Guadalupe Esparza v. Rick Thaler, Director

Filing

UNPUBLISHED OPINION ORDER FILED. [10-70009 Affirmed] Judge: FPB , Judge: ECP , Judge: LHS; denying motion for certificate of appealability filed by Appellant Mr. Guadalupe Esparza. ISSUED AS & FOR THE MANDATE. [6571337-2] [10-70009]

Guadalupe Esparza Case: Thaler, Director v. Rick 10-70009 Document: 00511289378

Page: 1 Date Filed: 11/09/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
November 9, 2010 N o . 10-70009 Lyle W. Cayce Clerk

G U A D A L U P E ESPARZA P e titio n e r-A p p e lla n t v. R I C K THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL J U S T I C E , CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee

A p p e a l from the United States District Court for the Western District of Texas U S D C No. 5:07-CV-265

Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges. P E R CURIAM:* P e t itio n e r Guadalupe Esparza ("Esparza"), convicted of capital murder in T e x a s and sentenced to death, requests this Court to issue a Certificate of A p p e a la b ilit y (COA) pursuant to 28 U.S.C. § 2253(c)(2). Esparza contends that th e evidence demonstrated that he is mentally retarded, rendering him ineligible fo r the death penalty under Atkins v. Virginia, 536 U.S. 304 (2002). Relying on t h e Sixth Amendment, Esparza asserts that he is entitled to a jury finding with

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

*

Dockets.Justia.com

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No. 10-70009 r e s p e c t to the issue of mental retardation. He also contends that his counsel r e n d e r e d ineffective assistance by failing to investigate his mental retardation a n d present evidence of his mental retardation at sentencing. Finding that E s p a r z a has not made a substantial showing of the denial of a constitutional r ig h t , we DENY a COA. I. P R O C E D U R A L HISTORY

A Bexar County, Texas grand jury returned an indictment charging E s p a r z a with the capital murder of 7-year old Alyssa Vasquez while in the c o u r s e of committing aggravated sexual assault, kidnapping, and burglary. TEX. P ENAL CODE § 19.03(a)(2). A jury convicted Esparza as charged, and the

s e n te n c e imposed was the death penalty. The Texas Court of Criminal Appeals a ffir m e d Esparza's conviction in an unpublished opinion. Esparza v. State, No. 7 4 ,0 9 6 (Tex. Crim. App. June 4, 2003), cert. denied, 540 U.S. 1006 (2003). Represented by counsel, Esparza applied for state habeas relief, and the trial c o u r t recommended denying relief. Additionally, Esparza filed a separate

a p p lic a t io n for writ of habeas corpus pro se. With respect to the first application, t h e Court of Criminal Appeals adopted the findings and conclusions of the trial c o u r t and denied the application. Ex parte Esparza, Nos. WR-66111-01, WR6 6 1 1 1 -0 2 (Tex. Crim. App. Feb. 28, 2007). The Court of Criminal Appeals also d is m is s e d the pro se application as an abuse of the writ. Esparza then filed a fe d e r a l petition for writ of habeas corpus, which the district court denied in a m e m o r a n d u m opinion and order. Esparza v. Quarterman, No. 07-265 (W.D. Tex. M a r . 24, 2010). The district court also denied a COA. Esparza now requests a C O A from this Court. II. S T A N D A R D OF REVIEW

E s p a r z a filed his 28 U.S.C. § 2254 petition for a writ of habeas corpus after t h e effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA). T h e petition, therefore, is subject to AEDPA. See Lindh v. Murphy, 521 U.S. 2

