Joe Garza v. William Stephens, Director

Filing

UNPUBLISHED OPINION ORDER FILED. [13-70019 Affirmed] Judge: EGJ , Judge: WED , Judge: PRO; denying motion for certificate of appealability filed by Appellant Mr. Joe Franco Garza (ISSUED AS AND FOR THE MANDATE) [7516409-2] [13-70019]

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 13-70019

United States Court of Appeals
Fifth Circuit

FILED
July 16, 2014
Lyle W. Cayce
Clerk

JOE FRANCO GARZA,
Petitioner-Appellant

v.

WILLIAM STEPHENS, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent-Appellee

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:10-CV-13

Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM: *
Petitioner Joe Garza (“Garza”) was convicted for capital murder and
sentenced to death, after a retrial on punishment, in proceedings in Texas state

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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court. Following his unsuccessful challenges to the conviction on direct appeal
and through state habeas review, he filed a petition in federal district court
under 28 U.S.C. § 2254. The district court denied that petition and Garza’s
application for a certificate of appealability (“COA”). Garza now seeks a COA
from this court, which we DENY for the reasons set out below.
I.
The facts underlying Garza’s 1998 conviction are not in dispute. On
direct appeal, the Texas Court of Criminal Appeals (“TCCA”) set forth the facts
of the murder as follows:
At the guilt/innocence phase of trial, the jury heard
evidence that [Garza] brutally strangled 71-year-old
Silbiano Rangel to death with a sock. [Garza] did so
after Mr. Rangel–an acquaintance of [Garza’s] cousin–
had driven [Garza], his cousin, and his cousin’s son to
“the strip” in Lubbock, Texas, to buy beer. Apparently
[Garza] murdered Mr. Rangel because he would not
also pay for the beer. [Garza] choked the elderly man
for seven to ten minute[s] before Mr. Rangel finally
died of oxygen deprivation. Afterwards, [Garza] and
his cousin put the deceased’s body behind the truck
seat. [Garza] then drove his cousin to a friend’s house.
While she went inside to get [Garza] some beer,
[Garza] went through Rangel’s wallet. [Garza] then
gave his cousin four dollars from the wallet and drove
away.
The medical examiner called Mr. Rangel’s death a
“classic case” of strangulation by ligature. The victim
also suffered a blunt force injury which ripped the skin

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from part of his ear as well as other injuries which
suggested struggle. 1
He was sentenced to death after his initial trial, but he prevailed in a
federal habeas proceeding and obtained a retrial on punishment.

At the

punishment retrial, the jury again sentenced Garza to death based on the
future dangerousness special issue. In its opinion on Garza’s second direct
appeal from the limited retrial, the TCCA elaborated on the facts of the murder
and summarized the jury’s finding on the future dangerousness issue:
[T]he jury heard that [Garza] had been drinking at his
cousin’s house when someone there called the 71-yearold victim, Silbiano Rangel, and asked him to come
over. Rangel gave [Garza] and his cousin a ride to a
liquor store to buy beer. After they got to the store,
[Garza] and his cousin realized that they had no
money. Rangel then drove them to the house of a
friend, where [Garza]’s cousin went inside to try to
borrow money. While she was in the house, [Garza],
who was sitting behind Rangel, strangled him with a
sock. When his cousin returned to the truck, [Garza]
ordered her to help him move Rangel’s body into the
back of the truck. He took Rangel’s wallet, jewelry, and
truck, and he dropped his cousin off at her friend’s
house. He drove the stolen truck to the house of his 13year-old pregnant girlfriend, where he lied to Rangel’s
friend who noticed the truck and asked about Rangel.
He then woke his girlfriend and took her with him to
Dallas in Rangel’s truck, stopping along the way to
pawn Rangel’s ring and make purchases with Rangel’s
checks. While in Dallas he gave or sold the truck to a
stranger and borrowed money from a friend. He and
his girlfriend returned by bus to Lubbock. Later, he
1

Garza v. State, No. AP-73,850 (Tex. Crim. App. Sept. 18, 2002).

