. Thaler, 673 F.3d 410, 427 (5th Cir.) (citing Yarbrough v. Gentry, 540 U.S. 1, 5-6 (2003)), cert. denied, 133 S.Ct. 179 (2012). This wide latitude includes the discretion to determine how best to utilize the limited investigative resources available to defense counsel. See Ward v. Stephens, 777 F.3d at 264:
This Court independently concludes petitioner has failed to allege any specific facts or provide any evidence showing the decisions by his defense team not to (1) pursue an independent mental health evaluation of petitioner regarding possible mental retardation, (2) request the appointment of a mental health expert to evaluate petitioner, (3) request a mitigation specialist be appointed to assist the defense team, or (4) investigate petitioner's background more thoroughly were objectively unreasonable under the circumstances which existed at the time of petitioner's April, 2002 capital murder trial. Furthermore, this Court independently concludes after review of all of petitioner's new evidence there is no reasonable probability that, but for the failure of petitioner's trial counsel to present any of the new evidence presented during petitioner's initial state habeas corpus proceeding or attached to petitioner's second amended federal habeas corpus petition, the jury's answers to either of the two capital sentencing special issues during the punishment phase of petitioner's trial would have been any different.
Petitioner committed a heinous crime. He kidnaped and murdered an innocent young man to obtain automobile parts which petitioner sold for a profit. The family of petitioner's victim and many others throughout the community undertook a wide ranging search for the victim and his vehicle. Days after petitioner set the remaining portion of his victim's vehicle on fire, petitioner returned to the location where he had fired multiple shotgun blasts into his victim at fairly close range and set the victim's decaying corpse on fire. Petitioner managed to frighten one neighbor and a potential witness to his crime so badly, the young man fled the State of Texas.
Likewise, there is no reasonable probability that, but for the failure of petitioner's trial counsel to present Dr. Rosin's testimony from petitioner's first state habeas corpus proceeding or any of the affidavits and documentary evidence accompanying petitioner's second state habeas corpus application, the jury's answer to the mitigation special issue would have been any different. Evidence of petitioner's low scores on IQ tests administered after petitioner turned eighteen would necessarily have led to the admission of testimony like that offered by Dr. Sparks during petitioner's initial state habeas corpus proceeding, as well as documents such as those accompanying petitioner's second amended federal habeas corpus petition. The documents accompanying petitioner's latest federal habeas corpus petition establish petitioner (1) had a long history of alcohol and substance abuse — which teenage alcohol abuse was identified as a cause of the reduction in petitioner's IQ from 91 to 84 between 1991 and 1994 and (2) had a long history of disruptive, violent behavior in school. Petitioner's trial counsel testified during petitioner's initial state habeas corpus proceeding that the defense team's strategy during the punishment phase of petitioner's trial was to attempt to present mitigating evidence in the form of testimony through petitioner's family which showed the petitioner was non-violent as a child, was gainfully employed, and had a loving wife and children. Given the lack of evidence of violent offenses committed by petitioner prior to his murder of Rick Marin, it was objectively reasonable for petitioner's trial counsel to attempt to garner a favorable answer to the future dangerousness special issue through such testimony. It was likewise objectively reasonable for petitioner's trial counsel to avoid presenting evidence which could have opened the door to expert mental health testimony suggesting petitioner has an anti-social personality and a long history of alcohol and substance abuse. Moreover, there is no reasonable probability that, but for the failure of petitioner's trial counsel to offer any of petitioner's new evidence during the punishment phase of trial, the jury's answer to the mitigation special issue would have been any different. Defense efforts to diminish petitioner's moral culpability through evidence showing petitioner: (1) had scored low on IQ tests following his arrest, (2) had been the victim of others while growing up, (3) was not considered very smart by his fellow students and co-workers, and (4) had difficulty focusing on academic work would likely have been met with evidence from the exact same sources showing petitioner displays many of the symptoms of anti-social personality disorder and has a long history of alcohol and substance abuse.
