Case: 15-70019     Document: 00514051218    Page: 1   Date Filed: 06/27/2017




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                 No. 15-70019                           FILED
                                                                    June 27, 2017
                                                                    Lyle W. Cayce
                                                                         Clerk
CARLOS TREVINO,
                                            Petitioner–Appellant,
versus
LORIE DAVIS, Director,
 Texas Department of Criminal Justice, Correctional Institutions Division,
                                            Respondent–Appellee.



                  Appeal from the United States District Court
                       for the Western District of Texas




Before SMITH, DENNIS, and CLEMENT, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Carlos Trevino appeals the denial of habeas corpus relief on his claim of
ineffective assistance of trial counsel (“IATC”). Because Trevino has not dem-
onstrated that trial counsel’s performance in the punishment phase prejudiced
him, we affirm.

                                       I.
      Trevino was convicted of capital murder for killing Linda Salinas.
Further discussion of the factual background can be found in Trevino v. Thaler,

, 449–50 (W.D. Tex. 2009), and Trevino v. Davis, 829 F.3d
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                                  No. 15-70019
328, 332–33 (5th Cir. 2016). We recite only the facts needed to resolve the
merits of the IATC claim regarding the mitigating evidence of fetal alcohol
spectrum disorder (“FASD”), the claim on which we granted a certificate of
appealability (“COA”).

                                        A.
      Before the punishment phase, Trevino’s counsel investigated the ques-
tion of mitigation.
   [T]rial counsel attempted to find family members “that could give us
   some idea as to where or how Mr. Trevino grew up. What was going on
   in his life. What were the circumstances, you know, regarding his past.
   And we tried to find them, but really, I don't think we came up with any
   witnesses. We tried to contact his mother as best we could. She was
   from out of the city.” Trial counsel retained an investigator to track
   down [Trevino’s] education records. . . . Trial counsel interviewed [Tre-
   vino’s] stepfather. [Trevino] failed to assist his trial counsel in identify-
   ing any family members or others who may have provided mitigating
   testimony.
Trevino v. Stephens, No. SA–01–CA–306–XR, 

, at *11 (W.D.
Tex. June 11, 2015). Trevino’s mother was the main connection to the evidence
of FASD. Trevino’s trial counsel testified at the state habeas hearing that Tre-
vino’s “mother was aware of [his] trial but she refused to communicate with
[his] defense counsel.” 

n.35. That was not contested until 2003,
when trial counsel stated in an affidavit that “I did know his mother was
around but we never could connect. I believe she lived somewhere near Bas-
trop, Texas. I heard she was in the court house [sic] one time but I never did
talk with her.”

      Trial counsel ultimately put on a short presentation regarding mitiga-
tion. The district court’s original opinion summarized the evidence presented
in the punishment phase as follows:
   The prosecution presented evidence establishing (1) [Trevino] was first

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                                 No. 15-70019
   referred to the Bexar County juvenile probation office at age thirteen,
   (2) as a juvenile, [Trevino] was adjudicated on charges of evading ar-
   rest, possession of up to two ounces of marijuana, unauthorized use of
   a motor vehicle, and unlawfully carrying a weapon (identified as a nine
   millimeter handgun), and (3) [Trevino] was convicted as an adult of
   operating a motor vehicle while intoxicated, burglary of a vehicle, and
   burglary of a building. The jury also heard uncontradicted testimony
   establishing (1) [Trevino] had identified himself to a juvenile probation
   officer as a member of a street gang and (2) [Trevino] was a documented
   prison gang member whose body bore the tell-tale tattoos indicative of
   [his] membership in the violent prison gang La Hermidad y Pistoleros
   Latinos (“HPL”).
   The defense presented a single witness, Trevino’s aunt, who testified
   (1) she had known [Trevino] all his life, (2) [his] father was largely
   absent throughout [his] life, (3) [his] mother “has alcohol problems right
   now,” (4) [his] family was on welfare during his childhood, (5) [Trevino]
   was a loner in school, (6) [Trevino] dropped out of school and went to
   work for his mother's boyfriend doing roofing work, (7) [Trevino] is the
   father of one child and is good with children, often taking care of her
   two daughters, and (8) she knows [he] is incapable of committing capital
   murder.
   On July 3, 1997, after deliberating approximately eight hours, [Tre-
   vino’s] jury returned its verdict at the punishment phase of trial, find-
   ing (1) beyond a reasonable doubt, there is a probability [Trevino] would
   commit criminal acts of violence which would constitute a continuing
   threat to society, (2) beyond a reasonable doubt [Trevino] actually
   caused the death of Linda Salinas or, if [he] did not actually cause her
   death, [he] intended to kill her or another, or [he] anticipated a human
   life would be taken, and (3) taking into consideration all of the evidence,
   including the circumstances of the offense, [Trevino’s] character and
   background, and [his] personal moral culpability, there were insuffici-
   ent mitigating circumstances to warrant a sentence of life imprison-
   ment be imposed upon [Trevino]. In accordance with the jury's verdict,
   the state trial court imposed a sentence of death.

