Mendoza v. Quarterman et al

Filing 98

MEMORANDUM OPINION and ORDER OF DISMISSAL. It is accordinglyORDERED that the petition for a writ of habeas corpus is DENIED and the case is DISMISSED with 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 District Judge Robert W. Schroeder, III on 04/23/19. (lfs, )

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

MOISES SANDOVAL MENDOZA,
Petitioner,
v.
DIRECTOR, TDCJ-CID,
Respondent.

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CIVIL ACTION NO. 5:09-cv-86

MEMORANDUM OPINION AND
ORDER OF DISMISSAL
Petitioner Moises Sandoval Mendoza (“Mendoza”), a death row 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. He is challenging his capital murder conviction and death sentence
imposed by the 401st Judicial District Court of Collin County, Texas, in Cause Number 40180728-04, in a case styled The State of Texas vs. Moises Mendoza. For reasons set forth below,
the Court finds that the petition should be denied.
I. PROCEDURAL HISTORY OF THE CASE
Mendoza was convicted and sentenced to death for the capital murder of Rachel Tolleson,
who was killed during the course of an attempted burglary, kidnapping and aggravated sexual
assault. Based on the jury’s answers to the special issues set forth in the Texas Code of Criminal
Procedure Article 37.071, the trial court sentenced Mendoza to death on June 29, 2005. The
Texas Court of Criminal Appeals affirmed the conviction. Mendoza v. State, No. AP-75213, 2008
WL 4803471 (Tex. Crim. App. Nov. 5, 2008). The Supreme Court denied his petition for a writ
of certiorari. Mendoza v. Texas, 556 U.S. 1272 (2009).

Following direct appeal, Lydia Brandt was appointed to represent Mendoza for purposes
of state habeas corpus proceedings. Brandt filed a habeas petition raising seven claims, including
five ineffective assistance of counsel claims.

The trial court issued findings of fact and

conclusions of law without conducting an evidentiary hearing. The trial court recommended that
relief be denied. The Texas Court of Criminal Appeals denied the application based on the
findings and conclusions of the trial court and its own review. Ex parte Mendoza, No. WR70211-01, 2009 WL 1617814 (Tex Crim. App. June 10, 2009).
Brandt was subsequently appointed to represent Mendoza in the present habeas corpus
proceedings. A petition for a writ of habeas corpus was timely filed on June 2, 2010 (Docket No.
6). An amended petition was filed on January 5, 2011 (Docket No. 23). Mendoza raised the
same seven claims that he presented in the state habeas corpus proceedings. The petition was
denied. Mendoza v. Thaler, No. 5:09cv86, 2012 WL 12817023 (E.D. Tex. Sept. 28, 2012). A
certificate of appealability was granted on four of the claims.
Mendoza timely appealed to the United States Court of Appeals for the Fifth Circuit, which
stayed the proceedings and remanded the case, in part, solely to appoint supplemental counsel and
to consider in the first instance whether he can establish cause for the procedural default of any
ineffective assistance of trial counsel claims pursuant to the Supreme Court’s recent decisions in
Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 569 U.S. ___, 133 S. Ct. 1911 (2013),
that he may raise, and if so, whether those claims merit relief. Mendoza v. Stephens, 783 F.3d
203, 203-04 (5th Cir. 2015). The instruction to appoint supplemental counsel was the product of
the Supreme Court’s decision in Christeson v. Roper, 574 U.S. ___, 135 S. Ct. 891 (2015).

Jeff Haas was appointed as supplemental counsel (Docket No. 76) on May 7, 2015.
Pursuant to an order of the Court, Mendoza filed an amended petition for a writ of habeas corpus
(Docket No. 86) on November 4, 2016. The State filed an answer (Docket No. 89) on April 3,
2017. Mendoza filed a response (Docket No. 94) on July 13, 2017.
II. FACTUAL BACKGROUND OF THE CASE
The Texas Court of Criminal Appeals discussed the factual background of the case as
follows:
Sometime after 9:00 p.m. on Wednesday, March 17, 2004, Rachelle Tolleson and
her mother Pam O’Neil went to the store to purchase formula and diapers for
Tolleson’s five-month-old daughter, Avery. Tolleson and Avery visited at the
O’Neil home for a short time after returning from the store, but Tolleson did not
feel well, had taken medication for a sinus headache, and wanted to be in her own
home. Around 10:00 p.m., Tolleson phoned the O’Neils to let them know that she
and Avery had arrived home.
Around the same time that evening, Efren Gamez, [Mendoza], and several friends
were having a party. Gamez, [Mendoza], and two young women had purchased
two thirty-packs of beer and two forty-ounce cans of beer earlier in the evening.
At some point, the women left the party and later called to let Gamez and
[Mendoza] know that they were not returning. [Mendoza] became angry, and as
he drank more beer, he became more belligerent. Eventually, [Mendoza] said
something to two other girls at the party that scared them. [Mendoza] told Gamez
that he spoke to the girls in that manner “because he could.” [Mendoza] left the
party and returned several times, finally leaving for the last time between midnight
and 1:00 a.m.
The following morning, O’Neil went to Tolleson’s home as she often did.
Although her car was parked in the driveway, Tolleson was not there. A note from
the landlord was taped to the screen door, but the wooden back door stood wide
open. O’Neil entered the house and noticed that a pillow had been left on the floor
between the kitchen and the bedroom. The bedroom was a mess. Papers were
strewn across the floor, the night stand was pulled away from the wall, the mattress
and box spring were askew, and the headboard was broken and lying against the
bed. Avery was on the bed, cold, wet, and alone in the house.
Alarmed, O’Neil collected Avery and called her husband, who contacted the police.
Officer Scott Collins of the Farmersville Police Department responded. Collins

