Arboleda Ortiz v. United States

Filing

OPINION FILED - THE COURT: WILLIAM JAY RILEY, DUANE BENTON and BOBBY E. SHEPHERD. William Jay Riley, Authoring Judge (PUBLISHED) [3860607] [08-1749]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 08-1749
___________
Arboleda A. Ortiz,

*
*
Movant - Appellant,
*
* Appeal from the United States
v.
* District Court for the Western
* District of Missouri.
United States of America,
*
*
Respondent - Appellee.
*
*
____________________
*
*
Republic of Colombia; American
*
Association on Intellectual and
*
Developmental Disabilities and
*
the ARC of the United States;
*
Concerned Experts in Mental
*
Retardation/Intellectual Disability,
*
*
Amici on behalf of Appellant.
*
___________
Submitted: April 11, 2011
Filed: December 19, 2011
___________
Before RILEY, Chief Judge, BENTON and SHEPHERD, Circuit Judges.
___________
RILEY, Chief Judge.

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Arboleda A. Ortiz, a federal prisoner awaiting execution on two death
sentences, appeals the district court’s denial of his petition to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255. On appeal, we review Ortiz’s claims that
(1) he is mentally retarded and therefore ineligible for execution under Atkins v.
Virginia, 536 U.S. 304 (2002) (Atkins claim), and (2) the ineffective assistance of his
counsel during the penalty phase of his trial violated the Sixth Amendment (ineffective
assistance claim). After careful review of the record, we affirm the district court’s
denial of Ortiz’s ineffective assistance claim, but vacate the district court’s denial of
the Atkins claim and remand for further consideration in light of certain new evidence.
I.

BACKGROUND
A.
Underlying Crime
Ortiz, a 44-year-old Colombian national, immigrated illegally to Houston,
Texas, in 1991. Ortiz was associated with the Colombian drug cartel “la oficina.”
Along with co-defendants Plutarco Tello, German Sinisterra, and Edwin Hinestroza,
Ortiz was convicted for participating in the 1998 drug-related murder of Julian Colon.
The immediate chain of events leading to the murder began on November 19,
1998, in Kansas City, Missouri, when Monica Osma, Hinestroza’s live-in girlfriend,
reported that some men broke into their apartment, beat her up, and stole more than
$240,000 of Hinestroza’s drug money. After the robbery, Hinestroza sent Osma to
Houston, Texas, for medical treatment and so his drug partner, Jamie Hurtado, could
interview her. While Osma was in Houston, Ortiz and Tello visited her. Claiming to
represent “la oficina,” the men questioned Osma about the robbery and asked her to
show photographs and medical records demonstrating her injuries. Apparently not
satisfied with Osma’s account, either Ortiz or Tello said “murraco,” which was
understood as a potential death threat.
Ortiz, Tello, and Sinisterra soon traveled from Houston to Kansas City, in order
to help Hinestroza collect the money. On November 28, 1998, the group met
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Hinestroza and two of his associates, Colon and Andres Borja-Molina, at a motel.
Colon and Borja-Molina came to the meeting believing they were going to help in
trying to recover the money from a drug client of Hinestroza, but in fact, they were the
intended targets.
The group took Colon and Borja-Molina to a house, separated the two men, tied
them up with duct tape, beat them, and demanded they return the stolen money.
Eventually, Borja-Molina heard Hinestroza order both men shot. Sinisterra shot Colon
in the head, killing him. Someone shot at Borja-Molina, but missed.1 Borja-Molina
pretended to be dead as he was carried out of the house, placed into the trunk of a car
with Colon’s body, driven to a park, and abandoned. Borja-Molina eventually escaped
from the trunk and reported the murder to the authorities.
The police soon arrested Ortiz, Tello, and Sinisterra. Hinestroza was not
apprehended by authorities until February 2004.2 Ortiz admitted to police that he
came to Kansas City “to do a job,” for which he was to be paid $1,000, and he was
present during the murder.
B.
Conviction and Sentencing
A federal grand jury indicted Ortiz, Tello, Sinisterra, and Hinestroza for, as
relevant, conspiring to distribute 5 kilograms or more of cocaine in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(A) and 846 (Count One), using a firearm during a drugtrafficking crime and murdering Colon in violation of 18 U.S.C. §§ 924(c)(1), (j)(1)

1

It is not entirely clear from the trial record who fired the shot at Borja-Molina.
Ortiz’s lead trial counsel at the post-conviction evidentiary hearing testified Ortiz shot
at Borja-Molina.
2

Hinestroza was tried separately from Ortiz, Tello, and Sinisterra. In November
2005, a jury found Hinestroza guilty on all counts and he was sentenced to life
imprisonment.
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and 2 (Count 2), and knowingly traveling in interstate commerce with the intent to
murder in exchange for money in violation of 18 U.S.C. §§ 1958 and 2 (Count 3). The
government gave notice of its intent to seek the death penalty.
In April 2000, the case against Ortiz, Tello, and Sinisterra proceeded to trial.
The jury found the defendants guilty on all counts. During the penalty phase of the
trial, the jury first determined sentences of death should be imposed on Sinisterra and
then the penalty phase of Ortiz’s trial began.
Ortiz had deposed and planned on calling three mitigating witnesses, former
girlfriends Shaunte Cooper and Louvina “Nikki” Reed, and friend Carolyne Riley.
Considering the jury’s response to Sinisterra’s evidence and the substantial adverse
change in the three witnesses’ stories about Ortiz, attorney Larry Pace informed the
district court and the government before the penalty phase began Ortiz would not call
these witnesses. Pace also waived his opening statement and informed the district
court Ortiz had decided not to testify. The district court questioned Ortiz on the
record, and Ortiz said he understood his rights, but wished not to testify.
After the government presented its case for imposing the death penalty, Pace
focused on the events of November 28, 1998, and argued Ortiz deserved different
treatment from Sinisterra primarily because, unlike Sinisterra, there was no evidence
Ortiz was anything but “the lowest level mule” in the operation and Ortiz did not kill
anyone. Pace also stressed other mitigating factors such as (1) Ortiz’s lack of criminal
history; (2) Ortiz did not participate in the binding, beating, or shooting of Colon;
(3) the likelihood Ortiz would serve his time in prison peacefully; and (4) the fact
Colon, the murder victim, risked his own life by his actions leading up to the murder.

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The jury unanimously decided Ortiz should be sentenced to death on both
counts.3 In December of 2000, the district court conducted Ortiz’s sentencing hearing.
The district court ordered Ortiz sentenced to 235 months imprisonment for Count One
and death on Counts Two and Three.
C.
Direct Appeal
Ortiz and Sinisterra appealed, raising multiple challenges not directly relevant
to this appeal. See United States v. Ortiz, 315 F.3d 873, 878 (8th Cir. 2002). We
affirmed the convictions and sentences, see id. at 904, and the Supreme Court denied
Ortiz’s petition for certiorari, see Ortiz v. United States, 540 U.S. 1073 (2003).
D.
Motion for Post-Conviction Relief
In December 2004, Ortiz moved to vacate, set aside, or correct his conviction
and sentence pursuant to 28 U.S.C. § 2255. In his § 2255 motion, Ortiz raised, among
other claims, his Atkins and ineffective assistance challenges. In November 2007, the
district court held a three-day evidentiary hearing on the motion. Ortiz presented three
broad categories of evidence at the hearing: (1) general mitigation evidence based
upon Ortiz’s background, (2) evidence Ortiz is mentally retarded, and (3) evidence
related to the ineffective assistance of counsel claim.
1.
Ortiz’s Background
Dhyana Fernandez, a mitigation specialist, testified she traveled to Ortiz’s
hometown of Buenaventura, Colombia, and to Houston, Texas, in order to conduct an
investigation of Ortiz’s social history. Fernandez interviewed Ortiz’s friends and
family, including his father and his paternal grandmother.
Fernandez reported Ortiz’s mother abandoned him when he was two months
old. Ortiz was raised by his paternal grandmother. Ortiz’s family noticed he was
3