Insofar as petitioner complains his trial counsel met with him for less than ten hours prior to the start of trial, petitioner fails to allege any specific facts or provide any evidence showing it was objectively unreasonable for his trial counsel to meet with petitioner for only about nine point six hours prior to the start of jury selection or there was any relevant information which petitioner was unable to furnish his trial counsel due to the alleged brevity of their pretrial conferences. The brevity of consultation time between a defendant and his counsel alone cannot support a claim of ineffective assistance. Murray v. Maggio, 736 F.2d 279, 282 (5th Cir. 1984); Jones v. Wainwright, 604 F.2d 414, 416 (5th Cir. 1979). This complaint fails to satisfy either prong of Strickland analysis.
Petitioner complains his trial counsel failed to make an opening statement at the punishment phase of trial but fails to allege any facts showing this decision was objectively unreasonable or that the outcome of the punishment phase of his capital murder trial would have been any different had his trial counsel made an opening statement at the punishment phase of trial. See United States v. Stedman, 69 F.3d 737, 740 (5th Cir. 1995) (holding ineffective assistance claim based on failure to make opening statement failed because movant did not allege how or why trial would have ended differently but for the absent opening statement), cert. denied, 519 U.S. 912 (1996); Gilliard v. Scroggy, 847 F.2d 1141, 1147 (5th Cir. 1988) (holding decision whether to make an opening statement is the essence of a strategic choice), cert. denied, 488 U.S. 1019 (1989). Petitioner fails to identify any relevant information his trial counsel failed to include in said counsel's closing jury argument at the punishment phase of petitioner's trial. Moreover, petitioner fails to offer any explanation as to how or why the waiver of opening statement was either objectively unreasonable or outcome determinative at the punishment phase of his capital murder trial. This conclusory assertion of ineffective assistance also fails to satisfy either prong of Strickland analysis.
To the extent petitioner complains his trial counsel failed to obtain additional school records on petitioner prior to trial, petitioner also fails to allege any facts showing it was objectively unreasonable for his trial counsel to rely upon the school records available to said counsel to determine whether to pursue additional records or there is a reasonable probability that, but for the failure of petitioner's trial counsel to obtain all of the school records accompanying petitioner's second amended federal habeas petition, the outcome of the punishment phase of petitioner's trial would have been any different. As explained above, the additional school records furnished to this Court by petitioner's federal habeas counsel fully support the decisions by petitioner's trial counsel not to further investigate petitioner's mental health. The school records attached to petitioner's second amended federal habeas corpus petition also support the concern expressed by petitioner's trial co-counsel that introduction of mental health evidence at the punishment phase of petitioner's trial would likely have opened the door to a wide variety of very compelling negative evidence showing petitioner's propensity for violent conduct during childhood, long history of alcohol and substance abuse, and anti-social personality disorder. Both Dr. Rosin and Dr. Sparks appeared to agree during their testimony at petitioner's initial state habeas corpus proceeding that petitioner displayed many of the attributes of a person with anti-social personality disorder.
