Matias Morin v. Rick Thaler, Director

Filing 511076003

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
April 9, 2010 N o . 06-41590 Lyle W. Cayce Clerk

M A T IA S MORIN, P l a in t i f f - A p p e l l a n t v. R I C K THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL J U S T I C E , CORRECTIONAL INSTITUTIONS DIVISION, D e fe n d a n t-A p p e lle e

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 7:05-CV-118

B e fo r e JOLLY, WIENER, and BARKSDALE, Circuit Judges. P E R CURIAM:* P e t it io n e r -A p p e lla n t Matias Morin, III ("Morin") appeals from the district c o u r t 's denial of his petition under 28 U.S.C. § 2254, challenging his second c o n v ic t io n by a jury for the 1993 murder of Javier Cantu. He contends that he r e c e iv e d ineffective assistance of counsel because (1) his attorney labored under a n actual conflict of interest during the representation; and (2) his attorney fa ile d to object to (and in one instance caused the introduction of) evidence that

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5T H CIR. R. 47.5.4.

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No. 06-41590 w a s inadmissible or prejudicial, or both. Concluding that the errors alleged to h a v e been committed by the state court do not rise to the demanding standard r e q u ir e d by the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), we a ffir m . I . FACTS & BACKGROUND A. F a cts I n August 1993, Javier Cantu was murdered in the proximity of an ir r i g a t io n canal near Edinburgh, Texas. He suffered several gunshot wounds to h is head and his chest. Petitioner-Appellant Morin, his younger brother Marc M o r in ("Marc"), and another young man, Javier "Andy" Cespedes, were the only o n e s present when the shooting occurred. Prior to the homicide, the four young m e n had been involved in the sale and distribution of various narcotics, with C a n t u acting as the supplier for the other three. For the sake of efficiency, we a d o p t the district court's summary of the evidence presented at the trial, which in turn relied on the summary of the evidence generated by Texas's Thirteenth C o u r t of Appeals: The State's chief witness, Javier Andres "Andy" Cespedes, was an a c c o m p lic e in the crime. He testified that in August, 1993, he was w it h appellant, Marc Morin, and Javier Cantu. Marc gave some c o c a in e to Cantu and asked him to sell it. Cantu left with the c o c a in e but later returned it because he could not sell it. Appellant, [s ic ] then took the cocaine to Houston and tried to sell it there. H o w e v e r the buyers threatened to kill him when they discovered t h a t the cocaine was "cut up," meaning that it was not strong e n o u g h . Afterwards appellant blamed Cantu for nearly getting him k ille d and said that Cantu "had to go down." On August 26, 1993, appellant and Andy went to a store where a p p e lla n t bought a box of shotgun shells. After buying the shells t h e y drove to Andy's house and loaded two shotguns and a 9 -2-

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No. 06-41590 m illim e t e r gun. Andy kept the guns in his bedroom. They wrapped t o w e ls around the guns and put the guns in the back of the van w h ic h appellant was driving. After picking up Marc the trio decided t h a t appellant would call Cantu over the telephone and ask him to g o to a location near a canal in the Edinburg, Texas, area. A p p e lla n t would take him to the canal where Marc and Andy would b e waiting in the van. They decided that each person would shoot C a n t u one time at the canal. After agreeing on the plan they r e tu r n e d to appellant's house. Appellant called Cantu and then told M a rc and Andy that Cantu was "on his way" and "to take off to the c a n a l" and wait there. When appellant and Cantu arrived at the c a n a l Andy aimed a shotgun at Cantu's head. Andy testified that " M a t [appellant] is looking at me, so he takes two steps back and t h e n he looks back at me and nods his head. That's when I pulled t h e trigger and he [Cantu] falls down." Andy shot Cantu three more t im e s with the shotgun and six times with the 9 millimeter. A f t e r w a r d s appellant, Marc, and Andy drove to the home of Isaac F u e n t e s . Appellant and Isaac took the two guns used in the murder o u t of the van and then washed the van. Eulogia Cantu testified that on August 26, 1993, she and her son, J a v ie r Cantu, were at home. She saw him using the telephone. A f te r hanging up he told her that he was going to meet appellant. H e left the house about 7:20 p.m. J o s e Cespedes, Andy's brother, testified that a couple of days before t h e murder he saw what looked like a machine gun underneath the b e d in the bedroom where he and Andy slept. Around noon on the d a y of the murder Jose was home when Andy and appellant came t o the house and went into the bedroom where the machine gun was lo c a t e d . They stayed in the bedroom for twenty minutes. When t h e y came out Andy was carrying the machine gun which was w r a p p e d in a towel. Jose saw them get into a van and leave. Appellant testified that he had gone to Houston prior to Cantu's m u r d e r , but he denied that he had tried to sell any cocaine there. H e testified that on the day of the murder he and Cantu went to the