The district court sentenced Tello to life imprisonment.
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developmentally delayed in the areas of communication, reading, numbers, and
memory skills. Ortiz had little education, dropping out of school when he was seven
or eight years old because he had difficulty learning and other children teased him.
Instead of going to school, Ortiz worked with his grandmother growing fruit on a
small plot of land. Ortiz’s family reported he suffered from various undocumented
illnesses and injuries as a child, including fevers, bacterial meningitis, and two
possible instances of untreated head trauma.
Fernandez reported Ortiz tried working for his father’s construction company,
but was unsuccessful because he was unable to learn the various construction tasks.
Ortiz and his father had an argument, resulting in the father shooting at Ortiz. Ortiz
also served in the Colombian military, where he went AWOL on several occasions
after becoming homesick. When Ortiz illegally immigrated to Houston in 1991, he
worked sporadically throughout 1992 and into 1994 as a day laborer and later
occasionally as an assistant to a mechanic. According to Fernandez, Ortiz always
lived with and was dependent upon other people.
Two lay witnesses testified Ortiz also sold drugs and “worked” as a hit man.
Borja-Molina testified that before the murder, he had completed a drug transaction
with Ortiz, who was acting on behalf of Fabio Montano. According to Borja-Molina,
Ortiz offered his services as a hit man to Borja-Molina. Marvin Collins also testified
he was involved in drug transactions with Ortiz, who he met through Montano.
2.
Evidence Related to Mental Retardation
In evaluating Ortiz’s Atkins claim, the district court utilized the definitions of
mental retardation as provided by the American Psychiatric Association’s (APA)
Diagnostic and Statistical Manual of Mental Disorders (4th ed., text revision 2000)

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(DSM-IV-TR) and the American Association on Intellectual and Developmental
Disabilities (AAIDD). 4
The AAIDD and APA, whose prior definitions of mental
retardation were footnoted in Atkins, define mental retardation in similar
ways. The AAIDD defines mental retardation as “a disability
characterized by significant limitations both in intellectual functioning
and in adaptive behavior as expressed in conceptual, social, and practical
adaptive skills. This disability originates before age 18.”
....
For a diagnosis of mental retardation under the DSM-IV-TR, the
APA notes the following features: (1) significantly subaverage
intellectual functioning (an IQ of approximately 70 or below);
(2) concurrent deficits or impairments in present adaptive functioning
(i.e., how effectively the individual copes with common life demands and
how they meet the standards of personal independence expected of
someone in their age group, sociocultural background, and community
setting) in at least two of the following areas: communication, self-care,
home living, social/interpersonal skills, use of community resources,
self-direction, functional academic skills, work, leisure, health, and
safety; and (3) onset before age 18 years.
Ortiz v. United States, No. 04-8001, slip op. at 3-4 (W.D. Mo. Dec. 14, 2007) (internal
citations omitted). Under either definition, a mental retardation diagnosis requires
significantly limited intellectual functioning (intellectual function prong) and adaptive
functioning (adaptive function prong) originating before the age of 18 (age prong).

4

The AAIDD, formerly known as the American Association for Mental
Retardation (AAMR), explains “[t]he term ‘mental retardation has become the subject
of considerable discussion recently among professionals in the field. Increasingly,
those professionals employ the term ‘intellectual disability’ in place of ‘mental
retardation.’” For purposes of consistency, we use the term “mental retardation.”
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a.
Expert Testimony
The district court heard testimony from two psychologists, Ricardo Weinstein,
Ph.D., who was hired by Ortiz, and Carmen Vasquez, Ph.D., who was hired by the
government. Dr. Weinstein and Dr. Vasquez both conducted comprehensive mental
examinations of Ortiz, consisting of clinical interviews and an assortment of tests to
assess Ortiz’s cognitive ability. Based upon the results, Dr. Weinstein opined Ortiz
was mentally retarded, explaining Ortiz “has an I.Q. below 70, he exhibited significant
deficiencies in many areas relating to his adaptive behaviors and these conditions were
present before the age of 18.” Conversely, Dr. Vasquez determined Ortiz was not
mentally retarded, stating instead, “Ortiz seems more like someone who lived such a
deprived life that he simply was not given the opportunity to learn.” Dr. Vasquez
attributed Ortiz’s intellectual challenges, such as his illiteracy, to his lack of schooling,
poor economic background, lack of opportunities, and likely emotional depression.
During their examinations of Ortiz, both Dr. Weinstein and Dr. Vasquez
administered two tests to assess Ortiz’s level of intellectual function. Dr. Weinstein
administered the Spanish version of the Wechsler Adult Intelligence Scales III (WAISIII), upon which Ortiz obtained an I.Q. score of 54, and the Bateria Woodcock-MunozRevisada (Bateria W-M-R), on which Ortiz obtained an estimated I.Q. score of
between 44 and 50. Dr. Vasquez administered the Spanish version of the WoodcockJohnson III Tests of Cognitive Abilities (Bateria III), upon which Ortiz obtained an
I.Q. score of 70, and the Comprehensive Test of Non-Verbal Intelligence (C-TONI),
upon which Ortiz obtained I.Q. scores of 47 on the Nonverbal section and 51 on the
Pictorial and Geometric Nonverbal sections.
Dr. Weinstein opined the test scores indicated Ortiz was deficient on the
intellectual function prong since all of his I.Q. scores “fall within the range of mental
retardation.” Dr. Weinstein explained the tests had “convergent validity,” meaning
their consistency decreased the likelihood Ortiz purposely achieved such low scores.
Dr. Vasquez disagreed, believing Ortiz attempted to malinger on the exams she
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administered—meaning he intentionally produced false or greatly exaggerated
symptoms, or Ortiz was uncooperative while taking the tests. In her report, Dr.
Vasquez acknowledged, “Ortiz’s results indicate borderline mental functioning,” but
stressed his “variable performance, almost complete lack of schooling, depressed and
anxious mood, and poor cooperation confound the validity and accuracy of his level
of cognitive functioning.” Dr. Vasquez also opined Dr. Weinstein’s use of United
States norms on the Spanish verison of the WAIS-III was inappropriate, casting doubt
on the validity of Ortiz’s WAIS-III score because Ortiz was not compared to other
similarly-situated individuals.
Dr. Weinstein and Dr. Vasquez also disagreed as to whether Ortiz met the
adaptive function prong. Dr. Weinstein, relying in part on Fernandez’s social history
report, surmised Ortiz had significant deficiencies in three adaptive skill sets
(conceptual, social, and practical), noting Ortiz’s inability to achieve success in
school, poor interpersonal skills, inability to accomplish simple tasks as a child,
dependence upon others to take care of his personal hygiene and health, inability to
learn simple unskilled labor tasks, inability to manage his own finances, and general
dependence upon others to function in society. According to Dr. Weinstein, the skills
Ortiz now possesses were developed in a delayed fashion.
Dr. Vasquez collected data regarding Ortiz’s adaptive functioning by
administering the Adaptive Behavior Assessment System, Second Edition (ABAS-II),
which measures ten different adaptive function areas. From this information, her own
personal observations of Ortiz, and a review of Ortiz’s records including his recorded
confession to police, Dr. Vasquez believed Ortiz did not meet the adaptive deficit
prong. Interpreting Ortiz’s results on the ABAS-II, Dr. Vasquez discounted Ortiz’s
“extremely low” scores in the skill areas of functional academics, leisure, and selfdirection, as well as the conceptual and social composite categories, claiming her
purpose in administering the test was merely to collect information about how Ortiz
functioned in the world. She also noted “[t]he areas that [Ortiz] did not score well in
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were heavily related to his incarceration and limited freedom, illiteracy, level of
acculturation and little to no formal education.” In making her diagnosis, Dr. Vasquez
emphasized areas she found Ortiz demonstrated ability to function, such as his ability
to (1) learn and speak some English; (2) care for personal hygiene; (3) travel through
airports; (4) drive a car and ride a bike; (5) perform domestic tasks including house
cleaning, washing clothes, and cooking some sophisticated fish and seafood dishes;
(6) father and care for his, and his girlfriend’s, children; (7) demonstrate proper
manners; (8) watch Spanish news and soap operas on television and recall some of the
stories; and (9) evidence good social/interpersonal skills. Dr. Vasquez believed these
abilities showed Ortiz “was functioning appropriately to [Colombian immigrants] and
in comparison to [Colombian immigrants].”
The district court also received a declaration from another psychologist, John
Olley, Ph.D., in support of Ortiz.5 Dr. Olley reviewed and offered his opinion as to Dr.
Weinstein’s and Dr. Vasquez’s reports, as well as Ortiz’s mental status. Dr. Olley
declared, “that based upon the test data set forth in Dr. Vasquez’s report [Ortiz] is a
person with mental retardation” and “Dr. Vasquez’s conclusion to the contrary is
simply not supported by her data.”
Dr. Olley criticized Dr. Vasquez’s assertion that malingering contributed to
Ortiz’s low I.Q. scores, noting the consistency of the scores demonstrated they were
reliable and possessed convergent validity. Dr. Olley found it “inconceivable that a
person could malinger in such a consistent fashion over three tests separated in time
by many months.” Dr. Olley also disagreed with Dr. Vasquez’s criticism of Dr.
Weinstein’s methods, especially her assertion that the validity of Ortiz’s WAIS-III
score depended on being compared, or normed, to other Colombians without a formal
education. Dr. Olley claimed this position “is contrary to fundamental notions of