–53.

     Trevino’s initial collateral-review proceedings began with new appointed
counsel while the direct appeal was ongoing. His initial state habeas counsel
brought IATC claims with respect to the penalty phase but did not include a

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                                  No. 15-70019
claim that trial counsel had failed adequately to investigate and present miti-
gating circumstances. Trevino alleges in his second amended petition that his
state habeas counsel’s petition included only “record-based claims” and that he
conducted no independent mitigation investigation to uncover new evidence
that might have lead him to conclude that he should bring an IATC claim on
mitigation grounds.

                                        B.
      After Trevino’s state habeas petition had been denied by the Texas Court
of Criminal Appeals, he filed a federal habeas petition, raising for the first time
his claim that trial counsel had been ineffective in investigating and presenting
mitigating evidence at the punishment phase.
   The federal court stayed proceedings to permit Trevino to raise this
   claim in state court. The state court held that because Trevino had not
   raised this claim during his initial postconviction proceedings, he had
   procedurally defaulted the claim, and the Federal District Court then
   denied Trevino’s [IATC] claim. The District Court concluded in
   relevant part that, despite the fact that “even the most minimal inves-
   tigation . . . would have revealed a wealth of additional mitigating evi-
   dence,” an independent and adequate state ground (namely Trevino's
   failure to raise the issue during his state postconviction proceeding)
   barred the federal habeas court from considering the [IATC] claim.
Trevino v. Thaler, 

, 1916 (2013). We affirmed on the same
ground. The Supreme Court reversed, extending its holding in Martinez v.
Ryan, 

, 17 (2012), that ineffective assistance of state habeas counsel
would excuse procedural default of IATC claims, to Texas, where “it [is] highly
unlikely in a typical case that a defendant will have a meaningful opportunity
to raise a claim of [IATC] on direct appeal . . . .” 

.

      We remanded to the district court, where Trevino filed his second
amended habeas petition. That court denied all habeas relief under that
petition and refused to grant a COA, so Trevino sought a COA from this court.

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                                      No. 15-70019
    [W]e grant[ed] [it] on the questions of whether the district court erred
    by: (1) concluding that Trevino failed to sufficiently plead cause to ex-
    cuse his procedural default under Martinez/Trevino; (2) concluding
    that Trevino’s trial counsel’s performance was not deficient under
    Strickland with respect to his failure to discover and introduce FASD
    evidence; and (3) concluding that Trevino's trial counsel’s performance
    did not prejudice Trevino to the extent his counsel failed to investigate
    and present evidence, both expert and lay, showing that Trevino suffers
    from FASD.
 

. We now review the merits of those claims. 1

                                            II.
       Trevino’s IATC claim was procedurally defaulted because he did not
raise it in his initial state habeas petition. The procedural default may now be
excused if he can demonstrate that his state habeas counsel was ineffective
and the underlying IATC claim is substantial. 

. The
substantiality of the underlying IATC claim is based on the same standard for
granting a COA. 

. We have already issued a COA on
that issue, so we assume that requirement is satisfied. See 

. We further assume, without deciding, that Trevino’s state habeas
counsel was ineffective.

                                            III.
       Trevino’s IATC claim fails, because he has not shown that he was
prejudiced by the mitigation investigation of his trial counsel. 2               To prove


       1 In granting the COA, we stated that not only were these issues debatable, but “rea-
sonable jurists would agree that the district court erred” by dismissing Trevino’s FASD
claims. 