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bought a newspaper and read it to see if there had
been a report of Rangel’s death.
The morning after the murder, Rangel’s body was
found on the side of the road with the sock still tied
around his neck. There was testimony that Rangel’s
injuries were consistent with him having struggled
before he died. The medical examiner testified that
injuries on Rangel’s face were consistent with blunt
force trauma.
[Garza]’s prior juvenile adjudications included
burglary and arson. He had been belligerent to a police
officer who had stopped a stolen car in which [Garza]
was a passenger. He had attempted to escape from the
juvenile justice center by kicking out the windows, and
he had fought with the responding officers. He was
arrested for carrying a homemade dagger when he was
seventeen years old. As an adult, [Garza] had been
arrested for public intoxication more than once. There
was evidence that he had assaulted his girlfriend’s
sister by punching her in the face and then chasing her
to a closet. He broke down the closet door and then
kicked her repeatedly as she lay on the closet floor. He
did not stop until the police arrived, and then he fled
the house. He had stolen a car, guitar, and leather
jacket from a man who had given him a ride in the
rain. The records introduced by the State revealed that
by the time of the instant offense, [Garza] had been
adjudicated delinquent as a juvenile or convicted as an
adult of several offenses including burglary, criminal
mischief, theft, arson, evading arrest, resisting arrest,
attempted escape, and aggravated robbery. [Garza]
was on parole from a burglary conviction when he
committed the instant offense.
[Garza]’s prison disciplinary record included
numerous disciplinary violations, such as possessing
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homemade weapons, assaulting inmates, and verbally
threatening and verbally abusing corrections officers.
One inmate that he assaulted required seventeen
stitches after the attack. Another disciplinary
violation involved throwing hot water at a corrections
officer. In addition, [Garza] had been investigated as a
possible prison-gang member in 1994 and 1995.
During an interview that was conducted as part of that
investigation, [Garza] did not admit to being a gang
member, but he told gang-intelligence officers that if
the San Antonio inmates were not shipped off the unit,
they would be “shipped off in coffins.” Although
[Garza]’s gang membership was not confirmed at that
time, the Security Threat Group (“STG”) management
office of the Texas Department of Criminal Justice
(“TDCJ”) later confirmed [Garza] as a Texas Syndicate
(“TS”) gang member. 2
Garza filed a state habeas application, which the TCCA denied in 2009. 3
Through counsel, Garza filed a federal habeas petition in 2010, asserting 17
grounds for relief. The district court issued an order denying Garza’s habeas
petition on March 6, 2013, supported by findings of fact and conclusions of law
as to each of the 17 grounds. 4 In his application for COA to the Fifth Circuit,
Garza identified six specific grounds for relief and also argued that he was
entitled to develop the facts further and have an evidentiary hearing before
the federal habeas court.

Garza v. State, 2008 WL 5049910, *1-2 (Tex. Crim. App. Nov. 26, 2008).
Ex parte Garza, WR-56,961-02, 2009 WL 174954 (Tex. Crim. App. Jan. 14, 2009).
4 Garza v. Thaler, No. 5:10-cv-00013-C (N.D. Tex. Mar. 6, 2013).
2
3

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II.
This habeas proceeding is governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”). 5 Before a federal habeas petitioner can
appeal the district court’s denial of his petition, he must first obtain a COA,
which requires the petitioner to make “a substantial showing of the denial of a
constitutional right.” 6 In seeking a COA on claims the district court has
rejected on the merits, “the showing required to satisfy § 2253(c) is
straightforward: The petitioner must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims
debatable or wrong.” 7 In seeking a COA on claims the district court has
rejected on procedural grounds, the petitioner must “show[], at least, that
jurists of reason would find it debatable whether the petition states a valid
claim of the denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its procedural
ruling.” 8
At the COA stage, we make only a threshold inquiry into the merits of
Garza’s claims, “which does not require full consideration of the factual or legal
bases adduced in support of the claims. In fact, the statute forbids it.” 9
We evaluate the debatability of [the petitioner’s]
constitutional claims against the backdrop of the
AEDPA’s highly deferential standard. Under the
Trottie v. Stephens, 720 F.3d 231, 239 (5th Cir. 2013), cert. denied, 13-7367, 2014 WL
1124876 (U.S. Mar. 24, 2014).
6 See 28 U.S.C. § 2253(c).
7 Slack v. McDaniel, 529 U.S. 473, 484 (2000).
8 Id. (emphasis added).
9 Miller–El v. Cockrell, 537 U.S. 322, 336 (2003).
5