5

The district court denied Ortiz’s motion to pay for Dr. Olley to testify at the
§ 2255 hearing.
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psychometric intelligence testing” because “[i]ntelligence tests are normed on an
entire population, not the presumably lowest scoring segments.” Dr. Olley maintained
there are no Colombian norms for the test, and although the use of United States
norms was not a perfect fit, there was no reason to believe using Mexican norms, for
example, would be more appropriate. Dr. Olley also thought the WAIS-III was
“constructed to minimize or eliminate test items that are tied to a specific country.”
Dr. Olley also criticized Dr. Vasquez’s methods in assessing Ortiz’s adaptive
function. Dr. Olley emphasized the scores obtained by Ortiz on the ABAS-II showed
Ortiz “is two standard deviations below the norm in several areas” and it was
unjustified for Dr. Vasquez to discount those scores as significantly related to his
incarceration, or to minimize the importance of the scores by focusing on Ortiz’s
“relative strengths.” Dr. Olley also believed Dr. Vasquez’s efforts to explain Ortiz’s
low scores as being caused by limited educational opportunities and a lack of
socialization were “contrary to accepted nosology6 in [the mental retardation] field.”
Instead of justifications for Ortiz’s deficits, Dr. Olley maintained Ortiz’s lack of
education and socialization were “risk factors” for mental retardation.
b.
Other Testimony
Lay witness testimony also produced evidence relevant to Ortiz’s mental status.
Borja-Molina and Collins testified about their interactions with Ortiz. Collins talked
with Ortiz in English and said Ortiz could understand him. Collins successfully
bought cocaine from Ortiz on two or three occasions at $22,000 per kilogram. Collins
also testified he saw Ortiz driving a black Lexus. Borja-Molina communicated with
Ortiz in Spanish and reported Ortiz had no difficulties understanding the
conversations, and Ortiz responded appropriately and rationally. Federal Bureau of

6

Nosology is “a branch of medical science that deals with orderly relating or
classification of diseases.” Webster’s Third New International Dictionary 1542
(1993).
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Investigation (FBI) Special Agent Michael Oyler testified about an interaction he had
with Ortiz in December 1998 while transporting Ortiz from a detention center to the
courthouse. As they drove, Ortiz initiated a conversation and again admitted he was
present during the murder, but emphasized Sinisterra was the killer. During this
conversation, Ortiz and the agents spoke in English and Special Agent Oyler perceived
Ortiz had no difficulty communicating or understanding.7
Mitigation specialist Fernandez also testified she was able to communicate very
well with Ortiz in Spanish. But Fernandez explained that in her dealings with Ortiz,
she became suspicious he might have cognitive issues because Ortiz “had a difficult
time reporting very fundamental and basic things about his past,” which Fernandez
suspected was because of “very poor memory recall.”
c.
Driver’s License
A dispute arose during the hearing as to whether Ortiz possessed a driver’s
license. During cross-examination, the government asked Fernandez if Ortiz had
obtained a driver’s license. Fernandez said she did not know but continued, “I doubt
very, very much he had ever had a driver’s license because he couldn’t pass an exam.
We have all agreed he’s illiterate.” Later, Special Agent Oyler testified, without
objection by Ortiz, that during his investigation of Ortiz’s subpoenaed phone records,
he discovered Ortiz had a Texas driver’s license. Special Agent Oyler testified the
FBI had verified Ortiz’s Texas driver’s license by computer check and it expired in
April 2001. The government conceded at oral argument this information was not
correct.

