Richard Vasquez v. Rick Thaler, Director

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REVISED August 12, 2010 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
August 11, 2010 N o . 08-70034 Lyle W. Cayce Clerk

R I C H A R D VASQUEZ P e titio n e r-A p p e lla n t v. R I C K THALER, Director, Texas Department of Criminal Justice, C o r r e c t io n a l Institutions Division R e s p o n d e 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. 2:05-CV-59

B e fo r e WIENER, STEWART, and CLEMENT, Circuit Judges. P E R CURIAM:* P e t itio n e r Richard Vasquez appeals from the district court's denial of his p e t it io n for habeas corpus relief under 28 U.S.C. §§ 2253 & 2254. The district court did, however, issue a certificate of appealability ("COA") sua sponte on the t w o issues now before us: (1) whether Vasquez received ineffective assistance

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

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No. 08-70034 o f trial counsel when his attorneys failed to investigate and present significant m it ig a t in g evidence during the penalty phase of his trial; and (2) whether V a s q u e z received ineffective assistance of appellate counsel because his attorney la b o r e d under an actual conflict of interest arising from the attorney's u n d i s c lo s e d , simultaneous service as a special prosecutor in multiple death p e n a lt y cases in the same jurisdiction. Although troubled by the performance o f Vasquez's trial counsel and by the divided loyalties of Vasquez's appellate c o u n s e l, the demanding standard of review imposed by the Anti-Terrorism and E ffe c t iv e Death Penalty Act1 ("AEDPA") ties our hands. We affirm. I . Facts & Proceedings T h e Texas Court of Criminal Appeals summarized the facts adduced at t r ia l when it affirmed Vasquez's conviction on direct appeal.2 We recount here o n ly those facts that bear on Vasquez's two claims of ineffective assistance of c o u n s e l ("IAC"). In 1999, a Texas jury convicted eighteen-year-old Richard Vasquez of the b r u t a l beating death of Miranda Lopez,3 the four-year-old daughter of Vasquez's g ir lfr ie n d , Brenda Lopez, from a prior relationship. Vasquez and Lopez also had a four-month-old daughter, Meagan, and the four of them had lived together w it h Vasquez's adoptive parents, who were his paternal aunt and uncle.

1

28 U.S.C. § 2254(d)(1)-(2). (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim­ (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
2

Vasquez v. State, No. 73,461 (Tex. Crim. App. Oct. 3, 2001) (unpublished). TEX. PENAL CODE ANN. § 19.03 (a)(8).

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No. 08-70034 During the guilt/innocence phase of the trial, it emerged that Vasquez h a d been addicted to cocaine and heroin from the age of twelve or thirteen; that h is girlfriend, Brenda, was similarly addicted; and that at the time of the murder in March 1998, Vasquez and Brenda were on a prolonged heroin binge in which " `t h e y stopped caring about themselves, the children, or anything else except d r u g s . They would leave the children anywhere so that they could go out and s t e a l things in order to buy more drugs.'"4 Throughout the night before the m u r d e r , Vasquez and Brenda had argued, and they injected themselves with h e r o in some time in the early morning hours before falling asleep. When he a w o k e , Vasquez injected himself with more heroin before driving Brenda to work a t around noon, taking the two children with him in the car. On the way, V a s q u e z became angry with Brenda because he had to stay home and watch the c h ild r e n while she worked. No one was home when he returned, and he

t e le p h o n e d Brenda to ask her where she had hidden the remainder of their d r u g s . When she refused to tell him, Vasquez became angry and unleashed his fr u s t r a t io n on Miranda. She died as a result of severe brain injuries sustained w h e n Vasquez, in a drug-fueled rage, struck her several times in the head. At t r ia l, significant evidence emerged that Miranda had also been severely sexually a s s a u lte d before she died, responsibility for which Vasquez denied.5 A toxicology r e p o r t revealed cocaine levels in Miranda's blood that were double the lethal a m o u n t for an adult, although neither the doctor nor Vasquez could explain the p r e s e n c e of the drug in her blood.

4

Vasquez v. State, No. 73,461 (Tex. Crim. App. Oct. 3, 2001) (unpublished).

Vasquez's state and federal petitions also included an additional ineffective assistance of counsel claim premised on trial counsel's failure adequately to rebut the state's evidence that he sexually assaulted Miranda Lopez. The district court denied this claim and did not grant a certificate of appealability with respect to it. Consequently, we do not consider it here.

