Case: 17-10652   Document: 00515094761     Page: 1   Date Filed: 08/28/2019




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

                                 No. 17-10652                       FILED
                                                              August 28, 2019
                                                               Lyle W. Cayce
ROBERTO SANCHEZ,                                                    Clerk

             Petitioner–Appellant,

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

             Respondent–Appellee.


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


Before DAVIS, HIGGINSON, and WILLETT, Circuit Judges.
DON R. WILLETT, Circuit Judge:
      A Texas jury took just 24 minutes to convict Roberto Sanchez of murder
for chasing down unarmed Sergio Gonzalez and stabbing him in the heart. In
this federal habeas action, Sanchez claims his Sixth Amendment right to
effective assistance of counsel was violated because his trial attorney failed to
object when the prosecution asked a witness whether Sanchez was in the
United States legally. (He was not.) Even if the nonobjection constituted
ineffective assistance, Sanchez cannot show prejudice—a “reasonable
probability” that his trial would’ve gone better had his lawyer spoken up.
Evidence of Sanchez’s guilt was overwhelming, to put it mildly, including his
bragging “it felt good to kill somebody” immediately after he killed somebody.
Sanchez is not entitled to habeas relief, and we AFFIRM.
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                                  No. 17-10652
     I.     The Murder, The Trial, The Appeals, and Then Habeas
      Ten years ago, Roberto Sanchez went to a Fort Worth nightclub where
his two cousins worked. At closing time, one of his cousins told a customer with
whom she’d been talking that she was getting a ride with Sanchez. Frustrated,
the customer confronted Sanchez and his cousins in the parking lot as they
prepared to drive away, banging on their car window. Sanchez got out and
drew a knife. The unarmed customer fled. Sanchez chased him, caught him,
and stabbed him. According to Sanchez’s cousins, he then returned to the car
“happy,” boasting “it felt good to kill somebody.”
      Sanchez refused the State’s plea deal—25 years—despite knowing that
his cousins would testify. At trial, the prosecution had this exchange with one
cousin:
      Q.   And did you—how old were you when you met Roberto?
      A.   Ever since I was a baby. I don’t recall since I was a little girl.
      Q.   Did you both live in Honduras together?
      A.   No. He was living in a little town and I was living in another.
      Q.   So you were living in different towns, but they were nearby in
           Honduras?
      A.   Yes, yes.
      Q.   And did you come here before or after he did?
      A.   I came—I came here first.
      Q.   And are you aware, is Roberto Sanchez here legally or illegally?
      A.   Well, illegal, he doesn’t have papers.
Sanchez’s lawyer didn’t object to this mention of Sanchez’s immigration status,
and the topic never came up again. After closing arguments, the jury
deliberated 24 minutes before convicting Sanchez.
      During sentencing deliberations, the jury sent this note: “If [Sanchez] is
ever released on parole, will [he] remain in our country, or would he be
deported back to Honduras?” The court replied that it was “not able to supply
additional information,” and the jury sentenced him to 70 years in prison.



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                                           No. 17-10652
          On appeal, Sanchez argued that the trial court should’ve declared a
mistrial when the prosecution asked whether Sanchez was in the country
“legally or illegally.” The state appellate court disagreed, citing Sanchez’s
failure to timely object. 1
          After exhausting direct appeals, Sanchez filed a state habeas application
asserting, among other things, ineffective assistance of counsel. In an affidavit,
Sanchez’s trial counsel insisted his nonobjection was strategic—that Sanchez,
if he took the stand, would’ve been “up front and truthful” about his unlawful
status in hopes of appearing credible and forthright to the jury. The plan was
for Sanchez to admit it “on his own” to bolster his believability, particularly
since counsel wanted Sanchez to testify in support of various defenses and also
intended to cross-examine the cousins on whether their incriminating
testimony was coerced with threats of deportation. The lawyer added that he
stood ready to object if the question arose again.
          The state trial court denied Sanchez’s habeas application, holding there
was no deficient performance (counsel’s “chosen defense was the result of
reasonable trial strategy”) and no prejudice (no “reasonable probability that
the result of the proceeding would have been different had counsel objected to
a single reference to [Sanchez’s] illegal status”). On appeal, the Texas Court of
Criminal Appeals denied the application without written order.
          Sanchez then filed a federal habeas petition, raising the same ineffective-
assistance claim. The district court held that Sanchez was not entitled to
habeas relief and denied him a certificate of appealability (COA).
          In denying relief, the district court determined that the state court
reasonably applied the Supreme Court’s decision in Strickland, 2 noting:


