Case: 08-70034     Document: 00511201094          Page: 1    Date Filed: 08/11/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                           August 11, 2010

                                       No. 08-70034                         Lyle W. Cayce
                                                                                 Clerk

RICHARD VASQUEZ

                                                   Petitioner-Appellant
v.

RICK THALER, Director, Texas Department of Criminal Justice,
Correctional Institutions Division

                                                   Respondent-Appellee




                    Appeal from the United States District Court
                        for the Southern District of Texas
                               USDC No. 2:05-CV-59


Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Petitioner Richard Vasquez appeals from the district court’s denial of his
petition for habeas corpus relief under 28 U.S.C. §§ 2253 & 2254. The district
court did, however, issue a certificate of appealibility (“COA”) sua sponte on the
two issues now before us: (1) whether Vasquez received ineffective assistance
of trial counsel when his attorneys failed to investigate and present significant
mitigating evidence during the penalty phase of his trial; and (2) whether


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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Vasquez received ineffective assistance of appellate counsel because his attorney
labored under an actual conflict of interest arising from the attorney’s
undisclosed, simultaneous service as a special prosecutor in multiple death
penalty cases in the same jurisdiction. Although troubled by the performance
of Vasquez’s trial counsel and by the divided loyalties of Vasquez’s appellate
counsel, the demanding standard of review imposed by the Anti-Terrorism and
Effective Death Penalty Act1 (“AEDPA”) ties our hands. We affirm.
                               I. Facts & Proceedings
      The Texas Court of Criminal Appeals summarized the facts adduced at
trial when it affirmed Vasquez’s conviction on direct appeal.2 We recount here
only those facts that bear on Vasquez’s two claims of ineffective assistance of
counsel (“IAC”).
      In 1999, a Texas jury convicted eighteen-year-old Richard Vasquez of the
brutal beating death of Miranda Lopez,3 the four-year-old daughter of Vasquez’s
girlfriend, Brenda Lopez, from a prior relationship. Vasquez and Lopez also had
a four-month-old daughter, Meagan, and the four of them had lived together
with Vasquez’s adoptive parents, who were his paternal aunt and uncle.
          During the guilt/innocence phase of the trial, it emerged that Vasquez
had been addicted to cocaine and heroin from the age of twelve or thirteen; that


      1
        28 U.S.C. § 2254(d)(1)-(2).
      (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant
      to the judgment of a State court shall not be granted with respect to any claim that was
      adjudicated on the merits in State court proceedings unless the adjudication of the
      claim–
              (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.
      2
          Vasquez v. State, No. 73,461 (Tex. Crim. App. Oct. 3, 2001) (unpublished).
      3
          TEX . PENAL CODE ANN . § 19.03 (a)(8).

                                               2
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his girlfriend, Brenda, was similarly addicted; and that at the time of the murder
in March 1998, Vasquez and Brenda were on a prolonged heroin binge in which
“‘they stopped caring about themselves, the children, or anything else except
drugs. They would leave the children anywhere so that they could go out and
steal things in order to buy more drugs.’”4 Throughout the night before the
murder, Vasquez and Brenda had argued, and they injected themselves with
heroin some time in the early morning hours before falling asleep. When he
awoke, Vasquez injected himself with more heroin before driving Brenda to work
at around noon, taking the two children with him in the car. On the way,
Vasquez became angry with Brenda because he had to stay home and watch the
children while she worked.           No one was home when he returned, and he
telephoned Brenda to ask her where she had hidden the remainder of their
drugs. When she refused to tell him, Vasquez became angry and unleashed his
frustration on Miranda. She died as a result of severe brain injuries sustained
when Vasquez, in a drug-fueled rage, struck her several times in the head. At
trial, significant evidence emerged that Miranda had also been severely sexually
assaulted before she died, responsibility for which Vasquez denied.5 A toxicology
report revealed cocaine levels in Miranda’s blood that were double the lethal
amount for an adult, although neither the doctor nor Vasquez could explain the
presence of the drug in her blood.
       Vasquez was represented by three attorneys at trial.                   As part of his
defense, Vasquez’s trial attorneys offered the testimony of a psychiatrist, Dr.
Carlos Estrada, who informed the jury that Vasquez had been addicted to


       4
           Vasquez v. State, No. 73,461 (Tex. Crim. App. Oct. 3, 2001) (unpublished).
       5
           Vasquez’s state and federal petitions also included an additional ineffective
assistance of counsel claim premised on trial counsel’s failure adequately to rebut the state’s
evidence that he sexually assaulted Miranda Lopez. The district court denied this claim and
did not grant a certificate of appealability with respect to it. Consequently, we do not consider
it here.