. That statement is not binding on this panel, because a
merits panel is not bound by a motions panel. See Newby v. Enron Corp., 

, 419
(5th Cir. 2006). Furthermore, we cannot be bound by a merits holding in a COA decision,
because “until a COA has been issued federal courts of appeals lack jurisdiction to rule on
the merits of appeals from habeas petitioners.” Miller-El v. Cockrell, 

, 336
(2003). We review Trevino’s petition on the merits unbound by the COA opinion’s obser-
vations on the merits.
       2   See Strickland v. Washington, 

, 700 (1984) (“Failure to make the
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                                  No. 15-70019
prejudice, “[t]he 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. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” 3 For mitigation-investigation claims,
“we reweigh the evidence in aggravation against the totality of available miti-
gating evidence.” Wiggins v. Smith, 

, 534 (2003). Our merits dis-
cussion is limited by the COA to “potential evidence of FASD,” including “lay
witness testimony, such as personal and family history interviews relevant to
a possible FASD diagnosis, that might otherwise have been excluded as char-
acter witness testimony” as to which a COA was denied. 

.

      Trevino has come forward both with evidence that he suffers from FASD
and with additional lay testimony that he alleges would provide context for the
FASD evidence. He has three experts who report that he suffers from FASD.
Dr. Rebecca H. Dyer, Ph.D., is a clinical and forensic psychologist with Forensic
Associates of San Antonio. She spent twelve and one-half hours interviewing
Trevino and administering nine psychological tests.         She also interviewed
potential mitigation witnesses, including Trevino’s mother, and reviewed some
of the federal habeas record. She determined that “his clinical presentation
and the psychological test results are consistent with the characteristics of
FAE.” His condition “would not have significantly interfered with his ability
to know right from wrong, or to appreciate the nature and quality of his actions
at the time of the capital offense.” But the effect of FASD “on his cognitive
development, academic performance, social functioning, and overall adaptive



required showing of either deficient performance or sufficient prejudice defeats the
ineffectiveness claim.”).
      3   

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                                      No. 15-70019
functioning,” in combination with his difficult family history, “would . . . have
impacted any of Mr. Trevino’s decisions to participate in or refrain from any
activities that resulted in his capital murder charges . . . .”

       Mitigation expert Linda Mockeridge interviewed seven witness and
reviewed some of the record. She also reached the conclusion that Trevino
demonstrated signs of FASD. She confirmed that Trevino’s mother drank
heavily and that he suffered developmental delays, struggled in school, and
was easily angered. She recommended additional testing be done on Trevino
to determine the extent of the damage to his brain that she believed FASD had
caused. Dr. Paul Conner, Ph.D., a clinical neurologist, was brought in to con-
duct some of the testing recommended by Mockeridge. In the email summary
of his findings, Conner found that Trevino demonstrated deficiencies in eight
cognitive domains, where only three are necessary for a diagnosis of FASD. He
concluded that Trevino’s “daily functioning skills are essentially at a level that
might be expected from an individual who was diagnosed with an intellectual
disability.”

       To contextualize his FASD evidence, Trevino includes affidavits from
multiple family members with his second amended petition. 4 His mother,
Josephine Trevino, discussed how she “would usually drink 18 to 24 cans of
Budweiser, every day during [her] pregnancy with Carlos.” Trevino weighed
only four pounds at birth and remained in the hospital until he gained weight.
She explained that Trevino suffered significant injuries as a child, hitting his
head on a piano and being hit by a car and thrown into a street light.




       4 The district court acknowledged that several of the affidavits and reports attached
to Trevino’s second amended petition are unsigned and unauthenticated. Trevino, 

, at *7 n.4. In evaluating the mitigating evidence, the court decided to take into
account those documents “[o]ut of an abundance of caution,” and we do the same. 

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                                  No. 15-70019
      Janet Cruz, Trevino’s ex-girlfriend, states that he was a good father and
caring toward her, but was easily influenced by his friends. She also describes
occasions on which Trevino was violent toward her. Cruz claims that he had
physical altercations with both her and his mother, he once put a gun to Cruz’s
head, he attempted to rape her at knife point, and she “was always fearful of
him.” Peter Trevino, Trevino’s brother, alleges that he witnessed Trevino be
physically violent toward Cruz, including choking her.

      Robert Gonzalez, Trevino’s former employer, comments that Trevino
“has never been involved in violence” and that he was a good worker that
lacked initiative. Mario Cantu, an old friend of Trevino’s, states that he was a
follower and “was a peaceful person and he was not violent.” But Cantu also
acknowledges that he knew Trevino “had firearms and was part of a street
gang,” and two weeks after he was released on parole Trevino went out with
friends “getting high and drunk and robbing people.”           Jennifer DeLeon,
Trevino’s sister, describes the difficulty that he had in school, including repeat-
ing some grade years. His academic problems are also demonstrated in Dyer’s
mitigation report.