7

We do not suggest that Ortiz’s ability to communicate is inconsistent with a
mental retardation diagnosis. Ortiz’s ability to communicate in English, however,
demonstrates an intellectual ability to learn a second language.
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3.
Ineffective Assistance of Counsel
Three members of Ortiz’s trial defense team testified at the § 2255 hearing:
Assistant Federal Public Defender Pace, who was Ortiz’s lead counsel and responsible
for the penalty phase; an experienced death penalty defender, Jose Lozano Jr., who
was primarily responsible for the guilt phase; and Ronald Ninemire, employed by the
federal public defender’s office, who served as Ortiz’s chief investigator. Lozano had
the most direct contact with Ortiz. This was in part because Ortiz stopped meaningful
communication with Pace and Ninemire. Pace “wanted [Ortiz] to do some mental
work and [Ortiz] didn’t want to do that so . . . he just stopped talking with [Pace].”
Lozano talked with Ortiz in Spanish. Pace and Ninemire mostly talked with Ortiz in
English, but had a Spanish interpreter with them during meetings.
All three defense team witnesses testified they had difficulty getting information
from Ortiz about his Colombian family. Ortiz initially told counsel his parents were
dead. In January 1999, Ortiz provided a list of family members to Lozano, but
repeatedly instructed Lozano not to bother or contact the family. Lozano forwarded
a memorandum containing this information to Pace.
Pace testified that he and Ninemire traveled to Houston more than once and met
with “lots and lots of different people” while investigating Ortiz’s history. This
included meetings with Ortiz’s former live-in girlfriends Cooper and Reed, as well as
Riley, a woman Ortiz “kind of considered his mom in the [United States].” Pace and
Lozano also traveled to Las Vegas, Nevada, and “spent three days wining and dining
Fabio Montano for information” about Ortiz because “Fabio knew the family in
Columbia and had gone back to Colombia.” The defense team, through their
investigation, learned Ortiz had an uncle, Jose Reyes, who was imprisoned in a
Huntsville, Texas, prison. Lozano and Ninemire traveled to the prison and asked
Reyes for information regarding Ortiz’s Colombian family. Reyes later sent a list of
names, addresses, and telephone numbers of Ortiz’s family members to counsel. Pace
and Lozano testified they acted on this information by calling the telephone numbers
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and mailing letters to the addresses. Although some people answered calls, they were
non-responsive, and counsel was unsuccessful in their attempts at contacting anyone
from Ortiz’s Colombian family.
Pace testified the defense team prepared for an investigation in Colombia. Pace
and Ninemire traveled to Chicago to meet with the Colombian consulate and asked for
assistance in contacting Ortiz’s family, but “[n]ever heard back from them again.” In
preparation for a trip to Colombia—at the time an “extremely dangerous” place—Pace
applied for a passport and received authority from the federal public defender’s office
to travel to Colombia. Ortiz’s defense team also contacted a Colombian mitigation
specialist, Hector Guevara, who was retained to perform a mitigation investigation in
Colombia. The federal public defender approved $35,000 in funding for the
investigation. However, Pace testified that because they were unable to establish any
contact with Ortiz’s Colombian family, the planned trip to Colombia never took place.
Pace and Lozano subpoenaed Cooper, Reed, and Riley to testify on Ortiz’s
behalf during the penalty phase. Pace testified all three witnesses resisted the
subpoena, with Riley hiring a Houston lawyer to oppose the subpoena. After traveling
to Kansas City, each of the witnesses changed her story about Ortiz the day before
they were to testify. According to Pace, the women said they would testify Ortiz was
a drug dealer and murderer who was violent toward them and others. Pace explained
to Ortiz what the three women were going to say, and recommended not calling them
as witnesses. Ortiz agreed, and Pace released the witnesses immediately so the
government would not have an opportunity to talk with the three women.
Pace explained that once Cooper, Reed, and Riley changed their stories, he
focused on distinguishing Ortiz from Sinisterra, because “the only way [counsel] had
at this stage was [Ortiz] didn’t kill anybody.” Pace testified he felt he needed to
explain to the jury why he did not put on any witnesses without telling them the real
reason, which would have been damaging to Ortiz’s defense. The jury had just given
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Sinisterra the death penalty after Sinisterra presented “a significant parade of family
members” crying for leniency and giving “heart-wrenching” testimony. So Pace “tried
to explain to [the jury the absence of Ortiz’s family] by saying [he didn’t] want to
insult [the jury’s] intelligence by bringing” mitigating witnesses like Sinisterra had
previously done.
E.
District Court’s Denial of Ortiz’s § 2255 Motion
On December 14, 2007, the district court denied Ortiz’s § 2255 motion, finding,
among other things, Ortiz “failed to prove he is mentally retarded” and his trial
attorneys’ assistance was not constitutionally defective.
1.
Denial of Atkins Claim
The district court found Dr. Weinstein’s testimony insufficiently reliable to meet
the standard for expert testimony, see Fed. R. Evid. 702; Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 592-95 (1993), and was not as reliable as Dr. Vasquez’s
testimony. The district court found three primary flaws in Dr. Weinstein’s testimony.
First, the district court found Dr. Weinstein’s scoring of Ortiz’s WAIS-III
results was unreliable because the court was “not satisfied substituting [United States
norms] is sufficient to make the WAIS-III a reliable instrument for assessing Ortiz’s
intellectual capabilities given his lack of acculturation and his illiteracy.” The district
court also found Dr. Weinstein might be biased in favor of a diagnosis of mental
retardation. The district court found Dr. Weinstein testified he
would change norms for a test based on the purpose of his evaluation.
That is, U.S. norms would apply to legal proceedings such as this, but if
Weinstein were to evaluate mental retardation for purposes of predicting
Ortiz’s performance in a Colombian university, U.S. norms would not be
appropriate. Weinstein appears more concerned with legal culpability
than with an objective assessment of intellectual capability.

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The district court also found unreliable Dr. Weinstein’s assessment of Ortiz’s
adaptive function because Dr. Weinstein minimized or ignored cultural differences,
failed to consider significant evidence showing Ortiz’s ability to function, and “drew
broad conclusions in favor of mental retardation based on speculation and anecdoctal
reports from family members without documentary support.”
In contrast, the district court found Dr. Vasquez’s testimony more reliable
because she “properly accounted for cultural differences[,] Ortiz’s background and
illiteracy, and his demonstrated ability to function.” The district court noted Dr.
Vasquez properly considered the information collected through her administration of
the ABAS-II in conjunction with evidence of record, including (1) Ortiz’s ability “to
drive and pass[] the test to acquire a Texas driver’s license”; (2) travel and particularly
“navigate a complex airport environment” alone; (3) learn English without formal
instruction; (4) care for himself hygienically; (5) interact with others including
“extensive relationships with women who do not speak Spanish”; (6) father and care
for children; (7) cook and perform other domestic tasks; and (8) “surreptitiously travel
to the United States from Colombia on more than one occasion . . . evad[ing] detection
and mov[ing] around to carry out extensive criminal conduct despite his illiteracy.”
The district court agreed with Dr. Vasquez’s conclusion that “Ortiz was responding
appropriately for his age and level of education and was functioning appropriately in
comparison to the group he represents.” Finally, the district court found Dr.
Vasquez’s conclusion that Ortiz was not mentally retarded supported the district
court’s own “observations of Ortiz’s mental capabilities and demeanor at trial.”
2.
Ineffective Assistance Claim
In Wiggins v. Smith, 539 U.S. 510, 524 (2003) (quoting ABA Guidelines for
the Appointment and Performance of Counsel in Death Penalty Cases 11.4.1(C), p. 93
(1989)), the Supreme Court recognized “[t]he ABA Guidelines provide that
investigations into mitigating evidence ‘should comprise efforts to discover all

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reasonably available mitigating evidence and evidence to rebut any aggravating
evidence that may be introduced by the prosecutor.’” The district court found
Counsels’ actions and duties were in accordance with the standard
set forth in [Wiggins], in that they knew and attempted to exercise their
duty to investigate Ortiz’s medical, family, social and educational
history. Counsel followed up with Ortiz’s family, friends and medical
history to the extent possible.
The district court made numerous factual findings in reaching this conclusion.
As relevant here, the district court found (1) counsel “spent weeks investigating
Ortiz’s background, personal history, medical history, and his relationship with
others,” despite Ortiz’s lack of cooperation; (2) counsel made attempts to contact
Ortiz’s family in Colombia, but were unsuccessful as “the telephone numbers given
proved to be invalid and the letters sent to contact family members went unanswered”;
(3) “[t]ravel to Colombia would have been futile given [] Ortiz’s refusal to cooperate
in identifying his family and counsels’ lack of any response from those identified
through counsel’s investigation as potential family in Colombia”; (4) the investigation
yielded results in generating three witnesses who were subpoenaed to testify for Ortiz,
but that testimony would have been detrimental to Ortiz’s defense as they “advised
counsel they would testify about additional criminal acts and violence committed by
Ortiz”; (5) the prison visitation log indicated Pace visited Ortiz twice between January
1999 and April 2000, but other “members of the defense team made 26 visits to Ortiz
during that same time frame”; (6) during his post-conviction relief, “Ortiz is now
portraying himself in a light directly in contrast to the state of mind and mental
capabilities he portrayed to his trial counsel and the [district court] . . . pre-trial, during
trial and post-trial”; and (7) “Ortiz’s own behavior and demeanor impeded his counsel
from successfully pursuing a request for a mental examination or being able to contact
[] Ortiz’s family in Colombia.”