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No. 08-70034 V a s q u e z was represented by three attorneys at trial. As part of his

d e fe n s e , Vasquez's trial attorneys offered the testimony of a psychiatrist, Dr. C a r lo s Estrada, who informed the jury that Vasquez had been addicted to n a r c o t ic s from the age of twelve and that his behavior was typical of addicts. Dr. E s t r a d a also testified that, if rehabilitated, Vasquez would not be a danger to s o c ie t y . It later emerged, however, that Estrada had told Vasquez's attorneys t h a t Vasquez's medical records and school record were incomplete and that V a s q u e z appeared to warrant additional neurological testing. Vasquez's

a t t orn ey s never requisitioned these additional tests, and no further psychological o r neurological evidence was presented to the jury in either phase of his trial. During the sentencing phase, Vasquez's counsel called three additional w it n e s s e s : Vasquez's aunt and uncle (his adoptive parents), and his sister, each o f whom essentially begged the jury for mercy. Not one of them was asked to d is c lo s e any information regarding the role of Vasquez's biological parents in his life , his ongoing relationship with his biological father, his family's history of s u b s t a n c e abuse and criminality, or any past or present mental disorders that m a y have affected Vasquez's childhood or development. In affidavits submitted in connection with his state habeas petition, V a s q u e z 's aunt and uncle each stated that none of Vasquez's attorneys had met w it h them to discuss possible mitigating evidence, and none prepared the V a s q u e z e s to testify at sentencing. One of Vasquez's attorneys later admitted t h a t counsel's only interviews with the Vasquez family to prepare the mitigation c a s e were held in the courthouse hallway during the trial. They never spoke

w it h Vasquez's biological parents at all. Neither did Vasquez's attorneys hire a mitigation specialist; rather, the court-authorized investigator they did hire, w h o had no experience investigating mitigating evidence in capital murder c a s e s , spent just eight and a half hours working on the case, which included time s p e n t traveling 110 miles. 4

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No. 08-70034 H ad Vasquez's trial attorneys undertaken even a rudimentary

in v e s t ig a t io n of Vasquez's family and social history, they would have unearthed a frightening portrait of addiction and destruction. Vasquez's mother drank h e a v ily and regularly during her pregnancy, inflicting Vasquez with Fetal A lc o h o l Syndrome. Vasquez's father, Ricardo Vasquez, was a drug addict and life lo n g foot soldier in the drug trade who spent much of his life in and out of p r is o n for narcotics-related crimes. Ricardo maintained a close relationship with h is son, refusing to allow Vasquez's clean-living aunt and uncle legally to adopt t h e boy. From the time Vasquez was a child, he witnessed his father using and d e a lin g heroin, often from the front porch of their home. Ricardo took Vasquez w it h him to rob houses and taught Vasquez how to use and sell heroin. Vasquez b e g a n using marijuana when he was ten, and by thirteen he was addicted to h e r o in and cocaine. Vasquez's father was not the only corrupting influence: W h e n Vasquez was eight, a paternal uncle who lived nearby was murdered in a drug-related homicide; when Vasquez was nine, another paternal uncle died o f a drug overdose; three years later, yet another paternal uncle was murdered in narcotics-related violence. When, at age fourteen, Vasquez's aunt and uncle tried to get him help for h is substance abuse, Ricardo lured Vasquez back to a life of drugs and drugt r a ffic k in g by taking the boy along with him when he made deliveries as a drug r u n n e r and when he robbed houses. Even when Ricardo was incarcerated, V a s q u e z 's environment fueled his addiction: His father's friends would seek him o u t and share their drugs with him; his sister Brenda, also a cocaine addict, had a series of boyfriends who sold heroin and who would supply Vasquez with w h a t e v e r he wanted; even his biological mother, who lived nearby and had in fo r m a lly surrendered custody of Vasquez to his aunt and uncle, co-habited w it h a drug-dealer who provided Vasquez with drugs. The toxic combination of a d d ic t io n and crime that pervaded Vasquez's family life and adolescence 5

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No. 08-70034 e v e n t u a lly took its toll. Neurological tests undertaken as part of his state h a b e a s petition revealed that he suffered from brain dysfunction arising from m u lt ip le causes (including Fetal Alcohol Syndrome, actual trauma to the brain, a n d drug abuse), cumulative post-traumatic stress disorder, learning disabilities, a n d a borderline low-normal IQ of 83. None of the foregoing mitigating evidence w a s discovered and presented to the sentencing jury by his counsel. Vasquez appealed his conviction and sentence to the Texas Court of C r im in a l Appeals, which affirmed both.6 While his direct appeal was still

p e n d in g , Vasquez filed a state petition for habeas corpus in his trial court, a s s e r t in g eleven grounds for relief, including those under consideration here. F o llo w in g an evidentiary hearing, the trial court entered findings of facts and c o n c lu s io n s of law denying relief on all grounds. The Texas Court of Criminal A p p e a ls adopted the trial court's findings and conclusions in an unpublished o p in io n and denied Vasquez's state application for the writ of habeas corpus.7 F o llo w in g the exhaustion of his state remedies, Vasquez filed a federal h a b e a s petition in the Southern District of Texas, advancing three claims for r e lie f premised on violations of his Sixth Amendment right to the effective a s s is t a n c e of trial and appellate counsel. The district court denied relief on all t h r e e claims, but granted a certificate of appealability sua sponte on the two c la im s now before us: (1) whether trial counsel's investigation into mitigating e v id e n c e was so deficient and prejudicial as to violate his Sixth Amendment r ig h t ; and (2) whether Vasquez's appellate attorney labored under an actual c o n flic t of interest that deprived him of his Sixth Amendment right.8

6

Id. Ex parte Vasquez, No. 59,201-01 (Tex. Crim. App. Jan. 26, 2005). Vasquez v. Quarterman, No. CC-06-059, 2008 WL 859147 (S.D. Tex. Mar. 28, 2008).