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AEDPA, a federal court may not grant habeas relief
unless the petitioner has first exhausted state
remedies with respect to the claim at issue. 28 U.S.C.
§ 2254(b). To prevail, the habeas petitioner must
prove that the state court’s constitutional adjudication
resulted in either 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 a decision that
was based on an unreasonable determination of the
facts in light of the evidence presented in the State
court proceeding. § 2254(d)(1)-(2). . . . When ruling on
a petition for a writ of habeas corpus, the federal
district court must defer to the state court’s factual
findings, Moody v. Quarterman, 476 F.3d 260, 267–68
(5th Cir. 2007), and consider only the record that was
before the state court, Cullen v. Pinholster, –––U.S. –
–––, 131 S. Ct. 1388, 1398, 179 L.Ed.2d 557 (2011). 10
In death penalty cases, “any doubts as to whether a COA should issue
must be resolved in [the petitioner’s] favor.” 11
III.
One of Garza’s overarching claims is that the state court both failed to
consider all of the evidence presented and wrongfully refused to allow him to
develop more facts. Before moving to the merits of his other claims, we first
determine whether Garza is entitled to additional fact development.
Under § 2254(d), “An application for a writ of habeas corpus . . . shall
not be granted with respect to any claim that was adjudicated on the merits in

Garza v. Stephens, 738 F.3d 669, 673-74 (5th Cir. 2013).
Ramirez v. Dretke, 398 F.3d 691, 694 (5th Cir. 2005) (alteration in original) (citation and
internal quotation marks omitted).
10
11

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State court proceedings unless the adjudication of the claim-- . . . (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.”

Only if a

petitioner can overcome this hurdle may he move on to § 2254(e), which
provides:
(e)(1) In a proceeding instituted by an application for
a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court, 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.
(2) If the applicant has failed to develop the factual
basis of a claim in State court proceedings, the court
shall not hold an evidentiary hearing on the claim
unless the applicant shows that-(A) the claim relies on-(i) a new rule of constitutional law, made
retroactive to cases on collateral review by
the Supreme Court, that was previously
unavailable; or
(ii) a factual predicate that could not have
been previously discovered through the
exercise of due diligence; and
(B) the facts underlying the claim would be
sufficient to establish by clear and convincing
evidence that but for constitutional error, no

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reasonable factfinder would have found the
applicant guilty of the underlying offense. 12
Garza claims that the state habeas court’s rejection of the claims
presented in this COA application was based on unreasonable determinations
of the underlying facts, any one of which would have been sufficient to satisfy
§ 2254(d)(2). Specifically, he argues that the state court unreasonably ignored
most of the evidence he presented in his state habeas proceeding regarding his
attorney’s alleged ineffective assistance and unreasonably denied him access
to additional evidence regarding his alleged gang affiliation. Garza therefore
argues that he is not barred from obtaining habeas relief under § 2254(d),
should have been allowed to further develop the facts in support of his claims,
and should have been given an evidentiary hearing under § 2254(e)(2).
Garza must overcome several substantial legal obstacles before he is
entitled to relief. First, he is not entitled to any habeas relief unless the state
habeas court reached an “unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.” 13 A state habeas court’s
procedures which simply reject a petitioner’s facts may constitute an
“unreasonable determination” sufficient to satisfy § 2254(d)(2), 14 and that is
what Garza claims here. He asserts that in the state habeas proceeding he set
out facts which, if proven, might entitle him to relief. He claims the state
habeas court unreasonably rejected his assertions even though the State put

28 U.S.C. § 2254(e).
28 U.S.C. § 2254(d)(2).
14 Cf. Richards v. Quarterman, 578 F. Supp. 2d 849 (N.D. Tex. 2008), aff’d, 566 F.3d 553 (5th
Cir. 2009).
12
13