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Considering this evidence, the district court determined counsel’s performance
was not deficient. The district court did not reach the prejudice prong of Ortiz’s
ineffective assistance claim. See Strickland v. Washington, 466 U.S. 668, 687 (1984)
(providing a “convicted defendant’s claim that counsel’s assistance was so defective
as to require reversal of a . . . death sentence has two components:” deficient
performance and prejudice).
F.
Appeal
The district court denied Ortiz’s motion to alter judgment pursuant to Fed. R.
Civ. P. 59(e), and granted a certificate of appealability (COA) on Ortiz’s Atkins claim.
Ortiz moved this court for an order broadening the COA, and we expanded the COA
to include Ortiz’s ineffective assistance claim in the penalty phase.
II.

DISCUSSION
A.
Standard of Review
We review a district court’s denial of a § 2255 motion de novo. See United
States v. Hernandez, 436 F.3d 851, 854 (8th Cir. 2006). Our de novo review applies
to the district court’s legal conclusions, and mixed questions of law and fact, see
United States v. Duke, 50 F.3d 571, 576 (8th Cir. 1995), but we review underlying
factual findings for clear error, see Hernandez, 436 F.3d at 855. The ultimate
determination as to whether Ortiz is mentally retarded for Atkins purposes is a factual
determination. See Walker v. Kelly, 593 F.3d 319, 323 (4th Cir. 2010); Maldonado
v. Thaler, 625 F.3d 229, 236 (5th Cir. 2010). Ortiz’s ineffective assistance claim
“presents a mixed question of fact and law.” United States v. White, 341 F.3d 673,
677 (8th Cir. 2003).
B.
Extra-Record Evidence
Before we reach the merits of Ortiz’s challenges, we must first decide whether
to consider extra-record evidence. The contested evidence consists of (1) two
documents showing Ortiz was not issued a Texas driver’s license, but did have a Texas
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identification card; (2) declarations and opinions of purported experts in the field of
I.Q. testing who challenge Dr. Vasquez’s, and by implication, the district court’s
methodology in assessing Ortiz’s mental status; (3) declarations from members of
Ortiz’s Colombian family claiming trial counsel did not attempt to contact them and
summaries of mitigating testimony they could have supplied; (4) a declaration from
an interpreter for trial counsel regarding Ortiz’s cooperation; and (5) declarations from
individuals claiming Pace’s stated reason for not presenting testimony from planned
mitigating witnesses Cooper, Reed, and Riley, was false. Ortiz moves to enlarge the
record to include this evidence, while the government moves to strike all of the
evidence except for the exhibits relating to the driver’s license.
“Generally, an appellate court cannot consider evidence that was not contained
in the record below.” Dakota Indust., Inc. v. Dakota Sportswear, Inc., 988 F.2d 61,
63 (8th Cir. 1993); see Rivers-Frison v. Se. Mo. Cmty. Treatment Ctr., 133 F.3d 616,
619 n.2 (8th Cir. 1998) (citing Fed. R. App. P. 10(a) and asserting “[t]he record on
appeal . . . consists only of evidence presented to the district court”). “However, this
rule is not etched in stone. When the interests of justice demand it, an appellate court
may order the record of a case enlarged.” Dakota Indust., 988 F.2d at 63 (enlarging
the record where a “misrepresentation, willful or otherwise, left the district court with
an incomplete picture” of the issue at hand); see Miller v. Benson, 51 F.3d 166, 168
(8th Cir. 1995) (enlarging the record to include evidence that was not previously
available to the party and would have been helpful to the district court). But this is a
narrow exception we exercise only in extraordinary circumstances. See Webb v. St.
Louis Post-Dispatch, 51 F.3d 147, 149 (8th Cir. 1995).
This is such a case. Justice demands we enlarge the record to include the two
exhibits demonstrating Ortiz did not have a driver’s license, but instead a state-issued
identification card. This misstatement by a government witness left the district court
with an inaccurate view of Ortiz, as reflected in the district court’s finding that Ortiz
passed a Texas driver’s license exam.
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We decline, however, to enlarge the record to include the other challenged
evidence. Nearly three years lapsed between Ortiz’s filing of his § 2255 motion and
the evidentiary hearing on that motion. These many months were marked by
numerous delays initiated by Ortiz and his counsel. Ortiz had “ample time . . . to
develop a record since filing his § 2255 motion . . . and the sheer volume of the
material that [Ortiz] now seeks to present suggest that any gaps in the record are due
to a lack of diligence on [Ortiz’s] part.” Von Kahl v. United States, 242 F.3d 783, 788
(8th Cir. 2001).
We grant Ortiz’s motion to enlarge the record to include the driver’s license
documents but, for purposes of this appeal, we deny the balance of his motion to
enlarge and grant the government’s motion to strike the remaining proffered evidence,
as well as the portions of the briefs referencing this evidence. On remand, the district
court may consider this other untimely evidence at its considerable discretion.
C.
Atkins Claim
Executing mentally retarded capital offenders violates the Eighth Amendment’s
prohibition against cruel and unusual punishment. See Atkins, 536 U.S. at 321; see
also 18 U.S.C. § 3596(c) (“A sentence of death shall not be carried out upon a person
who is mentally retarded.”). The district court found Ortiz failed to prove he is
mentally retarded and therefore denied his motion to vacate his sentences of death.
Ortiz asks us to grant him relief from his death sentences, claiming “[a]
remarkable array of evidence, much of it undisputable, establishes that Ortiz has
mental retardation.” At a minimum, Ortiz argues we should remand for proper
fact-finding and a “full and fair resolution” because the district court violated Ortiz’s
rights by sua sponte deeming Dr. Weinstein’s testimony unreliable without notice or
an opportunity to contest the Daubert ruling, made erroneous factual findings, and
failed to make meaningful findings on several key issues. Ortiz also argues the district
court employed reasoning that violates the Constitution.
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For the reasons discussed below, we remand to the district court for further
factual findings in light of new evidence establishing the district court clearly erred
in finding Ortiz passed a Texas driver’s license exam.
1.
District Court’s Reliance on Driver’s License
Key to the district court’s denial of Ortiz’s Atkins claim was finding Dr.
Vasquez more credible than Dr. Weinstein. In making this determination, the district
court relied in part upon its factual finding that “Ortiz . . . passed the test to acquire a
Texas driver’s license.” This finding was based upon FBI Agent Oyler’s sworn
testimony that Ortiz possessed a valid Texas driver’s licence at the time of the murder.
We now know Ortiz actually possessed a Texas state identification card, not a driver’s
license.
Our present task is to determine what potential impact this error had on the
district court’s ultimate finding that Ortiz failed to prove he is mentally retarded. The
government maintains this error was harmless because there is other evidence showing
Ortiz drove a vehicle, and the driver’s license was but one of many facts upon which
the district court relied in denying Ortiz’s claim. Recognizing “[o]ur duty to search
for constitutional error with painstaking care is never more exacting than it is in a
capital case,” Kyles v. Whitley, 514 U.S. 419, 422 (1995) (quoting Burger v. Kemp,
483 U.S. 776, 785 (1987) (internal quotation marks omitted)), we cannot say the error
was harmless.
The potential impact of the district court’s belief that Ortiz passed a Texas
driver’s license exam is substantial. As Ortiz explains, this inaccuracy
was extremely helpful to the [g]overnment and harmful to Ortiz. If true,
the assertion supported the opinion of . . . Dr. Vasquez, that Ortiz
functions at a higher cognitive level than would be expected from his
mentally retarded-range IQ scores, and undermined the testimony
of . . . Dr. Weinstein, that Ortiz has deficits in adaptive functioning
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consistent with mental retardation, because . . . he purportedly passed a
written test needed to get the license. It also appeared to undermine the
testimony of Ortiz’s mitigation specialist, Dhyana Fernandez, by calling
into question her belief that Ortiz “couldn’t pass an exam” for a driver’s
license because he is mentally retarded, and by generally undermining the
apparent reliability and thoroughness of her investigation. . . . It made
Ortiz himself look manipulative and dishonest, claiming to be illiterate
when he is not. It made it appear that Ortiz was dishonest with the
defense team, since Fernandez was taken aback when told that Ortiz had
a valid driver’s license.
We agree and add that the erroneous evidence also may have reinforced the
perception Ortiz was intentionally performing poorly, or malingering, on the
psychological tests in an effort to guarantee a diagnosis of mental retardation. See
Atkins, 536 U.S. at 353 (Scalia, J., dissenting) (recognizing “the capital defendant who
feigns mental retardation risks nothing at all”).
Because the district court did not expressly resolve several important factual
issues, we are particularly cautious in determining the potential impact of the driver’s
license finding. As Ortiz explains, the district court did not make “express finding[s],
one way or the other, on whether Ortiz actually has significantly subaverage
intellectual functioning, as the standards for mental retardation require” nor “whether
Ortiz has any adaptive deficits under the AAMR or APA definitions.” Without these
specific findings we are unable to determine what aspects of the diagnostic criteria the
district court found lacking, which prevents us from characterizing this error as
harmless.
And though not facially improper at all, the district court’s reliance upon its own
independent observations of Ortiz in crediting Dr. Vasquez over Dr. Weinstein
increases the possibility the district court’s mistaken belief about the driver’s license
exam colored its credibility determinations, as well as its ultimate mental retardation
finding. Because we cannot be fairly certain the error was harmless, we find it
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appropriate to remand Ortiz’s Atkins claim to the district court for further
consideration, knowing now Ortiz did not pass a Texas driver’s license exam.
2.
Daubert Ruling
We next address Ortiz’s challenge to the district court’s Daubert ruling. Relying
upon Miller v. Baker Implement Co., 439 F.3d 407, 412 (8th Cir. 2006), Ortiz argues
the district court violated our precedent by sua sponte determining Dr. Weinstein’s
testimony was unreliable under Daubert “without giving Ortiz any notice or
opportunity to contest it.” Ortiz claims this denied him the ability to present his
arguments as to why Dr. Weinstein’s testimony was in fact reliable.
Ortiz’s argument lacks merit. In Miller, we held a Daubert hearing is not always
necessary and noted “the basic requirement under the law is that the parties have an
‘opportunity to be heard before the district court makes its decision.’” Miller, 439
F.3d at 412 (quoting Group Health Plan Inc. v. Philip Morris USA, Inc., 344 F.3d 753,
761 n.3 (8th Cir. 2003)). Ortiz was afforded this opportunity.
This is not a case where the district court, acting as a “gatekeeper,” kept
evidence from the fact-finding jury. See In re Zurn Pex Plumbing Prods. Liab. Litig.,
644 F.3d 604, 613 (8th Cir. 2011) (“The main purpose of Daubert exclusion is to
protect juries from being swayed by dubious scientific testimony.”). Here, the district
court was the fact finder and in that role heard the complete testimonies from Dr.
Weinstein, supplemented by Dr. Olley’s declaration, and Dr. Vasquez as to their
differing methodologies and opinions relating to Ortiz’s mental status. Ortiz knew
from Dr. Vasquez’s report that Dr. Weinstein’s methodology was under attack by the
government and Ortiz had adequate opportunity to be heard on the issue at the § 2255
hearing. We also note the district court made an alternative finding that Dr.
Weinstein’s testimony was not as reliable as Dr. Vasquez’s testimony. This alternative
finding was an independent ground for the district court’s ultimate determination Ortiz
failed to prove he is mentally retarded.
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As to the substance of the Daubert ruling, Ortiz claims the district court “got it
completely wrong” because “Dr. Weinstein’s opinions are mainstream, accepted
science, and Dr. Vasquez’s are not.” Science itself, and certainly judicial scientific
fact finding, is not determined by majority vote. We reserve judgment on this issue
in light of our remand to the district court. We also decline to analyze Ortiz’s claim
that the rationale employed by the district court violated Ortiz’s constitutional rights.
3.
Whether Ortiz is Mentally Retarded
We must still address Ortiz’s request that we vacate his death sentences. In
support of his request, Ortiz argues the evidence conclusively demonstrates he meets
all three prongs necessary for a mental retardation diagnosis.
Ortiz first claims he meets the intellectual function prong, because “all the
scores, on four tests given by different examiners at different times, are in the mentally
retarded range, there is ‘convergent validity’ establishing that Ortiz’s I.Q. is in the
mentally retarded range.” Ortiz contends Dr. Vasquez’s efforts to minimize the
significance of Ortiz’s I.Q. scores fail because they are based on faulty science and
analysis.
Regarding the adaptive function prong, Ortiz maintains the objective data
collected by Dr. Weinstein and Dr. Vasquez both reveal significant deficits meeting
the diagnostic criteria. Ortiz explains the scores he obtained on the ABAS-II confirm
his mental retardation. According to Ortiz, only by violating professional standards
in dismissing Ortiz’s recorded deficits as “cultural” and focusing on Ortiz’s reported
strengths instead of his weaknesses, did Dr. Vasquez arrive at her opinion that Ortiz
is not mentally retarded. Ortiz also argues the record demonstrates his deficits
originated before he was 18 through Fernandez’s social history report showing his
family observed these deficits in Ortiz during his early developmental period.