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No. 06-41590 c a n a l because Cantu wanted to talk to Marc.1 Appellant and Cantu a rr iv e d at the canal about 7:30 p.m. They got out of Cantu's car and w a lk e d to the van. While appellant stood near the van he heard an " e x p lo s io n ." He panicked and got into the van. He heard some more e x p lo s io n s or shots and then Andy threw a shotgun inside the van. H e then saw Andy take a machine gun out of the van. He tried to t a k e the gun away from Andy but Andy cocked it in his face. A p p e lla n t got into the van and closed the door. He heard another s h o t and then Andy got into the van. After the shooting Marc and A n d y dropped off appellant at Isaac Fuentes' house. Appellant's t e s tim o n y was that he did not nod his at Andy before Andy had shot C a n t u . He denied saying that Cantu had to go down, and he denied h a v in g anything to do with the murder. Isaac Fuentes testified that he went with appellant to Houston. He s t a t e d that he was with appellant during the entire trip and that a p p e lla n t did not try to sell any cocaine there. Eli Armenta, Andy's neighbor, testified that on the day of the m u r d e r no one was at Andy's home until Andy's mother arrived a b o u t 5:00 p.m. He never saw the Morin family van at Andy's home th a t day. **** D r . Santos, [the medical examiner], testified on direct e x a m in a t io n that Cantu was shot ten times. He had six distantt y p e gunshot wounds to the right side of the face. He received one s h o t g u n wound to the front of the right ear. Dr. Santos said that a lt h o u g h he was not a ballistics expert this wound was made from a range of between three to five feet. Cantu had three other shotgun w o u n d s . He said that these wounds "were of a close range type" b e c a u s e he found wads in each of the perforations. He did not know

A review of Morin's testimony at trial reveals that he denied seeing or communicating with either his brother Marc or Cespesdes on the day of the murder until shortly before Cantu came to pick Morin up. Morin also testified that Cantu called the Morin family home twice that day, looking for Marc.

1

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No. 06-41590 t h e order in which the shots were fired, nor which were fired first. O n cross examination counsel questioned him about the shotgun w o u n d to Cantu's head. His testimony was that generally speaking this w o u n d was inflicted at a distance of three to five feet. Counsel also q u e s t io n e d him about the trajectory of the gunshot wounds to Cantu's fa c e . Dr. Santos said that they were fired from Cantu's right side.2 B. F a c t s and Proceedings Morin, Marc, and Cespedes were charged with Cantu's murder. Morin was in d i c te d in September 1993, at which time Morin's father hired attorney Abel T o s c a n o , Jr. to represent his son. A month later, Marc (who was sixteen at the t im e ) was charged with the murder. In April 1994, Marc was certified for p r o s e c u tio n as an adult, and Toscano was retained to represent both Morin and M a r c . In approximately September 1994, Toscano withdrew as Morin's counsel. T h a t month, Cespedes pleaded guilty and received a 30-year sentence in e x c h a n g e for his willingness to testify against Morin. Morin was the only one of the three to be brought to trial. In 1995, a jury fo u n d him guilty and sentenced him to 60 years imprisonment, and imposed a $ 1 0 ,0 0 0 fine. After Morin's conviction and sentencing, Toscano represented M a r c in a plea negotiation that resulted in Marc's pleading guilty to the Cantu m u r d e r , and giving a sworn oral statement to the authorities detailing his r e c o lle c t io n s of everything that happened at the scene of the crime and e ls e w h e r e on the day of the murder. After Marc's guilty plea, however, the Texas's Thirteenth Court of Appeals

Morin v. State, No.13-99-119-CR, 2000 WL 34251914, *1-3 (Tex. App.­ Corpus Christi Aug. 17, 2000) (unpub'd).