confirmed O’Neil's description of the bedroom—things were thrown everywhere
and furniture was out of place. To Collins, it looked as though there had been a
fight, or a tornado, in the bedroom. The rest of the house was orderly, and there
were no signs of a forced entry.
Farmersville police began interviewing potential witnesses that day. They learned
that, on the Friday before her disappearance, Tolleson hosted a party for about
fifteen people, including [Mendoza]. During the party, Tolleson spoke with
[Mendoza] a few times but told her best friend Megan Kennedy that she wasn’t
interested in [Mendoza] in “that way.”
Police also learned that, on the Saturday before Tolleson’s disappearance,
Kennedy’s boyfriend Tim Holland returned to Tolleson’s home with [Mendoza]
and Cody Wiltbanks to retrieve his musical instruments, but Tolleson wasn’t home,
and the doors were locked. While Holland and Wiltbanks went around the house
looking for a way in, appellant managed to open the locked back door. After
learning this, Collins interviewed [Mendoza], who told Collins that he had last seen
Tolleson at the party. Collins noted that [Mendoza] could not sit still and seemed
very nervous.
Search parties were organized to look for Tolleson but were unsuccessful. Six
days after Tolleson disappeared, James Powell was hunting for arrowheads near
Brushy Creek, east of Farmersville. Walking along the creek, he came across a
body that had been burned and was lying face down. Through the use of dental
records, the body was eventually identified as Tolleson’s.
Jerry Farmer, an FBI evidence technician who was one of the first on the scene,
noted that tall vegetation had been piled on top of Tolleson’s body in an attempt to
cover it. Her body was badly burned and had begun to decompose. Fly eggs and
maggot activity around her head and neck indicated that she had been there for at
least two days. Her skin was charred black in places and seared yellow in others
where her flesh had split apart. Most of her hair had been burned away. Scraps
of burned clothing clung to her upper torso, but no clothing was found below her
waist.
An orange rope was tied around Tolleson’s right ankle, and two grommets from a
tarp were lying on the back of her left leg and head. Burnt pieces of tarp and skin
were found on a path leading to Tolleson’s body, indicating that she had been
dragged or carried to that spot. A short distance from where the body was
discovered, steps led to a dugout under a tall tree where investigators found
evidence that something had been burned. Evidence technicians found ashes,
firewood, a clump of hair, pieces of tarp and skin, and orange rope like that found
tied around Tolleson’s ankle.

Dr. William Rohr, the medical examiner, testified that Tolleson had sustained a
five-inch diameter bruise on her left knee, a smaller bruise on the front of her left
thigh, bruises on either side of her tongue, a large amount of hemorrhage deep in
her left shoulder, and several bruises on her scalp ranging in diameter from three
quarters of an inch to three inches. A deep wound, consistent with injury from a
knife, penetrated her neck all the way to her spinal column, and her body had been
burned post-mortem. Rohr determined that Tolleson’s death was consistent with
strangulation or another form of asphyxiation.
After further interviews with potential witnesses, police obtained an arrest warrant
for [Mendoza]. Once in custody, [Mendoza] told police that, late Wednesday
evening, he had driven by Tolleson’s house and had seen a light on. He backed
his truck into the driveway and let himself into the house through the back door
without knocking. According to [Mendoza], Tolleson left with him to get a pack
of cigarettes. [Mendoza] drove “for a little” and then “for no reason” started to
choke Tolleson. Tolleson passed out, and [Mendoza] drove to a field behind his
home, where he had sexual intercourse with Tolleson and “choked her again.”
[Mendoza] then dragged Tolleson out of the truck and into the field, where he
choked her until he thought she was dead. To “make sure,” he “poked her throat”
with a knife. [Mendoza] left Tolleson’s body in the field until Monday, after he
was first interviewed by police. Scared that Tolleson’s body would be found and
tied to him, [Mendoza] moved the body to a remote area and burned it, ultimately
dragging it to where it was found.
Mendoza, 2008 WL 4803471, at *1-2.
III. SUPPLEMENTAL GROUNDS FOR RELIEF
Mendoza brings the following supplemental grounds for relief:
1.

Mendoza alleges, pursuant to Martinez, that trial counsel rendered ineffective
assistance of counsel in violation of the Sixth Amendment to the United States
Constitution by presenting the testimony of Dr. Mark Vigen during the punishment
phase of the trial.

2.

Mendoza alleges that initial post-conviction counsel, pursuant to Martinez,
rendered ineffective assistance of counsel for failing to raise the issue of trial
counsel’s ineffectiveness by presenting the testimony of Dr. Mark Vigen.

3.

Mendoza claims that the State of Texas used potentially false testimony at the
punishment stage of the trial in violation of the Due Process Clause of the
Fourteenth Amendment to the United States Constitution and trial counsel was
ineffective in violation of the Sixth Amendment of the United States Constitution
for failing to discover the State’s use of false evidence.

4.

Mendoza alleges, pursuant to Martinez, that trial counsel rendered ineffective
assistance of counsel in violation of the Sixth Amendment to the United States
Constitution by failing to interview Melvin Johnson and presenting his testimony
during the trial.

5.