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In light of this evidence, Ortiz claims he has conclusively demonstrated he is
mentally retarded. We disagree for several reasons.
First, the evidence is not as conclusive as Ortiz suggests. Ortiz is correct in his
assertion that his test scores, viewed in isolation, could support a finding of mental
retardation. But such test scores are imprecise and standing alone cannot support a
diagnosis. Instead, qualified experts must interpret those results for the subject
individual. See Wiley v. Epps, 625 F.3d 199, 215, 217 (5th Cir. 2010) (explaining
“[t]he calculation of a person’s IQ score is imprecise at best and may come down to
a matter of the examiner’s judgment” and recognizing “there is not one test to
determine mental retardation, . . . [and] there has been no agreement among
professionals as to the proper test for assessing adaptive behavior”) (internal citations
omitted). For Ortiz, two experts performed comprehensive evaluations, interpreted
the data, and arrived at different conclusions. The district court found Dr. Vasquez
more reliable and credible than Dr. Weinstein. Only rarely will we disturb such a
credibility determination. See United States v. Vaughn, 410 F.3d 1002, 1004 (8th Cir.
2005) (emphasizing a district court’s “credibility findings are ‘virtually unreviewable
on appeal’”) (quoting United States v. Candie, 974 F.2d 61, 64 (8th Cir. 1992)) .
And Ortiz’s argument—that established science discredits Dr. Vasquez’s
approach and dictates a mental retardation diagnosis—depends heavily upon the extrarecord declarations of other purported experts in the field of mental retardation. We
do not consider this untimely evidence.
Ortiz’s argument is also flawed because it incorrectly assumes the Atkins
decision delegates to the scientific community the finding of whether an individual is
mentally retarded. As one court recently noted, “psychology informs, but does not
determinatively decide, whether an inmate is exempt from execution,” leaving the
“contours of the constitutional protection to the courts.” United States v. Bourgeois,