      This new mitigation evidence is insufficient to create a reasonable proba-
bility that Trevino would not have been sentenced to death had it been pre-
sented to the jury. Unlike in 

, where the Court held
trial counsel was ineffective, Trevino’s trial counsel did present mitigating
evidence from Trevino’s life history. “Wiggins’ sentencing jury heard only one
significant mitigating factor―that Wiggins had no prior convictions.”           

counsel presented a mitigation witness, his aunt, who covered
his mother’s alcohol problems, his absent father, his trouble in school, and the
love he demonstrated toward her daughters. The prosecution presented aggra-
vating evidence that he had a juvenile criminal record, adult convictions for

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                                        No. 15-70019
DUI, burglary of a vehicle, and burglary of a building and had joined a violent
prison gang.

       We review that evidence along with all of the new evidence that Trevino
has presented to determine whether the outcome of the punishment hearing
was prejudiced. 

The mitigating evidence that Trevino suffers the
effects of FASD would be heard along with Cruz’s graphic testimony of Tre-
vino’s violence toward her and Cantu’s testimony that he was involved in gang
and criminal activity. The FASD evidence itself is also undermined by Dyer’s
conclusion that Trevino’s FASD “would not have significantly interfered with
his ability to know right from wrong, or to appreciate the nature and quality
of his actions at the time of the capital offense.”

       This is a significant double-edged problem that was not present in Wig-
gins. 5 Jurors could easily infer from this new FASD evidence that Trevino may
have had developmental problems reflected in his academic problems and poor
decisionmaking, but that he also engaged in a pattern of violent behavior
toward both Cruz and Salinas that he understood was wrong. Taking all of the
evidence together, we cannot say this new mitigating evidence would create a
reasonable probability that the outcome of Trevino’s sentencing would have
been different.

       The judgment denying habeas relief is AFFIRMED.



       5 

(“Wiggins’ history contained little of the double edge [the
Court] ha[s] found to justify limited investigations in other cases.”). The Court cited Burger
v. Kemp, 

, 794 (1987), and Darden v. Wainwright, 

, 186 (1986), for
examples of double edged evidence preventing a finding of prejudice. 

. In Burger, the petitioner’s new family history evidence included encounters with the
police that had not been previously disclosed as well as evidence of his erratic, violent tenden-
cies. 

. In 

, presenting mitigation evidence
would have allowed the introduction of the petitioner’s prior convictions, including for rape,
and a psychiatric report that determined he was capable of committing the crime. The double
edge of Trevino’s new evidence is analogous to these cases.
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                                     No. 15-70019
JAMES L. DENNIS, Circuit Judge, dissenting:
      During the penalty phase of Carlos Trevino’s capital murder trial, his
defense counsel put on a single mitigation witness, his aunt, who in testimony
that filled only five pages of trial transcript stated little more than that
Trevino’s mother had alcohol problems and was living in nearby Elgin, Texas;
that Trevino had dropped out of high school; and that she thought that he was
incapable of capital murder. Defense counsel had not previously located or
talked to Trevino’s mother, nor did counsel introduce any other mitigating
evidence. After hearing only this and the State’s aggravating evidence, the
jury found that Trevino had failed to demonstrate sufficient mitigating
circumstances to warrant a sentence of life imprisonment without parole. As
a result, he was sentenced to death.
      During federal post-conviction proceedings, Trevino’s federal habeas
counsel contacted Trevino’s mother in Elgin, Texas, and learned from her that
during her pregnancy with Carlos she drank between eighteen and twenty-
four bottles of beer every day. Counsel hired three experts who developed
substantial evidence that Trevino suffers from fetal alcohol spectrum disorder
(FASD), a condition that results from a child’s in utero exposure to alcohol
during his mother’s pregnancy and which can cause brain damage and
resulting impairments in behavioral and cognitive functioning. 1                  Trevino