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No. 10-70009 3 2 0 , 336 (1997). Pursuant to the federal habeas statute, as amended by AEDPA, w e defer to a state court's adjudication of a petitioner's claims on the merits u n le s s the state court's decision was: (1) "contrary to, or involved an u n r e a s o n a b le application of, clearly established Federal law, as determined by t h e Supreme Court of the United States"; or (2) "resulted in a decision that was b a s e d on an unreasonable determination of the facts in light of the evidence p r e s e n t e d in the State court proceeding." 28 U.S.C. § 2254(d). A state court's d e c is io n is deemed contrary to clearly established federal law if it reaches a legal c o n c lu s io n in direct conflict with a prior decision of the Supreme Court or if it r e a c h e s a different conclusion than the Supreme Court based on materially in d is t in g u is h a b le facts. Williams v. Taylor, 529 U.S. 362, 404­08 (2000). A s t a t e court's decision constitutes an unreasonable application of clearly e s t a b lis h e d federal law if it is "objectively unreasonable." Id. at 409. Further, p u r s u a n t to § 2254(e)(1), state court findings of fact are presumed to be correct, a n d the petitioner has the burden of rebutting the presumption of correctness b y clear and convincing evidence. See Valdez v. Cockrell, 274 F.3d 941, 947 (5th C ir . 2001). Additionally, under AEDPA, a petitioner must obtain a COA before he can a p p e a l the district court's denial of habeas relief. See 28 U.S.C. § 2253(c); see a ls o Miller-El v. Cockrell, 537 U.S. 322, 335­36 (2003) ("[U]ntil a COA has been is s u e d federal courts of appeals lack jurisdiction to rule on the merits of appeals fr o m habeas petitioners."). As the Supreme Court has explained: The COA determination under § 2253(c) requires an overview o f the claims in the habeas petition and a general assessment of t h e ir merits. We look to the District Court's application of AEDPA to petitioner's constitutional claims and ask whether that resolution w a s debatable among jurists of reason. This threshold inquiry does n o t require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it.

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No. 10-70009 M ille r -E l, 537 U.S. at 336. A COA will be granted only if the petitioner makes "a substantial showing o f the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "A petitioner s a t is fie s this standard by demonstrating that jurists of reason could disagree w it h the district court's resolution of his constitutional claims or that jurists c o u ld conclude the issues presented are adequate to deserve encouragement to p r o c e e d further." Miller-El, 537 U.S. at 327 (citation omitted). "The question is t h e debatability of the underlying constitutional claim, not the resolution of that d e b a t e ." Id. at 342. "Indeed, a claim can be debatable even though every jurist o f reason might agree, after the COA has been granted and the case has received fu ll consideration, that petitioner will not prevail." Id. at 338. Moreover,

" [b ]e c a u s e the present case involves the death penalty, any doubts as to whether a COA should issue must be resolved in [petitioner's] favor." Hernandez v. J o h n s o n , 213 F.3d 243, 248 (5th Cir. 2000) (citation omitted). III. A N A L Y S IS A . ATKINS CLAIM I n Atkins v. Virginia, 536 U.S. 304, 321 (2002), the Supreme Court held t h a t the Eighth Amendment prohibited the execution of mentally retarded p e r s o n s . Esparza contends that he is mentally retarded, and thus is ineligible f o r the death penalty. Subsequent to Atkins, Texas courts have followed the d e fin it io n of "mental retardation" adopted by the American Association on M e n ta l Retardation and the nearly identical definition set forth in § 591.003(13) o f the Texas Health & Safety Code. In re Salazar, 443 F.3d 430, 432 (5th Cir. 2 0 0 6 ). Pursuant to this test, a petitioner claiming mental retardation must d e m o n s t r a t e that "he suffers from a disability characterized by `(1) significantly s u b a v e r a g e general intellectual functioning,' usually defined as an I.Q. of about 7 0 or below; `(2) accompanied by related limitations in adaptive functioning; (3) t h e onset of which occurs prior to the age of 18.'" Id. (quoting Ex parte Briseno, 4

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No. 10-70009 1 3 5 S.W.3d 1, 7 (Tex. Crim. App. 2004)) (internal quotation marks omitted). Esparza bore the burden of proving by a preponderance of the evidence that he is mentally retarded. Briseno, 135 S.W.3d at 12. A determination of whether a person is mentally retarded is a factual finding. Moore v. Quarterman, 533 F .3 d 338, 342 (5th Cir. 2008) (en banc); Clark v. Quarterman, 457 F.3d 441, 444 (5 t h Cir. 2006). Esparza raised his claim of mental retardation during his state habeas p r o c e e d in g s , and the state court held an evidentiary hearing. During this h e a r in g , several expert witnesses testified regarding Esparza's I.Q. scores and a d a p t iv e functioning. Also, his sister testified about his childhood, and

E s p a r z a 's prison and school records were admitted. 1. L y n d a Tussay

E s p a r z a called Lynda Tussay to testify. Tussay is a licensed professional c o u n s e lo r and has a master's degree in Human Development and Counseling. Tussay interviewed Esparza and administered intelligence tests. She testified t h a t the range of mental retardation was a 70 I.Q. or lower. Esparza scored a 7 1 (standard error of plus or minus 5 points) on the Raven's Standard P r o g r e s s i v e Matrices Test. With respect to the Revised Minnesota Paper

