Saldano v. Director, TDCJ-CID

Filing 92

MEMORANDUM OPINION AND ORDER OF DISMISSAL. ORDERED that the petition for a writ of habeas corpus is DENIED and the case is DISMISSED with prejudice. It is further ORDERED that Saldaos claim that he is presently incompetent and may not be executed is premature and DISMISSED without prejudice. It is further ORDERED that a certificate of appealability is DENIED. It is finally ORDERED that all motions not previously ruled on are DENIED. Signed by Judge Amos L. Mazzant, III on 7/18/2016. (pad, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

VICTOR HUGO SALDAÑO, #999203
Petitioner,
v.
DIRECTOR, TDCJ-CID,
Respondent.

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CIVIL ACTION NO. 4:08-cv-193

MEMORANDUM OPINION AND
ORDER OF DISMISSAL
Petitioner Victor Hugo Saldaño (“Saldaño”), an inmate confined in the Texas prison system,
filed the above-styled and numbered petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Saldaño is challenging his capital murder conviction and death sentence imposed by the 199th Judicial
District Court of Collin County, Texas, in Cause Number 199-80049-96, in a case styled The State of
Texas vs. Victor Hugo Saldano, aka Victor Rodriguez. For reasons set forth below, the Court finds
that the petition is not well-taken and that it will be denied.
I. PROCEDURAL HISTORY OF THE CASE
Saldaño is in custody for murdering Paul King on November 20, 1995. He was sentenced to
death on July 15, 1996. The Texas Court of Criminal Appeals affirmed the conviction and sentence.
Saldaño v. State, No. AP-72,556 (Tex. Crim. App. Sept. 15, 1999). The United States Supreme Court
remanded the case to the Texas Court of Criminal Appeals for further consideration in light of a
confession of error by the Solicitor General of Texas. Saldaño v. Texas, 530 U.S. 1212 (2000). On
remand, the Texas Court of Criminal Appeals once again affirmed the conviction. Saldaño v. State,
70 S.W.3d 873 (Tex. Crim. App. 2002). In federal habeas corpus proceedings before this Court, the
1

Director confessed error during the punishment phase of the trial and joined in Saldaño’s request for
relief; thus, the petition was granted. Saldaño v. Cockrell, 267 F.Supp. 2d 635 (E.D. Tex. 2003). The
Fifth Circuit dismissed the Collin County District Attorney’s attempt to appeal the judgment granting
habeas relief. Saldaño v. Roach, 363 F.3d 545, 556 (5th Cir. 2004). The Supreme Court denied
certiorari. Roach v. Saldaño, 543 U.S. 820 (2004).
A punishment retrial was conducted in November 2004. Based on the jury’s answers to the
special issues set forth in Texas Code of Criminal Procedure Article 37.071, the trial court sentenced
Saldaño to death on November 18, 2004. The Texas Court of Criminal Appeals affirmed the
conviction. Saldaño v. State, 232 S.W.3d 77 (Tex. Crim. App. 2007). The Supreme Court denied
certiorari. Saldaño v. Texas, 552 U.S. 1232 (2008).
Saldaño has filed two post-conviction applications for a writ of habeas corpus in state court.
The initial post-conviction application was filed on February 15, 2007. An evidentiary hearing was
conducted on March 28, 2008. The state trial court issued 511 findings of fact and conclusions on law
on April 21, 2008. The Texas Court of Criminal Appeals issued a written opinion adopting all but six
of the findings and denied relief. Ex parte Saldaño, No. WR-41,313-04, 2008 WL 4727540 (Tex.
Crim. App. Oct. 29, 2008). While the first application was pending, Saldaño filed another application,
which was dismissed as an abuse of the writ. Ex parte Saldaño, No. WR-41,313-03, 2008 WL 152732
(Tex. Crim. App. Jan. 16, 2008).
Saldaño began the present proceedings on June 2, 2008. He filed a petition for a writ of habeas
corpus (Dkt #21) on October 26, 2009. The Director filed an answer (Dkt #31) on July 9, 2010.
Saldaño filed a reply (Dkt #37) on November 10, 2010. An amended reply (Dkt #39) was filed on
November 17, 2010. Additional pleadings were filed with respect Saldaño’s cumulative error claim
(Dkt ## 46-50, 53 and 56). The case was transferred to the undersigned on May 17, 2016.
2

II. FACTUAL BACKGROUND OF THE CASE
On November 20, 1995, Paul King drove his car to a Sack ‘n Save grocery store in Plano,
Texas. While walking to the entrance of the store, he was intercepted by Saldaño and co-defendant
Jorge Chavez. Saldaño and Chavez forced King into his car, and they drove to a secluded country
road. Saldaño shot King five times, took his watch and wallet, and left his body by the roadside. The
kidnappers drove King’s car for a short time before abandoning it. Saldaño was arrested within a few
hours of the killing. The basic facts of the offense are not in dispute. See Petition at 8.
III. GROUNDS FOR RELIEF
Saldaño presents the following grounds for relief:
1.

By failing to guarantee that a Lagrone1 examination by the State on Saldaño’s mental
decline would not be used by the State to prove future dangerousness, the trial court
erroneously barred Saldaño’s expert from testifying to support his motion to dismiss;

2.

By failing to guarantee that a Lagrone examination by the State on Saldaño’s mental
decline would not be used to prove future dangerousness, the trial court erroneously
permitted the State to introduce evidence of misconduct by a “psychologically
decompensated” Saldaño while on death row;

3.

The state courts’ application of Lagrone, which prevented the presentation of
significant mitigating evidence, violated the Lockett2 doctrine;

4.

Saldaño was denied effective assistance of counsel by trial counsel’s failure to present
critical mitigating evidence to the jury;

5.

Saldaño was denied effective assistance of counsel by trial counsel’s failure to preserve
appellate issues relating to the application of the Lagrone decision;

6.

Saldaño was denied effective assistance of counsel by trial counsel’s failure to request
a competency hearing;

1

Lagrone v. State, 942 S.W.2d 602 (Tex. Crim. App.), cert. denied, 522 U.S. 917 (1997).

2

Lockett v. Ohio, 438 U.S. 586 (1978).

3

7.

Saldaño’s punishment retrial denied him due process because it was conducted while
he was incompetent;

8.

As applied to Saldaño, the legislative failure to address the time at which a defendant
is to be examined for future dangerousness and the circumstances under which his
potential for future dangerousness must be viewed, makes the future dangerousness
requirement unconstitutionally vague;

9.

Under evolving standards of decency, Saldaño’s death penalty trial and future
execution would violate the 8th and 14th Amendments to the United States
Constitution because of his mental illness;

10.

Saldaño’s due process rights were violated by the trial court allowing the State to
present evidence which the defense did not have a meaningful opportunity to rebut;

11.

The trial court’s failure to allow evidence of the co-defendant’s life sentence as
mitigating evidence violated Saldaño’s constitutional rights;

12.

The Texas death penalty statute is unconstitutional because it allows a jury unbridled
discretion to determine who should live or die;

13.

The Texas death penalty statute, which instructs the jury that ten of them must agree
in order to answer special issue no. 1 with a “no” answer, is unconstitutional because
it fails to inform jurors that the effect of the jury’s failure to reach a unanimous verdict
on any issue at the punishment phase would result in a life sentence;

14.

The State’s failure to provide meaningful appellate review of the sufficiency of the
evidence to support the jury’s verdict concerning mitigating evidence violates
Saldaño’s constitutional rights; and

15.

The cumulative effect of these constitutional violations denied Saldaño due process of
law, even if no separate infraction by itself rose to that magnitude.
IV. STANDARD OF REVIEW

The role of federal courts in reviewing habeas corpus petitions by prisoners in state custody
is exceedingly narrow. A person seeking federal habeas corpus review must assert a violation of a
federal constitutional right. Lowery v. Collins, 988 F.2d 1364, 1367 (5th Cir. 1993). Federal habeas
corpus relief will not issue to correct errors of state constitutional, statutory, or procedural law, unless
a federal issue is also present. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); West v. Johnson, 92

4

F.3d 1385, 1404 (5th Cir. 1996), cert. denied, 520 U.S. 1242 (1997). In the course of reviewing state
proceedings, a federal court does “not sit as a super state supreme court to review error under state
law.” Wood v. Quarterman, 503 F.3d 408, 414 (5th Cir. 2007) (citations omitted), cert. denied, 552
U.S. 1314 (2008); Porter v. Estelle, 709 F.2d 944, 957 (5th Cir. 1983), cert. denied, 466 U.S. 984
(1984).
The petition was filed in 2009, thus review is governed by the Antiterrorism and Effective
Death Penalty Act (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320, 327 (1997). Under AEDPA, a
petitioner who is in custody “pursuant to the judgment of a State court” is not entitled to federal habeas
corpus relief with respect to any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim (1)

resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established federal law, as determined by the Supreme
Court of the United States; or

(2)

resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceedings.

28 U.S.C. § 2254(d). “By its terms § 2254 bars relitigation of any claim ‘adjudicated on the merits’
in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2).” Harrington v. Richter, 562
U.S. 86, 98 (2011). AEDPA imposes a “highly deferential standard for evaluating state-court rulings,
and demands that state-court decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S.
766, 773 (2010) (citation and internal quotation marks omitted). With respect to the first provision,
a “state court decision is ‘contrary to’ clearly established federal law if (1) the state court ‘applies a
rule that contradicts the governing law’ announced in Supreme Court cases, or (2) the state court
decides a case differently than the Supreme Court did on a set of materially indistinguishable facts.”
Nelson v. Quarterman, 472 F.3d 287, 292 (5th Cir. 2006) (en banc) (quoting Mitchell v. Esparza, 540
5

U.S. 12, 15-16 (2003)), cert. denied, 551 U.S. 1141 (2007). “[R]eview under § 2254(d)(1) is limited
to the record that was before the state court that adjudicated the claim on the merits.” Cullen v.
Pinholster, 563 U.S. 170, 180-81 (2011). As such, “evidence later introduced in federal court is
irrelevant.” Id. at 184. “The same rule necessarily applies to a federal court’s review of purely factual
determinations under § 2254(d)(2), as all nine Justices acknowledged.” Blue v. Thaler, 665 F.3d 647,
656 (5th Cir. 2011), cert. denied, 133 S. Ct. 105 (2012). With respect to § 2254(d)(2), the Supreme
Court has found that a Texas court’s factual findings are presumed to be sound unless a petitioner
rebuts the “presumption of correctness by clear and convincing evidence.” Miller-El v. Dretke, 545
U.S. 231, 240 (2005) (citing § 2254(e)(1)). The “standard is demanding but not insatiable; . . .
[d]eference does not by definition preclude relief.” Id. (citation and internal quotation marks omitted).
More recently, the Supreme Court held that a “state court’s determination that a claim lacks merit
precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the
state court’s decision.” Richter, 562 U.S. at 101 (citation omitted). The Supreme Court has explained
that the provisions of AEDPA “modified a federal habeas court’s role in reviewing state prisoner
applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court convictions are
given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002). Federal habeas
corpus relief is not available just because a state court decision may have been incorrect; instead, a
petitioner must show that a state court decision was unreasonable. Id. at 694. Finally, when a state
court provides alternative reasons for denying relief, a federal court may not grant relief “unless each
ground supporting the state court decision is examined and found to be unreasonable under AEDPA.”
Wetzel v. Lambert, 565 U.S. ___, ___, 132 S. Ct. 1195, 1199 (2012) (emphasis in original).

6

V. DISCUSSION AND ANALYSIS
1.

By failing to guarantee that a Lagrone examination by the State on Saldaño’s
mental decline would not be used by the State to prove future dangerousness, the
trial court erroneously barred Saldaño’s expert from testifying to support his
motion to dismiss.

2.

By failing to guarantee that a Lagrone examination by the State on Saldaño’s
mental decline would not be used to prove future dangerousness, the trial court
erroneously permitted the State to introduce evidence of misconduct by a
“psychologically decompensated” Saldaño while on death row.

3.

The state courts’ application of Lagrone, which prevented the presentation of
significant mitigating evidence, violated the Lockett doctrine.

The first three grounds for relief concern Lagrone v. State, where the Texas Court of Criminal
Appeals held that a trial court may “order criminal defendants to submit to a state-sponsored
psychiatric exam on future dangerousness when the defense introduces, or plans to introduce, its own
future dangerousness expert testimony.” Lagrone, 942 S.W.2d at 611 (emphasis in original).3 Saldaño
had resided on death row for eight years by the time the punishment retrial began in 2004. His death
row disciplinary record was presented to the jury. The record revealed that he had repeatedly engaged
in acts of misconduct, which the Texas Court of Criminal Appeals described as follows:
[Saldaño’s] death-row misconduct includes assaulting and threatening to kill guards,
throwing urine and feces at guards, and setting fires. A death-row guard testified that
[Saldaño’s] death row misconduct was a “daily thing.”
Saldaño, 232 S.W.3d at 82 n.2. His misconduct “resulted in him being placed in the most restrictive
and isolated level of death row.” Id. The State presented the evidence of his misconduct to address
the issue of future dangerousness.

3

The Fifth Circuit subsequently denied Lagrone’s request for a certificate of appealability when he challenged
the order compelling him to submit to a state-sponsored psychiatric examination on the issue of his future dangerousness.
Lagrone v. Cockrell, No. 02-10976, 2003 WL 22327519 (5th Cir. Sept. 2, 2003), cert. denied, 540 U.S. 1172 (2004).

7

The defense desired to counter the evidence of misconduct with testimony from Dr. Orlando
Peccora, M.D., a prison psychiatrist who treated Saldaño “on well over 100 occasions” from “late 1997
or early 1998” until “early 2001.” Id. at 82. Dr. Peccora apparently would have testified that the
conditions on death row caused Saldaño to suffer from psychological deterioration and caused him to
misbehave. Id. at 83. In the petition, Saldaño asserts that his condition had declined to the point where
he appeared disheveled and unfocused, masturbated distractedly while the jury was in the room, stared
inappropriately, and ultimately had to be restrained. “The State claimed, and the trial court agreed, that
the defense could not present Peccora’s testimony without first having [Saldaño] examined by a state
psychiatric expert pursuant to [Lagrone]. [Saldaño] would not submit to a Lagrone examination, and
Peccora’s testimony was not presented.” Id. Although Dr. Peccora did not testify, the defense
submitted a declaration as to his findings.4
Saldaño claims that the trial court’s failure to guarantee that a Lagrone examination by the
State would not be used to prove future dangerousness (1) led the court to erroneously bar Dr. Peccora
from testifying, (2) led the court to erroneously permit the State to introduce evidence of misconduct
by a “psychologically decompensated” Saldaño while on death row, and (3) erroneously prevented the
presentation of significant mitigating evidence in violation of the Lockett doctrine.
The Texas Court of Criminal Appeals found that Saldaño did not preserve his Lagrone claims
for appeal. Saldaño, 232 S.W.3d at 88. The Court’s detailed discussion about the factual basis of its
legal conclusion included the following:
The record reflects that the Lagrone issue first arose rather late in the
proceedings during a November 5, 2004, hearing on a written motion that [Saldaño]
had filed on October 21, 2004, in the middle of individual voir dire. . . . [Saldaño]

4

Dr. Peccora’s declaration was included in the Clerk’s Record (“CR”) at pages 1579-1583 and as Defendant’s
Exhibit 6 as an offer of proof. It was also attached to the petition as Exhibit A.