      1 FASD is an umbrella term used to define a broad range of effects and symptoms
caused by prenatal alcohol exposure. According to the National Institute on Alcohol Abuse
and Alcoholism at the National Institutes of Health,
              Each individual with FASD experiences a unique combination of day-
      to-day challenges that may include medical, behavioral, educational, and social
      problems. People with FASD may have difficulty in the following areas:
      learning and remembering, understanding and following directions, shifting
      attention, controlling emotions and impulsivity, communicating and
      socializing, [and] performing daily life skills, including feeding, bathing,
      counting money, telling time, and minding personal safety. FASD-related
      brain damage makes it difficult to address routine life situations. It causes
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                                       No. 15-70019
argues that his trial counsel was constitutionally ineffective in failing to
conduct a reasonably thorough mitigation investigation, to discover evidence
that he suffered from FASD, and to present this powerful mitigating evidence
to the jury, and he asks this court to reverse the district court’s dismissal of his
claim, vacate his death sentence, and grant him a new penalty trial. I believe
that he is entitled to this relief. Had trial counsel conducted a reasonably
competent investigation, discovered that Trevino suffered from FASD, and
presented evidence of his condition to the jury, there is a reasonable probability
that the result of the penalty phase would have been different, viz., that at
least one juror would have voted against imposing a death sentence. 2 See
Wiggins v. Smith, 

, 537 (2003); see also Strickland v. Washington,

, 694 (1984) (“A reasonable probability is a probability sufficient
to undermine confidence in the outcome.”).
       A majority of the current panel comes to the contrary conclusion and
denies Trevino relief on the merits, holding that trial counsel’s failure to
investigate, discover, and present evidence of Trevino’s FASD during the
penalty phase did not prejudice his case. To reach this conclusion, the majority
opinion misapplies controlling precedent and misconstrues the relevant
evidence. Because a proper application of Supreme Court and Fifth Circuit
decisions to the facts of this case plainly lead to the conclusion that Trevino


       people to make bad decisions, repeat the same mistakes, trust the wrong
       people, and have difficulty understanding the consequences of their actions.
       NAT’L INST. ON ALCOHOL ABUSE & ALCOHOLISM, FETAL ALCOHOL EXPOSURE (April
2015), https://pubs.niaaa.nih.gov/publications/fasdfactsheet/fasd.pdf.
       2 Indeed, a previous panel of this court unanimously granted a certificate of
appealability (COA) to Trevino, concluding that “not only . . . [could] reasonable jurists . . .
debate whether the district court erred in dismissing his FASD claim but . . . reasonable
jurists would agree that the district court erred by doing so.” Trevino v Davis, 

,
356 (5th Cir. 2016) (emphasis added).
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                                    No. 15-70019
was prejudiced by his trial counsel’s deficient penalty-phase performance, I
respectfully dissent.
                                         *
      As an initial matter, in this case we must apply de novo review because
no state court adjudicated Trevino’s claim of penalty-phase ineffective
assistance of counsel on the merits. See § 2254(d); Cone v. Bell, 

,
472 (2009). As a result, we must squarely consider whether Trevino is entitled
to relief under Strickland and its progeny. We cannot shield our decision under
the “deference and latitude” afforded by the Anti-Terrorism and Effective
Death Penalty Act of 1996 (AEDPA), as they “are not in operation when the
case involves review under the Strickland standard itself.” See Harrington v.
Richter, 

, 101 (2011).
      “As with all claims for ineffective assistance of counsel, relief based on
an insufficient mitigation investigation requires a showing of both deficient
performance and prejudice.” Loden v. McCarty, 

, 498 (5th Cir.
2015) (citing Porter v. McCollum, 

, 38 (2009)); see also 

, 694. Trevino asserts that his trial counsel’s performance was
unconstitutionally deficient because counsel failed to conduct a reasonably
thorough mitigation investigation, to discover evidence that Trevino suffers
from FASD, and to present this mitigating evidence to the jury. FASD occurs
in persons who suffer heavy prenatal exposure to alcohol. Persons with FASD
typically demonstrate cognitive, academic, attentional, and behavioral
deficiencies.    The majority opinion does not dispute that Trevino has
established that counsel rendered deficient performance in failing to perform
a thorough mitigation investigation and to introduce FASD evidence, and
rightly so.     See Trevino v. Davis, 

, 349–51 (5th Cir. 2016)
(discussing deficiency under Strickland and concluding that, “[g]iven that
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                                 No. 15-70019
Trevino’s life was on the line, reasonable jurists would consider the mitigation
investigation conducted by his trial counsel insufficient”).
      Next, Trevino argues that evidence of his FASD would have established
a sufficient mitigating factor that was reasonably likely to have changed the
outcome of his sentencing. In order to establish that his attorney’s deficient
performance in the penalty phase of a capital case prejudiced his defense, a
petitioner must show that there is a reasonable probability that, but for the
relevant deficiencies, at least one juror would have voted against imposing a
death sentence. See 