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No. 06-41590 r e v e r s e d Morin's conviction and remanded for a new trial. 3 Morin retained T o s c a n o (who previously had only represented Marc in his plea negotiation) as c o u n s e l for Morin's second trial.4 The State filed a motion to disqualify Toscano, a lle g in g a conflict of interest arising from Toscano's previous representation of M a r c . Morin's opposition to the State's motion included affidavits from both M o r in and Marc, waiving any potential conflict. Morin's affidavit stated

e x p lic it ly that he had read the State's motion to disqualify Toscano, that he was fa m i l ia r with the contents of Marc's sworn statement given to the State in c o n n e c t i o n with Marc's guilty plea, and that he understood he had the right to r e t a in other counsel. h e a r in g . In November 1998, a jury convicted Morin a second time, and imposed a 6 2 -y e a r prison sentence and a $10,000 fine.5 Morin appealed, and the Texas T h ir t e e n t h Court of Appeals affirmed his conviction.6 In April 2001, the Texas C o u r t of Criminal Appeals refused discretionary review. M o r in filed his state habeas petition in July 2002, which was denied The trial court denied the State's motion without a

Morin v. Texas, 960 S.W. 2d 132, 138 (Texas Crim. App. 1997) (holding that erroneous admission of hearsay testimony warranted reversal). Morin's father, who had originally retained Toscano, died prior to Morin's second trial. Morin's mother hired Toscano to probate the father's estate and handle the family finances. Toscano also borrowed $25,000 from the estate with Mrs. Morin's permission. At the time he was retained to represent Morin at his re-trial, he still owed over $16,000 on the loan from the Morin estate. Although the jury imposed a 62-year sentence, this was reduced to 60 years on motion of the defendant. On direct appeal, the State urged that this reduction was in error. The Thirteenth Court of Appeals agreed with the State, and re-instated the jury's original 62-year sentence. Morin, 2000 WL 34251914, at *3.
6 5 4

3

Morin, 2000 WL 34251914, at *3.

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No. 06-41590 w it h o u t an evidentiary hearing and without findings of fact or conclusions of la w . The Texas Court of Criminal Appeals denied relief without written order.7 M o r in filed his federal habeas petition in April 2005, and, in September 2006, t h e district court denied relief at the recommendation of the magistrate judge. T h e district court granted a COA to address two issues,8 only one of which Morin h a s pursued on appeal: whether the district court erred in its determination t h a t the state court was not objectively unreasonable in concluding that Morin's tr ia l counsel was not ineffective. II. ANALYSIS M o r in premises his ineffective assistance of counsel claim ("IAC") on two t h e o r ie s : (1) that at his second trial, Toscano labored under an actual conflict of in te r e s t ; (2) that Toscano failed to object to (and, in some instances, caused the in tr o d u c t io n of) evidence that was inadmissible or prejudicial or both, over the c o u r s e of a nearly month-long trial. Satisfied that the state court's denial of M o r in 's IAC claim was not objectively unreasonable under either theory, we a ffir m . A. S t a n d a r d of Review A s Morin's IAC claims were filed in the district court after April 24, 1996, t h e y are subject to the provisions of the Antiterrorism and Effective Death

7

Ex parte Morin, No. WR-58,689-01 (Tex. Crim. App. March 30, 2005).

As reflected by the parties' briefs, and as confirmed by Morin's counsel at oral argument, Morin abandoned the second issue certified for appeal, namely, "whether the district court erred in concluding that the state court decision that motion for new trial counsel was effective was not objectively unreasonable." That issue is therefore not before this court.

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No. 06-41590 P e n a lt y Act of 1996 ("AEDPA").9 Under the AEDPA, a petitioner is not entitled t o relief unless he can show that the state court decision denying relief was " c o n tr a r y to" or "an unreasonable application of[] clearly established Federal la w , as determined by the Supreme Court of the United States." 1 0 The AEDPA a ls o requires us "to presume state-court findings of fact to be correct `unless the p e t it io n e r rebuts that presumption by clear and convincing evidence.'"1 1 We r e v ie w the district court's interpretation of the AEDPA de novo, and review its fin d i n g s of fact for clear error.1 2 The AEDPA's deferential standard of review o n ly applies to the state court's adjudication of a petitioner's claim on the m e r its ,13 a condition satisfied here. I A C claims are mixed questions of fact and law, and consequently are " r e v ie w e d under the `contrary to' and `unreasonable application' prong of 28

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. 28 U.S.C. § 2254(d); Moore v. Cockrell, 313 F.3d 880, 881 (5th Cir. 2002) cert. denied 538 U.S. 969 (2003). Wooten v. Thaler, No. 07-70044, --- F.3d ----, 2010 WL 699515 at *2 (5th Cir. Mar. 2, 2010) (citing Valdez v. Cockrell, 274 F.3d 941, 947 (5th Cir. 2001) cert. denied 537 U.S. 883 (2003) (citations omitted)).
12 11 10

Thompson v. Cain, 161 F.3d 802, 805 (5th Cir.1998). 28 U.S.C. § 2254(d).