                                               3
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narcotics from the age of twelve and that his behavior was typical of addicts. Dr.
Estrada also testified that, if rehabilitated, Vasquez would not be a danger to
society. It later emerged, however, that Estrada had told Vasquez’s attorneys
that Vasquez’s medical records and school record were incomplete and that
Vasquez appeared to warrant additional neurological testing.            Vasquez’s
attorneys never requisitioned these additional tests, and no further psychological
or neurological evidence was presented to the jury in either phase of his trial.
      During the sentencing phase, Vasquez’s counsel called three additional
witnesses: Vasquez’s aunt and uncle (his adoptive parents), and his sister, each
of whom essentially begged the jury for mercy. Not one of them was asked to
disclose any information regarding the role of Vasquez’s biological parents in his
life, his ongoing relationship with his biological father, his family’s history of
substance abuse and criminality, or any past or present mental disorders that
may have affected Vasquez’s childhood or development.
      In affidavits submitted in connection with his state habeas petition,
Vasquez’s aunt and uncle each stated that none of Vasquez’s attorneys had met
with them to discuss possible mitigating evidence, and none prepared the
Vasquezes to testify at sentencing. One of Vasquez’s attorneys later admitted
that counsel’s only interviews with the Vasquez family to prepare the mitigation
case were held in the courthouse hallway during the trial.       They never spoke
with Vasquez’s biological parents at all. Neither did Vasquez’s attorneys hire
a mitigation specialist; rather, the court-authorized investigator they did hire,
who had no experience investigating mitigating evidence in capital murder
cases, spent just eight and a half hours working on the case, which included time
spent traveling 110 miles.
      Had   Vasquez’s    trial   attorneys   undertaken   even    a   rudimentary
investigation of Vasquez’s family and social history, they would have unearthed
a frightening portrait of addiction and destruction. Vasquez’s mother drank

                                        4
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                                 No. 08-70034

heavily and regularly during her pregnancy, inflicting Vasquez with Fetal
Alcohol Syndrome. Vasquez’s father, Ricardo Vasquez, was a drug addict and
lifelong foot soldier in the drug trade who spent much of his life in and out of
prison for narcotics-related crimes. Ricardo maintained a close relationship with
his son, refusing to allow Vasquez’s clean-living aunt and uncle legally to adopt
the boy. From the time Vasquez was a child, he witnessed his father using and
dealing heroin, often from the front porch of their home. Ricardo took Vasquez
with him to rob houses and taught Vasquez how to use and sell heroin. Vasquez
began using marijuana when he was ten, and by thirteen he was addicted to
heroin and cocaine. Vasquez’s father was not the only corrupting influence:
When Vasquez was eight, a paternal uncle who lived nearby was murdered in
a drug-related homicide; when Vasquez was nine, another paternal uncle died
of a drug overdose; three years later, yet another paternal uncle was murdered
in narcotics-related violence.
      When, at age fourteen, Vasquez’s aunt and uncle tried to get him help for
his substance abuse, Ricardo lured Vasquez back to a life of drugs and drug-
trafficking by taking the boy along with him when he made deliveries as a drug
runner and when he robbed houses. Even when Ricardo was incarcerated,
Vasquez’s environment fueled his addiction: His father’s friends would seek him
out and share their drugs with him; his sister Brenda, also a cocaine addict, had
a series of boyfriends who sold heroin and who would supply Vasquez with
whatever he wanted; even his biological mother, who lived nearby and had
informally surrendered custody of Vasquez to his aunt and uncle, co-habited
with a drug-dealer who provided Vasquez with drugs. The toxic combination of
addiction and crime that pervaded Vasquez’s family life and adolescence
eventually took its toll. Neurological tests undertaken as part of his state
habeas petition revealed that he suffered from brain dysfunction arising from
multiple causes (including Fetal Alcohol Syndrome, actual trauma to the brain,

                                       5
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and drug abuse), cumulative post-traumatic stress disorder, learning disabilities,
and a borderline low-normal IQ of 83. None of the foregoing mitigating evidence
was discovered and presented to the sentencing jury by his counsel.
        Vasquez appealed his conviction and sentence to the Texas Court of
Criminal Appeals, which affirmed both.6               While his direct appeal was still
pending, Vasquez filed a state petition for habeas corpus in his trial court,
asserting eleven grounds for relief, including those under consideration here.
Following an evidentiary hearing, the trial court entered findings of facts and
conclusions of law denying relief on all grounds. The Texas Court of Criminal
Appeals adopted the trial court’s findings and conclusions in an unpublished
opinion and denied Vasquez’s state application for the writ of habeas corpus.7
        Following the exhaustion of his state remedies, Vasquez filed a federal
habeas petition in the Southern District of Texas, advancing three claims for
relief premised on violations of his Sixth Amendment right to the effective
assistance of trial and appellate counsel. The district court denied relief on all
three claims, but granted a certificate of appealability sua sponte on the two
claims now before us: (1) whether trial counsel’s investigation into mitigating
evidence was so deficient and prejudicial as to violate his Sixth Amendment
right; and (2) whether Vasquez’s appellate attorney labored under an actual
conflict of interest that deprived him of his Sixth Amendment right.8
                                      II. ANALYSIS
A.      Standard of Review