; see also 

(“A reasonable probability is a probability sufficient to undermine
confidence in the outcome.”).
      In support of his claim, Trevino has presented expert and lay witness
testimony pertaining to his FASD, including a 2004 report by Dr. Rebecca
Dyer, a clinical and forensic psychologist. Dyer stated that “individuals with
histories of significant prenatal exposure to alcohol have been shown to present
with deficits in adaptive behavior, poor judgment, attentional deficits, and
other cognitive deficits throughout childhood, adolescence and into adulthood,
which is not the finding in individuals with other childhood difficulties,” and
noted that “the deficits found in [FASD] children tend to become more
debilitating as these individuals get older.”    Dyer conducted a number of
interviews, including with Trevino and his mother; administered nine
psychological tests to Trevino; and reviewed Trevino’s school and disciplinary
records along with available medical records. Based on this evidence—none of
which had been discovered by his state trial counsel—Dyer concluded that
Trevino suffers from FASD: he functions “within the low average range of
intellectual functioning” and has a “history of employing poor problem-solving


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                                   No. 15-70019
strategies, attentional deficits, poor academic functioning, memory difficulties,
and history of substance abuse.”
      Turning to the relevance of her diagnosis to Trevino’s conviction and
sentence, Dyer stated:
             [Trevino’s] history of [FASD] clearly had an impact on his
      cognitive development, academic performance, social functioning,
      and overall adaptive functioning. These factors, along with his
      significant history of physical and emotional abuse, physical and
      emotional neglect, and social deprivation clearly contributed to
      [Trevino’s] ability to make appropriate decisions and choices about
      his lifestyle, behaviors and actions, his ability to withstand and
      ignore group influences, and his ability to work through and adapt
      to frustration and anger.
      She concluded that Trevino’s FASD “would . . . have impacted any of [his]
decisions to participate in or refrain from any activities that resulted in his
capital murder charges.”
      Dr. Paul Connor, a licensed psychologist and neuropsychologist, also
conducted testing on Trevino.       Connor found that Trevino demonstrated
deficits in eight domains: academics, especially math; verbal and visuospatial
memory; visuospatial construction; processing speed; executive functioning,
especially on tasks that provide lower levels of structure and as such require
greater independent problem solving or abstraction skills; communication
skills, especially receptive skills; daily living skills, primarily “community
skills”; and socialization skills. Based on his initial findings, Connor concluded
that Trevino’s “daily functioning skills are essentially at a level that might be
expected from an individual who was diagnosed with an intellectual disability.”
      This expert evidence is supported and contextualized by lay witness
testimony, compiled by mitigation expert Linda Mockeridge, that includes
details as to how FASD adversely affected Trevino’s mental and social
development. Specifically, Mockeridge collected testimony establishing that
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                                  No. 15-70019
Trevino’s mother drank between eighteen and twenty-four beers a day while
pregnant with Trevino; that Trevino weighed only four pounds at birth and
had to stay in the hospital for several weeks until he reached five pounds; that
Trevino’s developmental milestones were significantly delayed compared to his
siblings; that Trevino was not potty-trained until he was six years old and wore
pampers at night until he was eight years old; that Trevino repeated several
grades in elementary school and ultimately dropped out of school in ninth
grade, at which point he was reading at a third-grade level; that Trevino was
“a follower” and acted impulsively; and that Trevino got angry easily.
      “‘To assess the probability of a different outcome under Strickland, we
consider the totality of the available mitigation evidence—both that adduced
at trial, and the evidence adduced in the habeas proceeding—and reweigh it
against the evidence in aggravation.’ . . . In all circumstances, this is the proper
prejudice standard for evaluating a claim of ineffective representation in the
context of a penalty phase mitigation investigation.” 

–
56 (quoting 

–41 (alterations omitted); see also 

. We therefore must measure the evidence of Trevino’s crime
and other aggravating factors presented to the jury by the State against both
the mitigation evidence adduced at trial and the significant new evidence,
adduced in the federal habeas proceeding, which contextualizes his criminal
history.
      Taken together, the newly proffered mitigation evidence establishes that
the effects of FASD diminished Trevino’s ability to resist external influences
and to evaluate the consequences of his actions. Significantly, it shows that
FASD, a condition caused by conduct outside of Trevino’s control, specifically
influenced the decision-making that led him to join others in committing a
capital offense. This evidence, “taken as a whole, ‘might well have influenced
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                                  No. 15-70019
the jury’s appraisal’ of [Trevino’s] culpability, and the likelihood of a different
result if the evidence had gone in is ‘sufficient to undermine confidence in the
outcome’ actually reached at sentencing.” Rompilla v. Beard, 