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No. 08-70034 I I . ANALYSIS A. S ta n d a r d of Review B e c a u s e Vasquez's IAC claims were brought in the district court after A p r il 24, 1996, they are governed by the provisions of the AEDPA.9 We review t h e district court's interpretation of the AEDPA de novo and its findings of fact fo r clear error.1 0 The AEDPA's deferential standard of review only applies to the s t a t e court's adjudication of a petitioner's claim on the merits,1 1 a condition s a t is fie d here. IAC claims are mixed questions of fact and law, and thus are "reviewed u n d e r the `contrary to' and `unreasonable application' prong of 28 U.S.C. § 2 2 5 4 (d )."1 2 A state court's decision is "contrary to" clearly established Supreme C o u r t precedent when it "applies a rule that contradicts the governing law set fo r t h in [the Court's] cases," or reaches an opposite conclusion from a Supreme C o u r t case upon facts that are "materially indistinguishable."1 3 A state court

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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.
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Thompson v. Cain, 161 F.3d 802, 805 (5th Cir. 1998). In a habeas petition, however, the state court's findings constrain the district court's determination of the facts. "[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. 2254(e)(1).
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28 U.S.C. § 2254(d). Moore v. Cockrell, 313 F.3d 880, 881 (5th Cir. 2002).

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

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No. 08-70034 " u n r e a s o n a b ly applies" clearly established federal law when it correctly id e n tifie s the governing law but unreasonably applies it to the facts of a p a r tic u la r case.1 4 To warrant reversal, the state court's application of the law m u s t be objectively, not subjectively, unreasonable.15 W h e n the state court denies relief without issuing a written order or o t h e r w is e specifying its reasons, our inquiry under the AEDPA is not affected. Rather, we "(1) assume that the state court applied the proper clearly e s t a b lis h e d federal law; and (2) then determine[] whether its decision was c o n t r a r y to or an objectively unreasonable application of that law." 16 B. 1. A n a ly s is T h e Wiggins claim U n d e r the familiar standard set forth in Strickland v. Washington,1 7 a p etition e r claiming ineffective assistance of counsel must prove that (1) counsel's p e r fo r m a n c e fell below the objective, professional standard of reasonableness, a n d (2) such deficient performance prejudiced the defense. To establish p r e ju d ic e , the petitioner must show that "but for counsel's unprofessional errors, t h e result of the proceeding would have been different." 18 a. D e f i c ie n t performance

14

Id. at 407-09.

Id. Accord Schiro 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 unreasonable­a substantially higher standard.").
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Jordan v. Dretke, 416 F.3d 363, 367-68 (5th Cir. 2005) (internal citations and marks

omitted).
17

466 U.S. 668, 687-88 (1984). Mickens v. Taylor, 535 U.S. 162, 166 (2002).

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No. 08-70034 In Wiggins v. Smith,1 9 the Supreme Court recognized that, in a capital c a s e , counsel's performance may be deficient if it does not include an adequate investigation into mitigating evidence, including research into a capital d e fe n d a n t 's "family and social history."2 0 The Texas Court of Criminal Appeals h eld that Vasquez's attorneys' performance was neither deficient nor prejudicial. Thereafter, the federal district court held that counsel's performance was c o n s t it u t io n a lly deficient, but that it did not prejudice Vasquez's defense. On a p p e a l to us, Vasquez challenges the district court's conclusion regarding p r e ju d ic e by identifying several ways in which the district court allegedly m is a p p lie d the applicable prejudice analysis. Before us, the government does n o t contest the district court's conclusion that counsel's performance was d e fic ie n t ;2 1 instead, the government contends that the district court correctly in t e r p r e t e d and applied the Strickland standard of prejudice. Consequently, our t a s k is confined to determining (1) whether it was objectively unreasonable for t h e Texas Court of Criminal Appeals to conclude that the outcome of Vasquez's c a p it a l sentencing would not have been different if his trial counsel had in v e s t ig a t e d (and, presumably, presented) evidence of his family life and social h is t o r y , including his mental impairments, and (2) whether the district court e r r e d as a matter of law in its application of Strickland. b. P r e ju d ic e

U n d e r Strickland and its progeny, Vasquez must demonstrate that, but fo r counsel's failures to investigate and present evidence of his family life and

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539 U.S. 510 (2003).