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No. 06-41590 U .S .C . § 2254(d)." 1 4 A state court's decision is "contrary to" clearly established S u p r e m e Court precedent when it "applies a rule that contradicts the governing la w set forth in [the Court's] cases," or reaches an opposite conclusion from a S u p r e m e Court case upon facts that are "materially indistinguishable." 1 5 In the a lt e r n a t iv e , a state court "unreasonably applies" clearly established federal law if it correctly identifies the governing law but unreasonably applies it to the facts o f a particular case.1 6 A state court's application of the law must be objectively, n o t subjectively, unreasonable.1 7 As the Supreme Court has explained, "the most im p o r t a n t point is that an unreasonable application of federal law is different fr o m an incorrect application of federal law," in the sense that it is not "simply b e c a u se [the reviewing] court concludes in its independent judgment that the r e le v a n t state-court decision applied clearly established federal law erroneously o r incorrectly. Rather, that application must also be unreasonable." 18 W h e n , as here, the state court denies relief without issuing a written order o r otherwise specifying its reasons, our AEDPA inquiry is not affected. Instead w e "(1) assume[] that the state court applied the proper clearly established fe d e r a l law; and (2) then determine[] whether its decision was contrary to or an

14

Moore v. Cockrell, 313 F.3d 880, 881 (5th Cir. 2002).

Williams v. Taylor, 529 U.S. 362, 405-06 (2000) (O'Connor J., concurring)(concurrence commanded a majority for the proposition cited).
16

15

Id. at 407-09. Id.

17

Id. Accord, Schriro v. Landrigan, 550 U.S. 465, 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.").

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No. 06-41590 o b je c tiv e ly unreasonable application of that law." 19 B. I n e f f e c t i v e assistance of counsel 1. M o r i n 's Sullivan claim

" U n d e r the Sixth Amendment, if a defendant has a constitutional right to c o u n s e l, he also has a corresponding right to representation that is free from any c o n flic t of interest." 2 0 To prevail on an IAC claim, the petitioner must satisfy the fa m ilia r , two-prong Strickland test by establishing that (1) counsel's p e r fo r m a n ce fell below objective, professional standards of reasonableness, and (2 ) the deficient performance prejudiced the defense.2 1 Thus, to succeed under S t r ic k la n d , a petitioner must show that "but for counsel's unprofessional errors, th e result of the proceeding would have been different." 2 2 A petitioner alleging a Sixth Amendment violation on the basis of counsel's p u r p o r t e d conflict of interest, however, must bear a slightly different burden. I n Cuyler v. Sullivan,2 3 the Supreme Court considered whether "the mere p o s s ib ilit y of a conflict of interest warrants the conclusion that the defendant w a s deprived of his right to counsel," and noted with approval its prior holding

19

Jordan v. Dretke, 416 F.3d 363, 368 (5th Cir. 2005) (internal citations and marks

omitted). United States v. Vaquero, 997 F.2d 78, 89 (5th Cir. 1993) cert. denied Taylor v. United States, 510 U.S. 1016 (1993) (citing Wood v. Georgia, 450 U.S. 261, 271 (1981)); Cuyler v. Sullivan, 446 U.S. 335, 345 (1980).
21 20

Strickland v. Washington, 466 U.S. 668, 687-88 (1984).

Mickens v. Taylor, 535 U.S. 162, 166 (2002) (framing the issues before the Court as "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.") (Stevens, Souter, Breyer, Ginsburg, dissenting).
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446 U.S. 335, 345 (1980).

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No. 06-41590 th a t there are circumstances under which an attorney may represent multiple c r im in a l defendants in connection with the same criminal transaction without o ffe n d i n g the Sixth Amendment.2 4 The Court held that if the defendant did not o b je c t to the multiple representation at trial, such an arrangement can only give r is e to a cognizable IAC claim if it "actually affected the adequacy of [the p e t it io n e r 's ] representation." 2 5 In a later gloss on the Sullivan standard, the C o u r t reiterated that "`[a]n actual conflict,' for Sixth Amendment purposes, is a c o n flic t of interest that adversely affects counsel's performance.'" 2 6 If the d e f e n d a n t establishes the existence of such a conflict, though, the prejudice p ro n g of Strickland is relaxed such that the petitioner need not show that "but fo r counsel's unprofessional errors, the result of the proceeding would have been d iffe r e n t." 27 The crux of the inquiry, therefore, is whether "trial counsel had a conflict o f interest that hampered the representation" 2 8 in the sense that "counsel

Sullivan, 446 U.S. at 345 (noting with approval its assessment in a prior case that "`[a] common defense . . . gives strength against a common attack.'") citing Holloway v. Arkansas, 435 U.S. 475, 482-483 (1978)).
25

24

Sullivan, 446 U.S. at 349.