8

claimed at the November 5, 2004, hearing on this motion that the State should not be
permitted to seek another death sentence or, alternatively, not be permitted to use any
evidence of [Saldaño’s] death-row misconduct after his 1996 trial because of the
procedurally defaulted claim of prosecutorial misconduct at [Saldaño’s] 1996 trial.
[Saldaño] evidently claimed that he would not have misbehaved on death row but for
this “misconduct” by the State. To support these claims, [Saldaño] stated that he
intended to introduce Peccora’s testimony at the hearing to show [Saldaño’s] mental
decline on death row since his 1996 trial. . . .
The State claimed that [Saldaño] should not be permitted to present Peccora’s
testimony without the State having an opportunity to have [Saldaño] examined by a
state psychiatric expert, and the trial court agreed.
[THE COURT]: Let me get something up front here.
I have had a chance to read, during some of that testimony, that Lagrone case,
and I believe the State has a right to have [Saldaño] examined if the State’s—if
the defense is going to offer the evidence along the lines set out in [Peccora’s]
affidavit, which I’ve now reread.
The defense would not agree to a Lagrone examination “for the purposes of
this pretrial motion” because of the risk that [Saldaño’s] “examination to a psychiatrist
of the State could actually be used against him at trial.”
[DEFENSE LAWYER # 1]: Well, let me—let me make this even more clear.
The reason that we’re putting that into evidence at this point is, we are not
going to allow [Saldaño] to be looked at by a psychiatrist.
[THE COURT]: I gotcha.
[DEFENSE LAWYER # 1]: He’ll invoke his Fifth Amendment right.
[DEFENSE LAWYER # 2]: Your Honor, may I add?
I’d like to point out that we’re being placed in a situation risking that
[Saldaño’s] testimony—[Saldaño’s] examination to a psychiatrist of the State
could actually be used against him at trial. Faced with that possibility, we can’t
have the—our client examined for the purposes of this pretrial motion. It’s just
a risk that we can’t run.
The record, therefore, reflects that [Saldaño] took the position at this November
5, 2004, hearing that any evidence obtained by the State during a Lagrone examination
might be used by the State on any issue at the punishment hearing (including future
dangerousness). At this point, [Saldaño] had not alerted the trial court to any claim
9

that the trial court should guarantee that a Lagrone examination be limited to rebutting
any testimony by Peccora on [Saldaño’s] mental decline and not to prove future
dangerousness.
On Friday, November 12, 2004, the State rested its punishment hearing
case-in-chief during which the State had presented evidence of [Saldaño’s] death-row
misconduct. On Monday morning, November 15, 2004, [Saldaño] filed another
written motion requesting that the trial court reconsider its earlier ruling on the
Lagrone issue. In this November 15, 2004, motion, [Saldaño] offered for the first
time to submit to a Lagrone examination. [Saldaño] also specifically alerted the trial
court for the first time to the claim that this Lagrone examination should be limited to
rebutting any testimony by Peccora on [Saldaño’s] mental decline. . . .
[Saldaño’s] November 15, 2004, motion contained no claim that the trial
court’s earlier ruling on the Lagrone issue was effectively preventing [Saldaño] from
presenting constitutionally relevant mitigating evidence to the jury in the form of
Peccora’s testimony concerning [Saldaño’s] mental decline. And, [Saldaño] made no
claim that he wanted to present Peccora’s testimony to the jury at the punishment
hearing. . . .
The trial court held a hearing on [Saldaño’s] November 15, 2004, motion on
the morning that it was filed. At this hearing, the defense agreed with the trial court
that it was requesting the trial court to reconsider its earlier ruling on the Lagrone
issue. . .
The State claimed at this hearing that the defense was “only stalling and asking
for a delay in tactics.” The State also stated that it wanted to make it “crystal clear”
that it had never requested the trial court to bar Peccora’s testimony, and that, in the
pretrial context in which Peccora’s testimony was initially offered at the November 5,
2004, hearing, the State had requested a Lagrone examination “to present controverting
evidence if the defense presented that evidence.” The State also requested the trial
court to deny [Saldaño’s] motion because it was, among other things, “untimely.”
The trial court expressed the view that a Lagrone examination “would probably
open everything up” about “anything relevant to [Saldaño’s] mental state, including
future dangerousness, which is the defense concern.” . . . The trial court ultimately
denied [Saldaño’s] request to limit a Lagrone examination to rebutting Peccora’s
testimony on [Saldaño’s] mental decline. [Saldano] made no claim that this effectively
prevented him from presenting constitutionally relevant mitigating evidence in the
form of Peccora’s testimony. [Saldaño] again would not submit to a Lagrone
examination, and he did not offer Peccora’s testimony at the punishment hearing or any
other hearing.
Saldaño, 232 S.W.3d 83-88 (footnotes omitted).
10

The Texas Court of Criminal Appeals found that the record was clear that Saldaño did not alert
the trial court of the claim that it should guarantee that a Lagrone examination be limited to rebutting
Dr. Peccora’s testimony on mental decline until after the State had rested its case-in-chief. Id. at 88.
The Court accordingly held that it “was too late for [Saldaño] to have preserved for appeal the claims
presented” in his first two grounds. Id.; See Tex. R. App. Proc. 33.1(a)(1)(A) (to preserve error for
appeal, complaining party must timely present claim to trial court with sufficient specificity to make
the trial court aware of complaint). The Court further found that Saldaño completely failed to preserve
for appeal his allegation that he was prevented from presenting relevant mitigating evidence because
he did not bring the claim in either motion before the trial court or during the hearings on the
respective motions. Id.
The Director argues that Saldaño’s Lagrone claims are procedurally barred in light of the
holding by the Texas Court of Criminal Appeals. Under the procedural default doctrine, federal courts
are precluded from granting habeas relief where the last state court to consider the claims raised by the
petitioner expressly and unambiguously based its denial of relief on an independent and adequate state
law procedural ground. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991); Hughes v. Johnson, 191
F.3d 607, 614 (5th Cir. 1999). When a state court explicitly relies on a procedural bar, a state prisoner
may not obtain federal habeas relief absent a showing of cause for the default and actual prejudice.
Coleman, 501 U.S. at 750. A petitioner who fails to satisfy the cause and prejudice standard may still
be entitled to habeas corpus relief if he can show that the imposition of the procedural bar would
constitute a fundamental miscarriage of justice; in other words, that he was actually innocent of the
crime. Sawyer v. Whitley, 505 U.S. 333, 339-40 (1992); Finley v. Johnson, 243 F.3d 215, 220 (5th
Cir. 2001).

11

The Fifth Circuit has consistently held that the Texas contemporaneous objection rule
constitutes an adequate and independent ground that procedurally bars federal habeas review of a
petitioner’s claims. Turner v. Quarterman, 481 F.3d 292, 301 (5th Cir.), cert. denied, 551 U.S. 1193
(2007); Cardenas v. Dretke, 405 F.3d 244, 249 (5th Cir. 2005), cert. denied, 548 U.S. 925 (2006);
Dowthitt v. Johnson, 230 F.3d 733, 752 (5th Cir. 2000) (“[T]he Texas contemporaneous objection rule
is strictly or regularly applied evenhandedly to the vast majority of similar claims, and is therefore an
adequate procedural bar.”), cert. denied, 532 U.S. 915 (2001). Saldaño disputes the finding by the
Texas Court of Criminal Appeals that he did not preserve the Lagrone claims, but the finding is
supported by the record. Saldaño has not shown cause and actual prejudice for the default nor a
fundamental miscarriage of justice. His Lagrone claims are procedurally barred.
The Lagrone claims must be rejected for the additional reason that they involve nothing more
than the application of state law. The Supreme Court has repeatedly stated that “federal habeas corpus
relief does not lie for errors of state law.” Estelle v. McGuire, 502 U.S. 62, 67 (1991) (quoting Lewis
v. Jeffers, 497 U.S. 764, 780 (1990)). “[I]t is not the province of a federal habeas court to reexamine
state-court determinations on state-law questions.” Id. at 67-68. In the course of reviewing state
proceedings, a federal court does “not sit as a super state supreme court to review error under state
law.” Wood v. Quarterman, 503 F.3d 408, 414 (5th Cir. 2007), cert. denied, 552 U.S. 1314 (2008).
When the Lagrone case went to federal court, the district court found that the rule established by the
state court did not unreasonably apply federal law and the Fifth Circuit found that the district court’s
assessment of the claim was “neither debatable nor wrong.” Lagrone, 2003 WL 22327519, at *10.
Federal courts have subsequently likewise found that the Lagrone rule is neither contrary to nor an
unreasonable application of clearly established federal law as determined by the Supreme Court. See,
e.g., Brewer v. Quarterman, 475 F.3d 253, 257 (5th Cir. 2006), cert. denied, 552 U.S. 834 (2007).
12

The rule established by the Texas Court of Criminal Appeals in Lagrone is a state-law question, and
the application of the rule is not a federal issue. Federal habeas relief is unavailable on the first three
grounds for relief.
4.

Saldaño was denied effective assistance of counsel by trial counsel’s failure to
present critical mitigating evidence to the jury.

Saldaño next argues that his attorneys were ineffective for failing to present critical mitigating
evidence to the jury regarding his mental health for fear that the State would rebut the evidence. It was
noted that neither the jury nor the trial court heard any testimony that could have explained Saldaño’s
bizarre behavior. Saldaño made the argument that no outside observer - aware of the omitted mental
health evidence - would believe that Saldaño’s trial produced a just result. He admitted that in light
of the overwhelming evidence presented by the State regarding his behavior while already on death
row, and his own grotesque behavior during the trial, there was little doubt that the jury would find him
to be a danger in the future. He added that given the overwhelming probability that the jury would
have answered the future dangerousness question in the affirmative, there was no risk in presenting
the mental health evidence. Without the benefit of an explanation, by way of mental illness, the jury
was without the tools to do anything but answer the mitigation question in the negative.
In support of the claim, Saldaño complains that counsel did not present critical evidence from
the following three sources: (1) the testimony of his mother, Lidia Guerrero; (2) the testimony of his
sister, Ada Saldaño; and (3) certain documentary evidence. It was noted that Guerrero testified on
behalf of her son during the punishment phase of the first trial and was ready and available to testify
at the punishment retrial. She was set to testify about her son’s background and upbringing. Saldaño
notes that his sister, Ada Saldaño, was interviewed by the defense mitigation expert, Dr. Kelly
Goodness. She would have provided additional testimony about her brother’s background and

13

upbringing. However, due to the late term of her pregnancy, she was unable to travel and be present
during the punishment retrial, but she would have come voluntarily had the trial been postponed or
would have been willing to give testimony by deposition. Saldaño observes that there is no indication
in the record that his attorney filed either a motion for a continuance or a motion to take a deposition
in order to secure his sister’s testimony. Saldaño finally complains that documents submitted during
his first trial were not submitted. Documents regarding his upbringing in Argentina included school
records, birth records, records of religious confirmation, and Naval school records. His school records
purportedly showed a student who was regular in attendance, well behaved, and diligent enough in his
studies to be promoted from one grade to the next.
Saldaño’s attorneys during the punishment retrial were Richard Franklin, John Tatum and Rick
Harrison. At the close of the punishment retrial, Franklin testified in camera as to why he did not call
Lidia Guerrero as a witness. 31 RR 96-100.5 He testified that Guerrero was interviewed for four hours
on November 14, 2004. She wanted to make an issue of her son’s mental health. She insisted on
telling the jury that he was mentally ill, that he could not function, and that he was incompetent. The
attorneys told her that if she presented such testimony, then the State would call psychiatrists and
psychologists to testify that Saldaño had an antisocial personality disorder and that he was not mentally
ill. Moreover, there would be testimony that he was faking his mental illness for the purpose of getting
drugs and other medication. Guerrero told the attorneys that she did not care if other psychiatrists and
psychologists testified because she wanted all of the evidence to be “in the open.” 31 RR 96-97. She
believed that “her statement that he was mentally ill would probably carry the day, because she was

5

“RR” refers to the trial transcript from the punishment retrial, preceded by the volume number and followed
by the page number(s).

14

his mother.” 31 RR 97. Franklin testified that her insistence on testifying that Saldaño was mentally
ill was the reason that she was not called as a witness:
So that’s why we didn’t call her as any kind of witness, because we were afraid we
would open up the mental-illness question, and the State would respond with at least
three psychologists and one psychiatrist who would testify about the antisocial
disorder.
31 RR 98. He added that Dr. Kelly Goodness, his mental expert, has a doctorate in psychology and
that she interviewed Saldaño and was of the opinion that he was competent. 31 RR 99. When
questioned by the trial court, Franklin testified that the defense team explored the issue of mental
retardation and that there was “no evidence of even borderline mental retardation.” Id. He
acknowledged that the trial court provided experts early on in the proceedings in order to make that
determination. 31 RR 100.
The issue of ineffective assistance of counsel was fully developed during the state habeas
corpus proceedings in Ex parte Saldaño, No. WR-41,313-04. Franklin provided an affidavit in
response to allegations of ineffective assistance of counsel. SHCR-03 at 1124-25.6 Rick Harrison
likewise provided an affidavit. Id. at 1122-23. Franklin explained his strategy during the course of
the punishment retrial as follows:
The four questions of trial counsel contained in the Court’s Order dated 8/31/07
will be answered in light of the fact that [Saldaño] was confined on death row for eight
years and committed various crimes and bad acts while so confined which were
admissible at his re-trial. Further, [Saldaño] was unable to develop a mitigation theory
of diminished capacity or outright insanity due to his illegal confinement on death row
because of trial court rulings.
1)

6

[Saldaño’s] mother could not testify because she insisted his
confinement on death row made him mentally ill. This testimony
would have been rebutted by the State’s psychiatrist. There was no
indication that Ada Saldaño would have testified any differently
regarding his mental status. She had stated to Dr. Goodness that her

“SHCR” refers to the state habeas transcript followed by the volume and page number(s).