Mendoza alleges, pursuant to Martinez, that post-conviction counsel rendered
ineffective assistance of counsel in violation of the Sixth Amendment to the United
States Constitution by failing to interview Melvin Johnson and by consequently
failing to raise the ineffective assistance of trial counsel on collateral review by trial
counsel’s failure to interview, investigate and present Melvin Johnson’s testimony
at trial or discover the use of the State’s false evidence.
IV. STANDARD OF REVIEW

The resolution of the amended petition concerns complex procedural issues involving
exhaustion of state remedies, procedural defaults and whether Mendoza can overcome the
procedural default via Martinez and Trevino. The analysis of Mendoza’s claims should begin
with a discussion of the exhaustion requirement. State prisoners bringing petitions for a writ of
habeas corpus are required to exhaust their state remedies before proceeding to federal court unless
“there is an absence of available State corrective process” or “circumstances exist that render such
process ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1). In order to
exhaust properly, a state prisoner must “fairly present” all of his claims to the state court. Picard
v. Connor, 404 U.S. 270, 275 (1971). In Texas, all claims must be presented to and ruled upon
the merits by the Texas Court of Criminal Appeals. Richardson v. Procunier, 762 F.2d 429, 432
(5th Cir. 1985). When a petition includes claims that have been exhausted along with claims that
have not been exhausted, it is called a “mixed petition,” and historically federal courts in Texas
have dismissed the entire petition for failure to exhaust. See, e.g., Galtieri v. Wainwright, 582
F.2d 348, 355 (5th Cir. 1978) (en banc).

The exhaustion requirement, however, was profoundly affected by the procedural default
doctrine that was announced by the Supreme Court in Coleman v. Thompson, 501 U.S. 722 (1991).
The Court explained the doctrine as follows:
In all cases in which a state prisoner has defaulted his federal claims in state court
pursuant to an independent and adequate state procedural rule, federal habeas
review of the claims is barred unless the prisoner can demonstrate cause for the
default and actual prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result in a fundamental
miscarriage of justice.
Id. at 750. As a result of Coleman, unexhausted claims in a mixed petition are ordinarily
dismissed as procedurally barred. Fearance v. Scott, 56 F.3d 633, 642 (5th Cir.), cert. denied,
515 U.S. 1153 (1995). See also Finley v. Johnson, 243 F.3d 215, 220 (5th Cir. 2001). Such
unexhausted claims are procedurally barred because if a petitioner attempted to exhaust them in
state court, they would be barred by Texas abuse-of-the-writ rules. Fearance, 56 F.3d at 642.
The procedural bar may be overcome by demonstrating either cause and prejudice for the default
or that a fundamental miscarriage of justice would result from the court’s refusal to consider the
claim. Id. (citing Coleman, 501 U.S. at 750-51). Dismissals pursuant to abuse of writ principles
have regularly been upheld as a valid state procedural bar foreclosing federal habeas review. 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).
Mendoza’s supplemental claims are unexhausted. Until just recently, the supplemental
claims would have undoubtedly been dismissed as procedurally barred. The Supreme Court,
however, opened the door slightly for a showing of cause and prejudice to excuse the default in
Martinez and Trevino. 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.” 566 U.S. at 8 (citing Coleman,
501 U.S. at 755). 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 17.
The Supreme Court extended Martinez to Texas in Trevino. Although Texas does not
preclude appellants from raising ineffective assistance of counsel claims on direct appeal, the
Court held 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 subsequently 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 reaffirmed this basic approach in Reed v.
Stephens, 739 F.3d 753, 774 (5th Cir.), cert. denied, 135 S. Ct. 435 (2014). 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 actual 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 his 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).
The standard for evaluating ineffective assistance of counsel claims was established by the
Supreme Court in Strickland v. Washington, 466 U.S. 668 (1994). Strickland provides a twopronged standard, and a petitioner bears the burden of proving both prongs. 466 U.S. at 687.
Under the first prong, he must show that counsel’s performance was deficient. Id. 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. 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
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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 Strickland standard applies to ineffective assistance of
counsel claims in the context of Martinez and Trevino. See Martinez, 566 U.S. at 14.
V. DISCUSSION AND ANALYSIS
1.

Mendoza alleges, pursuant to Martinez, that trial counsel rendered ineffective
assistance of counsel in violation of the Sixth Amendment to the United States
Constitution by presenting the testimony of Dr. Mark Vigen during the
punishment phase of the trial.

2.

Mendoza alleges that initial post-conviction counsel, pursuant to Martinez,
rendered ineffective assistance of counsel for failing to raise the issue of trial
counsel’s ineffectiveness by presenting the testimony of Dr. Mark Vigen.

The first two supplemental grounds for relief are related. Mendoza initially argues that
trial counsel was ineffective for presenting the testimony of Dr. Mark Vigen. He further argues
that initial post-conviction counsel, Lydia Brandt, was ineffective for failing to raise this issue on
collateral review.
Mendoza notes that Dr. Vigen was called as an expert witness for the defense. A hearing
was conducted before he was permitted to testify before the jury. Dr. Vigen testified that he had
conducted an investigation that included interviews with Mendoza. He had prepared a report
from his interviews. The report was turned over to the State. The trial court overruled the State’s
objections to Dr. Vigen and permitted him to testify before the jury.
Dr. Vigen testified before the jury that he had formed opinions about Mendoza. In
forming his opinions, he had spent thirteen hours interviewing Mr. Mendoza. He had developed
a total of six opinions from his interviews. His first opinion was that Mendoza “was an immature,
psychologically under-developed adolescent-like man who has no internal sense of himself. He
10