Mickens, 535 U.S. at 172, n. 5 (also noting that "the Sullivan standard is not properly read as requiring inquiry into actual conflict as something separate and apart from adverse effect."). Mickens, 535 U.S. at 166; Perillo v. Johnson, 205 F.3d 775, 781 (5th Cir. 2000) ("Assuming the defendant establishes an actual conflict that adversely affected counsel's performance, prejudice is presumed without any further inquiry into the effect of the actual conflict on the outcome of the defendant's trial.").
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Mickens, 535 U.S. at 179. (Kennedy, J., concurring).

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No. 06-41590 a c tiv e ly represented conflicting interests." 2 9 "[A] conflict will exist only when c o u n s e l is compelled to compromise his or her duty of loyalty or zealous advocacy t o the accused by choosing between or blending the divergent or competing in t e r e s ts of a former or current client."3 0 Such a conflict does not arise, however, w h e n the alleged conflict is merely "hypothetical," "speculative[,] or potential."3 1 R e le v a n t factors may include (1) whether the attorney has confidential in f o r m a tio n that is helpful to one client but harmful to the other client; (2) w h e t h e r and how closely related is the subject matter; (3) how close are the m u lt ip le representations in time; and (4) whether the prior representation has te r m in a te d .3 2 As we have noted, Sullivan's `actual conflict' and `adverse effect' e le m e n t s are "rather vague," so IAC claims predicated on such conflicts are "t ig h tly bound to the particular facts."3 3 T h e state habeas court did not unreasonably apply the Sullivan standard t o Morin's petition. Morin urges that Toscano's prior representation of Marc a d v e r s e ly affected Toscano's representation of Morin because concern for Marc

Beets v. Scott, 65 F3d 1258, 1266 (5th Cir. 1995) (en banc) (citing Sullivan v. Cuyler, 446 U.S. 335 (1980)) (emphasis added).
30

29

Culverhouse, 507 F.3d at 892-93.

United States v. Garcia-Jasso, 472 F.3d 239, 243 (5th Cir. 2006) (citing Beets v. Scott, 65 F.3d 1258, 1277) (5th Cir. 1995) (en banc) and United States v. Infante, 404 F.3d 376, 391 (5th Cir.2005)).
32

31

U.S. v. Burns, 526 F.3d 852, 856 (5th Cir. 2008). Perillo, 205 F.3d at 782 (citing Maiden v. Bunnell, 35 F.3d 477, 481 (9th Cir.

33

1 9 9 4 ) ).

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No. 06-41590 le d Toscano to refrain from calling him to testify at Morin's trial.3 4 Morin

t h e o r iz e s that his brother's sworn statement to prosecutors two years earlier, g iv e n in connection with his own plea agreement, would have substantially c o r r o b o r a t e d Morin's testimony that there was no plan to kill Cantu, as well as M o r in 's account of the shooting. Crucially, however, Morin does not contend that M a r c would have testified in any way that would have contradicted his earlier s w o r n statement; rather, it appears to be Morin's theory that because Marc's te s tim o n y would have been an unalloyed benefit, the only reason Toscano would n o t have called Marc was out of concern that prosecutors might thereafter r e t a lia t e against Marc by opposing some future parole application. Morin points t o the fact that Toscano arranged for a bench warrant to be issued to bring Marc fr o m prison to a nearby county jail, but never called Marc to testify. Morin also o ffe r s his own affidavit, executed in support of his state habeas petition, in which h e stated that he "was told" that Toscano did not call Marc to testify out of c o n c e r n for prosecutorial retaliation against Marc. id e n tify the source of this information. Morin's assertion that Marc's version of events would have corroborated h is own and that Marc would have done nothing more than testify consistently w it h his sworn statement of years earlier belies his argument that Toscano a ctively represented conflicting interests in violation of Sullivan and its progeny. A s the federal district court properly noted, (1) Morin's questionnaire to Toscano in connection with Morin's state habeas claim did not ask why Toscano failed to
The state contends that even if there were a conflict of interest Morin and Marc executed affidavits waiving any such conflict and opposed the state's motion to disqualify Toscano. The state urges that Morin should therefore be estopped from asserting a Sullivan claim. Because we hold that it was not unreasonable for the state habeas court to conclude that there was no conclude, we do not reach the State's waiver/estoppel claim.
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Morin does not, however,

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No. 06-41590 c a ll Marc; (2) the State never called Marc as a witness for the prosecution; and (3 ) Morin identifies no confidential information that Toscano had obtained from M a rc that would have aided Morin. Our review of Marc's prior sworn statement t o law enforcement leads us to agree with the district court's assessment that M o r in overstates the degree to which Marc's testimony would have bolstered, if n o t actually undermined, his brother's version of events.3 5 For these reasons, we c a n n o t conclude that the state habeas court's rejection of Morin's Sullivan claim w a s unreasonable.3 6 2. M o r i n 's Strickland claim