15

brother was not on drugs, was intelligent, was raised in good homes
and always did his homework and housework without complaint. She
never came up with anything that was clearly mitigating.
2)

There was no reason to take the deposition of Ada. There was nothing
she could testify about that would help under the facts available to the
State in the re-trial.

3)

All of this evidence was introduced at the first trial. It had no
significance then and would have even less at the re-trial. The fact that
[Saldaño] was born and baptized, went to school, and joined the navy
could not explain or mitigate his throwing feces at prison guards as
well as all of the other bad acts committed by [Saldaño] while on death
row.

4)

The only strategy left by court rulings was to demonstrate that the
prison system could contain [Saldaño] and keep him from harming
others. That is its function. The co-defendant was used to show that
[Saldaño] was intoxicated at the time of the offense and they had no
intention of hurting anyone.

Id. at 1124-25.
Mr. Harrison provided essentially the same discussion in his affidavit. He specifically noted
that records from the prison psychiatric ward described Saldaño as “having antisocial personality
disorder, being a manipulator, and faking symptoms to gain drugs. We had two doctors examine
Saldaño three different times, up until the trial began, and none would term him insane or suffering
from mental illness.” Id. at 1122. His responses to the four questions asked of counsel were
essentially the same responses as provided by co-counsel Franklin. Id. at 1122-23.
The state habeas court conducted a writ hearing after the affidavits were submitted. The
attorneys for both sides presented oral arguments based on the evidence that had been gathered. The
trial court then issued 511 findings of fact and conclusions of law. SHCR-04 at 1244-1339. Findings
18-175 relate to the present ground for relief. The findings relating to trial counsel’s decision not to
call Guerrero to testify include the following:

16

23.

The Court finds that Guerrero attended [Saldaño’s] re-sentencing trial and was
available to testify there. Writ Exhibit D at 10-11.

24.

The Court finds that trial counsel decided not to call Guerrero to testify at
[Saldaño’s] 2004 re-sentencing trial.

25.

The Court finds that after they decided not to call Guerrero as a witness,
[Saldaño’s] trial counsel stated the reasons for their decision on the record. 31
RR 96-98.

26.

The Court finds that trial counsel’s stated reasons for deciding not to call
Guerrero to testify as a witness are credible, and the Court accepts those stated
reasons as true.

38.

The Court finds that [Saldaño’s] trial counsel decided not to call Guerrero to
testify because they believed her testimony would have opened up the issue of
[Saldaño’s] mental health and the State would have been able to respond with
witnesses who would have testified about [Saldaño’s] antisocial personality
disorder. 31 RR 98; Franklin Affidavit at 1; Harrison Affidavit at 1.

39.

The Court finds that, at the time trial counsel decided not to open the door to
the issue of [Saldaño’s] mental health, the State had not offered [Saldaño’s]
prison records or any other evidence that [Saldaño] had an antisocial
personality disorder or was malingering.

40.

The Court finds that it was reasonable for [Saldaño’s] trial counsel to conclude
that if Guerrero testified she would carry out her stated intentions of testifying
about [Saldaño’s] mental state.

41.

The Court finds that it was reasonable for [Saldaño’s] trial counsel to conclude
that, if Guerrero testified about [Saldaño’s] mental state, the jury would hear
rebuttal evidence that [Saldaño] had an antisocial personality disorder and had
been “faking,” “drug seeking,” “feigning psychiatric symptoms for secondary
gain,” “malingering,” and engaging in “manipulative behavior” while in prison.

42.

The Court finds that evidence that [Saldaño] had an antisocial personality
disorder and was malingering could have damaged him by corroborating the
State’s claim that [Saldaño] was a future danger.

43.

The Court finds that evidence that [Saldaño] had an antisocial personality
disorder and was malingering could have damaged [Saldaño] by weighing
heavily against and undermining any claim that he possessed qualities that
mitigated against a sentence of death.

44.

The Court finds from the evidence that [Saldaño] would “fake” mental illness
symptoms even to his mother who had traveled from Argentina to support him
17

in a trial that had already caused deep emotional anguish (Writ Exhibit E at 3),
the jury could have concluded that [Saldano] was unfeeling and depraved. And
that conclusion could have been damaging to [Saldaño].
47.

The Court finds that the State’s anticipated rebuttal to Guerrero’s testimony
could have been highly damaging to [Saldaño].

48.

The Court finds that the State’s potential rebuttal evidence was relevant to both
the issue of future dangerousness and the issue of mitigation.

49.

The Court finds that it was reasonable for [Saldaño’s] trial counsel to choose
for the jury not to hear the damaging rebuttal evidence.

50.

The Court finds that even Guerrero’s “mitigating” testimony contained a
potential to harm [Saldaño].

51.

The Court finds that, considering the possibility of significant harm from the
State’s rebuttal evidence along with the mixed effect of Guerrero’s testimony,
trial counsel’s decision not to call Guerrero to testify at [Saldaño’s] resentencing trial was a reasonable strategic decision based on full knowledge of
the relevant facts.

59.

The Court finds that [Saldaño] has failed to prove by the preponderance of the
evidence that his trial counsel were deficient for failing to call Guerrero to
testify at his re-sentencing trial.

61.

The Court concludes that [Saldaño] has failed to meet the deficiency prong of
Strickland.7

62.

The Court finds that, if Guerrero had testified at [Saldaño’s] 2004 resentencing trial, she would have provided the same testimony she provided at
[Saldaño’s] 1996 trial. Writ 7-8.

63.

The Court finds that even with Guerrero’s testimony at [Saldaño’s] 1996 trial,
[Saldaño] was sentenced to death. 21 RR-96 308.

66.

The Court finds that Guerrero’s testimony was even less likely to result in a life
sentence at [Saldano’s] 2004 re-sentencing trial since it would have opened the
door to highly damaging rebuttal evidence that was relevant to both the issue
of future dangerousness and mitigation.

67.

The Court finds that [Saldaño] has failed to prove by a preponderance of the
evidence that there is a reasonable probability that, if Guerrero had testified,

7

Strickland v. Washington, 466 U.S. 668 (1984).

18

the jury would have concluded that the balance of the aggravating and
mitigating circumstances did not warrant death.
68.

The Court concludes that [Saldaño] has failed to meet the harm prong of
Strickland.

SHCR-04 at 1249-57.
The findings relating to trial counsel’s decisions concerning the use of Ada Saldaño as a
witness include the following:
82.

The Court finds that [Saldaño] has not provided evidence that Ada Saldaño
would have testified to different mitigation evidence than Guerrero would have
testified to or that Ada Saldaño could have testified in more detail than
Guerrero. Franklin Affidavit at 1.

83.

The Court finds that Ada Saldaño could not attend the trial because she was in
the advanced stages of pregnancy, and she informed [Saldaño’s] trial counsel
of that fact thirty days before trial was set to begin. Writ Exhibit E at 9.

84.

The Court finds that [Saldaño] claims his trial counsel were deficient because
they did not request a continuance of his 2004 re-sentencing trial until Ada
Saldaño could attend. Writ at 13.

87.

The Court finds that until three days before the re-sentencing trial ended, when
counsel interviewed Guerrero and realized they could not take the risk of
putting her on the stand (31 RR 96), counsel had another witness - Guerrero who could have provided the same testimony as Ada Saldaño about
[Saldaño’s] family background and childhood.

88.

The Court finds that Ada Saldaño’s testimony would have been cumulative of
testimony that would have been presented by Guerrero. Franklin Affidavit at
1.

89.

The Court finds that it likely would have been futile for trial counsel to seek
a continuance prior to trial to secure Ada Saldaño’s testimony.

90.

The Court finds that [Saldaño] has failed to prove by a preponderance of the
evidence that his trial counsel were deficient for failing to seek a continuance
prior to trial to secure Ada Saldaño’s testimony.

91.

The Court concludes that trial counsel was not deficient for choosing not to
take the futile action of seeking a continuance prior to trial to secure Ada
Saldaño’s testimony.

19

92.

The Court concludes that [Saldaño] has failed to meet the deficiency prong of
Strickland.

100.

The Court finds that, if Ada Saldaño had testified at [Saldaño’s] re-sentencing
trial, she would have testified in accordance with what she told Kelly
Goodness. Writ Exhibit E at 9.

101.

The Court finds that Ada Saldaño would not have provided evidence that was
clearly mitigating. Franklin Affidavit at 1; Harrison’s Affidavit at 1.

107.

The Court finds that [Saldaño] has failed to prove by a preponderance of the
evidence that his trial counsel were deficient for failing to seek a continuance
during trial to secure Ada Saldaño’s testimony.

109.

The Court concludes that [Saldaño] has failed to meet the deficiency prong of
Strickland.

117.

The Court finds that [Saldaño] has failed to prove by a preponderance of the
evidence that his trial counsel were deficient for failing to depose Ada Saldaño.

118.

The Court finds that trial counsel were not deficient for failing to depose Ada
Saldaño.

119.

The Court concludes that [Saldaño] has failed to meet the deficiency prong of
Strickland.

120.

The Court concludes that [Saldaño’s] trial counsel did not render ineffective
assistance by failing to depose Ada Saldaño.

124.

The Court finds that, if background evidence Ada Saldaño would have testified
to did not result in a life sentence in the 1996 trial it likely would not have
resulted in a life sentence in a trial that presented even stronger reasons for
imposition of a penalty of death.

126.

The Court finds that [Saldaño] has failed to prove by a preponderance of the
evidence that there is a reasonable probability that, if Ada Saldaño had
testified, the jury would have concluded that the balance of aggravating and
mitigating circumstances did not warrant death.

128.

The Court finds that [Saldaño] has failed to meet the harm prong of Strickland.

129.

The Court finds that, as to this claim of ineffective assistance, [Saldaño] has
failed to prove both the deficiency and the harm prongs of Strickland.

130.

The Court concludes that [Saldaño’s] trial counsel did not render ineffective
assistance of counsel by choosing not to seek a continuance of [Saldaño’s]
20

trial, before or during trial, to secure Ada Saldaño’s testimony or by failing to
depose Ada Saldaño.
SHCR-04 at 1259-67.
The findings relating to trial counsel’s decision not to submit certain documentary evidence
include the following:
132.

The Court finds that at [Saldaño’s] 1996 trial his trial counsel introduced into
evidence: report cards from [Saldaño’s] first through eighth grades; his birth
certificate; his certificates of baptism and confirmation; a certificate from the
Argentine Navy Mechanic School from 1989; and a letter from the Argentine
Consulate General stating [Saldaño] did not have any police records in
Argentina. 20 RR-96 239, 256, 274.

134.

The Court finds that the introduction of those documents at [Saldaño’s] 1996
trial did not result in him receiving a life sentence.

135.

The Court finds that trial counsel in [Saldaño’s] 2004 re-sentencing did not
seek to admit those documents.

136.

The Court finds that trial counsel in [Saldaño’s] 2004 re-sentencing trial chose
a different strategy of seeking to establish that [Saldaño] was intoxicated at the
time he killed Paul King and diminishing his responsibility in the murder. 31
RR 36-41, 48; Franklin Affidavit at 2; Harrison Affidavit at 2.

137.

The Court finds that trial counsel had [Saldaño’s] co-defendant Chavez
brought from the Texas Department of Corrections, where he is serving a life
sentence. 29 RR 1-4.

138.

The Court finds that Chavez did not testify at [Saldaño’s] 1996 trial.

139.

The Court finds that trial counsel elicited testimony from Chavez that the day
of the murder the men drank six bottles of beer and smoked a “fistful” of crack
cocaine rocks. 30 RR 21-23, 53.

142.

The Court finds that in his closing argument, counsel described the codefendants’ day as “[t]hey smoke that morning; smoke crack. It’s gone. They
bought 90 bucks worth the night before; it’s gone. Last rock, whatever. Grab
some beer; steal those; drink those.” 31 RR 41. Counsel told the jury, “I
submit to you, folks, if somebody smokes cracks [sic] and drinks those beers
in the morning, they’re going to be stoned bejesus.” 31 RR 38.

143.

The Court finds that trial counsel urged the jury to consider evidence of
intoxication as mitigating, saying “it goes against the grain [the prosecutor]
21

tries to portray of a cold-blooded killer that just did it methodically and wellthought out.” 31 RR 38, 39.
149.

The Court finds that trial counsel told the jury that except for an attempted
robbery four days before the murder, [Saldaño] had “[n]othing in a [sic]
America; nothing in South America; nothing in Mexico. Nothing.” 31 RR 35.
Another time he told the jury, “If Victor Saldaño had an extensive criminal
record a mile long, which some of you, I’m sure, expected, I could understand
[the State seeking the death penalty]. . . . We don’t have that. He’s got no
criminal record until that day. Zero.” 31 RR 31.

151.

The Court finds that, in preparing for [Saldaño’s] 2004 re-sentencing trial, trial
counsel could look back to the 1996 trial with the benefit of hindsight. Trial
counsel could see that a trial strategy dependent on showing the jury that in
[Saldaño’s] early years he did “normal” things like go to school, get baptized
and confirmed, and join the military was insufficient to persuade the jury to
give [Saldaño] a life sentence. Moreover, counsel likely knew they could not
rely simply on re-using the mitigation evidence from the 1996 trial because the
State now possessed even more evidence of [Saldaño’s] future dangerousness.
And they also had available [Saldaño’s] co-defendant Chavez, who did not
testify at the first trial.

152.

The Court finds that it was reasonable for [Saldaño’s] counsel to develop a
different trial strategy than the one that had failed in 1996.

153.

The Court finds that it was reasonable to develop a new strategy around the
new resource they had in co-defendant Chavez and to take advantage of his
ability to present mitigating evidence of [Saldaño’s] intoxication and
diminished responsibility as a follower of Chavez with limited intent of tying
King up.

154.

The Court finds that trial counsel’s strategy in [Saldaño’s] 2004 re-sentencing
trial was reasonable and that it was competently executed.

155.

The Court finds that it was reasonable for trial counsel to emphasize only their
new strategy and not to dilute it by introducing evidence supporting a different
strategy.

156.

The Court finds that [Saldaño’s] trial counsel were not deficient for choosing
the reasonable strategy of emphasizing [Saldaño’s] intoxication and diminished
responsibility for the murder.

157.

The Court finds that [Saldaño] has failed to prove by a preponderance of the
evidence that his trial counsel were deficient for choosing not to admit the
documentary evidence that was used at [Saldaño’s] 1996 trial.