        6
            

parte Vasquez, No. 59,201-01 (Tex. Crim. App. Jan. 26, 2005).
        8
            Vasquez v. Quarterman, No. CC-06-059, 

(S.D. Tex. Mar. 28, 2008).

                                               6
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       Because Vasquez's IAC claims were brought in the district court after
April 24, 1996, they are governed by the provisions of the AEDPA.9 We review
the district court's interpretation of the AEDPA de novo and its findings of fact
for clear error.10 The AEDPA's deferential standard of review only applies to the
state court's adjudication of a petitioner's claim on the merits,11 a condition
satisfied here.
       IAC claims are mixed questions of fact and law, and thus are “reviewed
under the ‘contrary to’ and ‘unreasonable application’ prong of 28 U.S.C. §
2254(d).”12 A state court's decision is “contrary to” clearly established Supreme
Court precedent when it “applies a rule that contradicts the governing law set
forth in [the Court's] cases,” or reaches an opposite conclusion from a Supreme
Court case upon facts that are “materially indistinguishable.” 13 A state court
“unreasonably applies” clearly established federal law when it correctly
identifies the governing law but unreasonably applies it to the facts of a


       9
         28 U.S.C. § 2254(d)(1)-(2).
       (d) An application for a writ of habeas corpus on behalf of a person in custody
       pursuant to the judgment of a State court shall not be granted with respect to
       any claim that was adjudicated on the merits in State court proceedings unless
       the adjudication of the claim–
       (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.
       10
         Thompson v. Cain, 

, 805 (5th Cir. 1998). In a habeas petition, however,
the state court's findings constrain the district court's determination of the facts. “[A]
determination of a factual issue made by a State court shall be presumed to be correct. The
applicant shall have the burden of rebutting the presumption of correctness by clear and
convincing evidence.” 28 U.S.C. 2254(e)(1).
       11
            28 U.S.C. § 2254(d).
       12
            Moore v. Cockrell, 

, 881 (5th Cir. 2002).
       

. Taylor, 

, 405-06 (2000) (O’Connor J., concurring)
(concurrence commanded a majority for the proposition cited).

                                                7
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particular case.14 To warrant reversal, the state court's application of the law
must be objectively, not subjectively, unreasonable.15
        When the state court denies relief without issuing a written order or
otherwise specifying its reasons, our inquiry under the AEDPA is not affected.
Rather, we “(1) assume that the state court applied the proper clearly
established federal law; and (2) then determines whether its decision was
contrary to or an objectively unreasonable application of that law.” 16
B.      Analysis
1.      The Wiggins claim
        Under the familiar standard set forth in Strickland v. Washington,17 a
petitioner claiming ineffective assistance of counsel must prove that (1) counsel’s
performance fell below the objective, professional standard of reasonableness,
and (2) such deficient performance prejudiced the defense. To establish
prejudice, the petitioner must show that “but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” 18
        a.       Deficient performance
        In Wiggins v. Smith,19 the Supreme Court recognized that, in a capital
case, counsel’s performance may be deficient if it does not include an adequate
investigation into mitigating evidence, including research into a capital


        14
             

       15
         

v. Landrigan, 

, 473 (2007) (“The question under
AEDPA is not whether a federal court believes the state court's determination was incorrect
but whether that determination was unreasonable–a substantially higher standard.”).
       16
             Jordan v. Dretke, 

, 367-68 (5th Cir. 2005) (internal citations and marks
omitted).
        17
             

, 687-88 (1984).
        18
             Mickens v. Taylor, 

, 166 (2002).
        19
             

(2003).