Id. at 524 (recognizing as the applicable standard of professional conduct the American Bar Association Standards for Criminal Justice); Rompilla v. Beard, 545 U.S. 374, 387 (2005) (same). We have already held that "[g]enerally accepted standards of competence require that counsel conduct an investigation into [a defendant's] background." Smith v. Quarterman, 515 F.3d 392, 405 (5th Cir. 2008).
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No. 08-70034 s o c i a l history, there is a "reasonable probability" that a jury would not have s e n te n c e d him to death.2 2 A reasonable probability is "a probability sufficient t o undermine confidence in the outcome." 23 V a s q u e z essentially insists that the district court erred in its application o f the Strickland standard because it failed to consider how the evidence of his fa m ily life and background would have affected the totality of the evidence p r e s e n t e d to the sentencing jury regarding his culpability. He contends that, c o n t r a r y to Texas and federal law,2 4 the district court employed several e r r o n e o u s modes of analysis, including (1) improperly "weighing" mitigating e v id e n c e against aggravating evidence; (2) improperly assessing the evidence of Vasquez's childhood and mental impairments in a "threshold-based analysis" a g a in s t the depravity suffered by the successful habeas petitioners in Wiggins a n d Rompilla; (3) improperly discounting the evidence of mental impairment as " d o u b le -e d g e d " ; and (4) misconstruing the petitioner's standard of proof when it

Strickland, 466 U.S. at 694 ("The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.").
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Id.

As a threshold matter, we note that Vasquez's claim that the district court misapplied Texas law must implicate a violation of a federal right if it is to be cognizable on federal habeas review. Hankins v. Quarterman, 288 Fed. App'x 952, 960 n.28 (5th Cir. 2008) (citing Smith v. McCotter, 786 F.2d 697, 702-03 (5th Cir. 1986) (citing Baldwin v. Blackburn, 653 F.2d 942, 948 (5th Cir. 1981), cert. denied, 456 U.S. 950, reh'g denied, 457 U.S. 1112 (1982) (holding that a failure to comply with state law requirements presents a federal habeas issue only if it involves federal constitutional issues))). The Texas mitigation special issue instruction tracks the constitutional requirement articulated in Penry v. Lynaugh, in which the Court held that a defendant has a right to "[sentencing] instructions informing the jury that it could consider and give effect to the mitigating evidence of [petitioner's] [mental infirmities] and . . . background by declining to impose the death penalty, [as a ] . . . . vehicle for expressing its `reasoned moral response' to that evidence in rendering its sentencing decision." Penry v. Lynaugh, 492 U.S. 302, 328 (1989). Inasmuch as the Texas mitigation special issue was modeled on Penry to ensure compliance with federal constitutional law, Vasquez's claim is cognizable on federal habeas review.

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No. 08-70034 h e ld that Vasquez had to establish prejudice by "clear and convincing evidence." We address each contention in turn. i. I m p r o p e r weighing of evidence

T h e Supreme Court has long recognized that a state may employ any p r o c e d u r e it chooses to administer the death penalty as long as that procedure m e a n in g fu lly "limit[s] the class of murderers to which the death penalty may be a p p lie d ."2 5 Once this limiting condition has been satisfied, all states ask "the s e n te n c e r . . . to determine whether a defendant thus found eligible for the death p e n a lt y should in fact receive it. Most States channel this function by specifying t h e aggravating factors (sometimes identical to the eligibility factors) that are t o be weighed against mitigating considerations."2 6 State practices diverge here, a s some permit the sentencer to consider aggravating circumstances that are not in c lu d e d in the list of aggravating circumstances that made the defendant deathp e n a lt y eligible initially.2 7 Regardless of the differences between state practices, h o w e v e r , the only federal constitutional requirement is that "in all capital cases t h e sentencer must be allowed to weigh the facts and circumstances that a rg u a b ly justify a death sentence against the defendant's mitigating evidence."28 T o comply with this standard, Texas law instructs the sentencer to consider " [w ]h e t h e r , taking into consideration all of the evidence, including the c ir c u m s t a n c e s of the offense, the defendant's character and background, and the p e r s o n a l moral culpability of the defendant, there is a sufficient mitigating

Brown v. Sanders, 546 U.S. 212, 216 (2006) (analyzing different state capital sentencing schemes in the context of determining "what happens when the sentencer imposes the death penalty after at least one valid eligibility factor has been found, but under a scheme in which an eligibility factor or a specified aggravating factor is later held to be invalid.").
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Id. Id. (observing same). Id. 216-17.