22

158.

The Court finds that [Saldaño’s] trial counsel were not deficient for choosing
not to admit the documentary evidence that was used at [Saldaño’s] 1996 trial.

159.

The Court concludes that [Saldaño] has failed to meet the deficiency prong of
Strickland.

163.

The Court finds that, if the documents have any mitigating value, it is relatively
insignificant when compared to the mitigating evidence elicited from Chavez.

164.

The Court finds that admitting the documents would therefore not have
resulted in a life sentence even when added to Chavez’s testimony.

165.

The Court finds that [Saldaño] has failed to prove by a preponderance of the
evidence that the absence of any particular document resulted in a sentence of
death in his 2004 re-sentencing trial.

170.

The Court concludes that [Saldaño] has not proved by a preponderance of the
evidence that he would have received a life sentence if trial counsel had
introduced the documentary evidence, or any particular document, in his [ ]
2004 re-sentencing trial.

172.

The Court finds that [Saldaño] has failed to meet the harm prong of Strickland.

173.

The Court finds that, as to this claim of ineffective assistance, [Saldaño] has
failed to prove both the deficiency and the harm prongs of Strickland.

174.

The Court concludes that [Saldaño’s] trial counsel did not render ineffective
assistance of counsel by choosing not to introduce the documentary evidence,
or any particular document, from [Saldaño’s] 1996 trial.

175.

The Court concludes that this ground of ineffective assistance of counsel
should be denied.

SHCR-04 at 1267-1274. The Texas Court of Criminal Appeals subsequently considered and adopted
all of the aforementioned findings of fact and conclusions of law in denying relief. Ex parte Saldaño,
2008 WL 4727540, at *1.
Saldaño argues that his attorneys were ineffective for failing to present critical mitigating
evidence to the jury, in violation of Strickland v. Washington, 466 U.S. 668 (1984). Strickland
provides a two-pronged standard, and a petitioner bears the burden of proving both prongs. 466 U.S.
at 687. Under the first prong, a petitioner must show that counsel’s performance was deficient. Id.
23

To establish deficient performance, he must show that “counsel’s representation fell below an objective
standard of reasonableness,” with reasonableness judged under professional norms prevailing at the
time counsel rendered assistance. Id. at 688. “Judicial scrutiny of counsel’s performance must be
highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after
conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it
has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.
. . . A fair assessment of attorney performance requires that every effort be made to eliminate the
distorting effects of hindsight, . . .” Id. at 689 (citations omitted). “Because of the difficulties inherent
in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within
the wide range of professional assistance; that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action might be considered sound trial strategy.” Id. (internal
quotation marks omitted). Under the second prong, the petitioner must show that his attorney’s
deficient performance resulted in prejudice. Id. at 687. To satisfy the prejudice prong, the habeas
petitioner “must show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694. An ineffective assistance of counsel
claim fails if a petitioner cannot satisfy either the deficient performance or prejudice prong; a court
need not evaluate both if he makes an insufficient showing as to either. Id. at 697.
The Supreme Court recently discussed the difficulties associated with proving ineffective
assistance of counsel claims as follows:
“Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559
U.S. 356, 371, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284 (2010). An
ineffective-assistance claim can function as a way to escape rules of waiver and
forfeiture and raise issues not presented at trial, and so the Strickland standard must be
applied with scrupulous care, lest “intrusive post-trial inquiry” threaten the integrity
of the very adversary process the right to counsel is meant to serve. Strickland, 466
24

U.S., at 689–690, 104 S. Ct. 2052. Even under de novo review, the standard for
judging counsel's representation is a most deferential one. Unlike a later reviewing
court, the attorney observed the relevant proceedings, knew of materials outside the
record, and interacted with the client, with opposing counsel, and with the judge. It is
“all too tempting” to “second-guess counsel's assistance after conviction or adverse
sentence.” Id., at 689, 104 S. Ct. 2052; see also Bell v. Cone, 535 U.S. 685, 702, 122
S. Ct. 1843, 152 L. Ed. 2d 914 (2002); Lockhart v. Fretwell, 506 U.S. 364, 372, 113
S. Ct. 838, 122 L. Ed. 2d 180 (1993). The question is whether an attorney’s
representation amounted to incompetence under “prevailing professional norms,” not
whether it deviated from best practices or most common custom. Strickland, 466 U.S.,
at 690, 104 S. Ct. 2052.
Richter, 562 U.S. at 105. In a separate opinion issued on the same day, the Court reiterated that the
“question is whether an attorney’s representation amounted to incompetence under ‘prevailing
professional norms,’ not whether it deviated from the best practices or most common custom.” Premo
v. Moore, 562 U.S. 115, 122 (2011) (citing Strickland, 466 U.S. at 690).
In the context of § 2254(d), the deferential standard that must be accorded to counsel’s
representation must also be considered in tandem with the deference that must be accorded to state
court decisions, which has been referred to as “doubly” deferential. Richter, 562 U.S. at 105. “When
§ 2254(d) applies, the question is not whether counsel’s actions were reasonable. The question is
whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Id.
“If the standard is difficult to meet, that is because it was meant to be.” Id. at 102. Also see Morales
v. Thaler, 714 F.3d 295, 302 (5th Cir.), cert. denied, 134 S. Ct. 393 (2013).
Saldaño’s ineffective assistance of counsel claim concerns the use of mitigating evidence. In
a capital sentencing proceeding, “defense counsel has the obligation to conduct a “reasonably
substantial, independent investigation’ into potential mitigating circumstances.” Neal v. Puckett, 286
F.3d 230, 236-37 (5th Cir. 2002) (quoting Baldwin v. Maggio, 704 F.2d 1325, 1332-33 (5th Cir.
1983)). See also Woods v. Thaler, 399 F. App’x 884, 891 (5th Cir. 2010), cert. denied, 563 U.S. 991
(2011). In assessing whether counsel’s performance was deficient, courts look to such factors as what

25

counsel did to prepare for sentencing, what mitigation evidence he had accumulated, what additional
“leads” he had, and what results he might reasonably have expected from those leads. Neal, 286 F.3d
at 237. The reasonableness of counsel’s investigation involves “not only the quantum of evidence
already known to counsel, but also whether the known evidence would lead a reasonable attorney to
investigate further.” Wiggins v. Smith, 539 U.S. 510, 527 (2003). “[C]ounsel should consider
presenting . . . [the defendant’s] medical history, educational history, employment and training history,
family and social history, prior adult and juvenile correctional experience, and religious and cultural
influences.” Id. at 524 (citing ABA Guidelines for the Appointment and Performance of Counsel in
Death Penalty Cases § 11.8.6, at 133 (1989)). The Supreme Court stated in Wiggins that the
“investigation into mitigating evidence should comprise efforts to discover all reasonably available
mitigating evidence.” Id.
In the present case, Saldaño is not complaining that his attorneys failed to take steps to discover
all reasonably available mitigating evidence; instead, the focus of his complaint concerns trial
counsels’ decisions about which evidence to submit to the jury. He complains that counsel did not
offer known critical mitigating evidence that could have been provided by his mother, sister and the
documents that were offered at his 1996 trial. His claim is essentially a complaint about the trial
strategy employed by his attorneys. The Supreme Court fully discussed the approach that must be
employed regarding trial strategy in Strickland. The Court observed that “strategic choices made after
thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and
strategic choices made after less than complete investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on investigation.” Strickland, 466 U.S. at
690-91. Federal courts “will not question a counsel’s reasonable strategic decisions.” Bower v.
Quarterman, 497 F.3d 459, 470 (5th Cir. 2007), cert. denied, 553 U.S. 1006 (2008). In applying

26

Strickland, the Fifth Circuit has held that “the failure to present a particular argument or evidence is
presumed to have been the result of strategic choice.” Taylor v. Maggio, 727 F.2d 341, 347-48 (5th
Cir. 1984). Because of the risk that hindsight bias will cloud a court’s review of counsel’s trial
strategy, “a court must indulge a strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance; that is, the defendant must overcome the presumption that, under
the circumstances, the challenged action might be considered sound trial strategy.” Strickland, 466
U.S. at 689.
The state trial court thoroughly discussed trial counsel’s decisions regarding Guerrero, Ada
Saldaño and the documents presented during the 1996 trial in terms of trial strategy. The strategy
employed in 1996 did not work, and Saldaño was sentenced to death. Trial counsel thus chose to
employ a different strategy this time around. The trial court appropriately found that it was reasonable
for trial counsel to employ a different strategy during the 2004 punishment retrial. It was also
reasonable for trial counsel to utilize co-defendant Chavez, who was not available in 1996, in an effort
to show that Saldaño was intoxicated and had diminished responsibility at the time of the offense with
the limited intent of tying up King. Guerrero’s anticipated testimony, on the other hand, would have
undermined this trial strategy. Her testimony would have permitted the State to offer rebuttal evidence
that Saldaño had an antisocial personality disorder, that he engaged in feigned psychiatric symptoms
for secondary gain, that he engaged in manipulative behavior and that he was a malingerer. The trial
court reasonably found that the State’s anticipated rebuttal to Guerrero’s testimony could have been
highly damaging to Saldaño. With respect to Ada Saldaño, the state trial court reasonably found that
trial counsel was not ineffective for failing to make a futile request of seeking a continuance. See
Johnson v. Cockrell, 306 F.3d 249, 255 (5th Cir. 2002), cert. denied, 538 U.S. 926 (2003); Koch v.
Puckett, 907 F.2d 524, 527 (5th Cir. 1990). The trial court ultimately found that trial counsel’s

27

strategy in the 2004 punishment retrial was “reasonable and that it was competently executed.” The
trial court found that trial counsel’s choices did not amount to deficient representation, that Saldaño
had not shown harm, and that he did not prove that his attorneys were ineffective. The Texas Court
of Criminal Appeals adopted these findings.
Saldaño argues in his reply to the answer that the defenses were not mutually exclusive, but
Saldaño’s desire to have a specific defensive theory presented does not satisfy his burden of showing
ineffective assistance of counsel. Johnson v. Cockrell, 301 F.3d 234, 239 (5th Cir. 2002) (quoting
Strickland, 466 U.S. at 689), cert. denied, 538 U.S. 1001 (2003). The “failure to present mitigating
evidence, if based on informed and reasoned practical judgment, is well within the range of practical
choices not to be second-guessed under Strickland.” Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th
Cir. 1992) (internal quotation marks and citation omitted), cert. denied, 509 U.S. 921 (1993). Trial
counsel’s decisions regarding Guerrero, Ada Saldaño, and the documents submitted at the 1996 trial
were based on informed and well-reasoned practical judgment, which may not be second-guessed.
Saldaño has not shown that his attorneys’ representation in this matter was deficient or that he was
prejudiced by such deficient representation. He failed to satisfy his burden of proving ineffective
assistance of counsel as required by Strickland. Saldaño also failed to show, as required by 28 U.S.C.
§ 2254(d), that the State court findings resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established federal law as determined by the Supreme Court of the
United States, or resulted in a decision that was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceedings. Moreover, he failed to overcome the
“doubly” deferential standard that must be accorded to his trial attorneys in light of both Strickland and
§ 2254(d). See Richter, 562 U.S. at 105. The fourth ground for relief lacks merit and should be
denied.

28

5.

Saldaño was denied effective assistance of counsel by trial counsel’s failure to
preserve appellate issues relating to the application of the Lagrone decision.

Saldaño argues in his fifth ground for relief that he was denied effective assistance of counsel
by trial counsel’s failure to preserve the Lagrone issues for appeal. Stated differently, he is linking his
first three grounds for relief to an ineffective assistance of counsel claim. He claims that the first three
grounds for relief were procedurally defaulted due to counsel’s failure to timely and properly preserve
the issues for appellate review.
In his answer, the Director argues that Saldaño cannot show that he was prejudiced as a result
of trial counsel’s failure to preserve these issues. He further argues that the ground for relief is
procedurally barred. He notes that Saldaño first raised this particular ineffective assistance of counsel
claim in his second state habeas application, which the Texas Court of Criminal Appeals dismissed
based on an independent state procedural bar. Indeed, Saldaño acknowledges in his petition that the
Texas Court of Criminal Appeals dismissed his second application for a writ of habeas corpus for the
following reason: “We have reviewed the application and find that the allegations do not satisfy the
requirements of Article 11.071 § 5. Accordingly, the application is dismissed as an abuse of the writ.
Art. 11.071 § 5(c).” Saldaño, 2008 WL 152732, at *1.
The procedural default doctrine was discussed in conjunction with Saldaño’s first three grounds
for relief. As was previously noted, under the procedural default doctrine, federal courts are precluded
from granting habeas relief where the last state court to consider the claims raised by the petitioner
expressly and unambiguously based its denial of relief on an independent and adequate state law
procedural ground. Coleman, 501 U.S. at 729-30. When a state court explicitly relies on a procedural
bar, a state prisoner may not obtain federal habeas relief absent a showing of cause for the default and
actual prejudice or a fundamental miscarriage of justice. Dismissals pursuant to abuse of writ
principles have regularly been upheld as a valid state procedural bar foreclosing federal habeas review.
29

See Moore v. Quarterman, 534 F.3d 454, 463 (5th Cir. 2008); Hughes v. Quarterman, 530 F.3d 336,
342 (5th Cir. 2008), cert. denied, 556 U.S. 1239 (2009); Coleman v. Quarterman, 456 F.3d 537, 542
(5th Cir. 2006), cert. denied, 549 U.S. 1343 (2007). Most recently, the Fifth Circuit reiterated that
Texas’ abuse-of-the writ doctrine is an “independent and adequate state procedural rule.” Reed v.
Stephens, 739 F.3d 753, 774 (5th Cir.), cert. denied, 135 S. Ct. 435 (2014). In Reed, the federal courts
rejected as procedurally barred petitioner’s ineffective assistance of counsel claims raised in his third
state habeas application that had been dismissed by the Texas Court of Criminal Appeals “as an abuse
of the writ.” Id.
Saldaño’s present ineffective assistance of counsel claim was similarly dismissed by the Texas
Court of Criminal Appeals “as an abuse of the writ.” Saldaño attempts to establish cause by arguing
that there was no basis for bringing the claim in the first state habeas petition. He notes that the finding
that the Lagrone claims were not preserved was raised sua sponte by the Texas Court of Criminal
Appeals on direct appeal, which was after the first habeas petition was filed; thus, the factual basis for
the claim “simply did not exist.” The Director correctly observes that the exact same argument was
presented to the Texas Court of Criminal Appeals in Saldaño’s subsequent application for a writ of
habeas corpus, which was dismissed as an abuse of the writ. Indeed, the written decision by the Texas
Court of Criminal Appeals clearly identified the ineffective assistance of counsel claim and dismissed
it as an abuse of the writ. Saldaño, 2008 WL 152732, at *1. The Director persuasively argues that,
for this reason, Saldaño has not established cause. He also correctly observed that Saldaño failed to
show prejudice or a fundamental miscarriage of justice.
Saldaño argues in his reply to the answer that the ground for relief is not barred by an
independent or adequate state procedural ground. He asserts that the bar does not apply when a state
court decision is ambiguous. Michigan v. Long, 463 U.S. 1032, 1040-41 (1983). He correctly