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defendant’s “family and social history.”20 The Texas Court of Criminal Appeals
held that Vasquez’s attorneys’ performance was neither deficient nor prejudicial.
Thereafter, the federal district court held that counsel’s performance was
constitutionally deficient, but that it did not prejudice Vasquez’s defense. On
appeal to us, Vasquez challenges the district court’s conclusion regarding
prejudice by identifying several ways in which the district court allegedly
misapplied the applicable prejudice analysis. Before us, the government does
not contest the district court’s conclusion that counsel’s performance was
deficient;21 instead, the government contends that the district court correctly
interpreted and applied the Strickland standard of prejudice. Consequently, our
task is confined to determining (1) whether it was objectively unreasonable for
the Texas Court of Criminal Appeals to conclude that the outcome of Vasquez’s
capital sentencing would not have been different if his trial counsel had
investigated (and, presumably, presented) evidence of his family life and social
history, including his mental impairments, and (2) whether the district court
erred as a matter of law in its application of Strickland.
       b.     Prejudice
       Under Strickland and its progeny, Vasquez must demonstrate that, but
for counsel’s failures to investigate and present evidence of his family life and
social history, there is a “reasonable probability” that a jury would not have




       20
          

(recognizing as the applicable standard of professional conduct the
American Bar Association Standards for Criminal Justice); Rompilla v. Beard, 

,
387 (2005) (same).
      21
          We have already held that “[g]enerally accepted standards of competence require
that counsel conduct an investigation into [a defendant’s] background.” Smith v. Quarterman,

, 405 (5th Cir. 2008).

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sentenced him to death.22 A reasonable probability is “a probability sufficient
to undermine confidence in the outcome.” 23
       Vasquez essentially insists that the district court erred in its application
of the Strickland standard because it failed to consider how the evidence of his
family life and background would have affected the totality of the evidence
presented to the sentencing jury regarding his culpability. He contends that,
contrary to Texas and federal law,24 the district court employed several
erroneous modes of analysis, including (1) improperly “weighing” mitigating
evidence against aggravating evidence; (2) improperly assessing the evidence of
Vasquez’s childhood and mental impairments in a “threshold-based analysis”
against the depravity suffered by the successful habeas petitioners in Wiggins
and Rompilla; (3) improperly discounting the evidence of mental impairment as
“double-edged”; and (4) misconstruing the petitioner’s standard of proof when it
held that Vasquez had to establish prejudice by “clear and convincing evidence.”
We address each contention in turn.


       22
          

(“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.”).
       23
            

a threshold matter, we note that Vasquez’s claim that the district court
misapplied Texas law must implicate a violation of a federal right if it is to be cognizable on
federal habeas review. Hankins v. Quarterman, 288 Fed. App’x 952, 960 n.28 (5th Cir. 2008)
(citing Smith v. McCotter, 

, 702-03 (5th Cir. 1986) (citing Baldwin v. Blackburn,

, 948 (5th Cir. 1981), cert. denied, 

, reh’g denied, 

(1982)
(holding that a failure to comply with state law requirements presents a federal habeas issue
only if it involves federal constitutional issues))). The Texas mitigation special issue
instruction tracks the constitutional requirement articulated in Penry v. Lynaugh, in which
the Court held that a defendant has a right to “[sentencing] instructions informing the jury
that it could consider and give effect to the mitigating evidence of [petitioner’s] [mental
infirmities] and . . . background by declining to impose the death penalty, [as a ] . . . . vehicle
for expressing its ‘reasoned moral response’ to that evidence in rendering its sentencing
decision.” Penry v. Lynaugh, 

, 328 (1989). Inasmuch as the Texas mitigation
special issue was modeled on Penry to ensure compliance with federal constitutional law,
Vasquez’s claim is cognizable on federal habeas review.

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       i.         Improper weighing of evidence
       The Supreme Court has long recognized that a state may employ any
procedure it chooses to administer the death penalty as long as that procedure
meaningfully “limit[s] the class of murderers to which the death penalty may be
applied.”25 Once this limiting condition has been satisfied, all states ask “the
sentencer . . . to determine whether a defendant thus found eligible for the death
penalty should in fact receive it. Most States channel this function by specifying
the aggravating factors (sometimes identical to the eligibility factors) that are
to be weighed against mitigating considerations.”26 State practices diverge here,
as some permit the sentencer to consider aggravating circumstances that are not
included in the list of aggravating circumstances that made the defendant death-
penalty eligible initially.27 Regardless of the differences between state practices,
however, the only federal constitutional requirement is that “in all capital cases
the sentencer must be allowed to weigh the facts and circumstances that
arguably justify a death sentence against the defendant’s mitigating evidence.” 28
To comply with this standard, Texas law instructs the sentencer to consider
“[w]hether, taking into consideration all of the evidence, including the
circumstances of the offense, the defendant’s character and background, and the
personal moral culpability of the defendant, there is a sufficient mitigating




       25
          Brown v. Sanders, 

, 216 (2006) (analyzing different state capital
sentencing schemes in the context of determining “what happens when the sentencer imposes
the death penalty after at least one valid eligibility factor has been found, but under a scheme
in which an eligibility factor or a specified aggravating factor is later held to be invalid.”).
       26
            