Morin's second IAC theory is grounded on incidences of Toscano's failure t o object to--and, in one instance, his introduction of--damaging evidence d u r in g the course of Morin's month-long trial. These include Toscano's failure t o object to (1) inadmissible testimony that Marc had pleaded guilty to c o m m it t in g the murder; (2) a tape-recorded conversation between Toscano and C e s p e d e s that is allegedly damaging to Morin and to the jury's perception of T o s c a n o 's professional credibility; (3) testimony that Toscano and another

Contrary to Morin's assertions, Marc's statement makes clear that he was not with his brother when his brother and Cespedes were gathering firearms and ammunition for the assault on Cantu, and that Marc could remember very little about the actual events at the scene of the murder. In fact, Marc's statement reveals that Cantu had recently threatened Marc and that Marc had told Morin about the threats. It also reveals that Marc and Morin had decided they no longer wanted to have anything to do with Cantu and were going to communicate as much to Cantu at the canal that night. Although a petitioner, whose attorney-conflict theory of ineffective assistance fails, may try to obtain relief under the more demanding Strickland standard, Morin has not done so here. Bostick v. Quarterman, 580 F.3d 303, 306 n.2 (5th Cir. 2009). ("In the absence of [Sullivan]'s actual conflict exception, a defendant claiming that his attorney had a conflict of interest must show a reasonable probability that the conflict prejudiced the defense.") (internal marks and citations omitted).
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No. 06-41590 a tt o r n e y visited Cespedes in prison and told him to "keep quiet"; and (4) T o s c a n o 's introduction of the fact that Morin invoked his right to remain silent a fte r he surrendered to the police. Because it was not objectively unreasonable fo r the state habeas court to hold that these errors did not prejudice Morin's d e fe n s e , we affirm the district court. Under Strickland, a petitioner must establish that counsel's performance fe ll below objective, professional standards of reasonableness, and that the d e f ic ie n t performance prejudiced the defense.3 7 If a defendant is unable to meet e it h e r prong of the test, a court is not compelled to consider the other prong.3 8 F or determining deficiency, counsel's performance is compared to

" r e a s o n a b l e n e ss under prevailing professional norms," 3 9 such as "[p]revailing n o r m s of practice as reflected in American Bar Association Standards and the lik e ."4 0 Counsel is entitled to a "strong presumption that trial counsel's conduct fe ll within a wide range of reasonable professional assistance," and "every effort [m u s t ] be made to eliminate the distorting effect of hindsight." 4 1 In assessing w h e th e r a challenged action was strategic, the reviewing court must remain m in d f u l of the weight of the evidence supporting the verdict.4 2 To establish

37

Strickland, 466 U.S. at 687-88.

Id. at 697 (stating that "there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.").
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Wiggins v. Smith, 539 U.S. 510, 521 (2003). Strickland, 466 U.S. at 688. Strickland, 466 U.S. at 689. Moore v. Johnson, 194 F.3d 586, 591-92 (5th Cir. 1999).

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No. 06-41590 p r e j u d ic e , the defendant "must show that there is a reasonable probability that, b u t for counsel's professional errors, the result of the proceeding would have b e e n different." 4 3 "A reasonable probability is a probability sufficient to Importantly, "[a] conscious and

u n d e r m in e confidence in the outcome." 4 4

in fo r m e d decision on trial tactics and strategy cannot be the basis for c o n s tit u tio n a lly ineffective assistance of counsel unless it is so ill chosen that it p e r m e a te s the entire trial with obvious unfairness."4 5 ( A ) Failure to object to testimony that Marc had pleaded guilty to c o m m i t t i n g the murder T h r e e times during the month-long trial, testimony was offered, without o b je c t io n from Toscano, that Marc had been convicted of the murder in question. A s the district court properly determined, under Texas rules, evidence that "a n o n -t e s t ify in g person, who has either been jointly or separately indicted for the s a m e offense as the accused, has been convicted or acquitted is inadmissible."4 6 T o s c a n o 's response to Morin's habeas questionnaire indicated that he thought t h e jury's knowledge of Marc's lenient sentence would be helpful at the s e n te n c in g stage. Although likely ill-advised, failure to object to inadmissible e v id e n c e is not per se prejudicial,4 7 and it is difficult to conclude on this record

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Stickland, 466 U.S. at 694. Id. at 687. Cotton v. Cockrell, 343 F.3d 746, 752-53 (5th Cir. 2003)(internal citations

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omitted).
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Miller v. State, 741 S.W.2d 382, 389 (Tex. Crim. App. 1987)(en banc).