30

observed that the Fifth Circuit has held that “the boilerplate dismissal by the CCA of an application
for abuse of the writ is uncertain” if it is unclear whether the decision was based on state law or federal
law. Ruiz v. Quarterman, 504 F.3d 523, 527 (5th Cir. 2007). However, the written decision by the
Texas Court of Criminal Appeals in this case makes it clear that Saldaño was attempting to raise an
ineffective assistance of counsel claim based on “trial counsel’s failure to preserve certain issues raised
in his direct appeal,” which did not satisfy the subsequent application rules of “Article 11.071 § 5.”
Saldaño, 2008 WL 152732, at *1. The decision is not ambiguous. The dismissal of the application
was based on state law. The distinction that Saldaño is attempting to make lacks merit.
Saldaño has not satisfied his burden of showing cause and prejudice or a fundamental
miscarriage of justice. Until just recently, there would been no further inquiry into this ground for
relief. However, the Supreme Court opened the door slightly for a showing of cause and prejudice to
excuse the default in Martinez v. Ryan, 132 S. Ct. 1309 (2012) and Trevino v. Thaler, 133 S. Ct. 1911
(2013). In Martinez, the Supreme Court answered a question left open in Coleman: “whether a
prisoner has a right to effective counsel in collateral proceedings which provide the first occasion to
raise a claim of ineffective assistance at trial.” 132 S. Ct. at 1315. These proceedings were referred
to as “initial-review collateral proceedings.” Id. The Court held:
Where, under state law, claims of ineffective assistance of trial counsel must be raised
in an initial-review collateral proceeding, a procedural default will not bar a federal
habeas court from hearing a substantial claim of ineffective assistance of counsel at
trial if, in the initial-review collateral proceeding, there was no counsel or counsel in
that proceeding was ineffective.
Id. at 1320. Strickland standards apply in assessing whether initial-review habeas counsel was
ineffective. Id. at 1318.
The Supreme Court extended Martinez to Texas in Trevino. Although Texas does not preclude
appellants from raising ineffective assistance of trial counsel claims on direct appeal, the Court held

31

that the rule in Martinez applies because “the Texas procedural system - as a matter of its structure,
design, and operation - does not offer most defendants a meaningful opportunity to present a claim of
ineffective assistance of trial counsel on direct appeal.” Trevino, 133 S. Ct. at 1921. The Court left
it to the lower courts to determine on remand whether Trevino’s claim of ineffective assistance of
counsel was substantial and whether his initial state habeas attorney was ineffective. Id.
The Fifth Circuit summarized the rule announced in Martinez and Trevino as follows:
To succeed in establishing cause to excuse the procedural default of his ineffective
assistance of trial counsel claims, [petitioner] must show that (1) his underlying claims
of ineffective assistance of trial counsel are “substantial,” meaning that he “must
demonstrate that the claim[s] ha[ve] some merit,” Martinez, 132 S. Ct. at 1318; and (2)
his initial state habeas counsel was ineffective in failing to present those claims in his
first state habeas application. See id.; Trevino, 133 S. Ct. at 1921.
Preyor v. Stephens, 537 F. App’x 412, 421 (5th Cir. 2013), cert. denied, 134 S. Ct. 2821 (2014).
“Conversely, the petitioner’s failure to establish the deficiency of either attorney precludes a finding
of cause and prejudice.” Sells v. Stephens, 536 F. App’x 483, 492 (5th Cir. 2013), cert. denied, 134
S. Ct. 1786 (2014). The Fifth Circuit recently employed this approach once again in Reed, 739 F.3d
at 774. The Fifth Circuit has also reiterated that a federal court is barred from reviewing a procedurally
defaulted claim unless a petitioner shows both cause and prejudice. Hernandez v. Stephens, 537 F.
App’x 531, 542 (5th Cir. 2013), cert. denied, 134 S. Ct. 1760 (2014). To show actual prejudice, a
petitioner “must establish not merely that the errors at a trial created a possibility of prejudice, but that
they worked to his actual and substantial disadvantage, infecting his entire trial with error of
constitutional dimensions.” Id. (citations omitted) (emphasis in original).
In the present case, trial counsel wanted to counter the evidence of Saldano’s misconduct in
prison with testimony from Dr. Peccora, who would have discussed Saldaño’s mental decline.
Counsel filed a motion regarding such evidence on October 21, 2004. A hearing was conducted on
November 5, 2004, in the middle of individual voir dire. The State claimed, and the trial court agreed,
32

that the defense could not present Dr. Peccora’s testimony without first having Saldaño examined by
a state psychiatric expert pursuant to Lagrone. At that time, trial counsel faced a dilemma. He had
a choice of deciding whether to place Dr. Peccora on the stand, which would require Saldaño to be
examined by a state psychiatrist, or forego placing Dr. Peccora on the stand. Based on the dilemma
posed by Lagrone, he chose to forego placing Dr. Peccora on the stand and not having Saldaño
examined. The choice he made was reasonable because of the potential damaging testimony that could
have been submitted by the State if Saldaño had been examined by a state psychiatrist. His decision
was within the scope of reasonable trial strategy that cannot be second-guessed. On November 15,
2004, after the State rested it’s case-in-chief, Saldaño’s attorneys reasonably renewed their motion and
asked the trial court to reconsider the decision regarding Lagrone. Counsel tried to limit the use of the
evidence that would be obtained in an examination by a state psychiatric expert, but his efforts did not
succeed. The trial court would not reverse itself and again observed that a Lagrone examination would
open up everything and anything about Saldaño’s mental state. Trial counsel acted reasonably in his
efforts to handle this matter. There was certainly no indication of incompetence. The facts of this case
do not give rise to an inference that the representation provided by Saldaño’s attorneys was deficient.
The Court observes that Lagrone presents a difficult dilemma for defenses attorneys. Faced
with the dilemma, defense attorneys regularly make the same choice as Saldaño’s attorneys, as noted
by the Fifth Circuit as follows:
That was a strategic decision. One of [Petitioner’s] attorneys stated to the trial court,
“Based on my experience in the past, there’s probably no way on God’s green earth
that we’re going to do anything to allow the State to examine our client with one of
their own experts. If that’s an indication of what our intent is, then so be it.”
Yowell v. Thaler, 442 F. App’x 100, 102 n.1 (5th Cir. 2011). See also Mays v. Director, TDCJ-CID,
No. 6:11-CV-135, 2013 WL 6677373, *13 (E.D. Tex. Dec. 18, 2013); Crutsinger v. Thaler, No. 4:07CV-703-Y, 2012 WL 369927, at *5 (N.D. Tex. Feb. 6, 2012); Galloway v. Quarterman, No. 3:0433

CV-0234-G, 2008 WL 5091748, at *10 (N.D. Tex. Dec. 3, 2008). The problem is compounded by
the requirement that a criminal defendant submit to a Lagrone psychiatric examination in order to
preserve it for appellate review. Hernandez v. State, 390 S.W.3d 310, 322 (Tex. Crim. App. 2012).
Nonetheless, as was noted in Yowell, a defense attorney’s choice in this type of situation is a strategic
decision, and Saldaño does not have a basis for a potentially successful ineffective assistance of
counsel claim based on his attorneys’ reasoned strategic decisions in this case regarding Lagrone.
Saldaño’s fifth ground for relief is procedurally barred. He has not shown cause and prejudice
or a fundamental miscarriage of justice in order to overcome the bar. The decisions set forth in
Martinez and Trevino do not help because his underlying claim of ineffective assistance of trial counsel
lacks any merit.
6.

Saldaño was denied effective assistance of counsel by trial counsel’s failure to
request a competency hearing.

7.

Saldaño’s punishment retrial denied him due process because it was conducted
while he was incompetent.

Grounds for relief six and seven concern whether Saldaño should have been afforded a
competency hearing. In ground number six, Saldaño alleges that his attorneys were ineffective for
failing to request a competency hearing. In ground number seven, he alleges that the trial court denied
him due process because the punishment retrial was conducted while he was incompetent. He opined
that the competency issue simmered throughout the trial. The record reveals that the trial court was
advised on the first day of testimony that Saldaño was masturbating in court, and the trial court made
references to bizarre incidents that had occurred during voir dire. Nonetheless, his attorneys did not
ask for a competency hearing, and the trial court failed to sua sponte order a competency hearing.
Saldaño submitted an affidavit from Dr. Robert E. Cantu, M.D.,8 who expressed the opinion that

8

Petitioner’s Exhibit J.

34

Saldaño was incompetent at the time of the 2004 retrial. Dr. Cantu added that he examined Saldaño
in June of 2006 and concluded that he was suffering from psychosis. It was noted that the frequency
of Saldaño’s inexplicable courtroom behavior led the prosecution to voice its concern on the fourth
day of testimony. Saldaño observes that Dr. Peccora stated in his affidavit that he suffered from
Schizoaffective Disorder. Saldaño stresses that it is axiomatic that a criminal defendant must be
mentally competent to stand trial. Drope v. Missouri, 420 U.S. 162, 171 (1975). He argues that there
was not any conceivable tactical reason for counsels’ decision not to request a competency hearing nor
any reason why the trial court failed to conduct a competency hearing.
The record reveals that the issue of Saldaño’s competency was fully addressed during both the
2004 punishment retrial and the state habeas proceedings. The issue was initially raised in court during
the individual questioning of prospective jurors. 5 RR 224. Trial counsel noted Saldaño’s bizarre
behavior and asked for a psychiatric examination out of an abundance of caution. Id. at 224-225. The
trial court agreed and observed that the issue would have to be developed if the examination revealed
that Saldaño was incompetent. Id. at 227. The trial court subsequently questioned the trial attorneys
about the psychiatric examination. 7 RR 106-108. During the course of the trial, Saldaño was
examined by two doctors a total of three times, and each time he was found to be competent. 7 RR
106-08; 27 RR 1; 31 RR 99; Harrison Affidavit at 1.
In addition to having Saldaño examined by doctors, trial counsel called two bailiffs on
November 11, 2004 to testify regarding their observations about Saldaño’s behavior outside of court.
Chief Bailiff Brian Burnett expressed the opinion that Saldaño acted normally outside of court and was
“just playing games.” 27 RR 7. Bailiff Eric Palmer Giles, a transport officer, testified that Saldaño
knew what was going on, that he was coherent and that he was competent. 27 RR 10-11. On

35

November 17, 2004, trial counsel raised the issue once again and informed the trial court that Dr. Kelly
Goodness found that he was competent. 31 RR 99.
During the state habeas proceedings, Rick Harrison, co-counsel for Saldaño, addressed this
issue in his affidavit as follows:
[T]here were a number of records and reports generated from the prison psychiatric
ward by various doctors who described Saldaño as having antisocial personality
disorder, being a manipulator, and faking symptoms to gain drugs. We had two
doctors examine Saldaño three different times, up until the trial began, and none would
term him insane or suffering from mental illness. In fact, they echoed the findings of
the prison doctors.
SHCR-03 at 1122. Prison records provided to trial counsel revealed that prison doctors found that
Saldaño had antisocial personality disorder and was “faking,” “drug seeking,” “feigning psychiatric
symptoms for secondary gain,” “malingering,” and engaging in “manipulative behavior.”
With respect to the claim that trial counsel was ineffective for failing to request a competency
hearing, the state habeas court’s findings included the following:
414.

The Court finds that during his trial [Saldaño’s] trial counsel had him
examined for competency by two doctors a total of three times, and each time
[Saldaño] was found competent. 7 RR 106-108; 27 RR 1; 31 RR 99; Harrison
Affidavit at 1.

415.

The Court finds that, toward the end of trial, [Saldaño’s] trial counsel had two
bailiffs testify that [Saldaño] was not incompetent but, based on their
observations of [Saldaño] outside the courtroom, [Saldaño] was simply acting
out in the courtroom. 27 RR 4-5, 7, 10-11.

416.

The Court finds that counsel’s discussions with [Saldaño] concerning his
courtroom appearance were met with understanding (3 RR 2-3; 4 RR 3-5), and
counsel was able to observe [Saldaño’s] engagement with the trial judge and
understanding of the legal process throughout trial. 2 RR 3-5; 7 RR 10; 14 RR
2-6 (discussions about the translator); 4 RR 201; 5 RR 133-35, 221; 10 RR
106; 11 RR 160; 15 RR 88; 20 RR 112; 22 RR 228 (interactions during voir
dire); 4 RR 203; 6 RR 121, 218; 7 RR106; 8 RR 165; 10 RR 132; 11RR 24143; 12 RR 251; 15 RR 91-92; 17 RR 92, 94; 18 RR 147; 19 RR 126; 20 RR
140-41; 22 RR 228; 22 RR 251-52; 24 RR 143; 27 RR 262; 30 RR 201 (endof-day discussions with the court); 13 RR 180-81; 27 RR 16-17 ([Saldaño’s]
prolonged apology).
36

417.

The Court finds that counsel had access to, and was aware of the contents of,
[Saldaño’s] prison records that are replete with notations about [Saldaño]
“faking” his mental illness, “malingering,” and engaging in “manipulative”
behavior for secondary gain. Writ Exhibit N; Appendix A to State’s Answer.

418.

The Court recognizes that trial counsel is not ineffective for failing to make
futile requests. See Chandler, 182 S.W.3d at 356.

419.

The Court finds that, before testimony began in the trial, [Saldaño’s] counsel
had obtained an expert opinion that [Saldaño] was competent to stand trial, and
counsel obtained the same opinion two more times throughout the trial. 7 RR
106-108; 27 RR 1; 31 RR 99; Harrison Affidavit at 1.

420.

The Court finds that, knowing that [Saldaño] was competent, it was wholly
reasonable for counsel not to request a competency hearing where they could
only prevail if they could prove that [Saldaño] was not competent.

421.

The Court finds that a request for a competency hearing at [Saldaño’s] resentencing trial would likely have been futile.

422.