F o r m b o a r d Test, Esparza scored a 73 (standard error of plus or minus 4 points). Tussay explained that the above two scores were within the range of borderline in t e lle c tu a l functioning. On the achievement tests, Esparza was at the level of fir s t grade math and below the level of first grade on this spelling test. On a n o t h e r spelling test, he scored at the level of grade 6.3. Esparza's vocabulary w a s at a grade level of 6.2, and his reading comprehension was at a 4.7 grade le v e l. Tussay also administered the Comprehensive Trail-Making Test, and E s p a r z a scored better than 58 percent of the population. On that test, a score o f under 40 percent would indicate mental retardation. With respect to the C o n t r o lle d Oral Word Association Test, Esparza scored 25.82, which is nearly 5

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No. 10-70009 fo u r full standard deviations below the mean, which is 48.43. Tussay testified t h a t the score indicates "a person who does not do well with any kind of form of w r it t e n language." The Vineland Adaptive Behavior Scale Test is a questionnaire for the c a r e g iv e r of the person being tested regarding the subject's developmental h is t o r y . Tussay explained that this test is the "essential measure, the one that m o s t psychologists use when using the adaptive behavior scales." She

a d m in is t e r e d the test to Esparza's older sister, Esther Moncado, who was E s p a r z a 's primary caregiver when he was a child. The mean score is 100, and E s p a r z a 's score was below 20, which is the "lowest score" possible. Tussay further testified that she "can usually tell when someone is trying t o not do a good job. That wasn't what he was trying to do." In her opinion, " t h e r e was no deliberate sabotage on his part. He just did not understand. He ju s t didn't understand what I was trying to tell him." In Tussay's opinion, E s p a r z a "meets all of the criteria for mental retardation." D u r in g the cross examination of Tussay, the prosecutor produced two of E s p a r z a 's penitentiary packets, which included the Texas Department of C o r r e c t io n s Social and Criminal History page. The first packet provided that in 1 9 8 5 Esparza had an I.Q. score of 86. The second packet provided that in 1993 E s p a r z a had an I.Q. score of 88. After reviewing the packets, Tussay testified t h a t she could not "formulate an opinion based on" them because she did "not k n o w what they based their tests on." The packets did not provide what specific t e s t s were administered to Esparza. She also admitted that Esparza heard from h is lawyer that if he was mentally retarded, then the Supreme Court's decision in Atkins would bar his execution. Additionally, Tussay testified that during her interview of Esparza she n o tic e d that Esparza was "able to speak very well." She discovered that his fa m ily had done migrant farm work and thus "he was not really ever very rooted 6

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No. 10-70009 in any one school." Esparza had been in special education classes and failed the n in t h grade three times before dropping out of high school. Tussay also stated t h a t Esparza told her that he failed the test for a GED but that the instructor is s u e d a GED so that the instructor would be compensated. Tussay also spoke with Esparza's older sister who indicated that Esparza h a d a "history of adaptive problems." His sister had "difficulty in teaching him h o w to tie his shoes, how to dress himself. It took longer and he was older before h e was able to attain those skills." Esparza did not "play like the other

c h ild r e n ." For example, he did not develop "imaginary games." 2. R e c o r d in g of Jail Phone Calls

E s p a r z a was moved from death row to Bexar County Jail during the time o f the state writ evidentiary hearing. Sergeant Mark Gibson of the Bexar C o u n ty Sheriff's office submitted a recording of three phone calls made by E s p a r z a during his stay at county jail. The recording was played at the writ h e a r in g . Esparza identified himself at the beginning of each phone call. He h e lp e d arrange a three-way conference call. He spoke to his attorney about the i m p e n d i n g court proceedings. He referred to the Supreme Court's opinion in A tk in s as the "2002 case." Esparza boasted that his attorney was very good and h a d gotten other inmates off death row. Esparza recounted to another person w h a t his attorney had told him about the need to postpone the hearing. In one p h o n e call, Esparza was advising another inmate's family regarding that in m a t e 's civil suit against jail officials. Esparza also informed one person that h e could only have visitors on Mondays and Wednesdays. He complained that t h e phone cards were unfairly charging too much money for the minutes p r o v id e d . 3. D r . Kern

T h e State called Dr. Paul Kern, Ph.D., a psychologist at the University H e a lt h System, Detention Health Care Services. Dr. Kern testified that Joanna 7