Respondent correctly points out that petitioner procedurally defaulted on all of his claims for ineffective assistance that were not included in petitioner's initial state habeas corpus proceeding. More specifically, petitioner has procedurally defaulted on his ineffective assistance complaints addressing (1) the decision by petitioner's trial counsel to waive an opening statement at the punishment phase of trial and (2) the decision by petitioner's trial counsel not to seek additional records from petitioner's schools. Petitioner included those specific complaints only in his second state habeas corpus application which the Texas Court of Criminal Appeals summarily dismissed as an abuse of the writ. Thus, petitioner has procedurally defaulted those two assertions of ineffective assistance. See, e.g., Aguilar v. Dretke, 428 F.3d 526, 533 (5th Cir. 2005) (holding the Texas abuse of the writ rule ordinarily is an adequate and independent procedural ground on which to base a procedural default ruling), cert. denied, 547 F.3d 1136 (2006); Matchett v. Dretke, 380 F.3d 844, 848 (5th Cir. 2004) (holding the violation of the Texas writ-abuse rule ordinarily furnishes an adequate and independent procedural ground which bars federal habeas review of a claim), cert. denied, 543 U.S. 1124 (2005); Cotton v. Cockrell, 343 F.3d 746, 755 (5th Cir. 2003) (holding the Texas writ abuse doctrine is an adequate and independent barrier to federal habeas review of unexhausted claims), cert. denied, 540 U.S. 1186 (2004); Henderson v. Cockrell, 333 F.3d 592, 605 (5th Cir. 2003) (recognizing the Texas writ-abuse doctrine has been strictly and regularly applied since before August, 1997), cert. denied, 540 U.S. 1163 (2004).
Petitioner is not entitled to merits review of his procedurally defaulted ineffective assistance claims under the Supreme Court's holdings in Martinez v. Ryan, 132 S.Ct. 1309 (2012), and Trevino v. Thaler, 133 S.Ct. 1911 (2013), because, for the reason discussed above, petitioner's underlying procedurally defaulted ineffective assistance complaints about the performance of his trial counsel are insubstantial, i.e., they lack some merit. See Norman v. Stephens, 817 F.3d 226, 232 (5th Cir. 2016 (holding a petitioner attempting to rely upon Martinez to circumvent a procedural default must show both (1) appointed counsel in the initial review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland and (2) the underlying claim of ineffective assistance by trial counsel is substantial, which is to say the prisoner must demonstrate the claim has some merit); Beatty v. Stephens, 759 F.3d 455, 465-66 (5th Cir. 2014) ("To succeed in establishing cause under Trevino and Martinez, the petitioner must show: (1) that his claim of ineffective assistance of counsel at trial is `substantial' (i.e., `has some merit'); and (2) that his habeas counsel was ineffective for failing to present those claims in his first state habeas application.), cert. denied, 135 S.Ct. 2312 (2015). As explained above, petitioner's complaints that his trial counsel met with him for less than ten hours prior to trial and waived making an opening statement at the punishment phase of trial fail to satisfy the dual prongs of Strickland analysis.
Furthermore, petitioner's complaints about the performance of his initial state habeas counsel fail to satisfy the dual prongs of Strickland analysis. Petitioner's initial state habeas counsel raised an Atkins claim and a variety of ineffective assistance claims, some of which petitioner continues to litigate in this federal habeas corpus proceeding. Petitioner's initial state habeas counsel presented the state trial court with evidence supporting those ineffective assistance claims consisting of testimony from one of petitioner's trial counsel, an attorney expert on mitigation evidence development, and a qualified mental health expert who opined petitioner was mentally retarded. After carefully reviewing all of the voluminous documents accompanying petitioner's second federal habeas corpus petition, this Court concludes those documents contain no information helpful to petitioner which was unavailable to Dr. Rosin when she testified before the state habeas trial court. In fact, some of the new evidence petitioner presents to this Court, particularly petitioner's special education records from the Somerset ISD, tend to undermine Dr. Rosin's conclusions and support Dr. Sparks' assertion that petitioner is not mentally retarded. Petitioner has failed to demonstrate there was anything objectively unreasonable with the performance of his initial state habeas counsel vis-a-vis petitioner's original ineffective assistance claims. Petitioner has also failed to establish there was any additional evidence available at the time of petitioner's first state habeas corpus proceeding which, in all reasonable likelihood, would have altered the outcome of petitioner's initial state habeas corpus proceeding. There is no reasonable probability the anecdotal testimony of petitioner's mother, former teachers, and acquaintances about petitioner's lack of sophistication and poor academic skills would have resulted in a different outcome in petitioner's initial state habeas corpus proceeding because such evidence would have been countered with evidence in petitioner's special education records showing petitioner twice tested as a teenager far above the standard error of measurement for mental retardation and petitioner had a history of abusive, disruptive behavior and alcohol and substance abuse. In fact, the new school records furnished by petitioner's federal habeas counsel fully support attorney David Bays' characterization of petitioner as a person who was abusive toward others, rebellious, and got into a lot of trouble in school and whose placement in an alternative school setting was based upon his disruptive behavior rather than his inability to perform academically. Those same records also document petitioner's "excessive" abuse of alcohol at a tender age. There is no reasonable probability that, but for the failure of petitioner's initial state habeas counsel to present the state habeas court with any of the new or additional evidence furnished to this Court by petitioner's federal habeas counsel, the outcome of petitioner's initial state habeas corpus proceeding would have been any different.