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No. 08-70034 c ir c u m s t a n c e or circumstances to warrant that a sentence of life imprisonment r a t h e r than a death sentence be imposed." 29 T h is was precisely the analysis undertaken by the district court in this c a s e . After undertaking an extensive review of the evidence in mitigation, the c o u r t went on to note the other evidence put before the jury regarding (1) the v ic t im 's youth; (2) the undisputed fact that she died while in Vasquez's sole care fr o m blows to the head that "were equivalent to a 65 m.p.h. car accident;" (3) the fa c t that she had lethal quantities of cocaine in her system; (4) the significant e v id e n c e of some type of sexual assault; and (5) evidence of other wounds on her b o d y that pointed to a history of physical abuse. To guide its assessment of the p o s t -c o n v ic t io n record of evidence in aggravation and in mitigation, the district c o u r t properly looked to cases in which the Supreme Court had applied this very s t a n d a r d .3 0 The district court then concluded that Vasquez's background, " t h o u g h terrible," would not have so altered a jury's perception of his moral c u lp a b ilit y that the Texas Court of Criminal Appeals had unreasonably e r r e d -- t h e standard imposed by AEDPA--in its conclusion that a jury would h a v e convicted Vasquez to death anyway. ii. C o m p a r in g instant evidence with that in Wiggins and Rompilla

W e deem unavailing Vasquez's claim that the district court erroneously " w e ig h e d " the mitigating evidence against the aggravating evidence, or c o m m it t e d error when it compared the mitigating evidence in Vasquez's case to that of successful Wiggins petitioners. The Supreme Court instructs courts to c o n s id e r "the totality" of mitigating evidence­both the evidence adduced at s e n te n c in g and evidence that was omitted or went undiscovered--in its prejudice

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TEX. CRIM. PROC. CODE ANN. art 37.071 § 2(e) (Vernon 1997).

Vasquez v. Quarterman, No. CC-05-059, 2008 WL 859147, at *11-12 (S.D. Tex., March 28, 2008).

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No. 08-70034 a n a ly s is .3 1 The Texas Code of Criminal Procedure instructs a sentencing jury s i m i l a r l y .3 2 Consequently, there is no prescribed or proscribed

p r o c e d u r e -- " b a la n c in g ," "weighing," or otherwise--by which a jury (or a court) m u s t analyze the mitigation evidence under either Texas3 3 or federal law,3 4 so l o n g as both the newly discovered mitigation evidence and the original m it ig a t io n evidence is taken into consideration. Naturally, the power of the n e w ly amplified case to mitigate a jury's selected punishment will be contingent o n other factors in the case, such as the circumstances of the crime. We have, t h e r e fo r e , repeatedly upheld the commonsense notion that the relative mix of m it ig a t in g and aggravating evidence must be reassessed when a court engages

Williams v. Taylor, 529 U.S. 362, 397-98 (2000) (holding that the state supreme court erred when it "failed to evaluate the totality of the available mitigation evidence­both that adduced at trial, and the evidence adduced in the habeas proceeding in reweighing it against the evidence in aggravation"). The Texas statute requires a jury to consider: Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed. TE X . CRIM. PROC. CODE ANN. art 37.071 § 2(e) (Vernon 1997). Mosley v. State, 983 S.W.2d 249, 263 n.18 (Tex. Crim. App. 1998) (instructing that "[w]hile the[ ] cases have some language indicating that the mitigation question does not involve aggravating circumstances, such language should properly be viewed as simply observing that the issue does not require their consideration. Such an observation does not, however, preclude permitting the jury to consider aggravating factors in making its evaluation . . . the jury is not, and should not be, required to look at mitigating evidence in a vacuum . . . ."); accord Ex parte Gonzalez, 204 S.W.3d 391, 394 (Tex. Crim. App. 2006) (noting that "Texas's capital sentencing scheme does not involve the direct balancing of aggravating and mitigating circumstances. It asks the jury to answer a mitigation question."). Tuilaepa v. California, 512 U.S. 967, 979-80 (1994) (holding that "[a] capital sentencer need not be instructed how to weigh any particular fact in the capital sentencing decision" and reaffirming that "the sentencer may be given `unbridled discretion in determining whether the death penalty should be imposed after it has found that the defendant is a member of the class made eligible for that penalty'" ) (citing Zant v. Stephens, 462 U.S. 862, 875 (1983)).
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No. 08-70034 in a Strickland prejudice analysis.3 5 Vasquez is correct that, in support of its b a la n c in g approach to prejudice analysis, the district court relied on two cases t h a t were decided before the Texas statute was amended to reflect Penry's in s is t e n c e that juries be allowed to consider the effect of mitigating evidence on g e n e r a l moral culpability.3 6 Nevertheless, our review of the district court's a n a ly s is in its entirety leads us to conclude that its citation to two stale cases d o e s not trump the fact that its analysis properly considered the potential im p a c t of the omitted mitigation evidence on the jury's sentencing determination in conformity with prevailing Texas and Supreme Court precedent. W it h respect to Vasquez's claim that the district court erred in comparing t h e mitigating evidence in Vasquez with that of other (successful) habeas p e t it io n e r s who had brought similar claims, nothing in Wiggins, Rompilla, or W illia m s suggests that a court may not, in its assessment of prejudice stemming fr o m uninvestigated mitigating evidence, engage in the kind of "cross-case c o m p a r is o n " that is the foundation of common law reasoning. On the contrary, w e have noted that prejudice analysis "is illumined, although not necessarily c o n t r o lle d by, a comparison with cases in which the Supreme Court determined w h e t h e r there was a reasonable probability that the trial attorneys' failure to