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No. 10-70009 W . Guerrero, a psychometrist with a master's degree, administered two different in t e llig e n c e tests and an achievement test to Esparza. Esparza scored in the m ild ly mentally retarded range on the intelligence tests, and his achievement t e s t score suggested very poor basic academic skills. Dr. Kern interviewed E s p a r z a and interpreted the test scores. Together Dr. Kern and Guerrero compiled a Summary of Intellectual T e s tin g that was submitted to the state court. This report provided that, based o n Guerrero's clinical impression, she estimated Esparza's intelligence was w it h in the low average range.1 The report provided that Esparza "displayed an e x t r e m e ly low level of motivation while responding to knowledge-based q u e s t io n s , providing a large number of `I don't know' responses and displaying a strong hesitance to venture guesses." His responses to knowledge-based

q u e s t io n s "were almost always incorrect." Esparza responded that the current P r e s id e n t of the United States was "Ford." He reported that the United States fla g colors are red, white, and green. Based on his responses, it was "strongly s u s p e c t e d that he was intentionally performing below the level of his c a p a b ilit ie s ." For example, "it was subsequently learned that although he

p r o v id e d a blatantly incorrect definition of a thermometer during the mental s t a t u s examination, he had previously provided a correct definition for the same t e r m during the psychological testing." Esparza performed very poorly on a s im p le memory task. The examiner noted that "it is rare . . . to see performance a s poor as Mr. Esparza's on the task even among young children with low in t e llig e n c e and relatively severe Attention/Deficit Hyperactivity Disorder." Also, during the time Esparza was not being asked knowledge-based questions, h is presentation "was suggestive of a much higher level of functioning, and a c lin ic a l estimate of his intelligence based on both his general presentation and

1

Guerrero did not testify at the hearing.

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No. 10-70009 t h e available historical information would place it somewhere within the Low A v e r a g e range." Dr. Kern testified that Esparza was able to read and understand his r ig h t s . Indeed, during one meeting, Esparza stopped the interview and asked f o r counsel in order to obtain advice regarding whether to cooperate. Esparza r e t r ie v e d his attorney's business card from his cell and successfully contacted his a ttor n e y . After consulting with counsel, Esparza decided to complete the

in t e r v ie w . Dr. Kern testified that Esparza's presentation during the interview d id not appear to be that of a mentally retarded person. Dr. Kern concluded that E s p a r z a 's motivation to do well on the I.Q. tests "was very low" and that the test r e s u lt s were invalid or inaccurate. Esparza's test score on the Vineland adaptive b e h a v io r scale, which had been previously administered by Tussay, indicated t h a t he was profoundly retarded. Dr. Kern explained that a person of that level o f intelligence or adaptive behavior "would be capable of doing almost nothing. A profoundly mentally retarded person, for example, would have no hope at all o f ever learning language at all. They would have no hope at all of . . . ever h a v in g a job, probably. They would not be able to communicate at all." Such a p e r s o n "would probably spend their whole life in an institution for the mentally r e t a r d e d sitting in a corner oblivious to anything." Dr. Kern explained that a p e r s o n can test below their intelligence level but not above it. He further

t e s t ifie d that I.Q. scores generally do not change over a person's life. Dr. Kern o p in e d that Esparza's scores of 88 and 86 in the penitentiary packets were c o n s is t e n t with his clinical assessments regarding Esparza's functioning. Further, Esparza's taped phone conversations suggest a higher level of fu n c tio n in g than the current test scores indicate. In Dr. Kern's opinion, the c u r r e n t test results provide "dramatic underestimates of Mr. Esparza's k n o w le d g e and ability and are best viewed as invalid."

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No. 10-70009 D r . Kern also noted that during Esparza's 2001 trial Dr. Arambula, a fo r e n s ic psychiatrist, had testified that he did not have Esparza tested for m e n ta l retardation because he thought Esparza's intelligence was "normal." 2 Dr. K e r n is familiar with Dr. Arambula and relied in part upon his opinion in a s s e s s in g Esparza. Finally, Dr. Kern testified that, based on the test results and h is clinical assessments, he did not think that Esparza was mentally retarded. Instead, as set forth in his report, Esparza's "intellectual capabilities most likely fa ll somewhere within the Low Average range." 4. D r . Sparks