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Nos. C-02-CR-216 and C-07-223, 2011 WL 1930684, at *24 (S.D. Tex. May 19,
2011).
We illustrate this point by briefly discussing Ortiz’s argument that Dr. Vasquez
and the district court erred in considering Ortiz’s strengths in their adaptive function
analysis. Ortiz proposes “[i]t is bedrock science that if the subject has adaptive
deficits that satisfy the diagnostic criteria . . . , then the diagnosis should be made even
if the subject also has strengths.” We reject this proposition, observing that while
“[t]he mental health community [may] ignore[] an individual’s strengths when looking
at adaptive functioning[,] . . . presumably as a function of its role in providing support
and services to impaired individuals[,] . . . [t]he law makes a holistic view of an
individual, recognizing that a few reported problems may not negate an inmate’s
ability” to function in other ways. Bourgeois, 2011 WL 1930684 at *31-32 (citing
Williams v. Quarterman, 293 F. App’x 298, 313-14 (5th Cir. 2008) (unpublished per
curiam); Clark v. Quarterman, 457 F.3d 441, 447 (5th Cir. 2006); United States v.
Webster, 421 F.3d 308, 313 (5th Cir. 2005)). Consideration of an individual’s
strengths may often prove necessary to provide context and definition for
consideration of reported deficits.
In making this observation, we offer no comment as to whether Ortiz’s strengths
disqualify him from a mental retardation diagnosis or outweigh Ortiz’s mental deficits.
Such weighing of the evidence is uniquely for the district court’s judgment. We
express no opinion whether the evidence shows Ortiz is mentally retarded or not. For
now it is enough to say that after reviewing the record before us, we have not reached
“a definite and firm conviction” the district court made a clear mistake in its
determination of Ortiz’s mental status. Schaub v. VonWald, 638 F.3d 905, 915 (8th
Cir. 2011) (quoting Anderson v. Bessemer City, 470 U.S. 564, 573 (1985) (quotation
marks omitted)). Accordingly, we do not affirm or vacate the sentence.

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D.
Ineffective Assistance Claim
We next address Ortiz’s ineffective assistance claim. Ortiz claims “[c]ounsel
failed to provide Ortiz with effective assistance at capital sentencing” by not
presenting mitigating evidence to the jury that “Ortiz was raised in an abusive,
impoverished, and dysfunctional setting” and “is a brain damaged, impaired person.”
Ortiz charges this legal assistance failure was caused by counsel’s inadequate
investigation into Ortiz’s childhood in Colombia and failure to obtain a mental health
examination of Ortiz. In a related claim, Ortiz argues the district court abused its
discretion in denying funds for certain family members to travel from Colombia to
Kansas City, Missouri, for the post-conviction evidentiary hearing. After careful
review of the record, we affirm the district court’s denial of Ortiz’s ineffective
assistance claim.
1.
Reasonableness of the Investigation
In order to establish constitutionally defective representation, Ortiz must first
demonstrate “counsel’s performance was deficient,” meaning “counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed [Ortiz] by the
Sixth Amendment.” See Strickland, 466 U.S. at 687. Ortiz must also demonstrate
“the deficient performance prejudiced the defense.” Id. “Failure to make the required
showing of either deficient performance or sufficient prejudice defeats the ineffective
assistance claim.” Id. at 700.
In evaluating Ortiz’s charge that counsel failed in its duty to “conduct a
thorough investigation of [Ortiz’s] background,” Williams v. Taylor, 529 U.S. 362,
396 (2000), our focus is on whether the investigation was reasonable, see Wiggins v.
Smith, 539 U.S. 510, 523 (2003). This is an objective review, measured against the
prevailing professional norms at the time of the investigation. See id. It is “a contextdependent consideration of the challenged conduct as seen from counsel’s perspective
at the time” without “the distorting effects of hindsight.” Id. (quoting Strickland, 466
U.S. at 689) (internal quotation marks omitted).
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We conclude the investigation was reasonable, especially considering the
challenges counsel faced in obtaining information to investigate Ortiz’s history,
including Ortiz’s refusal to participate in a mental examination and refusal to
cooperate in providing family information. We hold counsel’s efforts met the
professional norms at the time of the investigation, see Bobby v. Van Hook, U.S.
,
, 130 S. Ct. 13, 16-17 (2009) (clarifying “[r]estatements of professional
standards [such as the ABA Guidelines] . . . can be useful as ‘guides’ to what
reasonableness entails, but only to the extent they describe the professional norms
prevailing when the representation took place”); Worthington v. Roper, 631 F.3d 487,
498 (8th Cir. 2011) (similar), and were within “the wide range of professionally
competent assistance.” Strickland, 466 U.S. at 690.
While Ortiz classifies counsel’s attempts to contact his Colombian family as “far
from . . . thorough,” we cannot say counsel’s efforts were constitutionally deficient
according to the professional norms at the time. The ABA standards in effect during
Ortiz’s trial, which we find are a useful guide in this case, provide “[c]ounsel should
conduct independent investigations relating to the . . . penalty phase of a capital trial
. . . regardless of any initial assertion by the client that mitigation is not to be offered
. . . [and] this investigation should comprise efforts to discover all reasonably
available mitigating evidence.” ABA Guidelines for the Appointment and
Performance of Counsel in Death Penalty Cases 11.4.1(A) and (C) (1989) (emphasis
added). The standards also state “[c]ounsel should consider interviewing potential
witnesses . . . familiar with aspects of the client’s life history that might affect . . .
mitigating evidence to show why the client should not be sentenced to death[,]” as
well as “members of the victim’s family opposed to having the client killed.” Id. at
11.4.1(D)3.B and C (emphasis added). And the commentary to Rule 11.4.1 notes,
“[c]ounsel’s duty to investigate is not negated by the expressed desires of a client[,]
[n]or may counsel ‘sit idly by, thinking that investigation would be futile.’”