The Court finds that counsel should not be required to request a hearing on an
issue that has already been determined adversely to the position they would
have to take at the hearing.

423.

The Court finds that trial counsel was not ineffective for failing to request a
competency hearing where they would not have prevailed. See Jackson v.
State, No. 05-04-00623-CR, 2005 WL 1022517, at *2 (Tex. App. - Dallas May
3, 2005, no pet.) (declining to find counsel ineffective for failing to file a
motion for a competency hearing where there was no evidence in the record
raising the issue of incompetency); Brown v. State, 129 S.W.3d 762, 767 (Tex.
App. - Houston [1st Dist.] 2004, no pet.) (claim of ineffective assistance of
counsel fails when no evidence in the record demonstrated the defendant was
incompetent or insane).

424.

The Court finds that the general record of [Saldaño’s] trial evidences that
[Saldaño] was competent to stand trial.

425.

The Court finds that [Saldaño] has not proved by a preponderance of the
evidence that he was incompetent to stand trial.

427.

The Court finds that trial counsel is not deficient for not being able to secure
an opinion from the experts that was contrary to their findings. See Dowthitt
v. Johnson, 230 F.3d 733, 745 n.10 (5th Cir. 2000) (noting counsel is not
required to continue searching for experts “until they find an expert willing to
provide more beneficial testimony on their behalf”).

37

428.

The Court finds that [Saldaño] has failed to meet his burden of proving by a
preponderance of the evidence that his trial counsel were deficient for failing
to request a competency hearing.

429.

The Court finds that [Saldaño] has failed to meet his burden of proving by a
preponderance of the evidence that he was harmed by trial counsel’s failure to
request a hearing, where he could not have prevailed.

430.

The Court finds that trial counsel were not deficient, and [Saldaño] was not
harmed, by counsel’s failure to request a hearing.

SHCR-04 at 1322-25.
The state habeas court also issued findings concerning Saldaño’s claim that he was denied due
process when he was tried while incompetent. As would be expected, many of the findings duplicated
the findings with respect to Saldaño’s ineffective assistance of counsel claim. The salient, nonrepetitive findings include the following:
261.

The Court finds that [Saldaño’s] trial counsel had [Saldaño] examined for
competency by two different doctors a total of three times. Harrison Affidavit
at 1.

262.

The Court finds that trial counsel contacted a psychiatrist the first week of
October 2004 to have [Saldaño] examined as soon as possible. 7 RR 108-108;
see also 15 RR 90 (on October 25, 2004 the court approved a bill for a doctor
counsel had hired).

263.

The Court finds that trial counsel made the trial court aware of this
examination. 7 RR 106-108; 15 RR 90.

264.

The Court finds that [Saldaño] was examined for competency the morning of
November 11, 2004 for a third time and was found competent. 27 RR 1; 31
RR 90.

265.

The Court finds that trial counsel made the trial court aware of this
examination. 27 RR 1; 31RR 99.

266.

The Court finds that each time [Saldaño] was examined for competency, the
doctors found him competent. 31 RR 99; Harrison Affidavit at 1 (neither
doctor “would term [Saldaño] insane or suffering from mental illness”).

38

267.

The Court finds, therefore, that the doctors who examined [Saldaño] for
competency “echoed the findings of the prison doctors.” Harrison Affidavit
at 1.

268.

The Court finds that the prison doctors found that [Saldaño] had an antisocial
personality disorder and was “faking,” “drug seeking,” “feigning psychiatric
symptoms for secondary gain,” “malingering,” and engaging in “manipulative
behavior.” Writ Exhibit M; Appendix A to State’s Answer.

270.

The Court finds that at no time prior to or during [Saldaño’s] trial did
[Saldaño’s] trial counsel assert that [Saldaño] did not have a sufficient present
ability to consult with his counsel with a reasonable degree of rational
understanding or a rational as well as factual understanding of the proceedings
against him.

274.

The Court finds that throughout his trial, [Saldaño] declined to assert that he
was incompetent to stand trial or to request a competency inquiry or hearing.

276.

The Court notes that at the hearing [on November 5, 2004] [Saldaño’s] counsel
informed the trial judge that they were not raising the issue of [Saldaño’]
competency: “we’re not arguing he’s not competent to stand trial; we’re only
arguing a significant decline in cognitive ability and emotional stability” (23
RR 6); “[w]e’re also not arguing competence either” (23 RR 13); “I also
wanted to make it clear that [defense psychiatrist Dr. Peccora] would not be
testifying that Victor Saldaño is psychotic today or incompetent to stand trial.”
23 RR 132-33.

277.

The Court finds that, two days before the trial ended, the trial judge noted on
the record that as of that date, neither [Saldaño], [Saldaño’s] counsel, nor any
other witness had given the judge anything that made him question whether
[Saldaño] was competent to stand trial. 29 RR 6.

278.

The Court finds that the trial judge’s statement is correct and accepts it as true.

279.

The Court finds that two days before the trial ended, the court agreed with the
State that [Saldaño] was competent:
I agree . . . that I have seven - now seven weeks that I’ve been in the
same courtroom with Mr. Saldaño on a nearly daily basis, that, other
than some behavior on his part which I don’t think was in his best
interest, and neither did his own attorney, he and I have had
conversations about what’s going on, and I haven’t had any belief
based on any of his responses that he was not understanding me and

39

communicating with me . . . long and short of it is, I don’t have any
reason to raise the question of his competency right now.
29 RR 7 (emphasis added).
299.

The Court finds that [Saldaño] was not incompetent but was simply acting out
in the courtroom.

302.

The Court finds that [Saldaño’s] behavior did not reflect incompetency but,
rather, a disregard for the authority of the court and the proceedings.

SHCR-04 at 1291-1297. The state habeas court went on to thoroughly discuss Texas law concerning
the issue of competency and the trial court’s obligations in assessing whether a criminal defendant is
incompetent to stand trial. It was particularly noted that “where a defendant has been examined and
found competent to stand trial, the trial court does not abuse its discretion in failing to conduct a
competency hearing.” Id. at 1305. The Texas Court of Criminal Appeals subsequently adopted all of
these findings. The only findings that were not adopted were those where the state habeas court found
that Saldaño forfeited his competency claim by failing to raise it on direct appeal, which were findings
310, 312, 313, 316, 317 and 318. Ex parte Saldaño, 2008 WL 4727540, at *1.
The legal analysis of the sixth and seventh grounds for relief should start with the proposition
noted by Saldaño that it is axiomatic that a criminal defendant must be mentally competent to stand
trial. Drope, 420 U.S. at 171. In federal cases, the test of incompetence “is whether a criminal
defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational
understanding - and whether he has a rational as well as factual understanding of the proceedings
against him.” Id. at 172 (internal quotation marks and citation omitted). Most recently, the Supreme
Court reiterated the basic principle that the criminal trial of an incompetent defendant violates due
process. Ryan v. Gonzales, 133 S. Ct. 696, 703 (2013). This basic principle is likewise contained in
Tex. Code Crim. Proc. Ann. art. 46B.003.

40

The Fifth Circuit has made it clear that a defense attorney’s failure to investigate a criminal
defendant’s competency to stand trial constitutes ineffective assistance of counsel, particularly if
counsel knew that the defendant had a history of mental problems. Bouchillon v. Collins, 907 F.2d
589, 597 (5th Cir. 1990). Moreover, trial “judges must depend to some extent on counsel to bring
[such] issues into focus.” Id. (citing Drope, 420 U.S. at 176-77). In the present case, Saldaño’s
attorneys were concerned about his competency due to his behavior. They appropriately raised the
issue with the trial court and obtained permission to have Saldaño examined. They sought to have
Saldaño examined out of an abundance of caution. Saldaño was examined by two doctors a total of
three times, and each time he was found to be competent to stand trial. The Fifth Circuit has opined
that “the Sixth Amendment does not require counsel to continue searching until they find an expert
willing to provide more beneficial testimony on their behalf.” Dowthitt, 230 F.3d at 745 n.10.
Saldaño’s attorneys fulfilled their duty to pursue the issue of competency when it appeared necessary.
Moreover, the findings by these two doctors were consistent with the conclusions expressed by prison
doctors. It is further noted that Saldaño’s condition was never in such a state that trial counsel felt
compelled to inform the trial court that Saldaño did not have a sufficient present ability to consult with
them with a reasonable degree of rational understanding or a rational as well as factual understanding
of the proceedings against him. Finally, in order to fully develop the record on this issue, Saldaño’s
attorneys went so far as to put on testimony from the bailiffs regarding his out of court behavior.
Saldaño’s trial attorneys were not deficient with respect to the issue of his competency. They fully
explored and developed this issue. Saldaño now argues that his attorneys should have filed a motion
for a competency hearing, but they were not ineffective for failing to request a competency hearing
where they could not have prevailed. Counsel was not required to make frivolous or futile motions.

41

Johnson, 306 F.3d at 255; Koch, 907 F.2d at 527. This ineffective assistance of counsel claim is
devoid of merit.
The ineffective assistance of counsel claim should be denied for the additional reason that
Saldaño has not shown, as required by 28 U.S.C. § 2254(d), that the state court findings resulted in
a decision that was contrary to, or involved an unreasonable application of, clearly established federal
law as determined by the Supreme Court of the United States, or resulted in a decision that was based
on an unreasonable determination of the facts in light of the evidence presented in the State court
proceedings.
Saldaño also presents his competency claim in terms of trial error. He argues that he was
denied due process because the trial was conducted while he was incompetent. In the state habeas
corpus proceedings, the claim was discussed in terms of whether the trial court should have sua sponte
conducted a competency hearing. On habeas, a petitioner may collaterally attack his conviction by
showing that “the facts are sufficient to positively, unequivocally and clearly generate a real,
substantial and legitimate doubt as to his mental competency at the time of trial.” Dunn v. Johnson,
162 F.3d 302, 306 (5th Cir. 1998) (internal quotations omitted), cert. denied, 526 U.S. 1092 (1999);
Carter v. Johnson, 131 F.3d 452, 460 (5th Cir. 1997), cert. denied, 523 U.S. 1099 (1998). The
threshold burden is “extremely heavy.” Johnson v. Estelle, 704 F.2d 232, 238 (5th Cir. 1983), cert.
denied, 465 U.S. 1009 (1984). A criminal defendant is entitled to a competency hearing if there is a
“bona fide doubt” as to his competence. Pate v. Robinson, 383 U.S. 375, 385 (1966); McInerney v.
Puckett, 919 F.2d 350, 351 (5th Cir. 1990) (Under Pate, a trial court should inquire into a criminal
defendant’s competency sua sponte if the evidence raises a bona fide doubt as to his competency.).
The legal question a reviewing court must ask is whether the trial judge received “information which,
objectively considered, should reasonably have raised a doubt about defendant’s competency and

42

alerted him to the possibility that the defendant could neither understand the proceedings or appreciate
their significance, nor rationally aid his attorney in his defense.” Lokos v. Capps, 625 F.2d 1258, 1261
(5th Cir. 1980) (internal citations omitted); see Medina v. California, 505 U.S. 437, 438 (1992) (The
key is whether the defendant had “the capacity to participate in his defense and understand the
proceedings against him.”). The Fifth Circuit has held that a trial court does not violate Pate if a
petitioner fails to raise a bona fide doubt as to his competency and, thus, does not hold a competency
hearing. Chenault v. Stynchcombe, 546 F.2d 1191, 1193 (5th Cir.), cert. denied, 434 U.S. 878 (1977).
In the present case, trial counsel raised the issue of Saldaño’s competence out of an abundance
of caution. The trial court, in turn, appropriately approved the request to have Saldaño examined and
placed Saldaño’s attorneys on notice that the issue may have to be developed further depending on the
findings of the doctors. Saldaño was examined by two doctors a total of three times, and each time
he was found to be competent to stand trial. The trial court also had access to prison records that
revealed that prison doctors similarly expressed the opinion that Saldaño simply had an antisocial
personality disorder and was “faking,’ “drug seeking,” “feigning psychiatric symptoms for secondary
gain,” “malingering,” and engaging in “manipulative behavior.” During the punishment retrial, the
trial court regularly made inquiries concerning whether Saldaño was competent. The trial court
questioned both trial counsel and Saldaño. Based on Saldaño’s responses to his questions, the trial
judge expressed the opinion that he had no reason to conclude that Saldaño was not understanding him
or unable to communicate with him. The trial judge expressed the opinion that there was no evidence
before him that made him question whether Saldaño was competent to stand trial. The record reveals
that the trial court complied with its obligation to inquire into Saldaño’s competency. The evidence
did not raise a bona fide doubt as to his competency. Moreover, Saldaño has not shown that the
evidence before the trial court positively, unequivocally and clearly generated a real, substantial and
43

legitimate doubt as to his mental competency at the time of trial. Consequently, the trial court was not
obligated to hold a competency hearing. The state habeas court reasonably found that Saldaño was not
incompetent and that he was simply acting out in the courtroom, which was the product of his
disregard of the authority of the court and the proceedings. Saldaño has not shown, as required by 28
U.S.C. § 2254(d), that the State court findings resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established federal law as determined by the Supreme Court
of the United States, or resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceedings. See Roberts v. Dretke, 381 F.3d
491, 498 (5th Cir. 2004), cert. denied, 544 U.S. 963 (2005). Saldaño has not shown that he is entitled
to relief on his sixth and seventh grounds for relief.
8.

As applied to Saldaño, the legislative failure to address the time at which a
defendant is to be examined for future dangerousness and the circumstances
under which his potential for future dangerousness must be viewed, makes the
future dangerousness requirement unconstitutionally vague.

In his eighth ground for relief, Saldaño argues that the statute that provides for the future
dangerous special issue is unconstitutionally vague as it applies to him. Texas law requires juries in
capital murder cases to answer special issues during the punishment phase of a trial, which will
determine whether the defendant will receive a death sentence or life imprisonment. Article 37.071
§ 2(b)(1) of the Texas Code of Criminal Procedure establishes that in order for the death penalty to be
imposed, the jury must find that “there is a probability that the defendant would commit criminal acts
of violence that would constitute a continuing threat to society.” This is the future dangerousness
special issue. The jury in the present case was charged in accordance with the statutory provision, and
the jury answered in the affirmative.

