Rodrigo Hernandez v. Rick Thaler, Director

Filing

UNPUBLISHED OPINION ORDER FILED. [10-70005 Affirmed ] Judge: WED , Judge: JES , Judge: JLD; denying motion to stay further proceedings in this court filed by Appellant Mr. Rodrigo Hernandez [6602850-2]; denying motion for certificate of appealability filed by Appellant Mr. Rodrigo Hernandez (ISSUED AS AND FOR THE MANDATE) [6527418-2] [10-70005]

Rodrigo Hernandez v. Rick Thaler, Director

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-70005 October 18, 2010 Lyle W. Cayce Clerk

R O D R I G O HERNANDEZ, P e titio n e r-A p p e lla n t, versu s R I C K THALER, Director, Texas Department of Criminal Justice, Correctional 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 Western District of Texas N o . 5:08-CV-391

B e fo r e DAVIS, SMITH, and DENNIS, Circuit Judges. J E R R Y E. SMITH, Circuit Judge:*

R o d r ig o Hernandez was convicted in 2004 of the rape and capital murder o f Susan Verstegen and sentenced to death. He filed a state application for writ

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-70005 o f habeas corpus, claiming he had received ineffective assistance of counsel durin g trial. The trial court held an evidentiary hearing, and the Texas Court of C r im in a l Appeals denied all habeas relief. Ex parte Hernandez, No. 69,470-01 (T e x . Crim. App. Apr. 30, 2008) (unpublished). After reviewing the record, the fe d e r a l district court denied all habeas relief on the merits and did not grant a COA. Hernandez now seeks a COA on the same issues presented to the district c o u r t. He also moves for a stay of the federal habeas proceeding so he can return t o state court and exhaust a new claim for relief--that because he is mentally ret a r d e d , he is ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 3 0 4 (2002). We deny a COA and a stay.

I . Certificate of Appealability. A . Standard of Review. P u r s u a n t to the Antiterrorism and Effective Death Penalty Act of 1996 ( " A E D P A " ), a COA requires "a substantial showing of the denial of a constitut io n a l right." 28 U.S.C. § 2253(c)(2). The petitioner must "demonstrate that reas o n a b le jurists would find the district court's assessment of the constitutional c la im s debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). "[A] c la im can be debatable even though every jurist of reason might agree, after the C O A has been granted and the case has received full consideration, that petit io n e r will not prevail." Miller-El v. Cockrell, 537 U.S. 322, 338 (2003). Because A E D P A forbids a full consideration of the merits, a COA analysis is only a t h r e s h o ld inquiry of the claim and a general assessment of its merits. Id. at 337. H e r n a n d e z contends he was denied his Sixth Amendment right to effective a s s is t a n c e of counsel. The analysis requires a preliminary, not definitive, applic a t io n of the two-pronged test in Strickland v. Washington, 466 U.S. 668 (1984). See Miller-El, 537 U.S. at 338. 2

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No. 10-70005 U n d e r the first prong, the petitioner must show that counsel's performance w a s deficient, meaning that "counsel made errors so serious that counsel was not fu n c tio n in g as the `counsel' guaranteed the [petitioner] by the Sixth Amendm e n t." Washington, 466 U.S. at 687. The proper measure is whether "the repres e n ta t io n fell below an objective standard of reasonableness." Id. at 688. That s t a n d a r d is highly deferential, and a court must presume that counsel's conduct fa lls within the wide range of prevailing professional norms. Id. at 689. Because it is easy to denounce an unsuccessful course of action with benefit of hindsight, c o u r ts should evaluate the challenged conduct from counsel's perspective at that t im e . Id. Therefore, unless the conduct was unreasonable as a matter of law, stra teg ic decisions following a thorough investigation are "virtually unchallengea b le ." Id. at 690. Decisions after a less-than-thorough investigation may still b e reasonable if supported by reasonable professional judgments. Id. at 691. To satisfy the second prong, the petitioner must show that the deficient p e r fo r m a n c e prejudiced the defense, meaning that "counsel's errors were so serio u s as to deprive the [petitioner] of a fair trial." Id. at 687. There must be a reas o n a b le probability that but for counsel's unprofessional errors, the result of the p r o c e e d in g would have been different. Id. at 694. A reasonable probability is o n e that is sufficient to undermine confidence in the outcome, id., but prejudice m a y also occur if "the result of the proceeding was fundamentally unfair or unrelia b le ." Lockhart v. Fretwell, 506 U.S. 364, 369 (1993). Not all errors justify setting aside a conviction. The Sixth Amendment d o e s not guarantee the right to counsel for the sake of having counsel, but rather t o ensure that legal assistance afforded the defendant a fair trial and to justify r e lia n c e on the outcome. Washington, 466 U.S. at 691-92. Thus, if counsel's err o r s S S n o matter how unreasonableSSdid not have a prejudicial effect on the defe n s e , they do not rise to the level of a constitutional violation. Id. at 693. B o t h Washington prongs are mixed questions of law and fact. Id. at 698. 3