(observing same).
       28
            

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circumstance or circumstances to warrant that a sentence of life imprisonment
rather than a death sentence be imposed.” 29
      This was precisely the analysis undertaken by the district court in this
case. After undertaking an extensive review of the evidence in mitigation, the
court went on to note the other evidence put before the jury regarding (1) the
victim’s youth; (2) the undisputed fact that she died while in Vasquez’s sole care
from blows to the head that “were equivalent to a 65 m.p.h. car accident;” (3) the
fact that she had lethal quantities of cocaine in her system; (4) the significant
evidence of some type of sexual assault; and (5) evidence of other wounds on her
body that pointed to a history of physical abuse. To guide its assessment of the
post-conviction record of evidence in aggravation and in mitigation, the district
court properly looked to cases in which the Supreme Court had applied this very
standard.30 The district court then concluded that Vasquez’s background,
“though terrible,” would not have so altered a jury’s perception of his moral
culpability that the Texas Court of Criminal Appeals had unreasonably
erred—the standard imposed by AEDPA—in its conclusion that a jury would
have convicted Vasquez to death anyway.
      ii.       Comparing instant evidence with that in Wiggins and Rompilla
      We deem unavailing Vasquez’s claim that the district court erroneously
“weighed” the mitigating evidence against the aggravating evidence, or
committed error when it compared the mitigating evidence in Vasquez’s case to
that of successful Wiggins petitioners. The Supreme Court instructs courts to
consider “the totality” of mitigating evidence–both the evidence adduced at
sentencing and evidence that was omitted or went undiscovered—in its prejudice



      29
            TEX . CRIM . PROC . CODE ANN . art 37.071 § 2(e) (Vernon 1997).
      30
         Vasquez v. Quarterman, No. CC-05-059, 

, at *11-12 (S.D. Tex.,
March 28, 2008).

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analysis.31 The Texas Code of Criminal Procedure instructs a sentencing jury
similarly.32       Consequently,         there      is   no   prescribed      or   proscribed
procedure—“balancing,” “weighing,” or otherwise—by which a jury (or a court)
must analyze the mitigation evidence under either Texas33 or federal law,34 so
long as both the newly discovered mitigation evidence and the original
mitigation evidence is taken into consideration. Naturally, the power of the
newly amplified case to mitigate a jury’s selected punishment will be contingent
on other factors in the case, such as the circumstances of the crime. We have,
therefore, repeatedly upheld the commonsense notion that the relative mix of
mitigating and aggravating evidence must be reassessed when a court engages



       

. Taylor, 

, 397-98 (2000) (holding that the state supreme court
erred when it “failed to evaluate the totality of the available mitigation evidence–both that
adduced at trial, and the evidence adduced in the habeas proceeding in reweighing it against
the evidence in aggravation”).
       32
          The Texas statute requires a jury to consider:
       Whether, taking into consideration all of the evidence, including the
       circumstances of the offense, 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
       rather than a death sentence be imposed.
TEX . CRIM . PROC . CODE ANN . art 37.071 § 2(e) (Vernon 1997).
       33
            Mosley v. State, 

, 263 n.18 (Tex. Crim. App. 1998) (instructing that
“[w]hile the[ ] cases have some language indicating that the mitigation question does not
involve aggravating circumstances, such language should properly be viewed as simply
observing that the issue does not require their consideration. Such an observation does not,
however, preclude permitting the jury to consider aggravating factors in making its evaluation
. . . the jury is not, and should not be, required to look at mitigating evidence in a vacuum . .
. .”); accord Ex parte Gonzalez, 

, 394 (Tex. Crim. App. 2006) (noting that
“Texas’s capital sentencing scheme does not involve the direct balancing of aggravating and
mitigating circumstances. It asks the jury to answer a mitigation question.”).
       34
          Tuilaepa v. California, 

, 979-80 (1994) (holding that “[a] capital
sentencer need not be instructed how to weigh any particular fact in the capital sentencing
decision” and reaffirming that “the sentencer may be given ‘unbridled discretion in
determining whether the death penalty should be imposed after it has found that the
defendant is a member of the class made eligible for that penalty’” ) (citing Zant v. Stephens,

, 875 (1983)).