44

Saldaño argues that Article 37.071 § 2(b)(1) is unconstitutionally vague as applied to him. He
stressed that the statute did not address the period of time in which he should have been evaluated for
future dangerousness. He noted that this issue does not arise in a typical death penalty case. In his
case, however, his mental health deteriorated during the eight year period of time he spent on death
row. He asserts that he was a totally different person in 2004, as compared to 1996. In support of his
claim, he observes that the Supreme Court established that a state capital sentencing system must (1)
rationally narrow the class of death-eligible defendants; and (2) permit a jury to render a reasoned,
individualized sentencing determination based on a death-eligible defendant’s record, personal
characteristics, and the circumstances of his crime. Gregg v. Georgia, 428 U.S. 153 (1976) (joint
opinion of Stewart, Powell, and Stevens, JJ); Furman v. Georgia, 408 U.S. 238 (1972) (per curiam).
Saldaño argued that the “future dangerousness requirement is no longer capable of reasoned
application to [him] because it requires reference to his present condition.”
The Texas Court of Criminal Appeals rejected the claim on direct appeal. Saldaño, 232
S.W.3d at 91 (citing Jurek v. Texas, 428 U.S. 262, 274-76 (1976); Sells v. State, 121 S.W.3d 748,
767-68 (Tex. Crim. App. 2003); Murphy v. State, 112 S.W.3d 592, 606 (Tex. Crim. App. 2003)). The
Supreme Court subsequently denied his petition for a writ of certiorari.
In analyzing this ground for relief, the Court initially notes that the presentation of the claim
is internally inconsistent. At times, Saldaño argues that the statute is vague as to the period of time
in which he should have been evaluated for future dangerousness. At other times, he complains that
the application of the statute required reference to his present condition, in other words, as it was in
2004. In either case, the ground for relief lacks merit.
Saldaño’s assertion that Article 37.071 § 2(b)(1) is unconstitutionally vague as applied to him
ignores clearly established case law by both the Supreme Court and Fifth Circuit. The vagueness
45

concept used in capital cases is a term of art. The Supreme Court observed that a State’s capital
punishment “system could have standards so vague that they would fail adequately to channel the
sentencing decision patterns of juries with the result that a pattern of arbitrary and capricious
sentencing like that found unconstitutional in Furman could occur.” Gregg, 428 U.S. at 195 n.46.
States must take steps to make sure that jury instructions are not so vague in their application so as to
lead to arbitrary and capricious results. The special issues used in the Texas capital punishment
scheme have repeatedly been upheld by the Supreme Court despite allegations of vagueness. See
Jurek, 428 U.S. at 272; Franklin v. Lynaugh, 487 U.S. 164 (1988); Johnson v. Texas, 509 U.S. 350,
373 (1993). The Fifth Circuit has likewise rejected arguments that Texas’ future dangerousness special
issue is unconstitutionally vague. Scheanette v. Quarterman, 482 F.3d 815, 827-28 (5th Cir. 2007);
Turner, 481 F.3d at 299-300; Leal v. Dretke, 428 F.3d 543, 553 (5th Cir. 2005), cert. denied, 547 U.S.
1073 (2006). The Supreme Court observed that the issues posed in sentencing proceedings in Texas
are not vague since they have a “common-sense core of meaning.” Pulley v. Harris, 465 U.S. 37, 49
n.10 (1984); Milton v. Procunier, 744 F.2d 1091, 1095-96 (5th Cir. 1984), cert. denied, 471 U.S. 1030
(1985).
Saldaño’s claim that the future dangerousness special issue is vague as applied to him because
of his special circumstances is disingenuous. The statute is abundantly clear. It distinguishes between
evidence of a defendant’s conduct up until the time of the commission of an offense and his subsequent
conduct. Since Saldaño had been found guilty of capital murder, the jury was free “to consider a
myriad of factors to determine whether death is the appropriate punishment.” Tuilaepa v. California,
512 U.S. 967, 979 (1994) (citations omitted). The jury had “unbridled discretion.” Id. The jury was
entitled to consider all of the evidence available in evaluating Saldaño’s future dangerousness, both
aggravating and mitigating. Despite Saldaño’s claims to the contrary, the jury was perfectly capable
46

of employing a reasoned application of the statute to him. The thrust of Saldaño’s claim is that he did
not want the jury to be informed about his misconduct while confined in prison. He does not believe
that it was fair for the jury to consider this evidence because he allegedly spent “eight years wrongfully
incarcerated on death row,” particularly since the State confessed error. This line of argument is
inconsistent with Tuilaepa. The issue of whether it was fair for the jury to consider this evidence has
nothing to do with whether the statute is unconstitutionally vague. The statute is clear. Saldaño is
trying to create an artificial distinction where none exists. The claim lacks merit.
Finally, the Director correctly argued that relief is foreclosed by the anti-retroactivity doctrine
of Teague v. Lane, 489 U.S. 288, 316 (1989). See also Rowell v. Dretke, 398 F.3d 370, 377-78 (5th
Cir.), cert. denied, 546 U.S. 848 (2005). Shortly after the present petition was filed, the Fifth Circuit
cited Teague in rejecting yet another attack on the future dangerousness special issue as vague, saying
“[b]ecause no court has previously found the wording of Texas’s future dangerousness special issue
to be unconstitutionally vague, [Petitioner] is not entitled to relief.” Kerr v. Thaler, 384 F. App’x 400,
404 (5th Cir. 2010), cert. denied, 562 U.S. 1142 (2011). Teague likewise applies in this case. Saldaño
has not shown that he is entitled to relief based on his eighth ground for relief.
9.

Under evolving standards of decency, Saldaño’s death penalty trial and future
execution would violate the 8th and 14th Amendments to the United States
Constitution because of his mental illness.

The ninth ground for relief focuses on Saldaño’s argument that he should not be executed
because of mental illness. Alternatively, he argues that his death sentence should not be carried out
because he is incompetent. He once again refers to the evidence of his mental decline while confined
on death row. He correctly observes that the Supreme Court has created categorical exceptions from
execution: Atkins v. Virginia, 536 U.S. 304 (2002) (prohibits the execution of the mentally retarded);
Roper v. Simmons, 543 U.S. 551 (2005) (prohibits the execution of people who committed capital
47

offenses before their eighteenth birthday); Ford v. Wainwright, 477 U.S. 399, 409 (1986) (prohibits
the execution of the insane). He acknowledges that other than incompetency, he does not presently
fall within any categorical exemption from execution. He argues, however, that Eighth Amendment
jurisprudence in this area is rapidly evolving and that it should encompass mental illness.
Both issues were fully developed during the state habeas corpus proceedings. With respect to
the issue of whether mental illness renders a defendant ineligible for execution, the state habeas court
made the following finding:
201.

The Court recognizes that federal courts and other state courts have similarly
rejected the argument. See In re Neville, 440 F.3d 220, 221 (5th Cir. 2006)
(finding that Atkins did not exempt mentally ill inmates from execution); In re
Woods, 155 Fed. Appx. 132, 136 (5th Cir. 2005) (same); Haynes v.
Quarterman, No. H-05-3424, 2007 WL 268374, slip. op. at 8 (S.D. Tex. Jan.
25, 2007); State v. Johnson, 207 S.W.3d 24, 50-51 (Mo. 2006) (noting “both
federal and state courts have refused to extend Atkins to mental illness
situations”); State v. Hancock, 840 N.E.2d 1032, 1059-60 (Ohio 2006).

220.

The Court finds and concludes that [Saldaño’s] claim that he is categorically
immune from execution is without merit and should be denied.

SHCR-04 at 1278, 1281. The Texas Court of Criminal Appeals subsequently adopted the finding by
the state habeas court. Saldaño has not shown that, as required by 28 U.S.C. § 2254(d)(1), that the
state court findings resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established federal law as determined by the Supreme Court of the United
States. The Court would add that the Fifth Circuit’s more recent decisions have regularly rejected
claims that the mentally ill may not be executed. ShisInday v. Quarterman, 511 F.3d 514, 521 (5th
Cir. 2007), cert. denied, 555 U.S. 815 (2008); Turner v. Epps, 460 F. App’x. 322, 328 (5th Cir.),
cert. denied, 132 S. Ct. 1306 (2012); Ripkowski v. Thaler, 438 F. App’x 296, 303 (5th Cir. 2011),

48

cert. denied, 132 S. Ct. 1544 (2012). Relief is unavailable in light of clearly established case law
in this Circuit.
The second issue raised by the ground for relief is the claim that the State may not carry out
the execution because Saldaño is incompetent. The state habeas court recognized that incompetent
death row inmates may not be executed, but “Ford-based claims of incompetency to be executed
‘remain unripe at early stages of the proceedings.’” SHCR-04 at 1282 (citing Panetti v. Quarterman,
551 U.S. 930, 947 (2007)). The court went on to find that there was no reason to believe that
Saldaño’s execution date would be set any time in the near future; thus, his claim of incompetence
was premature. Id. Once again, the Texas Court of Criminal Appeals adopted the findings. Saldaño
has not shown that, as required by 28 U.S.C. § 2254(d)(1), that the state court findings resulted in
a decision that was contrary to, or involved an unreasonable application of, clearly established
federal law as determined by the Supreme Court of the United States. Indeed, federal case law
clearly supports the conclusion that Saldaño raised this issue prematurely. See Panetti, 551 U.S. at
947; Stewart v. Martinez-Villareal, 523 U.S. 637, 644-45 (1998); ShisInday, 511 F.3d at 521-22.
The issue of whether Saldaño is incompetent to be executed becomes ripe only after an execution
date is set, which has not occurred in this case, and then he must exhaust the issue in state court
before raising it in federal court. ShisInday, 511 F.3d at 521-22. This issue is not ripe for
consideration. The claim of mental incompetence should be dismissed without prejudice. Green
v. Thaler, 699 F.3d 404, 408 (5th Cir. 2012).

49

10.

Saldaño’s due process rights were violated by the trial court allowing the State
to present evidence which the defense did not have a meaningful opportunity to
rebut.

The tenth ground for relief relates to a statement Saldaño made to Officer Poindexter, a
transportation officer, during the course of the trial. Officer Poindexter reported that Saldaño told him
that he “killed three people in Oak Cliff.” As would be expected, Poindexter reported the statement.
The State, in turn, requested a hearing, outside of the jury’s presence, to give the defense notice of the
statement Saldaño allegedly made to Poindexter, in accordance with Tex. R. Evid. 404(b). The
defense objected to this testimony as irrelevant and argued that the prejudicial nature of the testimony
was outweighed by its probative value. Tex. R. Evid. 403. Defense counsel referred to the statement
as “babble.” Nonetheless, Poindexter was permitted to testify before the jury. Saldaño argues that “[a]
state violates a capital defendant’s right to due process under the fourteenth amendment when it uses
evidence at the sentencing phase of the trial which the defendant does not have a meaningful
opportunity to rebut.” Blackmon v. Scott, 22 F.3d 560, 566 (5th Cir. 1994) (citing Gardner v. Florida,
430 U.S. 349 (1977) (plurality)).
The Texas Court of Criminal Appeals fully addressed the issue on direct appeal as follows:
In point of error twenty-three, [Saldaño] again complains that “the trial court
erred in overruling [Saldaño’s] objection to oral statements made by [Saldaño] while
he was in custody.” In point of error twenty-four, [Saldaño] complains that “the trial
court erred when it permitted the State to present testimony of a confession by
[Saldaño] to prior murders as a prior bad act, since the State failed to name the alleged
victim of the crime, or indicate when or where it occurred, and left [Saldaño] with too
little time and information to respond.”
The record reflects that, as [Saldaño] was being transported back to the court
house from jail after a lunch break during the punishment hearing, [Saldaño]
spontaneously told a county detention officer (Poindexter) that he had “killed three
people in Oak Cliff.” [Saldaño] objected to the admission of this evidence on hearsay
grounds. The State responded that it was a “party opponent admission” and not
hearsay. The trial court overruled [Saldaño’s] objection. Poindexter provided the
following testimony before the jury.
50

Q. [STATE]: Now, on your way over back to the courtroom after lunch today,
did you have a conversation with [Saldaño]?
A. [POINDEXTER]: Yes, ma’am.
Q. And what was the nature of that conversation?
A. I was asking him from where about in Argentina he was, as we were
walking through the tunnel.
Q. And during the course of this conversation, did the—did [Saldaño] make
any statements that alarmed you?
A. Yes, ma’am. He stated kind of in a—we were talking about Argentina, and
then there was a pause, and out of nowhere he just kind of turned and looked
at me and said, You know I killed three people in Oak Cliff.
We decide that the trial court did not abuse its discretion to admit this evidence.
The trial court would not have abused its discretion to decide that the very fact that
[Saldaño] would make such a statement (without regard to its truthfulness) in the
course of his capital-sentencing proceeding would have some relevance to both special
issues.
Saldaño, 232 S.W.3d at 104.
The ground for relief focuses, in part, on Rule 403 of the Texas Rules of Evidence. Saldaño
argues that the prejudicial nature of the evidence was outweighed by its probative value. However,
federal habeas corpus relief ordinarily is unavailable when a petitioner challenges an evidentiary ruling.
The Fifth Circuit provided the following explanation:
Due process is implicated only for rulings “of such magnitude” or “so egregious” that
they “render the trial fundamentally unfair.” It offers no authority to federal courts to
review the mine run of evidentiary rulings of state trial courts. Relief will be warranted
only when the challenged evidence “played a crucial, critical, and highly significant
role in the trial.”
Gonzales v. Thaler, 643 F.3d 425, 430 (5th Cir. 2011).
In the present case, Saldaño’s statement was a peripheral matter. He was not being tried for
murders that may have been committed in Oak Cliff. The evidence was not being offered for the truth
51

of the matter being asserted. Instead, it was offered because he made such a statement, regardless of
whether he was speaking truthfully. The Texas Court of Criminal Appeals found that the statement
was admissible under these circumstances under Texas law, and the Director persuasively argued that
the court should defer to the Texas Court of Criminal Appeals’ determination of Texas law. Creel v.
Johnson, 162 F.3d 385, 395 (5th Cir. 1998), cert. denied, 526 U.S. 1148 (1999); Weeks v. Scott, 55
F.3d 1059, 1063 (5th Cir. 1995). For purposes of federal habeas proceedings, Saldaño has not shown
that the admission of the statement was improper or that the admission of the statement was so
egregious that it rendered the whole trial fundamentally unfair. Moreover, as a peripheral matter, it
did not play a crucial, critical and highly significant role in the trial.
The ground for relief also focuses on the Fifth Circuit’s decision in Blackmon. Saldaño
correctly notes that the Fifth Circuit held that there is a due process violation when the state uses
evidence during the sentencing phase of the trial “which the defendant does not have a meaningful
opportunity to rebut.” Blackmon, 22 F.3d at 566. The statement, however, must be considered in the
context in which it was made. Blackmon alleged that the State hid two witnesses and did not give him
adequate access to a third. The case was remanded for development of the facts and whether the
petitioner was prejudiced. Id. The facts of this case are entirely different. Saldaño made the statement
to Poindexter during the course of the trial. Poindexter reported Saldaño’s statement. The State then
gave notice to the defense team about the statement. The defense had access to both Saldaño and
Poindexter. There was no attempt to hide witnesses. Saldaño was not prejudiced by the State trying
to hide witnesses. Saldaño was not denied a meaningful opportunity to rebut the evidence. Blackmon
does not provide any basis for relief.
Finally, Saldaño argues that the use of a courtroom officer, Poindexter, as a witness was a
perfect example of testimony that would “encourage resolution of material issues on an inappropriate
52

basis.” Wilson v. State, 179 S.W.3d 240, 254 (Tex. App. - Texarkana 2005, no pet.). He notes that
calling a bailiff as a witness involves a delicate balancing of “the extent of the bailiff’s association with
the jury and the importance of the testimony.” Reed v. State, 974 S.W.2d 838, 840 (Tex. App. - San
Antonio 1998, pet. ref’d). In response, the Director appropriately noted that the Supreme Court found
that a defendant’s due process rights were subverted when a State’s key witnesses were bailiffs who
had continuous contact with the jury during a three day trial. Turner v. Louisiana, 379 U.S. 466, 473
(1965). Years later, the Supreme Court observed that its decision in Turner did not establish a rigid
per se rule requiring an automatic reversal when a State’s witness comes into contact with the jury.
Gonzales v. Beto, 405 U.S. 1052, 1054 (1972) (concurring opinion). Instead, to determine whether
a defendant’s due process rights were violated, a court must assess both the extent of the bailiff’s
association with the jury and the importance of his testimony. Id. In Reed, the court found that the
defendant was not denied due process because the officer in question performed “bailiff-like” duties
in a limited capacity and had minimal contact with the jury. Reed, 974 S.W.2d at 840. In the present
case, there is no evidence that Poindexter had any association with the jury; instead, his role was
limited to transporting Saldaño back and forth between the jail and courtroom. Furthermore,
Poindexter was not a key witness. Saldaño was not denied due process under these circumstances.
He is not entitled to federal habeas corpus relief on his tenth ground for relief.
11.

