Case: 11-70004     Document: 00511763700         Page: 1     Date Filed: 02/22/2012




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

                                                                            FILED
                                                                         February 22, 2012

                                       No. 11-70004                        Lyle W. Cayce
                                                                                Clerk

CARLOS MANUEL AYESTAS, also known as Dennis Zelaya Corea,

                                                  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. 4:09-CV-2999


Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        A Texas jury sentenced Carlos Manuel Ayestas to death for a murder he
committed during a home robbery. The Texas Court of Criminal Appeals
affirmed. That court also denied his application for habeas corpus. Ayestas then
applied for a writ of habeas corpus from the United States District Court for the
Southern District of Texas. It, too, was denied. Ayestas now seeks a certificate
of appealability (“COA”) from this court on four issues. We DENY the COA.


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                 No. 11-70004

                                    FACTS
      On September 5, 1995, Carlos Manuel Ayestas and two other men entered
into the Houston, Texas home of Santiaga Paneque, to commit a robbery.
Paneque was killed during the robbery. Her son later discovered her body lying
in a pool of blood on the floor of the master bathroom. She had been bound with
the cord of a clock as well as by duct tape. Duct tape had also been placed over
her eyes and around her neck. The wounds on her face resulted from a severe
beating. The autopsy showed that she had numerous fractures as well as
internal hemorrhaging. These injuries were inflicted prior to death. While they
were serious, none were fatal. Rather, Paneque was killed by strangulation.
      The roll of duct tape used to bind Paneque was found at the scene.
Ayestas’s fingerprints were on the roll and also on the pieces of tape which were
used to bind Paneque’s ankles.
      A few weeks later, while in Kenner, Louisiana, Ayestas confided to another
man that he had killed a woman in Houston in the course of a robbery earlier
that month. Ayestas sought the man’s assistance in killing his two accomplices
because he feared they would say too much. If the man did not help, Ayestas
said he would kill him as well. To make his point, he brandished a machine gun.
      After Ayestas went to sleep, the man called the police. Ayestas was
arrested and in time returned to Texas for prosecution.
      Ayestas was indicted for capital murder and convicted after a jury trial.
At the punishment stage, Texas presented evidence that, three days after
Paneque’s murder, Ayestas and two other men burglarized a hotel room.
Ayestas, armed with a machine gun, forced the two occupants into the bathroom
and threatened to kill them. After one of the men begged for his life, Ayestas
decided not to murder them. He warned the men that if either called the police,
Ayestas would kill their families. Ayestas introduced into evidence three letters



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                                  No. 11-70004

from the English teacher at the Harris County Jail stating he was a serious,
well-behaved student who had no history of committing violent crimes.
      The jury determined that Ayestas would likely commit future violent
crimes. He was sentenced to death.
      Ayestas appealed to the Texas Court of Criminal Appeals. That court
affirmed both his conviction and his sentence. He then filed an application for
habeas corpus with that court. It was denied.
      Ayestas then applied for a writ of habeas corpus from the United States
District Court for the Southern District of Texas. See 28 U.S.C. § 2254. He
alleged he received ineffective assistance of counsel, the evidence was
insufficient to convict, the jury instructions were unconstitutional, his rights
under the Vienna Convention were violated, and multiple portions of the trial
violated his Fourteenth Amendment right to due process.
      The district court denied Ayestas’s petition. It also refused to grant a
COA. Before this court, Ayestas requestes a COA on the following issues. (1)
His counsel was ineffective by failing to investigate mitigating evidence and not
preparing for trial in a timely manner. (2) His Sixth, Eighth, and Fourteenth
Amendment rights were violated when the police did not inform him of his rights
under the Vienna Convention and his counsel failed to object to this fact at trial.
(3) He received ineffective assistance when his trial counsel did not object to the
dismissal of certain prospective jury members and this failure led to a
constitutionally infirm trial. (4) He should be allowed to return to state court to
exhaust certain claims.
                                 DISCUSSION
      To obtain a certificate of appealability, an applicant must make “a
substantial showing of the denial of a constitutional right.”        28 U.S.C. §
2253(c)(2). That showing is made if “jurists of reason could disagree with the
district court’s resolution of his constitutional claims or that jurists could

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                                  No. 11-70004

conclude the issues presented are adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 

, 327 (2003). Our review is distinct
from a ruling on the merits of the applicant’s claims. It “requires an overview
of the claims in the habeas petition and a general assessment of their merits.”