          1   See Sanchez v. State, 

, 307–08 (Tex. App.—Fort Worth 2013, pet.
ref’d).
          2   Strickland v. Washington, 

(1984).
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                                       No. 17-10652
       • the “overwhelming evidence of [Sanchez’s] guilt”;

       • the prosecution didn’t “predicate its trial strategy or shape its
         closing argument around [his immigration] status”;

       • Sanchez’s immigration status came up only once; and

       • the jury note alone is not “clear and convincing evidence of
         ethnic or racial bias or proof that [Sanchez’s] illegal status had
         a substantial and injurious influence on the jury’s verdict in
         either phase.”

       Sanchez next sought a COA from this court. Judge Costa granted it,
reasoning that trial counsel’s purported strategy was questionable, Sanchez’s
legal status was inadmissible, the state court’s no-ineffective-assistance
conclusion was doubtful, and its no-sentencing-prejudice conclusion was
debatable. 3
       When assessing a denial of habeas relief, we review the district court’s
findings of fact for clear error and its conclusions of law de novo. 4 And we “may
affirm on any ground supported by the record.” 5 Whether counsel rendered
ineffective assistance is a “mixed question of law and fact.” 6
                II.    Sanchez Is Not Entitled to Habeas Relief
       To obtain habeas relief under § 2254, Sanchez must establish that the
state court decision rejecting his ineffective-assistance claim “was contrary to”
or unreasonably applied “clearly established Federal law, as determined by the
Supreme Court.” 7 And as the Court stressed in Harrington v. Richter, state-




       3 Sanchez v. Davis, 

, 751–52 (5th Cir. 2018) (Costa, J., granting certificate
of appealability).
       4 Dorsey v. Stephens, 

, 314 (5th Cir. 2013).
       5 

v. Washington, 

, 698 (1984).
       7 28 U.S.C. § 2254(d)(1).

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                                       No. 17-10652
court merits decisions merit deference. 8 Unless no “fairminded jurist[] could
disagree that the state court’s decision conflicts with this Court’s precedents,”
the state court’s decision must stand.
       Here, “the only question that matters” 9 is whether the state court’s
denial of Sanchez’s ineffective-assistance claim flouted or unreasonably
applied Strickland v. Washington, which declared the standard for such
claims. 10 It doesn’t matter if we think Sanchez makes a strong case. What
matters is whether the state court was unreasonable in rejecting it. “It bears
repeating,” the Court emphasized in Richter, “that even a strong case for relief
does not mean the state court’s contrary conclusion was unreasonable.” 11
       The key inquiry is whether there is any room for principled judicial
disagreement? Could any fairminded jurist believe that the state court
reasonably applied Strickland in rejecting Sanchez’s ineffective-assistance
claim? If yes, game over. Federal habeas relief is “not a substitute for ordinary
error correction through appeal.” 12 It’s a difficult standard to meet, says the
Court—“because it was meant to be.” 13
       Under Strickland, a convicted defendant must make two showings: (1)
that trial counsel’s performance “fell below an objective standard of
reasonableness;” 14 and (2) “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been




       

. Richter, 

, 91 (2011) (“[I]t is necessary to reverse the Court
of Appeals for failing to accord required deference to the decision of a state court.”).
       9 

v. Andrade, 

, 71 (2003)).
       10 

(1984).
       11 

(citing 

).
       12 

       13 

       14 

–88.