The trial court’s failure to allow evidence of the co-defendant’s life sentence as
mitigating evidence violated Saldaño’s constitutional rights.

In his eleventh ground for relief, Saldaño complains that he was not permitted to present
evidence that co-defendant Chavez received a life sentence. He noted that a sentencer in a capital case
must not be precluded from considering, “as a mitigating factor, any aspect of a defendant’s character
or record and any of the circumstances of the offense that the defendant proffers as a basis of a

53

sentence less than death.” Lockett, 438 U.S. at 604. The Supreme Court subsequently reiterated that
evidence, even if not “relate[d] specifically to the petitioner’s culpability for the crime he committed”
must be treated as relevant mitigating evidence if it serves “as a basis for a sentence less than death.”
Skipper v. South Carolina, 476 U.S. 1, 4-5 (1986) (citing Lockett, 438 U.S. at 604). Later still, the
Court specified that “States cannot limit the sentencer’s consideration of any relevant evidence that
could cause it to decline to impose the death penalty.” McCleskey v. Kemp, 481 U.S. 279, 306 (1987).
Saldaño argues that the case law supports his claim that he was entitled to submit evidence that his codefendant received a life sentence as mitigating evidence. See Parker v. Dugger, 498 U.S. 308, 314
(1991); Lankford v. Idaho, 500 U.S. 110 (1991); Bolender v. Singletary, 16 F.3d 1547, 1565 n.27
(11th Cir. 1994).
The case law, however, does not support Saldaño’s claim. In Lockett, the Supreme Court
added that “[n]othing in this opinion limits the traditional authority of a court to exclude, as irrelevant,
evidence not bearing on the defendant’s character, prior record, or the circumstances of his offense.”
438 U.S. at 604 n. 12. The Fifth Circuit has repeatedly held that evidence of a co-defendant’s lesser
sentence does not amount to constitutionally relevant mitigating evidence. Miniel v. Cockrell, 339
F.3d 331, 337 n.1 (5th Cir. 2003) (citing United States v. Ives, 984 F.2d 649, 650 (5th Cir. 1993));
Cordova v. Johnson, 157 F.3d 380, 383-84 (5th Cir. 1998); Brogdon v. Blackburn, 790 F.2d 1164,
1169 (5th Cir. 1986). The Director also appropriately pointed out that Saldaño’s reliance on Parker
is misplaced. The Supreme Court merely found that the Florida courts had not considered all of the
mitigating evidence in the record. Parker, 498 U.S. at 322-23. There was no requirement that the codefendant’s lesser sentence be considered.
On direct appeal in this case, Saldaño argued that the rule in Texas precluding the introduction
of such evidence was impliedly overruled by Tennard v. Dretke, 542 U.S. 274 (2004). In Tennard,
54

the Supreme Court reiterated that “a State cannot preclude the sentencer from considering ‘any relevant
mitigating evidence’ that the defendant proffers in support of a sentence less than death. . . . [V]irtually
no limits are placed on the relevant mitigating evidence a capital defendant may introduce concerning
his own circumstances.” Tennard, 542 U.S. at 285 (quoting Eddings v. Oklahoma, 455 U.S. 104, 114
(1982)). The Texas Court of Criminal Appeals appropriately observed that “these cases still require
that the proffered evidence relate to the defendant’s ‘own circumstances.’” Saldaño, 232 S.W.3d at 100
(emphasis added). The decision was in accordance with current case law. Neither Texas nor Fifth
Circuit case law entitles a defendant to introduce evidence of a co-defendant’s lesser sentence as
mitigating evidence. The eleventh ground for relief lacks merit.
12.

The Texas death penalty statute is unconstitutional because it allows a jury
unbridled discretion to determine who should live or die.

Saldaño argues in his twelfth ground for relief that the Texas death penalty statute under which
he was convicted is unconstitutional because it allows a jury unbridled discretion in determining who
should live or die. He opines that the evolution of the death penalty has come full circle because,
under the present Texas statute as applied to him, the jury has once again been given unfettered
discretion that both invites and permits arbitrary application of the ultimate penalty. Cf. Gregg v.
Georgia, 428 U.S. at 189.
Saldaño’s argument, however, has been repeatedly rejected by the Fifth Circuit. The Supreme
Court distinguished between two aspects of the capital sentencing decision; more specifically, the
eligibility decision and the selection decision, in Tuilaepa, 512 U.S. at 971-72. The Court has upheld
the constitutionality of Texas’ procedures for determining the existence of aggravating circumstances
to make eligibility decisions. See Jurek, 428 U.S. at 276. In making the selection decision, the jury
must be allowed to make “an individualized determination” by considering “relevant mitigating

55

evidence of the character and record of the defendant and the circumstances of the crime.” Tuilaepa,
512 U.S. at 972. A jury “may be given ‘unbridled discretion in determining whether the death penalty
should be imposed after it has found that the defendant is a member of the class made eligible for that
penalty.’” Id. at 979-80 (quoting Zant v. Stephens, 462 U.S. 862, 875 (1983)). Citing Tuilaepa, the
Fifth Circuit has regularly rejected complaints that juries in Texas have unbridled discretion to
determine who should live or die. See, e.g., Turner, 481 F.3d at 299; Woods v. Cockrell, 307 F.3d 353,
359 (5th Cir. 2002); Moore v. Johnson, 225 F.3d 495, 506-07 (5th Cir. 2000) (“Texas followed
Supreme Court instructions to the letter”), cert. denied, 532 U.S. 949 (2001). More recently, since
Saldaño filed his brief in this case, the Fifth Circuit rejected an identical claim raised by his current
attorney in Adams v. Thaler, 421 F. App’x 322, 337 (5th Cir.), cert. denied, 132 S. Ct. 399 (2011).
The ground for relief lacks merit.
13.

The Texas death penalty statute, which instructs the jury that ten of them must
agree in order to answer special issue no. 1 with a “no” answer, is
unconstitutional because it fails to inform jurors that the effect of the jury’s
failure to reach a unanimous verdict on any issue at the punishment phase would
result in a life sentence.

Saldaño next argues that the Texas capital punishment scheme is unconstitutional because it
fails to inform the jury about the effect of a non-unanimous verdict on the special sentencing issues.
He contends that the Eighth and Fourteenth Amendments require jurors to be instructed that a life
sentence is automatically imposed if the jury is unable to respond unanimously to the special issues.
Saldaño relies on the Supreme Court’s decisions in Mills v. Maryland, 486 U.S. 367 (1988), and
McKoy v. North Carolina, 494 U.S. 433 (1990). The Fifth Circuit, however, has repeatedly rejected
such arguments. See, e.g., Dreury v. Thaler, 647 F.3d 535, 542-43 (5th Cir. 2011), cert. denied, 132
S. Ct. 1550 (2012); Hughes v. Dretke, 412 F.3d 582, 594 (5th Cir. 2005), cert. denied, 546 U.S. 1177
(2006); Miller v. Johnson, 200 F.3d 274, 288-89 (5th Cir.), cert. denied, 531 U.S. 849 (2000). More
56

recently, since Saldaño filed his brief in this case, the Fifth Circuit rejected an identical claim raised
by his current attorney in Adams, 421 F. App’x. at 335. Relief on this claim is foreclosed by Fifth
Circuit precedent. The thirteenth ground for relief lacks merit.
14.

The State’s failure to provide meaningful appellate review of the sufficiency of
the evidence to support the jury’s verdict concerning mitigating evidence violates
Saldaño’s constitutional rights.

Saldaño next complains that the Texas Court of Criminal Appeals has rejected every
opportunity to review a challenge to the sufficiency of the evidence to support a negative answer to
the mitigation special issue. On direct review in this case, the Texas Court of Criminal Appeals
declined Saldaño’s “invitation to review” its past decisions on the issue. Saldaño, 232 S.W.3d 108-09.
Saldaño acknowledges that his argument was rejected by the Fifth Circuit in Rowell v. Dretke, 398
F.3d at 378. He states that he is raising the claim in order to preserve it in the event he is granted a
new sentencing hearing in order to present his mitigating evidence. The Court notes that the Fifth
Circuit has rejected the claim in several cases in addition to Rowell. See, e.g., Woods, 307 F.3d at 35960; Moore, 225 F.3d at 506-07. Moreover, the Fifth Circuit rejected the identical claim presented by
Saldaño’s current attorney in Adams, 421 F. App’x at 336-37. Relief on this claim is foreclosed by
Fifth Circuit precedent. The fourteenth ground for relief lacks merit.
15.

The cumulative effect of these constitutional violations denied Saldaño due
process of law, even if no separate infraction by itself rose to that magnitude.

Saldaño’s final ground for relief is a cumulative error claim.

He argues that the

constitutionality of a trial can be compromised by a series of events none of which individually
violated his constitutional rights. The ground for relief must be rejected for two reasons. First of all,
the claim is unexhausted and procedurally barred. Saldaño has not shown cause and prejudice or a
fundamental miscarriage of justice in order to overcome the procedural bar. Saldaño referenced the

57

Supreme Court’s decision in Trevino, but he failed to show that the standards announced in Martinez
and Trevino apply in this case. More specifically, he failed to show underlying claims of ineffective
assistance of counsel that are substantial and that his initial state habeas counsel was ineffective for
failing to present those claims in his first state habeas application.
The ground for relief must be rejected for the additional reason that the Fifth Circuit has
regularly rejected cumulative error claims while noting that federal habeas relief is available only for
cumulative errors that are of constitutional dimension. Coble v. Quarterman, 496 F.3d 430, 440 (5th
Cir. 2007); Livingston v. Johnson, 107 F.3d 297, 309 (5th Cir.), cert. denied, 522 U.S. 880 (1997);
Yohey v. Collins, 985 F.2d 222, 229 (5th Cir. 1993). The Fifth Circuit has emphasized that
“[m]eritless claims or claims that are not prejudicial cannot be cumulated, regardless of the total
number raised.” Westley v. Johnson, 83 F.3d 714, 726 (5th Cir. 1996) (citing Derden v. McNeel, 978
F.2d 1453, 1461 (5th Cir. 1992)), cert. denied, 519 U.S. 1094 (1997). Saldaño has not shown a
violation of his constitutional rights based on cumulative errors. He has not shown that he is entitled
to relief based on his final claim.
In conclusion, Saldaño has not shown that he is entitled to federal habeas corpus relief. The
petition for a writ of habeas corpus should be denied.
VI. CERTIFICATE OF APPEALABILITY
An appeal may not be taken to the court of appeals from a final order in a habeas corpus
proceeding “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C. §
2253(c)(1)(A). Although Saldaño has not yet filed a notice of appeal, the court may address whether
he would be entitled to a certificate of appealability. See Alexander v. Johnson, 211 F.3d 895, 898 (5th
Cir. 2000) (A district court may sua sponte rule on a certificate of appealability because “the district
court that denies a petitioner relief is in the best position to determine whether the petitioner has made
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a substantial showing of a denial of a constitutional right on the issues before the court. Further
briefing and argument on the very issues the court has just ruled on would be repetitious.”).
A certificate of appealability may issue only if a petitioner has made a substantial showing of
the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained the
requirement associated with a “substantial showing of the denial of a constitutional right” in Slack v.
McDaniel, 529 U.S. 473, 484 (2000). In cases where a district court rejected a petitioner’s
constitutional claims on the merits, “the petitioner must demonstrate that reasonable jurists would find
the district court’s assessment of the constitutional claims debatable or wrong.” Id.; Henry v. Cockrell,
327 F.3d 429, 431 (5th Cir. 2003). “When a district court denies a habeas petition on procedural
grounds without reaching the petitioner’s underlying constitutional claim, a COA should issue when
the petitioner shows, 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.” Id.
In this case, reasonable jurists could not debate the denial of Saldaño’s § 2254 petition on
substantive or procedural grounds, nor find that the issues presented are adequate to deserve
encouragement to proceed. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack, 529 U.S.
at 484). Accordingly, the court finds that Saldaño is not entitled to a certificate of appealability as to
his claims. It is accordingly
ORDERED that the petition for a writ of habeas corpus is DENIED and the case is
DISMISSED with prejudice. It is further
ORDERED that Saldaño’s claim that he is presently incompetent and may not be executed is
premature and DISMISSED without prejudice. It is further

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.

ORDERED that a certificate of appealability is DENIED. It is finally
ORDERED that all motions not previously ruled on are DENIED.
SIGNED this 18th day of July, 2016.

___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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