This court does not have jurisdiction to resolve the merits unless a
certificate of appealability is granted. 

In a capital case, “any doubts
as to whether a COA should issue must be resolved in the petitioner’s favor.”
Mitchell v. Epps, 

, 142 (5th Cir. 2011) (quotation marks and citation
omitted).
      These examinations must be made through AEDPA’s deferential lens.
Reed v. Quarterman, 

, 471 (5th Cir. 2007). Federal habeas relief is
permitted only if “the state court’s adjudication on the merits (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 upon an unreasonable
determination of the facts in light of the evidence presented in the state court
proceeding.’” Rocha v. Thaler, 

, 393 (5th Cir. 2010) (quoting 28
U.S.C. § 2254(d)), cert. denied, 

(2011). Any factual determinations
made by the state court are “presumed to be correct” and the applicant can
overcome this presumption only “by clear and convincing evidence.” 28 U.S.C.
§ 2254(e)(1).
      1.    Ineffective Assistance of Counsel in Failing to Investigate
      Ayestas argues that his counsel was ineffective during the punishment
phase. Generally, to prove a violation of the Sixth Amendment right to counsel,
a defendant must show his counsel’s representation fell below “prevailing
professional norms,” and that there is a reasonable probability prejudice
resulted. Strickland v. Washington, 

, 688, 694 (1984). Under the
usual circumstances of direct review, it is “strongly presumed” that counsel has

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                                    No. 11-70004

“rendered adequate assistance and made all significant decisions in the exercise
of reasonable professional judgment.” Cullen v. Pinholster, 

, 1403
(2011) (quotation marks and citation omitted). “To overcome that presumption,
a defendant must show that counsel failed to act reasonably considering all the
circumstances.” 

and citation omitted).
       A counsel’s decision to limit any investigation is permissible “to the extent
that   reasonable    professional    judgments     support     the   limitations      on
investigation.”   

.       “[S]crutiny of a counsel’s
performance must be highly deferential” and “every effort must be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Bell v. Cone, 

, 698 (2002) (quotation marks
and citation omitted).
       In addition to proving the unreasonableness of the representation, a
petitioner must prove prejudice. 

. The prejudice
must be of the kind there is a “substantial, not just conceivable,” likelihood of a
different result. Harrington v. Richter, 

, 792 (2011). That is, after
independently reviewing the evidence for and against aggravation presented at
trial and before the state habeas court, “there is a reasonable probability that,
absent the errors, the jury would have answered the mitigation issue
differently.” Ex Parte Gonzales, 204 S.W.3d. 391, 394 (Tex. Crim. App. 2006).
       Because of AEDPA, when the court is asked to review a state habeas
court’s decision regarding the effectiveness of trial counsel, its review is “doubly
deferential.” Druery v. Thaler, 

, 538-39 (5th Cir. 2011) (quotation
marks and citation omitted). To obtain a COA, a petitioner must show that it
was “necessarily unreasonable for the [state court] to conclude: (1) that he had
not overcome the strong presumption of competence; and (2) that he had failed
to undermine confidence in the jury’s sentence of death.” 

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                                  No. 11-70004

1403. Therefore, in the AEDPA context, this court does not ask whether the trial
counsel’s conduct was sufficiently deficient. Rather, the correct question is
whether the state habeas court’s decision that the attorney was constitutionally
adequate was objectively unreasonable. Amos v. Thornton, 

, 204-05
(5th Cir.), cert. denied, 

(2011). Because an incorrect application
of federal law is not by itself unreasonable, Pape v. Thaler, 

, 287
(5th Cir. 2011), cert. denied, 

(Jan. 17, 2012), relief may be
granted only “in cases where there is no possibility fairminded jurists could
disagree that the state court’s decision conflicts with [the Supreme Court’s]
precedents.” 

.
      For a COA, we are limited to deciding whether jurists of reason would find
the answers to these questions debatable or whether the issues deserve
encouragement to proceed. 