Wood v. Quarterman, 491 F.3d 196, 203 (5th Cir. 2007) (holding that Wiggins requires the court to "reweigh[] the evidence in aggravation against the totality of the available mitigating evidence"); Blanton v. Quarterman, 543 F.3d 230, 239 (5th Cir. 2008) ("In reviewing the issue of prejudice at capital sentencing we weight the quality and quantity of the available mitigating evidence, including that presented in post-conviction proceedings, along with any aggravating evidence.")). Vasquez v. Quarterman, No. CC-05-059, 2008 WL 859147, at *11 (S.D. Tex., March 28, 2008) (citing Jones v. Johnson, 171 F.3d 270 (5th Cir. 1999) (applying pre-1991 sentencing statute); Russell v. Lynaugh, 892 F.2d 1205 (5th Cir. 1989) (same)).
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No. 08-70034 d is c o v e r and present mitigation evidence had affected the outcome of the s e n te n c in g proceedings." 37 iii. E v id e n c e of mental impairment as "double-edged"

V a s q u e z 's claim that the district court misconstrued the standard of p r e ju d ic e applicable to newly-discovered evidence of mental impairment is p r e d ic a t e d on a faulty interpretation of the district court's reasoning. Vasquez's a r g u m e n t is somewhat unclear: He appears to argue that the court misconstrued t h e prejudice standard because its analysis was incorrectly driven by deference t o counsel's strategic choice not to present evidence of mental impairment in lig h t of the fact that such evidence can be double-edged. This, however, mischaracterizes the district court's reasoning and the governing legal standard. The court assumed that the performance of Vasquez's counsel was deficient for fa ilin g to investigate evidence that Vasquez suffered from post traumatic stress d is o r d e r , attention deficit disorder, drug addiction, Fetal Alcohol Syndrome, le a r n in g disabilities, and a borderline I.Q. The court then reasoned that

" [r ]e g a r d le s s of whether defense counsel should have pursued . . . additional . . . tests [for mental impairment]," even if evidence of mental impairment were a d d e d to the case for mitigation, the "overwhelming evidence of guilt and the b r u t a lit y discussed" rendered it unlikely that the mental impairment evidence w o u ld have so "altered the jury's balancing of aggravating or mitigating fa c t o r s ."3 8 The district court correctly noted that evidence of mental impairment " c e r t a in ly helps to explain Vasquez's violent outburst against Miranda" and that it "could elicit the jury's sympathy."3 9 That court thus clearly contemplated the

Sonnier v. Quarterman, 476 F.3d 349, 360 (5th Cir. 2007) (comparing impact of petitioner's excluded mitigation evidence by reference to mitigation evidence in Williams and Rompilla).
38

37

Vasquez, 2008 WL 859147 at *22. Id. at *12.

39

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No. 08-70034 e x p la n a t o r y power and, implicitly, the exculpatory power of the mentalim p a ir m e n t evidence. In so doing, the court's reasoning is entirely in keeping w it h governing Supreme Court law and the law of this circuit. The Supreme Court has held that evidence of mental impairment can be b o th mitigating and aggravating,4 0 and we have repeatedly rejected IAC claims " w h e r e alleged failures to investigate mitigating evidence did not prejudice the d e fe n d a n t because of the double-edged nature of the evidence available."4 1 Thus, t h e district court did not misperceive or misapply the relevant standard of S tr ic k la n d prejudice, and Vasquez has not offered any other grounds from which w e could conclude that the state court's prejudice determination was objectively u n r e a s o n a b le . We perceive no error, either on the part of the state court or the fe d e r a l district court. iv. S ta n d a r d of proof of prejudice

Vasquez next contends that the district court assigned him the incorrect s t a n d a r d of proof when it stated that he had to establish prejudice by "clear and c o n v in c in g evidence."4 2 Under the AEDPA, "a determination of a factual issue m a d e by a State court shall be presumed to be correct. The applicant shall have t h e burden of rebutting the presumption of correctness by clear and convincing e v id e n c e ."4 3 Nevertheless, "[o]n questions of law, as well as mixed questions of

Penry v. Lynaugh, 492 U.S. 302, 324 (1989), abrogated on other grounds by Atkins v. Virginia, 536 U.S. 304 (2002) (noting that "mental retardation and history of abuse is thus a two-edged sword: it may diminish [petitioner's] blameworthiness for [the] crime even as it indicates that there is a probability that he will be dangerous in the future").
41

40

Cockrum v. Johnson, 119 F.3d 297, 304-05 (5th Cir. 1997) (collecting cases).