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No. 10-70005 T h e state court's findings of fact are subject to deference under 28 U.S.C. § 2254(d), and the district court's findings are reviewed under the clearly err o n e o u s standard of Federal Rule of Civil Procedure 52(a). Miller-El, 537 U.S. a t 340. Because of the severity and finality of the death sentence, any doubts s h o u ld be resolved in favor of the petitioner. Clark v. Johnson, 202 F.3d 760, 763 (5 t h Cir. 2000).

B. Analysis. H e r n a n d e z contends that five separate actions and omissions by his att o r n e y satisfy the Washington test: (1) failing to call Hernandez to testify during t h e hearing on his motion to suppress his confession, and erroneously arguing that Michigan law should govern the confession's admissibility; (2) failing to obje c t to the prosecutor's allegedly misleading questions to the medical examiner r e g a r d in g the amount of time necessary to cause death from a ligature; (3) failin g to object to the prosecutor's comments regarding the alleged use of a ligature t o cause death; (4) failing to argue, at the punishment phase, that residual doubt s h o u ld mitigate imposition of the death penalty, and failing to raise residual d o u b t through cross-examination; and (5) failing to retain a dental expert to exa m i n e the possible bite marks on Verstegen's body and compare them to Hern a n d e z 's teeth. We address each action or omission in turn.

1 . Failing To Call Hernandez To Testify, and Arguing Michigan Law.1 T h e state trial court held an evidentiary hearing to determine whether H e r n a n d e z 's written confession should be suppressed. The two officers who inThe district court noted that Hernandez did not raise these two arguments in the state habeas proceeding, and therefore that they should have been dismissed as unexhausted claims. See Strickler v. Greene, 527 U.S. 263, 281-82 (1999). The state, however, did not assert procedural default, and the court denied habeas relief on the merits under § 2254(b)(2). We therefore analyze the constitutional violation and not procedural default.
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No. 10-70005 t e r v ie w e d Hernandez testified that after he was given his Miranda warnings, h e confessed to his involvement in Verstegen's death, claiming that he had raped h e r but had not intended to kill her. The officers also said that although Hern a n d e z agreed to give a written statement, he asked one of them to write it for h im because his hands were shaking too much. According to the detective who t o o k the statement, Hernandez read it before initialing each page and signing t h e last page. Hernandez's attorney argued that the confession should be supp r e s s e d because it did not comply with Michigan law. The state trial court conc lu d e d that Texas and not Michigan law applied and that under Texas law the c o n fe s s io n was proper, so it was admissible. H e r n a n d e z now asserts that it was unreasonable error for his attorney not t o put him on the stand to testify during the hearing. Hernandez contends that h e would have testified that he had signed a blank form and that his initials w e r e forged. The lawyer testified during the state habeas proceeding, however, t h a t Hernandez was extremely nervous and had an extensive criminal record, s o his credibility likely could be impeached. It would have been Hernandez's w o r d against that of two officers. The attorney did suggest at the proceeding t h a t the confession may have been forged, but he chose to raise that argument d u r in g cross-examination of the officers. H e r n a n d e z 's lawyer made a reasonable tactical decision not to call Hern a n d e z to testify. The attorney believed it would do more harm than good for H e r n a n d e z to testify and that attacking the authenticity of the statement was b e tt e r left to cross-examination of the officers. Had Hernandez testified that the c o n fession was a forgery, the prosecution would have cross-examined Hernandez a n d thus could have argued that it was implausible that a man well versed in t h e criminal justice system would never sign a blank witness statement form. Reasonable jurists could not contest that the attorney's strategy was objectively r e a s o n a b le , and thus this claim does not warrant a COA. 5