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forward no evidence in response. Thus, Garza claims, the district court should
have granted him further fact development and held an evidentiary hearing.
Garza did not actually possess facts which would change the outcome; he
only hoped to locate them with additional time. He claimed he might have
located evidence that his attorneys improperly obstructed his exercise of his
right to testify and otherwise provided ineffective assistance. He also claimed
that the Texas Department of Criminal Justice (“TDCJ”) wrongfully withheld
(on the advice of the Texas Attorney General) all non-public documentation
regarding the TDCJ’s classification of Garza as a gang member, as well as any
“training manuals, guidelines, written procedures, written policy statements,
and like documents” prepared by TDCJ or its employees for the identification
and classification of inmates as gang members.
The state habeas court found that Garza had failed to raise any material
controverted, previously unresolved factual issue, and it refused to grant Garza
additional fact discovery or an evidentiary hearing. We cannot say the state
habeas court’s decision was unreasonable.

Under AEDPA’s deferential

standard, the state habeas court is not required to hold a live evidentiary
hearing or carry out any particular set of procedures; it must only act
reasonably. 15 Here, the state habeas court elected to rely on the trial record
and did not give credence to Garza’s proffered evidence, which was incomplete.
Second, the proposed new evidence concerned issues which would not
clearly have altered the outcome. For example, with respect to his argument
that he would have exercised his right to testify but was thwarted by his

15

See, e.g., Valdez v. Cockrell, 274 F.3d 941, 948–51 (5th Cir. 2001).

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attorneys, discussed below, the record before the state habeas court showed
that the trial judge had warned Garza of the consequences of testifying, and
Garza changed his mind after consulting with trial counsel further. It is hard
to say the state habeas court was unreasonable in rejecting Garza’s new
assertions that he would have testified and that it would have changed the
outcome, particularly given the mountain of evidence concerning his criminal
history and prison disciplinary problems.

Likewise, Garza’s arguments

regarding the TDCJ’s gang affiliation classification would not clearly change
the ultimate outcome. In short, the evidence that Garza proposed to submit to
or gather for the state habeas court was not necessarily outcomedeterminative, and the court did not reject it unreasonably.
Third, even if Garza could show that the state court unreasonably
rejected the proffered evidence and therefore could satisfy § 2254(d)(2), he
would not necessarily be entitled to supplement the evidence in this federal
habeas

proceeding.

Under

§

2254(e)(1),

the

state

court’s

factual

determinations are presumed to be correct and must be rebutted by clear and
convincing evidence. To supplement the record in this court under § 2254(e)(2),
Garza must show both that “the claim relies on . . . a factual predicate that
could not have been previously discovered through the exercise of due
diligence” and that “the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the underlying
offense” (emphasis added). Even if every proffered new piece of evidence were
true, a reasonable factfinder could still reach the same conclusions the jury
reached in this case, namely that Garza was guilty of the underlying crime and
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that he posed a risk of future harm.

Thus, under the plain language of

§ 2254(e)(2), Garza has failed to show that he is entitled to further fact
development and/or an evidentiary hearing in this federal habeas proceeding.
He is not entitled to a COA on that issue.
IV.
Garza claims both that he was denied the right to testify and that his
trial counsel was ineffective in advising him not to testify. We address these
issues separately. As explained above, Garza has not shown that he is entitled
to additional evidence in this federal habeas proceeding because the proffered
hypothetical evidence would not necessarily change the outcome. The district
court’s findings of fact and conclusions of law are reasonable and appear to be
correct. The district court found that Garza waived his claim that he was
denied the right to testify by failing to raise it on direct appeal, but even if he
had not waived it, he has not asserted a viable claim here.
The district court found that when Garza raised this claim in his state
habeas application, the TCCA dismissed the claim after it determined that
Garza could have raised the claim on direct appeal but failed to do so. Garza’s
trial counsel told the trial court that Garza wanted to testify in his own defense
but had been advised that his counsel believed it was a mistake to do so.
Nevertheless, trial counsel told Garza that he had an absolute right to testify.
The trial court asked Garza whether he understood that if he chose to testify,
he would be subject to cross-examination and would be required to answer any
questions.