Jordan v. Wilkinson, 244 Fed. App'x. 581, 582 (5th Cir. 2007) (holding failure to object to inadmissible hearsay evidence does not rise to Strickland violation without demonstration of prejudice).

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No. 06-41590 t h a t had the evidence of Marc's conviction been excluded the verdict would have b e e n called into question.4 8 Morin had admitted that he was present with

C e s p e d e s and Marc at the scene of the crime, and the jury knew that Cespedes h a d pleaded guilty to the murder. Moreover, there was substantial evidence of c o n s p ir a cy : Cespedes's account of Morin's involvement in the preparation and t r a n s p o r t of the weapons was corroborated by Cespedes's brother, who saw them c a rr y in g the guns in and out of Cespedes's home on the day of the murder; the v ictim 's mother testified that Morin had telephoned Cantu just before he left t h a t evening, and that Cantu had told her he was meeting with Morin. On these fa ct s , we conclude that it was not an error cognizable under the AEDPA for the s t a t e habeas court to conclude that Morin was not prejudiced by Toscano's fa ilu r e to object to this inadmissible evidence. ( B ) Failure to object to a tape-recorded interview between Toscano and C e s p e d e s that allegedly damaged both Morin's defense and the jury's p e r c e p t i o n of Toscano's professional credibility Before Toscano withdrew from representing Morin in his first trial, he v is it e d Cespedes while Cespedes was in police custody but was not yet r e p r e s e n te d by counsel, and tape-recorded their conversation. Toscano

a p p a r e n tly did this to find out for the Morins what Cespedes had related to the p o l ic e . In that tape recorded conversation, Cantu admitted that he was under t h e influence of Rohypnol and alcohol on the night of the homicide, and that he b a r e ly remembered anything that happened. He also acknowledged that he told t h e police that Morin had planned to kill Cantu at the canal. Although Toscano

Paredes v. Quarterman, 574 F.3d 281, 286 (5th Cir. 2009) (citing Strickland, 466 U.S. at 668).

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Date Filed: 04/09/2010

No. 06-41590 p r o m is e d to do so, he never gave Cespedes a copy of the tape, and when Toscano fin a lly gave prosecutors a copy prior to Morin's re-trial, twenty minutes were m is s in g . Toscano then failed to object to the introduction of the tape at trial. A f t e r the State introduced the tape, Cespedes testified that he believed Toscano h a d made the tape to use against Cespedes when he testified, and the prosecutor d r e w attention to Toscano's shady behavior in his closing remarks. In his

r e s p o n s e to Morin's state habeas interrogatories, Toscano stated, and the record c o n fi r m s , that Toscano thought the statement would help undermine Cespedes's c r e d ib ilit y because on it he admitted that he was under the influence of drugs a n d could not remember what had happened. A centerpiece of Morin's defense w a s that Cespedes had offered multiple versions of the events of that night, so h is account at trial could not be trusted. There can be no prejudice when damaging evidence that should not have b e e n admitted is merely cumulative of evidence that was properly admitted.49 I n the tape recording, Cespedes told Toscano that he, Cespedes, had told the p o l ic e that Morin had planned the murder. The tape recorded statements, h o w e v e r , replicate statements made by Cespedes to the police that were c o n t a in e d in a written report already in the record. The written report contained t h e damning assertions that the three young men had agreed to kill Cantu and t h a t Morin planned the murder. Thus, any prejudicial effect of Cespedes's s t a te m e n t on the tape recording is significantly diminished. A s for Morin's assertion that the tape recording made Toscano look d e c e p t iv e and unethical, damaging his credibility with the jury, Morin does not

King v. Cockrell, 33 Fed. App'x. 703, at *4 (5th Cir. 2002) (holding that "there is no prejudice when testimony is duplicative of other testimony admitted at trial.")