T h e State also called Dr. John Sparks, a psychiatrist and medical director o f the Bexar County Detention Center. Previously, in his capacity as the medical d ir e c t o r , Dr. Sparks had seen Esparza because of a treatment issue. Dr. Sparks t e s t i f ie d that Esparza "conveyed to me what he needed in a very clear and c o n c is e way." At the request of the state court, Dr. Sparks interviewed Esparza and also r e v ie w e d the report issued by Dr. Kern. Dr. Sparks' evaluation of Esparza p r o v id e s that he "is aware that it may lead to the death sentence if he is not r e t a r d e d or may lead to life in prison if he is retarded." Dr. Sparks concluded t h a t Esparza was not mentally retarded. Although Dr. Sparks acknowledged that the current test scores were in the mildly mentally retarded range, his e v a lu a tio n provided as follows: [E ]v id e n c e from multiple sources suggest that the present test r e s u l t s provide marked underestimates of his intellectual c a p a b ilit ie s . He displayed "pervasive evidence of poor test taking a t t it u d e characterized by low motivation, poor attention and c o n c e n t r a t io n , and low task involvement and persistence."[3 ] He

Dr. Arambula's testimony will be more fully discussed infra in the context of Esparza's claim of ineffective assistance.
3

2

Dr. Sparks' evaluation was quoting from Dr. Kern's report.

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No. 10-70009 m a d e minimal effort in the testing although his abilities to c o m m u n ic a t e and his ability to handle general living situations s e e m well above the mentally retarded range. He had long term g a in fu l employment and knew how to drive and passed the drivers test. D r . Sparks' evaluation also found that Esparza's functioning "was well a b o v e the retardation level." Dr. Sparks found that Esparza communicated very w e ll. Although Esparza does not write well, he "understands language better t h a n a retarded person can." Esparza did not receive a good education and thus " h a s difficulty in writing communications." However, his "adaptive ablity is e x c e lle n t ." Dr. Sparks found that the I.Q. scores of 86 and 88 contained in the p r is o n records were consistent with his opinion that Esparza is not mentally r e t a r d e d . Although Dr. Sparks initially estimated that Esparza had borderline in t e lle c tu a l functioning, after hearing Esparza's taped phone conversations, he e s t im a t e d that Esparza's I.Q. would be "77 or 78, closer to 80, which would be t h e n low average." 5. E s t h e r Moncada

E s p a r z a 's older sister, Esther Moncada, testified at the hearing that E s p a r z a was a "slow learner" and had trouble tying his shoe laces. Their mother w a s hospitalized after a mental breakdown when Esparza was about five or six y e a r s old. Their father moved out of state, and the children were placed in an o r p h a n a g e until an uncle brought them back to San Antonio. Their father died w h e n Esparza was ten or eleven years old. Moncada further testified that E s p a r z a ate with his hands and had difficulty dressing himself. He dropped out o f school after failing ninth grade three times and worked as a laborer. Esparza c o u ld read and write "a little." 6. S t a t e Court Finding of No Mental Retardation

T h e state trial court denied relief on this claim, concluding that Esparza h a d failed to establish that he is mentally retarded. The Court of Criminal 11

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No. 10-70009 A p p e a ls expressly adopted this finding. Esparza challenges the state court's fin d in g , contending that there was sufficient evidence to find that he was m e n ta lly retarded. As previously set forth, Esparza has the burden of proving by a p r e p o n d e r a n c e of the evidence that he is mentally retarded. Salazar, 443 F.3d a t 432. The first prong of the test is whether he has significant subaverage in t e lle c tu a l function, usually defined as an I.Q. score of 70 or below. Briseno, 1 3 5 S.W.3d at 7. We first note that Judge Mary Roman of the 175th Judicial District Court o f Bexar County presided over both Esparza's trial and the state evidentiary h e a r in g . As such, Judge Roman was able to observe Esparza testify in his own d e fe n s e during his capital trial. During trial Esparza was asked to read a

r e q u e s t that he had handwritten at the jail. From the witness stand, Esparza r e a d aloud as follows: "I would like to ask you if I can be in segregation by m y s e lf because I no longer trust nobody because there is a lot of people that don't lik e me because of a charge that I have, Capital case. I would like to be housed b y myself for my own safety." Moreover, we agree with the federal district court t h a t "[t]hroughout his trial testimony, [Esparza] furnished coherent, even c o m b a t iv e testimony fully responsive to both his own trial counsel's and the p r o s e c u t o r 's questions and demonstrated a detailed understanding of the t e s t im o n y and other evidence introduced during his capital murder trial." Additionally, Esparza's penitentiary packets provided that he had an I.Q. o f 86 in 1985 and an I.Q. of 88 in 1993. The experts' testimony provided that t h e s e scores are well above what a mentally retarded person would score. Dr. K e r n testified that a person's intelligence score generally is stable and does not c h a n g e over a lifetime. There was expert testimony that although a person can s c o r e below their actual level of intelligence, a person cannot score above their a c t u a l level of intelligence. 12