Garza reiterated that he wanted to testify over the advice of

counsel, including his trial counsel’s concern that Garza would waive two valid
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points of error by doing so. (Garza does not specify what these points of error
might be.)
The district court further found that Garza requested a short recess to
consult his attorneys outside the courtroom. When they returned, Garza’s trial
counsel informed the court that Garza would not be testifying after all and
instead would be asserting his Fifth Amendment right to remain silent.
Strictly speaking, Garza does not argue that the trial court interfered with his
right to testify, only that his trial counsel did.
Based on these findings of fact, the district court concluded that Garza
is not entitled to relief on this claim. First, it reasoned that Garza could have
raised the claim on direct appeal but failed to do so, which constitutes an
independent and adequate state procedural bar sufficient to default the claim
on federal habeas review. 16 Next, the court concluded that Garza failed to
establish cause and prejudice to excuse the procedural default or demonstrate
that the imposition of the procedural bar will result in a fundamental
miscarriage of justice.
In the alternative, the district court determined that even if Garza
claimed that the trial court itself interfered with his right to testify, he has
failed to support that claim with sufficiently detailed facts, only conclusory and
vague allegations. 17 The district court also noted that the state habeas court

See Brewer v. Quarterman, 466 F.3d 344, 347 (5th Cir. 2005); Aguilar v. Dretke, 428 F.3d
526, 535 (5th Cir. 2005).
17 See Barnard v. Collins, 958 F.2d 634, 643 n.11 (5th Cir. 1992); and Blackledge v. Allison,
43l U.S. 63, 74 (1977) (noting that claims that are “unsupported by specifics are subject to
summary dismissal”).
16

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had already examined the merits of Garza’s claim regarding his deciding not
to testify:
4. Relying upon the facts in the record, the state court
reasonably determined:
a. [B]ased on the [trial] [c]ourt’s colloquy with
[Garza], and based on the trial counsel’s
uncontested, uncontroverted, and unopposed
announcement that [Garza] no longer wished to
exercise his right to testify—made in [Garza’s]
presence—the [c]ourt was under no obligation or
duty to inquire further into the bases, reasons,
or strategic or tactical considerations that led to
[Garza’s] choice.
(R. for State Habeas WR-56,961-02 at 527-28.)
b. [F]or the [trial] [c]ourt to have engaged in an
examination of the particular and specific bases,
reasons, and consideration [Garza] discussed
with his trial counsel at his request outside the
[c]ourt’s presence before he made the decision
not to testify would have violated [Garza’s] Sixth
Amendment right in order to inquire into
matters that he clearly understood—that his
right to testify or not as he chose, which had
already been fully explored with him.
Furthermore, it might have indicated a directive
from the Court, or at least advice from the
[c]ourt, that [Garza] should testify.
(R. for State Habeas WR-56,961-02 at 528.)
c. [T]he [trial] [c]ourt did not err or abuse its
discretion by failing to pursue the underlying

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reasons for, or considerations involved in,
[Garza’s] decision not to testify. 18
Based on all of the above, Garza is not entitled to a COA on his claim
that he was denied the right to testify. After Garza made known his intention
to testify, Garza’s trial counsel and the trial court informed him of the serious
problems with testifying, and Garza made a conscious, informed decision not
to do so after an additional private consultation with his trial counsel. The
trial court made sure that Garza knew that the decision was his alone to make.
Thus, even if Garza had preserved this claim, we do not believe there is any
merit to it. Thus, we deny a COA on this claim.
V.
As noted above, Garza also argues that his trial counsel was ineffective
in advising him not to testify. Garza claims he was never prepared to testify
even though he made it clear he desired to testify, but he does not claim that
his counsel forbade him from testifying.

He states that his trial counsel

implored him not to testify because it would waive two viable errors for appeal.
Garza does not specify what these errors were, only that trial counsel based
their advice in part on preserving them for appeal.
The district court reviewed the circumstances of Garza’s waiver:
7. Petitioner has failed to rebut by clear and
convincing evidence the state court’s finding regarding
Petitioner’s demeanor at trial when waiving his right
to [testify]:

18

Garza v. Thaler, No. 5:10-cv-00013-C, *14-15 (N.D. Tex. Mar. 6, 2013).