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in a Strickland prejudice analysis.35 Vasquez is correct that, in support of its
balancing approach to prejudice analysis, the district court relied on two cases
that were decided before the Texas statute was amended to reflect Penry’s
insistence that juries be allowed to consider the effect of mitigating evidence on
general moral culpability.36 Nevertheless, our review of the district court’s
analysis in its entirety leads us to conclude that its citation to two stale cases
does not trump the fact that its analysis properly considered the potential
impact of the omitted mitigation evidence on the jury’s sentencing determination
in conformity with prevailing Texas and Supreme Court precedent.
       With respect to Vasquez’s claim that the district court erred in comparing
the mitigating evidence in Vasquez with that of other (successful) habeas
petitioners who had brought similar claims, nothing in Wiggins, Rompilla, or
Williams suggests that a court may not, in its assessment of prejudice stemming
from uninvestigated mitigating evidence, engage in the kind of “cross-case
comparison” that is the foundation of common law reasoning. On the contrary,
we have noted that prejudice analysis “is illumined, although not necessarily
controlled by, a comparison with cases in which the Supreme Court determined
whether there was a reasonable probability that the trial attorneys’ failure to




       35
          Wood v. Quarterman, 

, 203 (5th Cir. 2007) (holding that Wiggins
requires the court to “reweigh[] the evidence in aggravation against the totality of the
available mitigating evidence”); Blanton v. Quarterman, 

, 239 (5th Cir. 2008) (“In
reviewing the issue of prejudice at capital sentencing we weight the quality and quantity of
the available mitigating evidence, including that presented in post-conviction proceedings,
along with any aggravating evidence.”)).
       36
          Vasquez v. Quarterman, No. CC-05-059, 

, at *11 (S.D. Tex., March
28, 2008) (citing Jones v. Johnson, 

(5th Cir. 1999) (applying pre-1991 sentencing
statute); Russell v. Lynaugh, 

(5th Cir. 1989) (same)).

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discover and present mitigation evidence had affected the outcome of the
sentencing proceedings.” 37
       iii.     Evidence of mental impairment as “double-edged”
       Vasquez’s claim that the district court misconstrued the standard of
prejudice applicable to newly-discovered evidence of mental impairment is
predicated on a faulty interpretation of the district court’s reasoning. Vasquez’s
argument is somewhat unclear: He appears to argue that the court misconstrued
the prejudice standard because its analysis was incorrectly driven by deference
to counsel’s strategic choice not to present evidence of mental impairment in
light of the fact that such evidence can be double-edged. This, however,
mischaracterizes the district court’s reasoning and the governing legal standard.
The court assumed that the performance of Vasquez’s counsel was deficient for
failing to investigate evidence that Vasquez suffered from post traumatic stress
disorder, attention deficit disorder, drug addiction, Fetal Alcohol Syndrome,
learning disabilities, and a borderline I.Q.           The court then reasoned that
“[r]egardless of whether defense counsel should have pursued . . . additional . .
. tests [for mental impairment],” even if evidence of mental impairment were
added to the case for mitigation, the “overwhelming evidence of guilt and the
brutality discussed” rendered it unlikely that the mental impairment evidence
would have so “altered the jury’s balancing of aggravating or mitigating
factors.”38 The district court correctly noted that evidence of mental impairment
“certainly helps to explain Vasquez’s violent outburst against Miranda” and that
it “could elicit the jury’s sympathy.”39 That court thus clearly contemplated the


       37
           Sonnier v. Quarterman, 

, 360 (5th Cir. 2007) (comparing impact of
petitioner’s excluded mitigation evidence by reference to mitigation evidence in Williams and
Rompilla).
       38
            Vasquez, 

at *22.
       39
            

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                                        No. 08-70034

explanatory power and, implicitly, the exculpatory power of the mental-
impairment evidence. In so doing, the court’s reasoning is entirely in keeping
with governing Supreme Court law and the law of this circuit.
       The Supreme Court has held that evidence of mental impairment can be
both mitigating and aggravating,40 and we have repeatedly rejected IAC claims
“where alleged failures to investigate mitigating evidence did not prejudice the
defendant because of the double-edged nature of the evidence available.”41 Thus,
the district court did not misperceive or misapply the relevant standard of
Strickland prejudice, and Vasquez has not offered any other grounds from which
we could conclude that the state court’s prejudice determination was objectively
unreasonable. We perceive no error, either on the part of the state court or the
federal district court.
       iv.      Standard of proof of prejudice
       Vasquez next contends that the district court assigned him the incorrect
standard of proof when it stated that he had to establish prejudice by “clear and
convincing evidence.”42 Under the AEDPA, “a determination of a factual issue
made by a State court shall be presumed to be correct. The applicant shall have
the burden of rebutting the presumption of correctness by clear and convincing
evidence.”43 Nevertheless, “[o]n questions of law, as well as mixed questions of



       40
         Penry v. Lynaugh, 

, 324 (1989), abrogated on other grounds by Atkins v.
Virginia, 

(2002) (noting that “mental retardation and history of abuse is thus a
two-edged sword: it may diminish [petitioner's] blameworthiness for [the] crime even as it
indicates that there is a probability that he will be dangerous in the future”).
       41
            Cockrum v. Johnson, 

, 304-05 (5th Cir. 1997) (collecting cases).
       42
          Vasquez, 

at *12-13 (noting that “Petitioner fails to demonstrate by
clear and convincing evidence that the state court’s finding [that evidence of Vasquez’s mental
impairments would not have been reasonably likely to lead the jury to withhold the death
penalty] is unreasonable.”).
       43
            28 U.S.C. § 2254(e)(1).