.
      Ayestas claims that his counsel was ineffective by waiting until shortly
before trial to investigate whether mitigating evidence might exist which could
be used during the trial’s punishment phase. In support of his argument,
Ayestas relies on the ABA 1989 Death Penalty Guidelines. Those guidelines
provide that investigations regarding the punishment phase of a capital trial
“should begin immediately upon counsel’s entry into the case and should be
pursued expeditiously.”     ABA 1989 Guidelines, Guideline 11.4.1.A.              An
investigation should occur “regardless of any initial assertion by the client that
mitigation is not to be offered. This investigation should comprise efforts to
discover all reasonably available mitigating evidence.” 

He stresses the immediacy required by the Guidelines.
      He asserts that his trial counsel failed to follow the Guidelines by not
investigating possible mitigating evidence until days before trial. Texas disputes
this factual assertion, arguing that defense counsel diligently investigated



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                                  No. 11-70004

mitigating evidence long before the eve of trial and would have done more but
for Ayestas’s refusal to cooperate.
      The ABA Guidelines do not control our assessment. The Supreme Court
has explained that “the Federal Constitution imposes one general requirement:
that counsel make objectively reasonable choices.” Bobby v. Van Hook, 130 S.
Ct. 13, 17 (2009) (quotation marks and citation omitted). “The question is
whether an attorney’s representation amounted to incompetence under
‘prevailing professional norms,’ not whether it deviated from best practices or
most common custom.” Premo v. Moore, 

, 740 (2011) (quoting

). We look for guidance about the norms in the
relevant state as they existed at the time of the trial. See Wiggins v. Smith, 

, 524 (2003). Ayestas cites cases from other circuits, but he fails to
identify any authority that explains the professional norms of the Texas bar.
      The Guidelines are helpful only if they “reflect prevailing norms of
practice.” Van 

n.1 (quotation marks and citation omitted).
The Guidelines also “must not be so detailed that they would interfere with the
constitutionally protected independence of counsel and restrict the wide latitude
counsel must have in making tactical decisions.” 

and
citation omitted). Whether a counsel’s decisions are legitimate will depend on
the circumstances. 

We now turn to the circumstances of this case.
      The state habeas court found that before trial, Ayestas repeatedly told his
attorney that he did not want his family in Honduras to be contacted. After the
jury was selected, Ayestas changed his mind. Once Ayestas relented, the state
habeas court determined that his counsel acted diligently. She employed an
investigator and sought the assistance of the American Embassy in Honduras.
According to the state court, “Ayestas’s sister stated there were reasons the
family would have difficulty leaving Honduras for the applicant’s trial, including
their father’s illness, economic reasons, and their father’s murder of a neighbor.”

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                                     No. 11-70004

The totality of the circumstances led the state court to conclude that Ayestas’s
trial counsel was not ineffective.
      Ayestas argues that the state court decision conflicts with two Supreme
Court cases, Rompilla v. Beard, 

(2005), and Porter v. McCollum,

(2009). In Rompilla, the Court held that counsel was ineffective
for failing to review the state’s file regarding the defendant’s prior 

. This file was important because the state had indicated that
it planned to use the defendant’s past conviction as evidence of his violent
character. 

Counsel reviewed a part of the file only after being
warned twice by the state that it would present a portion of the transcript of the
prior victim’s testimony. 

Once counsel retrieved the file, he only
reviewed her testimony. He “apparently examined none of the other material
in the file.” 

Counsel’s efforts were unreasonable: the file was readily
available, concerned a crime similar to the one charged, and counsel knew the
state would review the file for aggravating evidence. See 

      Here, Ayestas complains of counsel’s failure to investigate and interview
persons in Honduras regarding his childhood and lack of a criminal record. His
counsel’s task was much more arduous than simply reviewing a “file sitting in
the trial courthouse, open for the asking.” 

delayed in beginning the
effort by Ayestas’s own conduct.
      Ayestas also refers us to a case in which a jury sentenced to death a
decorated Korean War veteran who suffered from post-traumatic stress disorder,
was mildly retarded, and had been beaten severely throughout his childhood by
his father. 

. Although his counsel noted these “other
handicaps,” the mitigating evidence introduced at trial consisted of inconsistent
testimony regarding Porter’s behavior while intoxicated and that he and his son
had a good relationship. 