Vasquez, 2008 WL 859147 at *12-13 (noting that "Petitioner fails to demonstrate by clear and convincing evidence that the state court's finding [that evidence of Vasquez's mental impairments would not have been reasonably likely to lead the jury to withhold the death penalty] is unreasonable.").
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28 U.S.C. § 2254(e)(1).

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No. 08-70034 la w and fact, the district court was required, under AEDPA, to defer to the s t a t e -c o u r t 's decision unless it `was contrary to, or involved an unreasonable a p p lic a t io n of, clearly established Federal law, as determined by the Supreme C o u r t .'"4 4 "An ineffective assistance of counsel claim presents a mixed question o f law and fact." 45 B a s e d on the foregoing, the district court erred when it stated that " P e t it io n e r fails to demonstrate by clear and convincing evidence that the state c o u r t's finding is unreasonable."4 6 Moreover, this error is revealed in the district c o u r t's own opinion. In its initial articulation of the standard of review, the court e x p r e s s l y identified the correct standard under the AEDPA, and went on to c o n c lu d e , after its review of the newly adduced mitigating evidence, that " V a s q u e z fails to demonstrate a reasonable probability that the mitigating e v id e n c e would have altered the jury's balancing of aggravating and mitigating fa c t o r s " and that, therefore, "[t]he State Court's rejection of this claim was n e ith e r `contrary to' nor an `unreasonable applicable of' clearly established fe d e r a l law." These additional statements by the district court, articulating and a s s ig n in g the correct burden to petitioner, lead us to conclude that it was a s im p le drafting error that made it appear as though the district court had e n g r a ft e d the heightened "clear and convincing" evidence standard of proof onto th e objective unreasonableness standard mandated by the AEDPA. Even though w e recognize that this drafting error incorrectly stated the governing standard o f proof, we affirm the district court's ruling on Vasquez's Wiggins claim because,

Bartee v. Quarterman, 339 Fed. App'x 429, 432 (5th Cir. 2009) (internal citations omitted); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) ("A federal court can disagree with a state court's credibility determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence.").
45

44

Ward v. Dretke, 420 F.3d 479, 486 (5th Cir. 2005). Vasquez, 2008 WL 859147 at *12-13.

46

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No. 08-70034 u n d e r the correct standard, Vasquez has not proven that the state court's p r e ju d ic e determination was objectively unreasonable. 2. I A C predicated on appellate counsel's conflict of interest V a s q u e z also asserts an IAC claim against his appellate counsel, insisting t h a t his attorney on appeal labored under an actual conflict of interest because h e simultaneously served as a special prosecutor seeking to uphold two u n r e la t e d capital convictions for the same district attorney's office that p r o s e c u t e d Vasquez. The state court's conclusion that no actual conflict existed is a conclusion of law,4 7 and as such it is subject to the "contrary to" or " u n r e a s o n a b le application" standard of review under the AEDPA. To obtain relief based on counsel's conflict of interest, "a defendant who r a is e d no objection at trial must demonstrate that an actual conflict of interest a d versely affected his lawyer's performance."48 Importantly, the mere "possibility o f conflict is insufficient to impugn a criminal conviction."4 9 In Mickens v. Taylor, t h e Supreme Court explained that w e think `an actual conflict of interest' mean[s] precisely a conflict th a t affected counsel's performance­as opposed to a mere theoretical d iv is io n of loyalties. It was shorthand for the statement [in Cuyler] t h a t `a defendant who shows that a conflict of interest actually a ffe c t e d the adequacy of his representation need not demonstrate p r e ju d ic e in order to obtain relief. . . .Thus, the [Cuyler] standard is n o t properly read as requiring inquiry into actual conflict as s o m e t h in g separate and apart from adverse effect. An `actual

47

Cuyler v. Sullivan, 446 U.S. 335, 342 (1980).

Id. at 348. Note here that Vasquez was unaware that counsel simultaneously represented the Nueces district attorney's office in other capital appeals, and the record does not indicate that this fact was divulged to the appellate court.
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48

Id. (emphasis added).

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No. 08-70034 c o n flic t ,' for Sixth Amendment purposes, is a conflict of interest that a d v e r s e ly affects counsel's performance.50 T h is circuit has further refined the Cuyler inquiry by requiring that "[a] d e f e n d a n t must show more than a speculative or potential conflict;" 5 1 to meet t h is standard requires that "it . . . be demonstrated that the attorney made a c h o i c e between possible alternative courses of action . . . . If he did not make s u c h a choice, the conflict remained hypothetical."5 2 Relevant factors may

in c lu d e (1) whether the attorney had confidential information that was helpful t o one client but harmful to the other client; (2) whether and how closely related w e r e the subject matters of the cases; (3) how close in time the multiple r e p r e s e n t a t io n s occurred; and (4) whether the prior representation has t e r m in a t e d .5 3 Ultimately, however, we have noted before that "Cuyler's `actual c o n flic t' and `adverse effect' elements have been described as `rather vague'" and s u c h a determination is therefore "tightly bound to the particular facts." 5 4 V a s q u e z 's conflict-based IAC claim may be reduced to the assertion that, b e c a u s e the interests of a criminal defendant and the office of the prosecutor t h a t convicted him are inescapably adverse, his appellate attorney was, ex d e fin itio , actively representing conflicting interests. All the authorities that V a s q u e z cites involved a defense attorney's present representation of a d e fe n d a n t and the past representation (civil or criminal) of a witness for the