has no inner -- inner self, no clear inner identity that I can detect.” 24 RR 117-18. 1 His second
opinion was that Mendoza came “from a psychologically dysfunctional family.” 24 RR 121.
Third, that Mendoza’s “behavior changed radically for the worse when he began smoking
marijuana and drinking. He told me that that occurred at senior camp-out, but’s it’s probably
earlier than that.” 24 RR 123. Dr. Vigen’s fourth opinion was that Mendoza’s “new friends . . .
lived a -- sort of depraved and disrespectful, aggressive and drug and alcohol lifestyle in which -what I call empty sexuality was involved.” 24 RR 126. His fifth opinion was “that the Texas
Department of Criminal Justice has the expertise, has the capability to house and incarcerate
[Mendoza] in such a manner that he will be a low or minimum risk for future violence in prison.”
24 RR 127. Finally, he thought that Mendoza had the potential to develop a sense of self, and a
potential for rehabilitation and spiritual conversion in prison. 24 RR 129-30.
Mendoza complains that Dr. Vigen’s testimony “opened the door” for the State to crossexamine him and to present evidence that Mendoza had no sense of self, has superficial remorse,
is impulsive with a violent temper that cannot be controlled, is violent toward his family and others,
is a clever thief and liar, and takes pride in out-smarting guards. He goes on to complain about
Dr. Mendoza’s testimony that he began engaging in this behavior at a young age. Evidence was
also presented that Mendoza had bizarre fantasies and was an extremely dangerous person.
Mendoza further complains that the State was able to obtain a copy of the notes that Dr.
Vigen recorded during his interviews. He asserts that the information contained in the report

1

“RR” refers to the reporter’s record of the transcribed testimony during the trial, preceded by the volume number and
followed by the page number. “CR” refers to the clerk’s record on direct appeal, preceded by the volume number
and followed by the page number. “SHCR” refers to the state habeas clerk’s record, preceded by the volume number
and followed by the page number.

11

would not have been available to the State absent Dr. Vigen’s testimony. The notes contained
information that was unknown to the State and would not have been proffered as evidence absent
Dr. Vigen’s testimony. The information includes reference to Mendoza’s delinquency during his
early years, instances of theft from both family members and as a manager of a football team.
There was evidence of his violence toward his mother and sister at a young age. In particular, the
jury was able to hear about Mendoza’s fantasy of confining people in a small room where they are
sensory deprived and tortured.
Mendoza argues that the only possible benefit provided by Dr. Vigen’s testimony was his
opinion that Mendoza could arguably grow spiritually and would likely not be a future danger.
He argues that this potential beneficial testimony was gutted by the State during crossexamination. He adds that any credibility that Dr. Vigen had was immediately erased when the
State was allowed to question him regarding the fact that he had never testified on behalf of the
State in a death penalty case and in various instances of particularly heinous murders. It was
noted that the State elicited evidence during cross-examination that Dr. Vigen believed that
Mendoza was a very dangerous person. Moreover, he had no personal knowledge of the Texas
prison system and so his opinion that Mendoza would not be a “future danger” was based only on
pure speculation with no basis in fact.
The State noted, in response, that trial counsel explained his mitigation strategy in an
affidavit submitted during the state habeas corpus proceedings. A review of counsel’s affidavit
reveals that counsel gave a great deal of thought in developing a strategy focusing on the testimony
of Dr. Vigen. Counsel explained his strategy as follows:
The defense team made all proper requests for appointment of experts to help
develop issues that were important in Mr. Mendoza’s defense. Mr. Mendoza was
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interviewed about his background and facts of the case. Mr. Vince Gonzalez was
appointed as a mitigation expert and the defense team was satisfied with his
credentials. Mr. Gonzalez built a good relationship with the defendant and with
his family. Mr. Gonzalez, in my presence, constantly reminded the entire family
of what information was necessary in order to develop a mitigation case.
Furthermore, Mr. Gonzalez found information (such as the father’s suicide attempts
and Mr. Mendoza’s possible sexual abuse by an older cousin), which the family
was unwilling to voluntarily disclose. Dr. Vigen was brought onto the defense
team because of his past work in prisons and because we decided he would come
across well as a “testifying witness” in the case. The defense team was familiar
with his abilities and performance on other Capital cases. Dr. Cunningham and
Mr. Woods were brought on the team so that we could funnel all their expertise
through Dr. Vigen. This strategy was discussed and explained to Moises
Mendoza. The Defense team decided early on that we would employ Dr. Vigen
as the voice of these experts since he had/could create a great rapport with juries.
The defense team, based on negative responses by potential juror questionnaires
about defense experts, had decided that we wanted to present our defense through
Dr. Vigen because the law allows an expert to rely on what other experts provide
to them. Dr. Vigen had the benefit of all the information gathered by all our
experts.
***
Writ counsel has mischaracterized our punishment argument. Our strategy based
on an in-depth investigation of Mr. Mendoza’s background, was that he came from
a strict family. That Mr. Mendoza’s formative years were affected by his father’s
absence (due to depression and suicide attempts). That the father’s inability to be
a parent to his son caused Mr. Mendoza to find a destructive crowd that accepted
him. This new group of friends indulged in depraved behavior, and this became
his new value system (unlike his brothers and sisters). That this new value system
led him to where he is today, but that this could be controlled in prison and
eventually lead to some redemption in his life. Also an underlying theme was that
the jury should spare the defendant’s life for the sake of his family.
All strategies and developments had to be weighed against the credible evidence
that existed and by the facts relayed to us by Mr. Mendoza.
4 SHCR 1469-71.
Counsel subsequently summed up his strategy as follows:
With all the roles defined we developed and presented to the jury our strategized
mitigation as an explanation for his conduct, not an excuse. His family, the
dysfunction that followed as to Mr. Mendoza when his father became a shell of his
former self, and the value system he took on with his new set of friends.
13