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No. 10-70009 I n stark contrast to his previous I.Q. scores in the low average range in his p e n ite n t ia r y packets, Esparza scores fell within the range of mental retardation w h e n he knew that he was being tested to determine whether he was eligible for t h e death penalty. Indeed, one test score placed him in the range of profoundly r e t a r d e d . Dr. Sparks, Dr. Kern, and Guerrero, who administered the tests for D r . Kern,4 believed that Esparza had low motivation to actually perform on the t e s t s and believed the test results were invalid. Dr. Sparks testified that

E s p a r z a understood that if he was deemed mentally retarded then he could not b e executed. On the other hand, Esparza's expert, Tussay, discounted the higher p r e v io u s I.Q. scores of 86 and 88 because the packets did not provide what test w a s used. Tussay concluded that Esparza was mentally retarded. Tellingly, T u s s a y admitted that this case was the first time she had evaluated an in c a r c e r a t e d individual for mental retardation. Both Dr. Kern and Dr. Sparks, h o w e v e r , had years of experience interacting with incarcerated individuals. Indeed, Dr. Kern was a psychologist at the University Health System, Detention H e a lt h Care Services, and Dr. Sparks was the medical director of the Bexar C o u n ty Detention Center. Finally, Dr. Arambula, Esparza's expert, testified d u r in g the punishment phase of the capital murder trial and opined that E s p a r z a was of normal intelligence and thus he had not had Esparza tested for m e n ta l retardation. Under these circumstances, Esparza has not shown that the fin d in g of no subaverage intellectual functioning is debatable among reasonable ju r is t s . Because Esparza has failed to make a substantial showing on the first p r o n g of the test, there is no need to address the remaining two prongs. See S a la z a r , 443 F.3d at 432 ("To state a successful claim, an applicant must satisfy

Guerrero's clinical impression of Esparza was that his intelligence was in the low average range.

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No. 10-70009 a ll three pongs of this test." (citation omitted)). Accordingly, we DENY a COA with respect to his Atkins claim.

B.

J U R Y FINDING ON MENTAL RETARDATION

C it in g Ring v. Arizona, Esparaza also contends that he is entitled to obtain a jury finding on the issue of whether he is mentally retarded. 536 U.S. 584 (2 0 0 2 ). In Ring, the Supreme Court held that because a death sentence was a u t h o r iz e d only if an aggravating factor was present, the Sixth Amendment r e q u ir e d that the aggravating factor must be proved to a jury. Id. at 603­09. This Court has rejected the instant claim, explaining that neither Ring nor A tk in s "render the absence of mental retardation the functional equivalent of an e le m e n t of capital murder which the state must prove beyond a reasonable d o u b t ." In re Johnson, 334 F.3d 403, 405 (5th Cir. 2003); see also Woods v. Q u a r te r m a n , 493 F.3d 580, 585 n.3 (5th Cir. 2007). Moreover, contrary to Esparza's argument, the holding in Ring cannot be a p p lie d retroactively on collateral review. As a general matter, the Supreme C o u r t has explained that "Ring announced a new procedural rule that does not a p p ly retroactively to cases already final on direct review." S u m m e r lin , 542 U.S. 348, 358 (2004). Schriro v.

Although Esparza recognizes that

h o l d i n g , he nonetheless contends that the decision should be revisited. We, of c o u r s e , are bound by the Supreme Court's decision. United States v. Jones, 132 F .3 d 232, 242 (5th Cir. 1998). Further, this Court has rejected his precise c o n t e n t io n in the context of a claim of mental retardation, explaining that this " c la im does not meet the requirements of § 2244(b) because the claim that a jury m u s t determine mental retardation does not rely upon a new rule of c o n s t it u t io n a l law made retroactive by the Supreme Court." In re Woods, 155 F. A p p 'x 132, 134 (5th Cir. 2005). Accordingly, we are constrained to find that this 14

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No. 10-70009 c l a im is not debatable among reasonable jurists. We DENY his motion for a C O A as to this claim.