,
393 (2005) (first quoting 

, then quoting 

); cf. Williams v. Taylor, 

, 398 (2000) (knowledge
that petitioner’s childhood was “filled with abuse and privation” and that he
was “‘borderline mentally retarded,’ might well have influenced the jury’s
appraisal of his moral culpability”); Penry v. Lynaugh, 

, 319 (1989)
(“If the sentencer is to make an individualized assessment of the
appropriateness of the death penalty, ‘evidence about the defendant’s
background and character is relevant because of the belief, long held by this
society, that defendants who commit criminal acts that are attributable to a
disadvantaged background, or to emotional and mental problems, may be less
culpable than defendants who have no such excuse.’” (quoting California v.
Brown, 

, 545 (1987) (O’Connor, J., concurring)).
      The majority opinion offers two related reasons for avoiding this
necessary conclusion. First, it notes that Trevino’s counsel did present the jury
with some mitigating evidence, viz., the brief testimony of Trevino’s aunt. Op.
at 8. Although this is true, it does not lessen the tendency of the previously
unpresented FASD mitigating evidence to persuade the jury to view Trevino
as less morally culpable. An attorney’s constitutionally deficient performance
is not rendered harmless merely because he presented a superficial mitigation
case. See Sears v. Upton, 

, 954 (2010) (“We have never limited the
prejudice inquiry under Strickland to cases in which there was only little or no
mitigation evidence presented.”). Thus, the majority opinion’s argument is
meritless.


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                                  No. 15-70019
      Second, the majority opinion asserts that Trevino’s previously
undiscovered FASD evidence suffers from a “significant double-edged
problem,” op. at 9, arguing that it has both aggravating and mitigating effects
and that the failure to introduce it therefore could not have prejudiced Trevino.
The majority mistakenly relies on Burger v. Kemp, 

(1987), and
Darden v. Wainwright, 

(1986), two cases in which the Supreme
Court rejected claims of ineffective assistance of counsel based on counsel’s
decision to not develop and present certain mitigating evidence because of fears
that it contained detrimental elements that would harm the defendant’s case.
Initially, it must be clarified that, contrary to the majority opinion’s statement
that these cases are “examples of double edged evidence preventing a finding
of prejudice,” op. at 9 n.5, both Burger and Darden were in fact decided on the
deficiency prong of Strickland. In both cases, defense counsel, after conducting
a reasonably competent investigation, opted not to develop and present
mitigation evidence that would have opened the door for the prosecution to
present damaging evidence to the jury. 

–95; 

. And in both cases, the Court found that counsel’s strategic
decisions were entitled to substantial deference and thus did not constitute
deficient performance under the first prong of Strickland. 

–95; 

.
      Under Strickland, “a court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that, under
the circumstances, the challenged action ‘might be considered sound trial

(quoting Michel v. Louisiana, 

, 101
(1955)). As this court has observed, “the fact that an attorney reached the
wrong conclusion does not necessarily make his performance deficient.” United
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                                     No. 15-70019
States v. Freeman, 

, 178 (5th Cir. 2016). The Supreme Court’s
determination in Burger and Darden that counsel’s decision not to present
certain mitigation evidence on the grounds that it might undermine another
defense strategy was “professionally reasonable” therefore has no bearing on
the distinct question presented here of whether there is a reasonable
probability that, had mitigation evidence been presented, the result of the
proceeding would have been different. See 

. To the
extent that the majority opinion relies on Burger and Darden, its argument
must therefore fail.
      Further, the majority opinion exaggerates the potential aggravating
impact of Trevino’s FASD evidence. Although some of the new lay-witness
testimony includes potentially aggravating statements about Trevino’s past
conduct, evidence of a similar nature had already been presented by the State
during the penalty phase; 3 additional, cumulative references to these negative
factors would thus be of marginal relevance to the jury. The majority opinion
also points to Dyer’s statement that Trevino’s FASD “would not have
significantly interfered with his ability to know right from wrong, or to
appreciate the nature and quality of his actions at the time of the capital
offense” as potentially aggravating. Op. at 9. But the jury would have found
this testimony by Dyer to merely state the obvious, as Trevino did not assert
an insanity defense and the same jury had already found him guilty of the
offense. By focusing on this statement, the majority opinion elides the much