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                                       No. 17-10652
different.” 15 Put more simply, Sanchez must show “both that his counsel
provided deficient assistance and that there was prejudice as a result.” 16
       But again, this is habeas, not a direct appeal, so our focus is narrowed.
We ask not whether the state court denial of relief was incorrect, but whether
it was unreasonable—whether its decision was “so lacking in justification” as
to remove “any possibility for fairminded disagreement.” 17 Could earnest
judges come to varying conclusions as to whether the state court rightly held
that counsel’s nonobjection was not ineffective assistance, and, even if it was,
that Sanchez suffered no prejudice?
 A.         Whether Trial Counsel Erred Is Disputed But Not Dispositive
       In Strickland, the Supreme Court remarked that “advocacy is an art and
not a science,” adding that “strategic choices made after thorough investigation
of law and facts relevant to plausible options are virtually unchallengeable.” 18
In other words, there’s a “wide range of professionally competent assistance,” 19
and informed strategy normally cannot constitute “deficient performance.” 20
Our review is thus “highly deferential” and must carefully avoid second-
guessing and “the distorting effects of hindsight.” 21 Actually, our review is
“doubly deferential” given that Strickland and § 2254(d) “apply in tandem,”
thus making Sanchez’s path “all the more difficult.” 22 As the State rightly puts




       15 

       16 

.
       17 

       18 

.
       19Id. at 690.
       20 

689. But see Ward v. Dretke, 

, 491 (5th Cir. 2005) (requiring

for deficiency that trial strategy be “so ill chosen that it permeates the entire trial with
obvious unfairness”).
       21 

.
       22 

.

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                                       No. 17-10652
it, we defer “both to trial counsel’s reasoned performance and then again to the
state habeas court’s assessment of that performance.” 23
        Sanchez’s trial counsel maintains that his decision not to object to the
immigration-status testimony was a conscious and informed part of his trial
strategy. The state court was persuaded that the nonobjection was indeed
strategic. And the State’s briefing here ably discusses why not objecting may
have been reasonable. For his part, Sanchez forcefully asserts the
inadmissibility of immigration-status evidence and insists that allowing such
testimony to pass unchallenged reveals an incompetent lawyer, not a strategic
one.
        Ultimately, we need not tarry on whether Sanchez satisfies Strickland’s
first prong (performance) because it is plain, given the substantial evidence of
his guilt, that he cannot satisfy the second prong (prejudice).
        The Supreme Court squarely addressed the sequence in Strickland:

        [A] court need not determine whether counsel’s performance was
        deficient before examining the prejudice suffered by the defendant
        as a result of the alleged deficiencies. The object of an
        ineffectiveness claim is not to grade counsel’s performance. If it is
        easier to dispose of an ineffectiveness claim on the ground of lack
        of sufficient prejudice, which we expect will often be so, that course
        should be followed. 24

        The Court’s commended course makes perfect sense in this case.
B.      Even if Counsel Blundered, Sanchez Cannot Show Prejudice
        The Supreme Court standard on prejudice is sharply defined: “It is not
enough for the defendant to show that the errors had some conceivable effect
on the outcome of the proceeding.” 25 Instead, as the Court clarified in Richter,


        23 See Rhoades v. Davis, 

, 434 (5th Cir. 2017).
        