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                                        No. 08-70034

law and fact, the district court was required, under AEDPA, to defer to the
state-court’s decision unless it ‘was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court.’”44 “An ineffective assistance of counsel claim presents a mixed question
of law and fact.” 45
       Based on the foregoing, the district court erred when it stated that
“Petitioner fails to demonstrate by clear and convincing evidence that the state
court’s finding is unreasonable.”46 Moreover, this error is revealed in the district
court’s own opinion. In its initial articulation of the standard of review, the court
expressly identified the correct standard under the AEDPA, and went on to
conclude, after its review of the newly adduced mitigating evidence, that
“Vasquez fails to demonstrate a reasonable probability that the mitigating
evidence would have altered the jury’s balancing of aggravating and mitigating
factors” and that, therefore, “[t]he State Court’s rejection of this claim was
neither ‘contrary to’ nor an ‘unreasonable applicable of’ clearly established
federal law.” These additional statements by the district court, articulating and
assigning the correct burden to petitioner, lead us to conclude that it was a
simple drafting error that made it appear as though the district court had
engrafted the heightened “clear and convincing” evidence standard of proof onto
the objective unreasonableness standard mandated by the AEDPA. Even though
we recognize that this drafting error incorrectly stated the governing standard
of proof, we affirm the district court’s ruling on Vasquez’s Wiggins claim because,



       44
          Bartee v. Quarterman, 339 Fed. App’x 429, 432 (5th Cir. 2009) (internal citations
omitted); Miller-El v. Cockrell, 

, 340 (2003) (“A federal court can disagree with a
state court’s credibility determination and, when guided by AEDPA, conclude the decision was
unreasonable or that the factual premise was incorrect by clear and convincing evidence.”).
       45
            Ward v. Dretke, 

, 486 (5th Cir. 2005).
       46
            Vasquez, 

at *12-13.

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                                         No. 08-70034

under the correct standard, Vasquez has not proven that the state court’s
prejudice determination was objectively unreasonable.
2.      IAC predicated on appellate counsel’s conflict of interest
        Vasquez also asserts an IAC claim against his appellate counsel, insisting
that his attorney on appeal labored under an actual conflict of interest because
he simultaneously served as a special prosecutor seeking to uphold two
unrelated capital convictions for the same district attorney’s office that
prosecuted Vasquez. The state court’s conclusion that no actual conflict existed
is a conclusion of law,47 and as such it is subject to the “contrary to” or
“unreasonable application” standard of review under the AEDPA.
        To obtain relief based on counsel’s conflict of interest, “a defendant who
raised no objection at trial must demonstrate that an actual conflict of interest
adversely affected his lawyer’s performance.”48 Importantly, the mere “possibility
of conflict is insufficient to impugn a criminal conviction.”49 In Mickens v. Taylor,
the Supreme Court explained that
        we think ‘an actual conflict of interest’ mean[s] precisely a conflict
        that affected counsel’s performance–as opposed to a mere theoretical
        division of loyalties. It was shorthand for the statement [in Cuyler]
        that ‘a defendant who shows that a conflict of interest actually
        affected the adequacy of his representation need not demonstrate
        prejudice in order to obtain relief. . . .Thus, the [Cuyler] standard is
        not properly read as requiring inquiry into actual conflict as
        something separate and apart from adverse effect. An ‘actual




        47
             Cuyler v. Sullivan, 

, 342 (1980).
        48
          

Note here that Vasquez was unaware that counsel simultaneously
represented the Nueces district attorney’s office in other capital appeals, and the record does
not indicate that this fact was divulged to the appellate court.
        49
             