      3 Specifically, the majority opinion notes that the new evidence shows that although
Trevino was a good father and employee, he had also been abusive toward his girlfriends,
possessed firearms, was in a street and prison gang, and abused drugs and alcohol. Evidence
that Trevino was at times prone to violence, was associated with a gang, and had previous
drug convictions had already been presented by the State during the penalty phase.
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                                  No. 15-70019
more significant part of Dyer’s testimony: that FASD “clearly had an impact
on    [Trevino’s]   cognitive   development,   academic     performance,    social
functioning, and overall adaptive functioning” and that “[t]hese deficits would
. . . have impacted . . . [his] decisions to participate in or refrain from any
activities that resulted in his capital murder charges.”
       Even if the mitigation evidence Trevino offers were meaningfully double-
edged, that would not foreclose his claim for relief. Both the Supreme Court
and this court have found that previously unpresented evidence indicating
reduced moral culpability was sufficient to establish prejudice even when such
evidence also had a potential aggravating effect. For example, in Williams,
despite significant aggravating evidence, the Supreme Court found that newly
proffered evidence of mistreatment, abuse, and neglect during the petitioner’s
early childhood, as well as testimony that he was “borderline mentally
retarded,” might have influenced the jury’s appraisal of the petitioner’s moral

. The Court noted that although “not all of the
additional evidence was favorable,” 

the mitigation evidence
reinforced the notion that the petitioner’s violent behavior “was a compulsive
reaction rather than the product of cold-blooded premeditation,” and explained
that “mitigating evidence unrelated to dangerousness may alter the jury’s
selection of penalty, even if it does not undermine or rebut the prosecution’s
death-eligibility case,” 

Similarly, although the FASD evidence may
not have affected the jury’s finding as to Trevino’s future dangerousness, it
nevertheless would have provided insight into his motivations and state of
mind and, in so doing, “might well have influenced the jury’s appraisal of his
moral culpability.” See 

the Supreme Court considered new mitigation evidence
that included prison files documenting “a series of [juvenile] incarcerations . . .
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                                       No. 15-70019
often of assaultive nature and commonly related to over-indulgence in alcoholic
beverages,” as well as “test results that the defense’s mental health experts
would have viewed as pointing to schizophrenia and other disorders,” “test
scores showing a third grade level of cognition after nine years of schooling,”
and evidence of childhood abuse and severe 

–92.
Despite what the majority opinion would undoubtedly call the “double-edged
nature” of this evidence, the Court concluded, “It goes without saying that the
undiscovered ‘mitigating evidence, taken as a whole, might well have
influenced the jury’s appraisal of [the petitioner’s] culpability.’” 

(quoting 

). I see no reason why the evidence offered
by Trevino would not have had the same effect.
       Finally, in Neal v. Puckett, 

, 243–44 (5th Cir. 2002) (en
banc), despite our recognition that some of the proposed mitigating evidence
that Neal sought to introduce might be considered “double-edged,” we
concluded that “with a more detailed and graphic description and a fuller
understanding of [the defendant’s] pathetic life, a reasonable juror may have
become convinced of [his] reduced moral culpability.” 4 In the same way, a
fuller description of Trevino’s life that included his struggles with FASD may
have convinced a reasonable juror of his “reduced moral culpability” even if
parts of that description could be characterized as “double-edged.” See 

undergirding Williams, Rompilla, and Neal strongly
supports the conclusion that Trevino suffered prejudice as a result of trial



       4 The en banc court ultimately denied relief to Neal, concluding that under the
deferential standard of 28 U.S.C. § 2254(d), it could not say that the Mississippi Supreme
Court unreasonably applied Strickland. 

. Nevertheless, had the court
not been constrained by § 2254(d), as is the case here, it would have concluded that there was
a reasonable probability that a single juror would have been swayed. 

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                                  No. 15-70019
counsel’s failure to conduct a reasonably thorough mitigation investigation, to
discover evidence that Trevino suffers from FASD, and to present this
mitigating evidence to the jury.      The FASD evidence and supporting lay
witness testimony put Trevino’s life and his juvenile and criminal history in
context and help to explain his conduct. “[A]lthough . . . it is possible that a
jury could have heard [the additional mitigation evidence] and still have
decided on the death penalty, that is not the test.” 

.
The question before this court is whether “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” 

. Had the
jury heard about the existence, origin, and effects of Trevino’s FASD, it is
difficult not to conclude that “there is a reasonable probability that at least one
juror would have struck a different balance.” See 

.
      I respectfully dissent.




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