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No. 10-70005 H e r n a n d e z asserts in his brief, without any support, that his attorney e r r e d in failing to realize that Texas law would apply. It is equally possible, t h o u g h , that the attorney, in a desperate attempt to secure exclusion, knew the c o n fe s s io n was admissible under Texas law and thus decided to argue that the m o r e favorable Michigan law should apply. Although there is no evidence of eit h e r rationale in the record, we must strongly presume that counsel "made all s ig n ific a n t decisions in the exercise of reasonable professional judgment." Washin g to n , 466 U.S. at 690. Therefore, reasonable jurists cannot debate whether the a t t o r n e y 's actions were unreasonable. That is enough to deny a COA. A d d it io n a lly , the admission of Hernandez's confession did not prejudice t h e defense, so there was no constitutional violation. In fact, the confession may h a v e helped the defense, because it was the only evidence (other than putting H e r n a n d e z on the stand at trial) supporting his defense that he accidentally k ille d Verstegen and thus should be convicted of only felony murder. Hernandez's attorney testified that if the confession had been suppressed, h is strategy would have been to argue that Verstegen and Hernandez had eng a g e d in consensual sex. But the evidence makes this argument implausible. Verstegen's body was found in a garbage can, headfirst and unclothed from the w a s t e down. In tape-recorded phone conversations with his sister, Hernandez d e n ie d knowing Verstegen, and her body showed evidence of assault and strang u la t io n . Thus, Hernandez would have had to take the stand to lend any credib ilit y to that defense. Either way, if Hernandez had testified that Verstegen's d e a th was an accident or that they had engaged in consensual sex, he would h a v e opened himself to a withering cross-examination raising his prior criminal h is t o r y and violence against women. Therefore, because the confession did not p r e ju d ic e the defense, reasonable jurists could not debate that a constitutional v io la t io n did not occur.

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No. 10-70005 2 . Failing To Object During Questioning of Medical Examiner. T h e medical examiner, Dr. Bux, testified at trial that the marks on Versteg e n 's neck indicated that she was likely strangled by a ligature or a combination o f ligature and hands, although it was possible that only hands were used. At t h e end of Bux's testimony, the following exchange occurred between him and t h e prosecutor: Q : How long would a person then have to hold Susan Verstegen's n e c k before she would not come back to consciousness? A : That's a good question. We know that they'll come back in 100 s e c o n d s . We don't know what the magic number is after that. It w o u ld be at least two to three minutes, and it might be longer in s o m e b o d y that's young and healthy like she was. . . . Q : Is it fair to say that the absolute minimum that a person would h a v e to hold a ligature on Susan Verstegen's neck after she lost c o n s c io u s n e s s is two minutes? A : Yes, sir. I think that would be very conservative. H e r n a n d e z claims that it was an unreasonable error for his attorney not to obje c t to the second question, because it mischaracterized Bux's earlier testimony t h a t Verstegen could have been strangled with hands alone. T h e decision not to object falls squarely within the wide range of reasona b le trial tactics. The first question used the phrase "hold Susan Verstegen's n e c k ," which implies using hands alone, whereas the second question used the p h r a s e "hold a ligature on Susan Verstegen's neck," which implies either ligature a lo n e or hands and ligature. Looking at the line of questioning as a whole makes it obvious that the prosecutor was using this portion of Bux's direct examination to elicit testimony as to the length, not the manner, of the strangulation. Had Hernandez's attorney interrupted the flow of questioning to ask the p r o s e c u t o r to clarify a trivial and immaterial point, it could have drawn more at-

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No. 10-70005 t e n t io n than necessary to the strangulation. The decision to raise an objection is driven largely by trial strategy, and we have no reason to second-guess it. Further, even though the attorney testified at the state habeas proceeding, H e r n a n d e z failed to question him regarding his motive behind the decision to o b je c t . The threshold is lower for a COA than for habeas relief, yet the petitioner s t ill has the burden of showing that reasonable jurists might find his lawyer's c o n d u c t objectively unreasonable at the time of trial. See Washington, 466 U.S. a t 687-91. Hernandez has failed to meet that burden, so reasonable jurists w o u ld defer to the attorney's strategy. This claim does not warrant a COA.