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[Garza] did not say anything, and did not display
any surprise, confusion, concern, contradictory
feelings, or any other expression, and exhibited
nothing in his actions or demeanor that
conveyed even the mildest indication that he
had been pressured, intimidated, coerced,
unduly influenced, or otherwise improperly
compelled by his trial counsel to surrender his
right to testify against his will, or that the
decision [not] to testify had not really been his
own free, voluntary choice-nor did he ever do so
throughout the remainder of the proceedings.
(R. for State Habeas WR-56,961-02 at 532.)
8. Petitioner fails to allege in his federal habeas
petition the substance of the testimony he would have
offered had he taken the stand on his own behalf at the
punishment phase of trial. 19
The district court concluded that Garza could have raised this claim but
failed to do so, which constitutes an independent and adequate procedural bar
sufficient to default the claim at this stage. 20 Furthermore, the district court
concluded that he failed to establish cause and prejudice for the default or
demonstrate that it would lead to a fundamental miscarriage of justice. Even
if Garza’s claim were not procedurally defaulted, however, the district court
found that it lacked merit.
Under Bower v. Quarterman, 497 F.3d 459, 473 (5th Cir. 2007), we assess
claims that counsel unconstitutionally interfered with the right to testify under

19
20

Id. at *20.
See Brewer, supra; Aguilar, supra.

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the two-prong standard for ineffective assistance of counsel set out in
Strickland v. Washington, 466 U.S. 668 (1984).
A defendant's Sixth Amendment rights are violated if
counsel's assistance was deficient and the defendant
was therefore prejudiced. Strickland, 466 U.S. at 687,
104 S. Ct. 2052. There are two prongs to the test: (1)
whether counsel's representation fell below the
objective standard of reasonableness; and (2) whether
there is a reasonable probability that, if counsel had
not acted unprofessionally, the outcome of the
proceeding would have been different. Id. at 694, 104
S. Ct. 2052. The petitioner must show irresponsibility
on the attorney’s part that is sufficient to undermine
confidence in the outcome of the trial. Soffar v. Dretke,
368 F.3d 441, 478 (5th Cir. 2004). 21
In this case, it is unnecessary to reach the latter question because there
is no evidence that Garza’s trial counsel’s representation fell below the
objective standard of reasonableness. Quite the contrary: given the fact that
Garza would be exposed to cross-examination and a far wider inquiry into his
past behavior, coupled with the fact that trial counsel believed Garza’s
testifying would waive two viable errors on appeal, his trial counsel appears to
have acted reasonably in advising him not to testify. Indeed, given the severe
potential problems that Garza’s choosing to testify would have raised, we
cannot say that his trial counsel was unreasonable even in failing to prepare
him for that ill-advised testimony.
Building on the above, the district court’s conclusions touched on both
Strickland prongs:

21

Bower v. Quarterman, 497 F.3d 459, 466.

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4. The state court reasonably and properly determined
that counsel was not deficient in the substance of the
advice or the manner in which it was given to
Petitioner concerning his right to testify.
a. Counsel’s advice regarding their concerns and
possible consequences of a decision to take the
stand was in accordance with counsel’s duty and
obligation to provide effective representation
under the Sixth Amendment.
b. No evidence exists showing that counsel was
coercive or pressured Petitioner into waiving his
right to testify.
5. In the alternative, Petitioner has failed to allege the
substance of the testimony he would have offered
during the punishment phase of trial had he taken the
stand on his own behalf. Thus, he cannot prove that he
was prejudiced by the allegedly improper conduct by
his attorneys. 22
We agree. We cannot find, on these facts, that his counsel’s assistance
was ineffective either in strongly advising him not to testify or in failing to
prepare him for ill-advised testimony. Accordingly, we deny COA on this issue.
VI.
Garza asserts both a substantive claim and a related claim of ineffective
assistance of counsel regarding trial counsel’s alleged failure to investigate and
present evidence that would have undermined the State’s evidence tying him
to the Texas Syndicate, a violent prison gang. He cannot prevail on these
claims. First, Garza never objected to the State’s evidence. Second, the State

22

Garza v. Thaler, No. 5:10-cv-00013-C, *21-22 (N.D. Tex. Mar. 6, 2013).