Dr. Vigen’s dual role did not provide the prosecution with any information it did
not already know about and were prepared to present in rebuttal. We had decided
that it was better that they hear it explained by our expert than the state’s witnesses.
Also, it gave Dr. Vigen a more honest position in front of the jury when it could
explain the bad with the good.
4 SHCR 1474.
In evaluating the first supplemental ground for relief concerning whether trial counsel was
ineffective for calling Dr. Vigen as an expert witness during the punishment phase of the trial, the
Court notes that the case law is abundantly clear that “in the context of 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)), cert. denied,
537 U.S. 1104 (2003). See also Woods v. Thaler, 399 F. App’x 884, 891 (5th Cir. 2010), cert.
denied, 563 U.S. 991 (2011). “[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.” Wiggins v. Smith,
539 U.S. 510, 524 (2003) (citing ABA Guidelines for the Appointment and Performance of
Counsel in Death Penalty Cases § 11.8.6, at 133 (1989)). The Supreme Court stressed in Wiggins
that the “investigation into mitigating evidence should comprise efforts to discover all reasonably
available mitigating evidence.” Id. (emphasis in original). The record in the present case reveals
that counsel employed a number of experts, including Dr. Vigen, in order to comply with the duty
to discover all reasonably available mitigating evidence.
The decision concerning which evidence and witnesses to present to a jury in mitigation is
a matter of trial strategy. The Supreme Court explained in Strickland that “strategic choices made
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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.” See 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 Strickland, the Fifth Circuit 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). Habeas corpus relief is unavailable if a
petitioner fails to overcome the presumption that counsel made sound strategic decisions. Del
Toro v. Quarterman, 498 F.3d 486, 491 (5th Cir. 2007), cert. denied, 552 U.S. 1245 (2008).
In the present case, counsel carefully considered and prepared the strategy that would be
used in presenting the case in mitigation. In particular, the decision was made to “employ Dr.
Vigen as the voice of these experts since he had/could create a great rapport with juries.” 4 SHCR
1470. The Court notes that Dr. Vigen has regularly been employed as an expert witness in death
penalty cases. See, e.g., Robertson v. Davis, No. 3:13-CV-0728-G, 2017 WL 1178243, at *6 (N.D.
Tex. March 30, 2017); Murphy v. Davis, No. 3:09-cv-1368-L-BN, 2016 WL 8652347, at *20-21,
23 (N.D. Tex. Nov. 29, 2016); Cortez v. Director, TDCJ-CID, No. 4:13cv83, 2016 WL 1228780,
at *26-27 (E.D. Tex. March 29, 2016); Bess v. State, No. AP-76377, 2013 WL 827479, at *33
(Tex. Crim. App. March 6, 2013); Lizcano v. State, No. AP-75,879, 2010 WL 1817772, at *30
(Tex. Crim. App. May 5, 2010). Indeed, Dr. Vigen testified in the present case that he had
testified in approximately fifty capital murder cases and worked on over a hundred cases. 24 RR
134. Dr. Vigen has regularly testified about capital offenders being a low risk for violent behavior
15

in prison. See, e.g., Cortez, 2016 WL 1228780, at *27; Lizcano, 2010 WL 1817772, at *30. As
such, counsel’s decision to call Dr. Vigen as an expert witness in the present case was consistent
with similar decisions by other defense attorneys in capital murder cases, and counsel’s
representation in calling Dr. Vigen as an expert witness cannot be characterized as falling “‘below
an objective standard of reasonableness’ as measured by ‘prevailing professional norms.’”
Rhoades v. Davis, 852 F.3d 422, 431-32 (5th Cir. 2017) (citing Strickland, 466 U.S. at 687-88).
With respect to Mendoza’s complaint that Dr. Vigen’s testimony opened the door to
damaging testimony, counsel explained that Dr. Vigen “did not provide the prosecution with any
information it did not already know about and were prepared to present in rebuttal. We had
decided that it was better that they hear it explained by our expert than the state’s witnesses. Also
it gave Dr. Vigen a more honest position in front of the jury when it could explain the bad with the
good.” 4 SHCR 1474. The Fifth Circuit has found that “[t]rial counsel’s decision to admit these
damaging documents before the State was able to introduce them, and soften their potential
damage, is a reasonable trial strategy and will not be second guessed.” Coble v. Quarterman, 496
F.3d 430, 439 (5th Cir. 2007). See also Garcia v. Director, TDCJ-CID, 73 F. Supp.3d 693, 793
(E.D. Tex. 2014) (finding that counsel’s decision to introduce damaging evidence before the State
had the opportunity to do so was reasonable trial strategy).
Overall, Mendoza’s first ground for relief concerns trial strategy. Counsel developed a
reasonable strategy after a careful consideration of the facts of this case. As such, the strategy to
call Dr. Vigen as an expert witness, which included the introduction of unfavorable evidence
before the State offered it, was reasonable trial strategy that may not be second guessed by this