His counsel failed to introduce additional
evidence because the counsel had only a brief meeting with Porter, failed to

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                                  No. 11-70004

obtain any of Porter’s school, medical, or military records, and did not interview
any members of his family. 

The Court held that the counsel’s
conduct was unreasonable because “counsel did not even take the first step of
interviewing witnesses or requesting records.” 

not matter that Porter
had asked that his ex-wife and son not be interviewed – he did not forbid
speaking with anyone else. 

counsel’s conduct was objectively
unreasonable because he failed “to conduct some sort of mitigation
investigation.” 

Porter, the trial counsel here requested documents from the
state and interviewed numerous persons regarding the mitigation phase of trial.
      AEDPA provides relief “if the state court (1) arrives at a conclusion
opposite to that reached by the Supreme Court on a question of law; or (2)
confronts facts that are materially indistinguishable from a relevant Supreme
Court precedent and reaches an opposite result.” Simmons v. Epps, 

, 534 (5th Cir. 2011) (quotation marks and citation omitted).
      We considered a related claim by a state prisoner who alleged ineffective
assistance because his counsel failed “to hire an investigator or contact and
interview witnesses for trial including [the prisoner’s] family members about
testifying at the punishment phases of the trial.” Roberts v. Dretke, 

, 638 (5th Cir. 2004). That argument failed because before trial the prisoner
had instructed his attorney not to contact his family or hire an investigator. 

639. He could not claim after-the-fact that his counsel was ineffective for
following his instructions. 

“Under Fifth Circuit case law, ‘when a
defendant blocks his attorney’s efforts to defend him, including forbidding his
attorney from interviewing his family members for purposes of soliciting their
testimony as mitigating evidence during the punishment phase of the trial, he
cannot later claim ineffective assistance of counsel.’” Sonnier v. Quarterman,

, 362 (5th Cir. 2007) (quoting 

).

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                                  No. 11-70004

      As noted, we do not ourselves decide whether Ayestas received ineffective
assistance of counsel. AEDPA requires this court to ask “whether it is possible
fairminded jurists could disagree” that the state court’s decision conflicts with
Supreme Court precedent. 

. If the answer to that
question is yes, federal habeas relief is unavailable. 

court
supported its conclusions with citations to Texas precedent for instances where
similar representation was found to not be ineffective. “A state court must be
granted deference and latitude” to determine whether the counsel’s conduct fell
below the Sixth Amendment’s floor. 

Due to the leeway AEDPA
provides, our general review shows that “it is not debatable that the state court’s
resolution of this issue was not unreasonable.” 

.
      2.    Ayestas’s Rights Under the Vienna Convention
      Ayestas argues that his constitutional rights were violated because he was
never told of the protections afforded to him by Article 36 of the Vienna
Convention. See Vienna Convention on Consular Relations, Apr. 24, 1963, 21
U.S.T. 77, T.I.A.S. No. 6820. This argument was not made at trial. For this
reason, the state habeas court held it was procedurally defaulted. Usually, a
federal court may not entertain a claim when the state court did not address it
due to the prisoner’s failure to comply with a state procedural requirement so
long as the court’s determination was based upon “independent and adequate
state procedural grounds.” Maples v. Thomas, 

, 922 (2012)
(quotation marks and citation omitted). The Texas contemporaneous objection
rule is a procedural requirement that serves as an independent and adequate
ground. Cardenas v. Dretke, 

, 249 (5th Cir. 2005).
      Ayestas argues that, notwithstanding his default, he should be allowed to
pursue the claim because cause for the default exists due to his trial counsel’s
ineffectiveness. This prejudiced him because, had the Honduran Consulate been
notified sooner, “it would have been in a better position to lend support.”

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                                  No. 11-70004

      His claim is not debatable among jurists of reason nor does it deserve
encouragement to proceed. To prove ineffective assistance, he must show that
his counsel’s performance was unreasonable and that he was thereby prejudiced.

. He cannot prove either because this Article of the
Vienna Convention “does not create individually-enforceable rights.” 