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presented a substantial amount of evidence regarding Garza’s gang
membership, some of which was favorable to Garza, and the jury apparently
chose to give greater weight to the State’s assertion that he was in fact a gang
member. Third, because the gang membership issue was just a small part of
Garza’s overall history, he cannot show prejudice on this issue.
The district court summarized the relevant evidence as follows:
At Petitioner’s retrial on punishment, evidence
relating to his gang involvement was presented. An
investigation was conducted into whether Petitioner
was possibly a member of the Texas Syndicate, a
prison gang. Inspections of his cell revealed items that
suggested to the gang intelligence officer for the Roach
Unit in Childress, Texas, that Petitioner was a
member of the Texas Syndicate. Petitioner was
requested to attend an office interview with the gang
intelligence officer to confirm or deny gang affiliation.
Petitioner denied being involved in any gang but
informed the officer that if the officer did not get
members of the Mexican Mafia—enemies of the Texas
Syndicate—out of prison, their members were going to
leave in body bags. The gang intelligence officer’s
supervisors did not agree with the gang intelligence
officer’s determination that Petitioner was a gang
member. Yet, while incarcerated, Petitioner wrote to
suspected and confirmed members of the Texas
Syndicate and discussed (l) the individuals that were
being recruited; (2) what Petitioner’s position was at
the Roach Unit; and (3) what Petitioner was supposed
to be doing there at the unit, such as making calls for
the Texas Syndicate. The persons at the Roach Unit
who monitored Petitioner’s mail believed that the tone
of the letters and references made therein implied that
Petitioner was in a leadership role and capable of
making others comply with his wishes. It was also
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discovered that Petitioner had tattoos consistent with
Texas Syndicate membership. A TDCJ Security
Threat Group Coordinator also testified regarding
general knowledge of the gang’s organization and his
“very strong opinion” that Petitioner was a member of
the Texas Syndicate. This opinion was based upon a
review of Petitioner’s tattoos and the letters he had
written. 23
The district court reasonably concluded that Garza’s failure to object to
the admissibility of the evidence of his gang membership at the punishment
retrial constitutes an independent and adequate state procedural bar to federal
habeas review. 24 Moreover, the district court found that even if Garza had
preserved the claim, the issue of the weight of that evidence was one for state
courts. Garza’s alleged gang membership was just one part of a larger body of
evidence regarding Garza’s future dangerousness, most of which concerned his
lengthy criminal history and prison disciplinary issues, so Garza cannot show
prejudice. In short, based on the evidence before it, the district court properly
concluded that Garza is not entitled to a COA on these issues.
VII.
Finally, Garza argues that the State presented false or misleading
evidence regarding Gus Vaquera, its expert witness on prison gangs, and that
it suppressed material and favorable evidence concerning the truthful
character of two State witnesses, Roy Rodriguez and Gus Aleman. These
claims must fail for similar reasons to his other claims regarding evidence of

23
24

Id. at *7.
Id. at *26.

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Garza’s gang membership: as both the state court and federal district court
found, evidence of Garza’s gang membership was far less important than the
large amount of evidence regarding his criminal history and prison disciplinary
problems.

Thus, even if Garza’s assertions were correct, they would not

concern material evidence. Moreover, as the federal district court noted, Garza
failed to show that the State presented false or misleading evidence with
respect to Vaquera’s testimony, and it found, among other things, that Garza’s
counsel effectively impeached Rodriguez’s and Aleman’s testimony even
without the evidence Garza now calls into question.

The district court’s

findings of fact and conclusions of law appear to be correct. Garza is not
entitled to a COA on these issues.
VIII.
For the reasons stated above, we find that Garza has failed to
demonstrate that reasonable jurists would find the district court’s assessment
of his claims debatable or wrong. Garza’s motion for a COA is DENIED.

21