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No. 06-41590 id e n t ify which, if any, rule of professional ethics Toscano allegedly violated.5 0 He s im p l y argues that Toscano's dealings with Cespedes would have appeared s h a d y to the jury, thereby damaging Toscano's credibility. Even assuming T o s c a n o did violate some ethical standard by obtaining information from C e s p e d e s and informing Cespedes of his right to remain silent, counsel's v i o l a t io n s of professional ethics are not per se prejudicial under Strickland.5 1 On t h e record of this nearly month-long trial, including over three days of testimony f r o m Cespedes alone, whose credibility the tape recording was meant to u n d e r m in e , Morin has not shown, and we cannot conclude, that the exclusion of t h e tape-recorded conversation between Cespedes and Toscano would have a ffe c te d the outcome of the trial.52 ( C ) Failure to object to testimony that Toscano and another attorney told C e s p e d e s to "keep quiet" O n the Toscano-Cespedes interview tape, Toscano advised Cespedes that h e had the right not to speak to the police, and advised him not to do so. C e s p e d e s also testified at trial that another, unnamed attorney--not Toscano, b u t one apparently claiming to represent Morin--visited him and told him he s h o u ld "stay quiet." Morin urges that this testimony implied to the jury that

Under Texas's Disciplinary Rule of Professional Conduct 4.03, attorneys dealing with unrepresented individuals have a duty not to "state or imply that the attorney is disinterested," and the only advice they should give is that the unrepresented person obtain counsel. Beets, 65 F.3d at 1272; accord, U.S. v. Nickerson, 556 F.3d 1014, 1018 (9th Cir. 2009) (collecting cases from five circuits). Smith v. Dretke, 417 F.3d 438, 443 (5th Cir. 2005) (holding that "reasonable probability standard of Strickland prejudice involves weighing the error flowing from the attorney's deficient performance against the totality of the evidence).
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No. 06-41590 M o r in was "corruptly" seeking to persuade a witness not to testify through his a t to r n e y , Toscano. In his responses to Morin's state habeas interrogatories, T o s c a n o stated that he did not believe that he had standing to object. Even though we might view Toscano's response as incorrect, we cannot go s o far as to conclude that introduction of this evidence resulted in Strickland p r e ju d ic e . Even assuming that the failure to object constituted deficient

p e r fo r m a n c e , Toscano's statements to Cespedes were brief and ambiguous at b e s t . Our review of the record does not lead us to conclude, as Morin urges, that t h e jury necessarily would have interpreted Toscano's words as an attempt to im p r o p e r ly silence or influence a witness. Moreover, Toscano did successfully o b je c t to the prosecutor's direct examination about why Cespedes thought that th e visiting attorneys were advising him to "stay quiet." Although this is

a rg u a b ly a closer call, under the deferential standard of review mandated by the A E D P A , we cannot conclude that the state habeas court's rejection of Morin's I A C claim on this ground was contrary to or an unreasonable application of c le a r ly established federal law. ( D ) Toscano's introduction of the fact that Morin invoked his right to r e m a i n silent after he surrendered to the police At trial, Toscano elicited from Morin that he had turned himself in to the p o lic e voluntarily, but had remained silent on the advice of his father. In his r e s p o n s e to Morin's state habeas interrogatories, Toscano explained that he w a n te d to bolster Morin's credibility with the jury by informing them that Morin h a d voluntarily turned himself in and had only remained silent on the advice of h is father, an attorney. Review of the trial transcript reveals, however, that at t h e time, Toscano failed to elicit the fact that Morin's father was an attorney,

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Case: 06-41590

Document: 00511076003

Page: 21

Date Filed: 04/09/2010

No. 06-41590 a lth o u g h this fact was introduced several times over the course of the trial. A lt h o u g h it is well-settled law that the State may not draw attention to a d e fe n d a n t 's post-arrest silence,5 3 as the district court correctly noted, "a criminal d e fe n d a n t may, by his conduct, make otherwise constitutionally inadmissible e v id e n c e admissible for certain purposes," such as " for the purpose of rebutting t h e impression which [the defendant] attempted to create: that he cooperated fu lly with the law enforcement authorities." 5 4 Morin cites no authority--and we h a v e found none--to support the proposition that it is impermissible for defense c o u n s e l to draw attention to a defendant's post-arrest silence when it is done p u r s u a n t to the defense strategy.5 5 We therefore conclude that the state court's d e te r m in a t io n was not contrary to or an unreasonable application of federal law a s established by the Supreme Court. III. CONCLUSION F o r the foregoing reasons, the district court's denial of habeas corpus relief is A F F IR M E D .

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Doyle v. Ohio, 426 U.S. 610 (1976).

United States v. Fairchild, 505 F.2d 1378, 1383 (5th Cir. 1975) (citing Harris v. New York, 401 U.S. 222 (1971)); accord U.S. v. Martinez-Larraga, 517 F.3d 258, 266-67 (5th Cir. 2008). As the district court properly noted and this court's review of both the trial transcript and Toscano's interrogatory responses confirm, Toscano sought to portray Morin as an accidental bystander to the murder who was taken by surprise by his own brother's involvement in the crime, and simply followed the advice of his attorney father in his dealings with law enforcement.
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