.
        25 

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                                      No. 17-10652
“The likelihood of a different result must be substantial, not just conceivable.” 26
It is not enough to show that the jury could have reached a different result.
Sanchez must show it was “reasonably likely” they would have. 27
       Now layer on top of that the habeas lens of “reasonableness.” 28 Because
the state court has already adjudicated Sanchez’s ineffective-assistance claim
on the merits, he must demonstrate that the court’s no-prejudice decision is
“not only incorrect but ‘objectively unreasonable.’ ” 29 Put differently, Sanchez
must show that every reasonable jurist would conclude that, but for the lone
immigration-status question, it is reasonably likely that the jury would have
either (1) acquitted him, or (2) given him a lighter sentence.
       Turning first to the guilt–innocence phase, consider our 2012 holding in
Clark. 30 There, “the state presented numerous witnesses who testified that
[the defendant] had murdered two other people, committed rape and assault,
burned a car, and dealt drugs.” 31 We considered that evidence “overwhelming,”
citing another Fifth Circuit case involving a jury trial with 11 witnesses. 32 In
both instances, we found it “virtually impossible to establish prejudice.” 33
       Here, there were four eyewitnesses to the murder, including, most
damning, two of Sanchez’s own family members. The prosecution built a
convincing case unrelated to Sanchez’s illegal status. His cousins testified that
he relished murdering Gonzalez, boasting that “it felt good to kill somebody.”
There was no mitigating evidence. Given the swiftness of the jury’s guilty



       

.
       

.
       

–01.
       29 Maldonado v. Thaler, 

, 236 (5th Cir. 2010) (quoting Renico v. Lett, 

, 777 (2010).
       30 Clark v. Thaler, 

(5th Cir. 2012).
       31 

       32 

(citing Ladd v. Cockrell, 

, 360 (5th Cir. 2002)).
       33 

311 F.3d at 360).

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                                       No. 17-10652
verdict—taking just 24 minutes—it is difficult to imagine a “substantial
likelihood” that the outcome would’ve been different had trial counsel objected
to the one fleeting question about Sanchez’s unlawful status.
       As to the sentencing phase, Sanchez proposes a tenable theory. The jury
asked about his immigration status during their sentence deliberations. So it
was on the jury’s mind. Maybe it was simple curiosity. Maybe it was something
more. The Supreme Court has set the prejudice bar high, though—and it has
done so purposely. Possibility does not equal “probability,” which is what
Strickland demands—“a probability sufficient to undermine confidence in the
outcome.” 34 Again, the likelihood of a lighter sentence “must be substantial,
not just conceivable.” 35 All this shows is that, at most, Sanchez’s sentence
might have been different. Not that it likely would have been different.
       It’s also unclear which direction the jury’s note cuts. Sanchez insists that
the jury’s consideration of his unlawful status necessarily resulted in a lengthy
70-year sentence. But this is “pure speculation,” 36 “mere possibility,” 37 and
“nothing more than a theoretical possibility.” 38 It is also possible that some
jurors may have thought the shorter the sentence, the sooner Sanchez would
be deported, and the sooner American taxpayers would stop funding his
incarceration. In short, the jury’s note provides no basis for concluding that
Sanchez’s immigration status necessarily resulted in a longer sentence than
he would have received otherwise. Evidence of Sanchez’s guilt was substantial;
the likelihood of a more lenient sentence was not. 39



       

.
       35 

.
       36 

       37 

at 112.
       39 Judge Costa was right to grant Sanchez a COA. The jury note and Texas caselaw

recognizing the potentially prejudicial impact of illegal-status testimony raised “a colorable
argument that the state court’s finding of no prejudice was unreasonable.” Sanchez v. Davis,
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                                       No. 17-10652
       Sanchez has not carried his heavy burden of showing that the state
court’s no-prejudice finding reflects an unreasonable application of Strickland.
                                       *      *      *
       Given the overwhelming evidence of Sanchez’s guilt, including
eyewitness testimony from his own family, we hold that even if his counsel’s
performance fell short of constitutional standards, Sanchez falls short on
prejudice. He cannot show a “reasonable probability” that he would have been
acquitted or received a lighter sentence. The district properly declined to issue
a writ of habeas corpus, and we AFFIRM.

, 752 (5th Cir. 2018) (Costa, J., granting certificate of appealability). That was
enough for a COA. But the habeas hurdle is far higher. A “colorable argument” no longer
suffices. Sanchez must show that all fairminded jurists would agree there was prejudice. The
State, by contrast, need only show that a fairminded jurist could find no prejudice.
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