C.

I N E F F E C T I V E ASSISTANCE OF COUNSEL

E s p a r z a argues that his Sixth Amendment right to effective assistance of c o u n s e l was violated during the sentencing phase of his trial. He contends that h is trial counsel failed to adequately investigate and present mitigating evidence with respect to his mental retardation. To establish ineffective assistance of counsel, Esparza must show (1) d e fe n s e counsel's performance was deficient and (2) this deficient performance p r e ju d ic e d the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). We m u s t find that trial counsel "made errors so serious that counsel was not fu n c tio n in g as the `counsel' guaranteed . . . by the Sixth Amendment." Id. The S u p r e m e Court instructs courts to look at the "norms of practice as reflected in t h e American Bar Association and the like" and to consider "all the c i r c u m s t a n c e s " of a case. Id. at 688. While "[j]udicial scrutiny of counsel's p e r fo r m a n c e must be highly deferential," Esparza can demonstrate deficient p e r fo r m a n c e if he shows "that counsel's representation fell below an objective s t a n d a r d of reasonableness." Id. at 688. However, "[t]here is a `strong

p r e s u m p t io n that counsel's conduct falls within the wide range of reasonable p r o fe s s io n a l assistance.'" United States v. Webster, 392 F.3d 787, 793 (5th Cir. 2 0 0 4 ) (quoting Strickland, 466 U.S. at 689). Strickland's "prejudice" prong r e q u ir e s a reasonable probability that, but for the deficient performance of his t r ia l counsel, the outcome of his capital murder trial would have been different. Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient t o undermine confidence in the outcome." Id. 1. P e r fo r m a n c e Prong 15

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No. 10-70009 As previously set forth, Esparza contends that trial counsel rendered in e ffe c t iv e assistance by failing to investigate and present mitigating evidence o f his mental retardation during the sentencing phase of his trial. In

d e t e r m in in g whether trial counsel's performance was deficient, our "focus [is] on w h e t h e r the investigation supporting counsel's decision not to introduce [a d d it io n a l] mitigating evidence of [a petitioner's] background was itself r e a s o n a b le ." Wiggins v. Smith, 539 U.S. 510, 522­23 (2003). Thus, we must c o n s id e r the reasonableness of trial counsel's investigation. With respect to investigation, the record reveals that counsel requested the a p p o in tm e n t of a forensic psychologist, a private investigator, and a DNA expert. Counsel also filed numerous discovery motions. Counsel interviewed at least t w o members of Esparza's family--the two sisters who testified at the p u n is h m e n t phase of trial. Because Esparza has not submitted an affidavit from t r ia l counsel, the record does not contain the full extent of counsel's in v e s t ig a t io n . However, as previously stated, Esparza must demonstrate that c o u n s e l's performance was deficient, Strickland, 466 U. S. at 687, and there is a strong presumption that counsel's investigation was reasonable. Webster, 392 F .3 d at 79. C o u n s e l obtained the appointment of Dr. Arambula, a forensic p s y ch ia trist. Dr. Arambula evaluated Esparza and testified during the

p u n is h m e n t phase that he could not identify a specific mental illness. Dr. A r a m b u la also testified that Esparza was more unstable than a "normal" person b e c a u s e when he was six years old his mother was institutionalized for mental illn e s s . As a result, he was temporarily sent to an orphanage. Although unable t o diagnose an illness, Dr. Arambula suspected that Esparza had inherited a " g e n e t ic load" from his mentally ill mother. Dr. Arambula testified that after Esparza's mother remarried and his fa t h e r died, Esparza's stepfather would regularly beat him. 16 It was Dr.

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No. 10-70009 A r a m b u la 's opinion that the neglect and abuse Esparza suffered as a child did n o t allow him to trust other people and made him prone to disagreement and p h y s ic a l altercations. Dr. Arambula explained that a victim of domestic violence c a n repeat the violent behaviors he has suffered. D r . Arambula noted that Esparza obtained a GED in prison. On cross e x a m in a t io n , the prosecutor asked whether he had administered any I.Q. tests o n Esparza. Dr. Arambula responded: "No. I didn't believe that I needed to, b a s e d on the evaluation." The prosecutor then inquired: "Because he seems to h a v e normal intelligence?" Dr. Arambula responded: "Yes." Accordingly,