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This is not a case where counsel “sat idly by.” Counsel actively investigated
Ortiz’s history, trying to locate his family in another country despite Ortiz’s command
to the contrary. Counsel testified Ortiz was not forthcoming about his family and
background and expressly directed counsel not to contact members of his Colombian
family. But counsel continued to investigate, traveling to (1) Houston, Texas, on more
than one occasion to interview Cooper, Reed, Riley, and others; (2) a prison in
Huntsville, Texas, to interview Ortiz’s uncle; (3) Las Vegas, Nevada, to meet with
Ortiz’s alleged drug associate, Montano; (4) Chicago, Illinois, to meet with the
Colombian consulate and a possible Colombian mitigation specialist; and (5) Atlanta,
Georgia, to meet with another Colombian mitigation specialist.
This is not a situation, like Wiggins, where “counsel abandoned their
investigation of petitioner’s background after having acquired only rudimentary
knowledge of his history from a narrow set of sources” despite becoming aware of
troubling circumstances in the petitioner’s history. Wiggins, 529 U.S. at 524-25.
Ortiz’s counsel expended significant time and resources in conducting their penalty
phase investigation. Using contact information collected from Ortiz’s uncle during
the investigation, counsel unsuccessfully attempted to contact Ortiz’s Colombian
family by telephone and letter. Counsel also obtained funding for a mitigation
specialist to travel to Colombia. With no verified contact information or cooperation
from Ortiz or his family in Colombia, counsel decided such a trip would be futile and
never retained the mitigation specialist. Defense counsel testified to an estimated
“couple hundred people” contacted by the defense team. Considering the
circumstances, we conclude counsel made a sufficient attempt to discover all
reasonably available mitigating evidence. See Cullen v. Pinholster, ___ U.S. ___, ___,
31 S. Ct. 1388, 1403 (2011) (emphasizing, to overcome the strong presumption that
counsel’s assistance was adequate “a defendant must show that counsel failed to act
reasonably considering all the circumstances”) (quoting Strickland, 466 U.S. at 688)
(internal marks omitted)). Ortiz’s counsel obviously were functioning as Ortiz’s
lawyers, and such functioning was not deficient. See Strickland, 466 U.S. at 687.
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Nor do we believe the investigation was constitutionally deficient because
counsel did not obtain a mental health examination of Ortiz. While theorizing “it is
probably true that defense counsel in a capital case should routinely have their client
evaluated by a mental health professional[,]” we have declined to “lay down any per
se rule.” Jones v. Delo, 258 F.3d 893, 902 (8th Cir. 2001); see Nooner v. Norris, 402
F.3d 801, 809 (8th Cir. 2005) (concluding “trial counsel’s judgment not to pursue
psychiatric testing for purpose of mitigation” was reasonable, in part, because there
was no indication petitioner had “any mental or psychological problems”).
Pace (“no question he didn’t have any [mental] issues”), Lozano (“no indication
that he had any mental impairment that I could see”), and Ninemire (“If I would have
observed something” on his mental status) all testified that nothing led them to believe
Ortiz had mental health problems. Despite this fact, Pace tried to convince Ortiz to
participate in a mental health examination during their two meetings together. Both
times, Ortiz refused and changed the subject. Once Pace believed Ortiz was
“shut[ting] down” because of Pace’s efforts, he backed off, reasoning Ortiz “didn’t
have any issues anyway and we desperately needed to work with him.” Ninemire also
testified Pace kept probing about mental health, but Ortiz “was very adamant . . . he
was not going to participate.” And Lozano testified he “observed nothing suggesting
. . . mental retardation,” and Ortiz rebuffed any suggestion to consider a mental health
defense. We view counsel’s decision not to obtain a mental health examination of
Ortiz as a tactical choice, necessary to keep Ortiz cooperating with the defense team.
See Wiggins, 539 U.S. at 521 (“[S]trategic choices made after less than complete
investigation are reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation.”). As the district court found, a
mental examination was not obviously necessary, and counsel’s decision not to pursue
that line of investigation was a reasonable professional judgment under the
circumstances.

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Considering counsel made significant attempts to investigate Ortiz’s history and
tried to convince Ortiz to participate in a mental health examination despite not
believing one was necessary, we hold counsel’s performance during the penalty phase,
including not putting forth mitigating witnesses, was reasonable. Having witnessed
the failure of Sinisterra’s “parade of family members” giving “heart-wrenching”
testimony to prevent a death penalty verdict, Ortiz’s counsel’s focus on an argument
that Ortiz was not the shooter was a reasonable tactic. Defense counsel’s performance
was not constitutionally deficient. See Wiggins, 539 U.S. at 521-22 (quoting
Strickland, 466 U.S. at 690-91) (declaring strategic decisions after a thorough
investigation of relevant law and facts “are virtually unchallengeable” on appeal).
Because Ortiz failed to show deficient performance by counsel, it is unnecessary to
address the prejudice question. See Strickland, 466 U.S. at 700.
2.
Specific Challenges
Having reached the conclusion counsel’s investigation was not constitutionally
deficient, we briefly address Ortiz’s specific challenges to the district court’s denial
of his § 2255 motion. First, we address Ortiz’s contention the district court erred as
a matter of law in its belief that Ortiz’s lack of cooperation excused counsel from their
duty to perform a thorough investigation. Ortiz cites cases for the proposition that
counsel has a duty to investigate even when the client is uncooperative. See, e.g,
Rompilla v. Beard, 545 U.S. 374, 381, 383 (2005) (holding counsel’s failure to
investigate adequately was ineffective performance despite defendant’s lack of
interest, minimal contributions to the mitigation case, and partial active obstruction).
We agree with the proposition of law, but reject Ortiz’s characterization of the district
court’s reasoning. The district court did not hold Ortiz’s lack of cooperation excused
counsel’s duty to investigate, but rather found it impeded the success of counsel’s
investigation. This is consistent with the Supreme Court’s admonition that courts
consider all circumstances when evaluating the reasonableness of an investigation.
See Wiggins, 539 U.S. at 523 (explaining a review of counsel’s performance is “a
context-dependent consideration”).
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Next, we address Ortiz’s assertion the district court clearly erred in finding trial
counsel did not have cooperation from Ortiz in contacting his family nor possessed
“valid family contact information.” Ortiz highlights the January memorandum sent
from Lozano to Pace, which relayed information from Ortiz about members of his
Colombian family. Ortiz claims this demonstrates he was cooperative. Ortiz also
argues that since Fernandez, Ortiz’s post-conviction mitigation specialist, was able to
contact his Colombian family members with the same phone numbers and addresses
trial counsel possessed, the information was valid. We do not believe either finding
represents reversible error. Counsel testified Ortiz gave false information about his
family, shut down when discussing his background, and expressly told them not to
contact his family. One instance of providing some information does not conclusively
demonstrate Ortiz was generally cooperative. And even if the contact information
proved valid when Fernandez contacted the family years later, the significance of the
district court’s finding that the contact information was “invalid” was that counsel was
not able to establish contact, after multiple attempts, with the family using this
information.
3.
Denial of Funding for Lay Witness Travel
Finally, we consider Ortiz’s allegation he was denied the opportunity for a fair
representation because the district court denied funds for his father, brother, and
former roommate to travel from Colombia to Kansas City to testify at Ortiz’s postconviction evidentiary hearing.
Title 18, United States Code, Section 3599(f), governing the appointment of
“[c]ounsel for financially unable defendants” subject to death sentences, provides
Upon a finding that investigative, expert, or other services are reasonably
necessary for the representation of the defendant, whether in connection
with issues relating to guilt or the sentence, the court may authorize the
defendant’s attorneys to obtain such services on behalf of the defendant

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and, if so authorized, shall order the payment of fees and expenses
therefore under subsection (g).
According to Ortiz, the lay witnesses would have offered testimony beneficial
in demonstrating Ortiz’s “deprived and socially isolated childhood, and [his]
significant developmental delays,” supporting a finding of mental retardation, and also
directly refuting counsel’s testimony about trying to contact the family. Ortiz argues
that because his request for funds “was reasonable and necessary for the fair
presentation of Ortiz’s claims,” it was an abuse of discretion to deny it. We disagree.
Ortiz’s motion indicates the district court was willing to entertain such evidence
in the form of affidavits or testimony via live video feed. Ortiz did not avail himself
of these alternative options. Consequently, there was nothing in the record beyond
Ortiz’s bare assertions as to what evidence the lay witnesses would have given from
which Ortiz can show prejudice. “Denial or limitation of funds is not grounds for
reversal absent a showing of prejudice.” United States v. Bledsoe, 674 F.2d 647, 668
(8th Cir. 1982).
III.

CONCLUSION
We vacate the district court’s denial of Ortiz’s Atkins claim and remand for
reconsideration consistent with this opinion. We affirm the district court’s denial of
Ortiz’s ineffective assistance of counsel claim.
___________________________

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