3 . Failing to object during closing argument. D u r in g closing arguments, the prosecutor summarized Bux's testimony a n d said that "some type of ligature was usedSSeither ligature alone or ligature a n d hands." Hernandez argues that it was an unreasonable error for his attorn e y to fail to object to that mischaracterization of Bux's testimony. Hernandez a s s e r t s that the prosecutor put forth a "more vicious version of the facts" when h e said that some type of ligature had been used. Hernandez also contends that t h e prosecutor's statements called into doubt his written confession, which state d that he had accidentally strangled Verstegen with only his hands. T h e r e is no apparent reason why one method of strangulation is more vic io u s than the other. Arguably, some might believe that strangling someone w it h , as the idiom goes, "your bare hands" is more vicious than using a ligature, w h ic h would make the task easier. When weighing the harm caused by drawing a t t e n tio n to the fact that Hernandez may have strangled Verstegen with only his h a n d s , against the benefit of bolstering the credibility of the written confession, it is reasonable to decide that making an objection was not in the defense's best in te r e st. Again, Hernandez did not question his trial attorney during the state ha8

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No. 10-70005 b e a s proceeding as to his reasoning for choosing not to object. Instead, he only a r g u e s that "there can be no strategy for failing [to object]." Because Hernandez h a s put forth no reason to second-guess his lawyer's decision, reasonable jurists m u s t presume that the trial tactic was sound, and the claim does not warrant a COA.

4 . Failing To Argue Residual Doubt. H e r n a n d e z contends that his attorney "should have attacked through addit io n a l evidence, vigorous objections, and closing argument the serious lack of p r o o f as to [Hernandez's] guilt of the capital murder." By failing adequately to r a is e residual doubt in the minds of jurors, Hernandez argues, his attorney's perfo r m a n c e was deficient and prejudiced the punishment phase of trial. D esp ite vigorously denouncing his attorney's performance, Hernandez does n o t provide the court with any additional exculpatory evidence to consider. Nor d o e s Hernandez describe any objections that counsel should have raised, other t h a n those that the state habeas court, the district court, and this court found m e r it le s s . Moreover, Hernandez does not identify the alleged flaws in counsel's c lo s in g arguments. The only two issues that Hernandez does raise in support a r e that his lawyer (1) did not attack with enough force the prosecution's relia n c e on "mere science" and the three-page confession, when pointing out that t h e r e were no eye-witnesses, and (2) should have mentioned that the police quest io n e d other individuals and asked them to submit to polygraph and DNA testin g . The attorney testified at the state habeas proceeding that in cases where t h e defendant's DNA links him to the victim and there is a signed confession, arg u in g residual doubt is of little use. Counsel believed that by finding Hernandez g u ilt y of capital murder, the jury had plainly rejected the felony-murder defense, s o arguing residual doubt would be harmful. The defense's strategy was thus to 9

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No. 10-70005 c o n v in c e the jury that because of Hernandez's growing maturity and peaceful p r is o n record, he would not pose a future threat if sentenced to life without p a r o le . We defer to the state habeas court's factual finding that counsel conducted a thorough investigation of the law and facts before settling on that strategy. Such trial decisions are "virtually unchallengeable," and Hernandez has given u s no evidence to doubt that decision's reasonableness. See Washington, 466 U .S . at 690. Conclusional arguments and assertions such as those Hernandez p r o v id e s are insufficient. Mallard v. Cain, 515 F.3d 379, 383 (5th Cir. 2008). No r e a s o n a b le jurist could debate whether the strategy was reasonable. This claim d o e s not warrant a COA.

5 . Failing To Retain a Dental Expert. A t trial, one of the investigating detectives testified that another detective, fr o m looking at autopsy photos and not the autopsy report, believed that one of t h e marks on Verstegen's body was possibly a bite mark; he consulted a forensic d e n ta l expert, who said that he would need dental impressions to compare to the p h o to g r a p h . The search warrant authorized detectives to take dental impress io n s of Hernandez, which they did. Other than the detective's brief testimony o n the issue, the only other mention of bite marks at trial was the testimony of Bux, who stated that he did not mention bite marks in the autopsy report bec a u s e he could not determine whether the marks in question were in fact bite m ark s. H e r n a n d e z claims that it was unreasonable error for his attorney to fail t o retain a dental expert to compare his dental impressions against the marks in the autopsy photos. Hernandez again makes a broad conclusional statement w it h o u t any evidence in support. The autopsy report did not include any mention of bite marks, and Her10