. Because any objection would have been futile, his counsel’s failure
to object was neither unreasonable nor prejudicial. See Meanes v. Johnson, 

, 1011-12 (5th Cir. 1998). Additionally, he does not show prejudice
because he fails to claim that the Honduran consulate would have provided any
support. He simply contends that it would have been in a better position to be
supportive had it been informed. He invites this court to speculate whether the
consulate would have acted in specific ways. We decline to do so. His request
for a COA on this issue is denied.
      3.    Dismissal of Prospective Jurors
      Ayestas claims the voir dire was inadequate and that he received
ineffective assistance of counsel when his counsel did not object to the dismissal
of prospective jurors who were disinclined to impose the death penalty. This
alleged error, he argues, led to a jury prone to sentence him to death.
      A prospective juror may be excused for cause “if their views on capital
punishment would prevent or substantially impair the performance of their
duties in accordance with the instruction and oath.” United States v. Fields, 

, 357 (5th Cir. 2007) (quotation marks and citation omitted). For
example, it is proper to strike a venire member who states he “could never,
regardless of the facts and circumstances, return a verdict which resulted in the
death penalty.” 

also proper to strike a member who, in response to
being asked whether she could vote for death under any circumstances answers,
“No, I don’t think so.” Williams v. Collins, 

, 632-33 (5th Cir. 1994).



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                                   No. 11-70004

      The state habeas court found that the trial court individually questioned
each member of the venire and “elicited information that they would not impose
the death penalty under any circumstances.” The state court held that this
approach “did not lessen the State’s burden [to strike a potential juror] for cause
and that the State’s burden was met through the responses elicited by the trial
court during voir dire examination.” Ayestas has failed to rebut these findings
with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
      Ayestas also argues that his counsel should have further questioned the
venire members. We do not find that failure to be improper. Once prospective
jurors have indicated during general voir dire that they would not impose the
death penalty under any circumstances, further questioning is not required. See
Ortiz v. Quarterman, 

, 503 (5th Cir. 2007). A COA will not issue.
      4.     Unexhausted Claims
      Before the district court, Ayestas requested a stay and abeyance so that
he could return to state court to pursue admittedly unexhausted claims. A “stay
and abeyance should be available only in limited circumstances.” Rhines v.
Weber, 

, 277 (2005). Courts should be cautious about granting these
motions as they “undermine[] AEDPA’s goal of streamlining federal habeas
proceedings by decreasing a petitioner’s incentive to exhaust all his claims in
state court prior to filing his federal petition.” 

court’s denial of a
stay and abeyance is reviewed for abuse of discretion. Williams v. Thaler, 

, 309 (5th Cir.), cert. denied, 

(2010).
      When an applicant for a writ of habeas corpus brings an unexhausted
claim in federal court, as Ayestas has done here, “stay and abeyance is
appropriate when the district court finds that there was good cause for the
failure to exhaust the claim; the claim is not plainly meritless; and there is no
indication that the failure was for purposes of delay.” 

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                                  No. 11-70004

      Ayestas fails to show good cause. His position is premised on the belief
that his state habeas counsel failed to raise certain claims. Assuming his
allegation to be true, it is nonetheless insufficient. Generally, errors by “habeas
counsel cannot provide cause for a procedural default.” Cantu v. Thaler, 

, 166 (5th Cir. 2011) (quotation marks and citation omitted).
      Further, any claim is meritless because it is procedurally barred. See

. With only a few exceptions, Texas bans subsequent
habeas petitions. See Tex. Code Crim. Proc. art. 11.071, § 5(a). The exceptions
clause requires a prisoner to prove the factual or legal basis for his current
claims was unavailable when he filed his previous petition and that “the specific
facts alleged, if established, would constitute a constitutional violation that
would likely require relief from either the conviction or sentence.” Ex Parte
Campbell, 

, 421 (Tex. Crim. App. 2007). Ayestas has failed to
allege that the factual and legal basis for his claim was unavailable when he
filed his previous petition. Rather, he asserts that a better attorney would have
pressed the claims. Such a statement is a tacit admission that the claims he now
seeks to exhaust could have been advanced in his previous state habeas
proceeding. Therefore, his unexhausted claims are procedurally barred. That
Ayestas has not shown that the district court abused its discretion by denying
the motion for stay and abeyance is beyond reasonable debate.
      Ayestas’s motion for a certificate of appealability is DENIED.




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