d e fe n s e counsel had a mental health expert evaluate Esparza, and the expert's c o n c lu s io n was that Esparza was of "normal intelligence." Moreover, as

p r e v io u s ly discussed, the evidence Esparza relies on to demonstrate his mental r e t a r d a t io n is unpersuasive. Under these circumstances, Esparza has failed to m a k e a substantial showing that counsel's performance with respect to in v e s t ig a t in g the issue of mental retardation was deficient. I t is not clear from the briefing, but it also appears that Esparza is arguing t h a t counsel's presentation of the mitigating evidence about his childhood is d e fic ie n t. Counsel was able to elicit testimony that Esparza's mother was

i n s t i t u t i o n a liz e d when he was six years old, and, as a result, he was sent t e m p o r a r ily to an orphanage. Subsequently, Esparza and his siblings were sent t o live with their grandmother. His sisters testified that his mother was in the h o s p it a l once or twice a year due to her mental illness. The testimony also d e m o n s t r a t e d that Esparza was beaten by his stepfather. Further, one sister w a s asked "how much schooling" Esparza had, and she replied: "Not much. . . . I know he stopped going to school because he had to help my mom to pay bills a n d all." Esparza then began working in a restaurant and in construction. Additionally, counsel elicited testimony from Dr. Arambula that the highly s t r u c t u r e d setting in prison would make Esparza less likely to be a future 17

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No. 10-70009 d a n g e r , which is mitigating evidence with respect to the first question given to t h e jury after the punishment phase.5 Although Esparza claims counsel's

q u e s t io n in g of the mitigation witnesses was "very superficial," he has wholly fa ile d to explain what else counsel should have elicited from the mitigation w it n e s s e s . As such, he has failed to demonstrate that reasonable jurists would fin d debatable his claim that counsel's performance with respect to investigating a n d presenting the evidence in mitigation was deficient. 2. P r e ju d ic e Prong

B e c a u s e Esparza made an insufficient showing on the first prong of the test, it is unnecessary for this Court to address the second prong­whether c o u n s e l's deficient performance prejudiced him. Strickland, 466 U.S. at 689. Nonetheless, we briefly state that it is clear that Esparza has failed to make a s u ffic ie n t showing of prejudice. In the context of a claim that counsel failed to d is c o v e r and present mitigating evidence, to determine whether a petitioner has s h o w n the required prejudice, "we reweigh the evidence in aggravation against t h e totality of available mitigating evidence." Wiggins, 539 U.S. at 534. Here, the aggravating evidence included evidence that Esparza kidnapped a 7-year old girl from her home in the middle of the night, raped and sodomized h e r , and strangled her to death. Esparza had a previous conviction for

a g g r a v a t e d sexual assault, and the victim of that crime testified at the p u n is h m e n t phase of this trial. She recounted how Esparza hit her in the head

The first question is: "Do you find from the evidence beyond a reasonable doubt that there is a probability that the Defendant, Guadalupe Esparza, would commit criminal acts of violence that would constitute a continuing threat to society?" The second question is: State whether, taking into consideration all 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 are sufficient mitigating circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed.

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No. 10-70009 w it h his gun and raped her at gunpoint after asking her for a ride home in her c a r . Another victim testified that Esparza choked her and attempted to rape h e r . Shortly before the instant crime, Esparza put his hand underneath the c lo t h e s of a little girl as she was sleeping. The evidence showed that as a ju v e n ile he attempted to rob another child of his mini-bike at knife point. Esparza also was the "getaway" driver when two other individuals were stealing p a r ts from a vehicle. Finally, Esparza had received disciplinary reports in p r is o n , including an incident in which he was kicking another inmate in the side w h ile the inmate was lying on the ground. W it h respect to his claimed evidence of mental retardation, as we p r e v io u s l y discussed, the evidence indicates that Esparza was not actually m e n ta lly retarded. Thus, in light of the aggravating evidence presented to the j u r y , we are unpersuaded that Esparza has made a substantial showing that t h e r e is a reasonable probability that, had his additional mitigating evidence b e e n presented, the outcome of the sentencing hearing would have been d iffe r e n t . In other words, we are persuaded that reasonable jurists would not fin d Esparza's claim of ineffective assistance of counsel debatable. We therefore D E N Y a COA as to his claim of ineffective assistance of counsel. IV . C O N C L U S IO N

F o r the above reasons, the motion for COA is DENIED.

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