The Texas Court of Criminal Appeals rejection on the merits during the course of petitioner's initial state habeas corpus proceeding of petitioner's ineffective assistance complaints about the failure of petitioner's trial counsel to (1) request court-appointment of a mitigation specialist, (2) request court-appointment or to retain the services of an independent mental health expert to evaluate petitioner, (3) investigate mitigating evidence showing petitioner suffered from mental retardation, and (4) present evidence showing petitioner suffers from mental retardation was neither contrary to, nor involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, nor based on an unreasonable determination of the facts in light of the evidence presented in the petitioner's initial state court proceeding. This Court independently concludes after de novo review that all of petitioner's claims of ineffective assistance contained in his second amended federal habeas corpus petition fail to satisfy either prong of Strickland analysis, even when all of the documents attached to petitioner's second amended federal habeas corpus petition are considered. Petitioner's procedurally defaulted ineffective assistance claims lack substance. None of petitioner's ineffective assistance claims warrant federal habeas corpus relief.
The AEDPA converted the "certificate of probable cause" previously required as a prerequisite to an appeal from the denial of a petition for federal habeas corpus relief into a "Certificate of Appealability" ("CoA"). See Hill v. Johnson, 114 F.3d 78, 80 (5th Cir. 1997) (recognizing the "substantial showing" requirement for a CoA under the AEDPA is merely a change in nomenclature from the CPC standard); Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997) (holding the standard for obtaining a CoA is the same as for a CPC). The CoA requirement supersedes the previous requirement for a certificate of probable cause to appeal for federal habeas corpus petitions filed after the effective date of the AEDPA. Robison v. Johnson, 151 F.3d 256, 259 n.2 (5th Cir. 1998), cert. denied, 526 U.S. 1100 (1999); Hallmark v. Johnson, 118 F.3d 1073, 1076 (5th Cir. 1997), cert. denied sub nom. Monroe v. Johnson, 523 U.S. 1041 (1998).
Under the AEDPA, before a petitioner may appeal the denial of a habeas corpus petition filed under Section 2254, the petitioner must obtain a CoA. Miller-El v. Johnson, 537 U.S. 322, 335-36 (2003); 28 U.S.C. §2253(c)(2). Likewise, under the AEDPA, appellate review of a habeas petition is limited to the issues on which a CoA is granted. See Crutcher v. Cockrell, 301 F.3d 656, 658 n.10 (5th Cir. 2002) (holding a CoA is granted on an issue-by-issue basis, thereby limiting appellate review to those issues); Jones v. Cain, 227 F.3d 228, 230 n.2 (5th Cir. 2000) (holding the same); Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997) (holding the scope of appellate review of denial of a habeas petition limited to the issues on which CoA has been granted). In other words, a CoA is granted or denied on an issue-by-issue basis, thereby limiting appellate review to those issues on which CoA is granted alone. Crutcher v. Cockrell, 301 F.3d at 658 n.10; Lackey v. Johnson, 116 F.3d at 151; Hill v. Johnson, 114 F.3d at 80; Muniz v. Johnson, 114 F.3d at 45; Murphy v. Johnson, 110 F.3d 10, 11 n.1 (5th Cir. 1997); 28 U.S.C. §2253(c)(3). A CoA will not be granted unless the petitioner makes a substantial showing of the denial of a constitutional right. Tennard v. Dretke, 542 U.S. 274, 282 (2004); Miller-El v. Johnson, 537 U.S. at 336; Slack v. McDaniel, 529 U.S. 473, 483 (2000); Barefoot v. Estelle, 463 U.S. 880, 893 (1983).