Mickens v. Taylor, 535 U.S. 162, 164 (2002) (addressing "what a defendant must show in order to demonstrate a Sixth Amendment violation where the trial court fails to inquire into a potential conflict of interest about which it knew or reasonably should have known.")
51

50

United States v. Garcia-Jasso, 472 F.3d 239, 243 (5th Cir. 2006). Id. (citing Beets v. Scott, 65 F.3d 1258, 1277 (5th Cir. 1995) (en banc). U.S. v. Burns, 526 F.3d 852, 856 (5th Cir. 2008). Perillo v. Johnson, 205 F.3d 775, 782 (5th Cir. 2000) (citing Beets, 65 F.3d at 1265).

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53

54

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No. 08-70034 p r o s e c u t io n in the defendant's ongoing criminal trial.5 5 Consideration of the p a r tic u la r situation presented here--a special prosecutor who simultaneously s e r v e s as a capital defense attorney in the same jurisdiction--appears to be res n o v a in this circuit, and, indeed, in all but one other circuit. It appears that only t h e Seventh Circuit has addressed this particular type of conflict, and it squarely r e je c t e d the argument that Vasquez advances here. In Small v. Endicott, the S e v e n t h Circuit held that a pro se defendant failed to demonstrate the existence o f a cognizable actual conflict under the Sixth Amendment because he did not p o in t to anything other than the fact "that his attorney served as a special p r o s e c u t o r in an unrelated murder" in the same jurisdiction while he was d e f e n d i n g the petitioner.5 6 The Small court reasoned that "we do not find a c o n flic t of interest where there exist separate and distinct criminal cases in v o lv in g neither the same parties nor facts." 5 7 W e do not today suggest that an arrangement such as the one presented h e r e could not, under different circumstances, present an actual conflict,5 8 but w e cannot conclude on the record before us that the state court's conclusion was

United States v. Martinez, 630 F.2d 361, 363 (5th Cir. 1980); Stephens v. United States, 595 F.2d 1066, 1066 (5th Cir. 1979); Zuck v. Alabama, 588 F.2d 436, 439 (5th Cir. 1979); Castillo v. Estelle, 504 F.2d 1243 (5th Cir. 1974) .
56

55

998 F.2d 411, 417 (7th Cir. 1993). Id.

57

See, e.g., Burger v. Kemp, 483 U.S. 776, 784-85 (1987). In Kemp, the Court treated partners in a law firm who represented different defendants in different trials involving a single criminal transaction as a single attorney for conflicts purposes. "The two partners [had] shared their legal research and discussed the cases with one another," and the respective theories of each co-defendant "sought to emphasize the culpability of the other in order to avoid the death penalty." Id. at 780. Although the Court "assum[ed] without deciding" that two law partners are considered one attorney for the purposes of the conflicts analysis, Kemp nevertheless suggests that a special prosecutor and a prosecutor may be treated as law partners--and therefore, have one another's loyalties and conflicts imputed to the other--under certain circumstances.

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No. 08-70034 o b je c t iv e ly unreasonable. As in Small v. Endicott, Vasquez's appellate counsel s e r v e d as a special prosecutor in totally "separate and distinct" capital cases. Further, Vasquez does not allege that his counsel possessed confidential, "zeros u m " information that would have aided his defense but would have required his a t t o r n e y to breach a duty to the Nueces County district attorney's office. Bearing in mind that the only circuit to have considered such a fact pattern held t h a t it did not rise to the level of an actual conflict, we conclude that, under the h ig h ly deferential standard of review imposed by the AEDPA, the state court w a s not objectively unreasonable in holding that, without more, appellate c o u n s e l's simultaneous service as a special prosecutor in unrelated capital cases d id not establish an actual conflict under prevailing federal law as established b y the Supreme Court. I I I . CONCLUSION W e hold that although it was objectively unreasonable for the state court t o conclude that Vasquez's trial counsel's performance was constitutionally s o u n d , Vasquez was not prejudiced by his trial counsel's deficient performance. W e also hold that it was not objectively unreasonable for the state court to c o n c lu d e that Vasquez's appellate counsel did not labor under an actual conflict o f interest. The judgment of the district court denying habeas relief to Vasquez is , therefore, A F F IR M E D .

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