16

Court. In light of Strickland, the Court cannot find that counsel was ineffective for calling Dr.
Vigen as an expert witness.
Mendoza’s second ground for relief is that initial post-conviction counsel was ineffective
for failing to raise the issue of trial counsel’s ineffectiveness in presenting the testimony of Dr.
Vigen. In light of the decision that trial counsel was not ineffective for calling Dr. Vigen, the
corresponding claim that initial post-conviction counsel was ineffective for failing to raise this
issue lacks merit. Habeas counsel was not required to make frivolous or futile arguments.
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). See Clark v. Collins, 19 F.3d 959, 966 (5th Cir.
1994) (the “[f]ailure to raise meritless objections is not ineffective lawyering; it is the very
opposite.”).
The Court further observes that the issue of whether trial counsel was ineffective during
the punishment phase of the trial was fully developed during the state habeas corpus proceedings,
although Mendoza’s grounds for relief during the state habeas corpus proceedings were not
specifically worded in terms of ineffective assistance of counsel for calling Dr. Vigen. State
habeas counsel argued that counsel should have obtained a comprehensive psycho-social history
(claim 1), counsel failed to adequately investigate and develop crucial mitigating evidence (claim
4), counsel failed to adequately present crucial mitigating evidence (claim 5), and counsel was
ineffective for failing to present testimony to support a sentence less than death and to give a
favorable opinion concerning Mendoza’s risk assessment (claim 7).
Mendoza’s state habeas counsel specifically complained that the mitigation investigation
was superficial and failed to provide Dr. Vigen with adequate records or direction for his
17

evaluation to be useful.

1 SHCR 41.

State habeas counsel opined that “Dr. Vigen had

insufficient knowledge and/or experience to testify persuasively in any of the areas about which
he opined.” Id. at 42. Counsel observed that Dr. Vigen acknowledged that he had never been in
the Texas prison system and had not done any studies on future dangerousness. Id. at 43.
Counsel asserted that Dr. Vigen’s “lack of preparation allowed the prosecution to discredit the
defense.” Id. State habeas counsel complained that trial counsel “called Dr. Vigen to testify to
a catalog of seemingly unrelated mitigating factors.” Id. at 47. Complaints were also made about
Dr. Vigen’s six opinions. Id. at 48. State habeas counsel asserts that “Dr. Vigen’s testimony
made it clear that the mitigation investigation was preliminary and inadequate.”

Id. at 87. State

habeas counsel specifically alleged that trial counsel’s performance was deficient for using Dr.
Vigen as a “future dangerousness” expert. Id. at 97. The complaint was made that much of Dr.
Vigen’s “expert witness testimony was more harmful than helpful to” Mendoza. Id. at 114. State
habeas counsel complained that trial counsel called Dr. Vigen to present mitigation themes. Id.
at 115. State habeas counsel finally complained that “trial counsel called Dr. Vigen, who was not
qualified and was not able to inform the jury of scientifically sound methodology and empirical
data, accompanied by demonstrative exhibits particularized to Mr. Mendoza, that would have
guided the jury’s discretion in making their decision as to future dangerousness and mitigation.”
Id. at 191-92.
After reviewing the pleadings and evidence accumulated in this case, the state trial court
issued findings of fact regarding whether counsel was ineffective during the sentencing phase of
the trial, which includes the following findings:
24.

The trial record confirms that counsel actively advanced the theory of the case at
punishment that they had formulated before trial.
18

a.

Counsel called all six members of [Mendoza’s] immediate family to give
an account of their father’s depression and how [Mendoza] had been
negatively influenced by a new group of friends. 23 RR 53-237; 24 RR
88-89.

b.

Counsel called psychologist Dr. Mark Vigen to explain how [Mendoza’s]
father’s depression and resulting absence from their home taught
[Mendoza] that the strict rules that applied to his older siblings did not apply
to him, and that he could get away with things because his mother made
excuses for him. Dr. Vigen explained that [Mendoza] had then changed
radically for the worse after his association with the depraved peer group.
24 RR 122-30.

37.

Before trial, two psychologists, Dr. Mark Vigen and Dr. Mark Cunningham,
interviewed [Mendoza]. 24 RR 51, 56.

38.

[Mendoza] has produced no evidence from either Dr. Vigen or Dr. Cunningham
that they found evidence that [Mendoza] lacked the intent to commit capital murder.

135.

Based on statements of Vince Gonzales, Juan Sanchez, Angela Ivory Tucker, and
the testimony of Dr. Vigen, it is evident that Dr. Vigen and his assistant Fran
Dezendorf interviewed all of [Mendoza’s] family members on behalf of the defense
team as part of the investigation into [Mendoza’s] background and potential
mitigation:
a.

b.

Dr. Vigen testified at trial that he and assistant Fran Dezendorf interviewed
each of the members of [Mendoza’s] family. 24 RR 115.

c.

136.

Vince Gonzales states that Dr. Vigen performed portions of the
investigation in [Mendoza’s] family and background that Gonzales did not
perform himself. State’s Writ Exhibit at 1.

Trial counsel confirm that they decided to have Dr. Vigen interview
[Mendoza’s] family members because they believed his forensic
background could assist them in “extracting sensitive information.” State’s
Writ Exhibit at 5.

Both trial counsel and Vince Gonzales are consistent about various roles each
member of the defense would play, especially in regard to conducting interviews
with [Mendoza’s] family. [Mendoza] has offered no evidence from Dr. Vigen that
he was unclear about his role.

19

137.

Toni Knox complains that the mitigation specialist should have conducted
interviews with the family to investigate mitigation issues and then provide Dr.
Vigen and a number of other experts with a social history. See Application at 110.
But just because [Mendoza’s] defense team delegated responsibilities differently
does not establish that Dr. Vigen or any other defense team member was confused
or unclear about their role.