To make such a showing, the petitioner need not show he will prevail on the merits but, rather, must demonstrate that reasonable jurists could debate whether (or, for that matter, agree) the petition should have been resolved in a different manner or that the issues presented are adequate to deserve encouragement to proceed further. Tennard v. Dretke, 542 U.S. at 282; Miller-El v. Johnson, 537 U.S. at 336; Slack v. McDaniel, 529 U.S. at 484; Barefoot v. Estelle, 463 U.S. at 893 n.4. This Court is required to issue or deny a CoA when it enters a final order such as this one adverse to a federal habeas petitioner. Rule 11(a), Rules Governing Section 2254 Cases in the United States District Courts.
The showing necessary to obtain a CoA on a particular claim is dependent upon the manner in which the district court disposed of the claim. "[W]here a district court has rejected the constitutional claims on the merits, the showing required to satisfy §2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Miller-El v. Johnson, 537 U.S. at 338 (quoting Slack v. McDaniel, 529 U.S. at 484); Tennard v. Dretke, 542 U.S. at 282. In a case in which the petitioner wishes to challenge on appeal this Court's dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, the petitioner must show jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether this Court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. at 484 (holding when a district court denies a habeas claim on procedural grounds, without reaching the underlying constitutional claim, a CoA may issue only when the petitioner shows that reasonable jurists would find it debatable whether (1) the claim is a valid assertion of the denial of a constitutional right and (2) the district court's procedural ruling was correct).
Reasonable minds could not disagree over this Court's conclusions that: (1) all of petitioner's assertions of ineffective assistance fail to satisfy the prejudice prong of Strickland analysis, (2) all of petitioner's assertions of ineffective assistance fail to satisfy the deficient performance prong of Strickland analysis, (3) petitioner procedurally defaulted on those of his ineffective assistance claims which he included for the first time in his second state habeas corpus application, (4) petitioner's first claim for relief herein, i.e. his Atkins claim, has been withdrawn from this Court's consideration, and (5) petitioner's third claim for relief, i.e., his complaints about the performance of his initial state habeas counsel, do not satisfy either prong of Strickland analysis and do not furnish an independent basis for federal habeas corpus relief. Petitioner is not entitled to a Certificate of Appealability on any of his claims herein.
Accordingly, it is hereby
1. Petitioner's second amended federal habeas corpus petition, filed April 25, 2014 (ECF no. 70), is in all respects
2. Petitioner is
3. All pending motions are
It is so ORDERED.
Dr. John C. Sparks, a psychiatrist with decades of experience treating incarcerated individuals, testified: (1) he reviewed IQ testing done by Dr. Paul Kern, petitioner's medical records, arrest record, probation records, and TDCJ mental health records, (2) Dr. Kerns found petitioner had a verbal score of 65, a performance score of 85, and a full scale score of 72, (3) after his clinical interview with petitioner, he believed petitioner was mildly depressed but functioning above the range of mentally retarded persons, (4) he believed petitioner would function at a higher level if motivated to do so, (5) he believed petitioner's adaptive behavior abilities are above those of persons who are mentally retarded, and (6) he does not believe petitioner is mentally retarded within the definition of that term as used in the Texas Health and Safety Code. First State Habeas Transcript, Volume 2 of 2 Court Reporter's Record, testimony of Dr. John C. Sparks, at pp. 94-149 (pages 249-304 of the First State Habeas Transcript).
DSM-5, at p. 659.