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No. 10-70005 n a n d e z gives no reason why counsel should not have relied on that report in cond u c t in g the investigation. The only mention of bite marks was in the search w a r r a n t, and there is no evidence that the dental impressions were ever used. In fact, Hernandez does not even argue that the bite marks do not match his. H e r n a n d e z cannot assert merely that his attorney should have investig a t e d some matter; he must make an "affirmative showing of what the missing e v id e n c e or testimony would have been" and explain why it would have made a d iffe r e n c e during trial. Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994). Without such a showing, "a habeas court cannot even begin to apply [Washingto n 's ] standards." Id. (quoting United States ex rel. Partee v. Lane, 926 F.2d 694, 7 0 1 (7th Cir. 1991)) (internal quotation marks omitted). No reasonable jurist c o u ld debate whether counsel's conduct was reasonable, and therefore no COA s h o u ld issue.

I I . Motion for Stay. A federal court may not grant habeas relief unless the petitioner has exh a u s t e d all available state court remedies, including state habeas review. 28 U .S .C . 2254(b)(1)(A). If presented with an application with both exhausted and u n e x h a u s t e d claims, a court may stay and abate the federal proceeding to allow t h e defendant to return to state court to exhaust the necessary claims. A stay a llo w s the petitioner to return to federal court once the state court has adjudic a t e d the claims, and such a stay tolls AEDPA's one-year statute of limitations. Rhines v. Weber, 544 U.S. 269 (2005). H e r n a n d e z intends to raise an Atkins claim in the state habeas court and t h u s moves for a stay. A court may issue a stay, but only in limited circumstance s so as not to undermine AEDPA's objectives of reducing delay, particularly in c a p it a l cases. See id. at 276-77. First, there must be good cause for the failure t o exhaust. Second, a district court should not grant a stay where the unex11

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No. 10-70005 h a u s t e d claims are plainly meritless. Third, there should be reasonable time lim it s on the petitioner's trip to state court and back. And finally, a court should n o t grant a stay if the petitioner engages in abusive litigation tactics or intent io n a l delay. We deny a stay, because the unexhausted claim is meritless. U n d e r 28 U.S.C. § 2444(d)(1)(A), a petitioner must bring his federal claim w it h in one year from the date on which judgment became final by the conclusion o f direct review or from the expiration of the time for seeking such review. The p e r io d is tolled while state post-conviction or collateral review is pending. § 2444(d)(2). Atkins claims are not exempt from the limitations period and may b e time-barred. In re Lewis, 484 F.3d 793, 796 (5th Cir. 2007). Because Hernand e z 's limitations period expired on April 30, 2009, the future Atkins claim would b e time-barred. T h e limitations period may be subject to equitable tolling, which is applied r e s t r ic t iv e ly and only in "rare and extraordinary circumstances" where strict app lic a t io n of the statute of limitations would be inequitable. In re Wilson, 442 F .3 d 872, 878 (5th Cir. 2006); see Fierro v. Cockrell, 294 F.3d 674, 682 (5th Cir. 2 0 0 2 ). Equitable tolling usually applies where the petitioner is prevented in s o m e extraordinary way from asserting his rights.2 Hernandez argues that ext r a o r d in a r y circumstances exist here, because his attorney failed to file the claim timely, and he "has no [other] vehicle in which to raise this mental retardation is s u e ." First, if failure to file timely were deemed to be rare or extraordinary, the e x c e p t io n would swallow the rule. "Excusable neglect" does not justify equitable t o llin g . Fierro, 294 F.3d at 682. Second, although Hernandez's Atkins claim is t im e -b a r r e d , that bar does not foreclose the possibility that he could bring a Ford

See Fierro, 294 F.3d at 682. For example, lack of counsel and constraint by the Texas two-forum rule qualify as extraordinary circumstances. See In re Wilson, 442 F.3d 872; In re Hearn, 389 F.3d 122 (5th Cir. 2004) (on petition for rehearing).

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No. 10-70005 c la im once an execution date is set.3 Because Hernandez's Atkins claim is timeb a r r e d and he has not met the restrictive standard for equitable tolling, the claim is meritless. We deny the motion to stay proceedings. T h e application for a COA is DENIED. The motion for stay is DENIED.

See Panetti v. Quarterman, 551 U.S. 930 (2007); see also Ford v. Wainwright, 477 U.S. 399 (1986). We express no view on the merits of any such claim, which is not before us.

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