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                                         No. 08-70034

       conflict,’ for Sixth Amendment purposes, is a conflict of interest that
       adversely affects counsel’s performance.50
       This circuit has further refined the Cuyler inquiry by requiring that “[a]
defendant must show more than a speculative or potential conflict;” 51 to meet
this standard requires that “it . . . be demonstrated that the attorney made a
choice between possible alternative courses of action . . . . If he did not make
such a choice, the conflict remained hypothetical.”52                  Relevant factors may
include (1) whether the attorney had confidential information that was helpful
to one client but harmful to the other client; (2) whether and how closely related
were the subject matters of the cases; (3) how close in time the multiple
representations occurred; and (4) whether the prior representation has
terminated.53 Ultimately, however, we have noted before that “Cuyler’s ‘actual
conflict’ and ‘adverse effect’ elements have been described as ‘rather vague’” and
such a determination is therefore “tightly bound to the particular facts.” 54
       Vasquez’s conflict-based IAC claim may be reduced to the assertion that,
because the interests of a criminal defendant and the office of the prosecutor
that convicted him are inescapably adverse, his appellate attorney was, ex
definitio, actively representing conflicting interests. All the authorities that
Vasquez cites involved a defense attorney’s present representation of a
defendant and the past representation (civil or criminal) of a witness for the




       50
          Mickens v. Taylor, 

, 164 (2002) (addressing “what a defendant must show
in order to demonstrate a Sixth Amendment violation where the trial court fails to inquire into
a potential conflict of interest about which it knew or reasonably should have known.”)
       51
            United States v. Garcia-Jasso, 

, 243 (5th Cir. 2006).
       52
            

v. Scott, 

, 1277 (5th Cir. 1995) (en banc).
       

. Burns, 

, 856 (5th Cir. 2008).
       54
            Perillo v. Johnson, 

, 782 (5th Cir. 2000) (citing 

).

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                                        No. 08-70034

prosecution in the defendant’s ongoing criminal trial.55 Consideration of the
particular situation presented here—a special prosecutor who simultaneously
serves as a capital defense attorney in the same jurisdiction—appears to be res
nova in this circuit, and, indeed, in all but one other circuit. It appears that only
the Seventh Circuit has addressed this particular type of conflict, and it squarely
rejected the argument that Vasquez advances here. In Small v. Endicott, the
Seventh Circuit held that a pro se defendant failed to demonstrate the existence
of a cognizable actual conflict under the Sixth Amendment because he did not
point to anything other than the fact “that his attorney served as a special
prosecutor in an unrelated murder” in the same jurisdiction while he was
defending the petitioner.56 The Small court reasoned that “we do not find a
conflict of interest where there exist separate and distinct criminal cases
involving neither the same parties nor facts.” 57
       We do not today suggest that an arrangement such as the one presented
here could not, under different circumstances, present an actual conflict,58 but
we cannot conclude on the record before us that the state court’s conclusion was


       55
          United States v. Martinez, 

, 363 (5th Cir. 1980); Stephens v. United
States, 

, 1066 (5th Cir. 1979); Zuck v. Alabama, 

, 439 (5th Cir.
1979); Castillo v. Estelle, 

(5th Cir. 1974) .
       56
            

, 417 (7th Cir. 1993).
       57
            

e.g., Burger v. Kemp, 

, 784-85 (1987). In Kemp, the Court treated
partners in a law firm who represented different defendants in different trials involving a
single criminal transaction as a single attorney for conflicts purposes. “The two partners [had]
shared their legal research and discussed the cases with one another,” and the respective
theories of each co-defendant “sought to emphasize the culpability of the other in order to
avoid the death penalty.” 

Although the Court “assum[ed] without deciding” that
two law partners are considered one attorney for the purposes of the conflicts analysis,
Kemp nevertheless suggests that a special prosecutor and a prosecutor may be treated as law
partners—and therefore, have one another’s loyalties and conflicts imputed to the
other—under certain circumstances.


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                                  No. 08-70034

objectively unreasonable. As in Small v. Endicott, Vasquez’s appellate counsel
served as a special prosecutor in totally “separate and distinct” capital cases.
Further, Vasquez does not allege that his counsel possessed confidential, “zero-
sum” information that would have aided his defense but would have required his
attorney to breach a duty to the Nueces County district attorney’s office.
Bearing in mind that the only circuit to have considered such a fact pattern held
that it did not rise to the level of an actual conflict, we conclude that, under the
highly deferential standard of review imposed by the AEDPA, the state court
was not objectively unreasonable in holding that, without more, appellate
counsel’s simultaneous service as a special prosecutor in unrelated capital cases
did not establish an actual conflict under prevailing federal law as established
by the Supreme Court.
                              III. CONCLUSION
      We hold that although it was objectively unreasonable for the state court
to conclude that Vasquez’s trial counsel’s performance was constitutionally
sound, Vasquez was not prejudiced by his trial counsel’s deficient performance.
We also hold that it was not objectively unreasonable for the state court to
conclude that Vasquez’s appellate counsel did not labor under an actual conflict
of interest. The judgment of the district court denying habeas relief to Vasquez
is, therefore,
AFFIRMED.




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