145.

Dr. Vigen’s role in the investigation did not make notes available to the State that
the defense team otherwise could have been withheld. Even if the mitigation
specialist had conducted the family interviews and interviews with [Mendoza], the
mitigation specialist would have shared these interview notes with Dr. Vigen to use
as a basis for his opinion, and consequently the State still would have had access to
the interview notes since the expert had relied upon them for his opinion. See TEX.
R. EVID. 705.

146.

[Mendoza] also has not established that Dr. Vigen and his assistant Fran Dezendorf
would not have interviewed the family themselves and generated the same notes,
even if the mitigation specialist had also conducted his own initial family
interviews.

147.

Trial counsel state that they preferred that Dr. Vigen be the one to explain negative
facts for the defense instead of the State’s witnesses. State’s Writ Exhibit 1 at 6.
Counsel also believed that if Dr. Vigen could acknowledge both the good and bad,
he would seem more credible in the jury’s eyes. See State’s Writ Exhibit 1 at 6.

148.

Counsel’s decision to have Dr. Vigen in a position where he could testify about all
of the facts, including those that were unhelpful to the defense, was a reasonable
decision and a strategy that the Court has seen other capable criminal defense
attorneys adopt in other cases.

165.

[Mendoza] and Toni Knox complain that trial counsel inadequately prepared Dr.
Vigen to testify, and they point to his vague description of the Mendoza family as
being dysfunctional and suggest his vagueness is due to oversight or a lack of a
compiled report on [Mendoza’s] social history. See Application at 84.

166.

Without any further development elsewhere in the application, [Mendoza] repeats
Toni Knox’s bare accusation “It appears that the defense had not done a very
thorough investigation of their expert witness to prepare for his possible
vulnerabilities on the stand.” [Mendoza’s] Writ Exhibit I at 31; Application at 95.
This ground of ineffective assistance of counsel is procedurally barred due to
inadequate pleading. It is not the Court’s duty to scour the record in search of facts
supporting his and his witness’s conclusory allegation. [Mendoza] never asserts
what he believes were Dr. Vigen’s vulnerabilities. [Mendoza] bears the burden of
clearly pleading every element of his claim, including how counsel’s alleged
20

deficiency contributed to his conviction or sentence, and this he has failed to do.
See Ex parte Maldonado, 688 S.W.2d 114, 116 (Tex. Crim. App. 1985).
167.

In any case, [Mendoza] offers no evidence that counsel failed to investigate Dr.
Vigen’s vulnerabilities or that better investigation would have resulted in a different
outcome for the defense.

168.

Moreover, Dr. Vigen’s testimony about the dynamics of the Mendoza family
dysfunction is no evidence of inadequate preparation by counsel since his testimony
was appropriately specific. Dr. Vigen explained that the once strong, strict father
that [Mendoza’s] older siblings knew withdrew from the family emotionally, and
that his mother - in an effort to protect him - minimized problems and made up
excuses for him. 24 RR 122. As a result, [Mendoza] failed to connect
emotionally with his father, and instead of adopting the family’s value system, he
learned that he was exempt from rules others had to follow. 24 RR 122, 187.

169.

[Mendoza] has not established that there was anything further to discover that Dr.
Vigen could have been more specific about to convince the jury that [Mendoza’s]
family was truly dysfunctional.

172.

[Mendoza] has offered no direct evidence in support of his claim that Dr. Vigen did
not have adequate records or documentation concerning [Mendoza’s] mother and
father. See Application at 111. This allegation is unreferenced and unsupported
by any evidence and devoid of any specific pleadings as to what records or
information he lacked about [Mendoza’s] mother and father that would have made
a difference.

173.

[Mendoza] has not shown that the lack of a social history report or any other
records, reports, or documentation is the reason for any lack of specificity in Dr.
Vigen’s testimony.

174.

[Mendoza] has not met his burden of proving that if counsel had prepared a social
history that was identical to the one Toni Knox compiled that Dr. Vigen would have
testified in more detail.

175.

[Mendoza] has produced no evidence of specific examples of dysfunction that
would have made a difference in the outcome of the proceedings even if counsel
had discovered such examples and Dr. Vigen testified about them in front of the
jury.

189.

Trial counsel state that Dr. Vigen was able to “basically extract the same
information [ ] which Toni Knox was able to obtain.” State’s Writ Exhibit 1 at 5.
Because [Mendoza] has not presented evidence of any specific, credible fact or
21

event in [Mendoza’s] background that counsel failed to uncover, the Court finds
counsel’s statement is true.
192.

[Mendoza] has offered no evidence in support of Toni Knox’s unfounded allegation
that Dr. Vigen was unaware of information concerning Concepcion Mendoza’s
lawsuit against Decker Foods or that he was unable to consider that information in
analyzing the dynamics of the Mendoza family. See [Mendoza’s] Writ Exhibit I
at 13; Application at 91.

196.

In light of Dr. Vigen’s knowledge of the names of the providers, the dates of
treatment, and the length and extent of Concepcion Mendoza’s medical and mental
health records, the Court finds it credible that he did actually review these records.

212.

Trial counsel brought both S. O. Woods and Dr. Mark Cunningham on the defense
team so that they could funnel all their expertise through Dr. Vigen. State’s
Exhibit 1 at 2.

213.

By having Dr. Vigen as the voice of these experts, counsel intentionally avoided
putting on a “parade of experts” and positioned themselves to benefit from Dr.
Vigen’s “great rapport with juries.” State’s Exhibit 1 at 2.

214.

Dr. Vigen testified, over the State’s objection, that TDCJ had the capacity to
prevent [Mendoza] from being a future danger. 24 RR 84-88.

215.

At trial, this Court found that Dr. Vigen was qualified to give an opinion on future
dangerousness. 24 RR 84-88.

217.

Dr. Vigen testified that “people just don’t stand up one day and say, . . . [‘]I’m
going to murder somebody today.[‘] The roots of this type of behavior generally
go back a long ways in people’s lives, and in most of the cases that I’ve seen there
are incidents - there’s the criminal history in the family or there’s an alcohol and
drug instance in the family or there’s a lot of mental health issue [sic] in the family.
. . . and these abnormalities cause or contribute to . . . aberrant behavior like killing
another human being. There’s something missing in this case for me as a
psychologist. There is none of that there. There’s something I don’t know. I
can’t tell you. From a - my intuition.” 24 RR 187.

218.

The Court understands the above testimony as an expression of Dr. Vigen’s belief
that when human beings do something so heinous as to intentionally take the life
of another, there is always some past event or experience that must have
contributed, that there is some explanation for the unthinkable. And that therefore,
since he did not find any such event or experience in [Mendoza’s] history, it must
be because it has not yet been uncovered.
22

219.

The fact that Dr. Vigen did not find that past event or experience which could give
him solace is not evidence of trial counsel’s inadequacies or the inadequacies of
their investigation. A far more persuasive explanation is that Dr. Vigen’s
underlying premise is not true - that sometimes there is nothing in a murder’s
background to help explain what he did. In this instance, there was nothing
missing because there is simply nothing to find in [Mendoza’s] background to
explain his killing, rape, and kidnapping of Rachelle Tolleson.

265.

Trial counsel brought Dr. Cunningham on the defense team so that Dr. Cunningham
could consult with Dr. Vigen and provide him with expertise that Dr. Vigen could
relate to the jury. State’s Writ Exhibit 1 at 2, 6.

271.

Dr. Vigen was qualified to convey Dr. Cunningham’s knowledge and expertise on
future dangerousness to the jury. At the time, the two experts were publishing an
article together reviewing the scholarship on death-row inmates. See Dr. Vigen
resume, Applicant’s Writ Exhibit I, Attachment A-1, Bates stamp 213; Mark D.
Cunningham & Mark P. Vigen, “Death Row Inmate Characteristics, Adjustment,
and Confinement: a Critical Review of the Literature.” 20 BEHAV. SCI. & L. 191
(2002)

272.

Dr. Vigen testified about [Mendoza’s] low or minimum risk for future violence in
the prison system, in part because of the penitentiary’s capability to incarcerate him.
24 RR 127. Dr. Vigen also conveyed Dr. Cunningham and Dr. Sorensen’s
information about the low rates of violence in prison in a common-sense way. 24
RR 178.

4 SHCR 1776, 1778, 1798-99, 1800, 1803-04, 1809, 1810, 1812-13, 1823-24.
The state trial court went on to issue the following conclusions of law regarding allegations
of ineffective assistance of trial counsel as they relate to Dr. Vigen:
348.

[Mendoza] has neither overcome the presumption of reasonable professional
assistance nor established that counsel was deficient for relying on Dr. Vigen to
help conduct the mitigation investigation. See Ex parte McFarland, 163 S.W.3d
743, 756 (Tex. Crim. App. 2005) (finding that criticisms in hindsight did not rebut
presumption of reasonable professional assistance).

351.

[Mendoza] has not met his burden of establishing that counsel was deficient as
evidenced by testimony of Dr. Vigen. [Mendoza] complains with the advantage
of hindsight that Dr. Vigen’s testimony “aided the prosecution.” Application at
100. But Dr. Vigen’s willingess to acknowledge that [Mendoza’s] remorse was
“somewhat . . . superficial” and that mitigating circumstances present in other
capital murder cases are not present in [Mendoza’s] history could very well have
23

made him seem more objective and thus more credible in the eyes of the jury.
Moreover, [Mendoza] has not articulated exactly what counsel should have done
differently to prepare Dr. Vigen so that he would not have testified as he did. Nor
has [Mendoza] demonstrated that the results of the proceedings would have been
any different without Dr. Vigen’s concessions. See Strickland, 466 U.S. at 69394.
352.

An expert relying on the opinions of other experts, Dr. Vigen was qualified based
on his consultation with S. O. Woods to testify that TDCJ had the capacity to
prevent [Mendoza] from being a future danger. See TEX. R. EVID. 703.

370.

[Mendoza] does not allege, much less prove, that Dr. Vigen would have changed
his testimony or psychological evaluation if he had known more about [Mendoza’s]
maternal uncle’s mental health history.

424.

[Mendoza] has not established that counsel was deficient for calling Dr. Vigen to
give an opinion on [Mendoza’s] future dangerousness. See Strickland, 466 U.S.
at 693-94.

425.

[Mendoza] has also not rebutted the presumption that counsel’s decision to call Dr.
Vigen to testify on future dangerousness was within the wide range of professional
reasonable assistance. See Ex parte McFarland, 163 S.W.3d 743, 756 (Tex. Crim.
App. 2005).

426.

An expert may rely on the opinions of other experts if such information is
reasonably relied upon by those in the field. See TEX. R. EVID. 703. Dr. Vigen
was qualified, based on his own experience and training and his consultations with
S. O. Woods and Dr. Cunningham, to testify that TDCJ had the capacity to prevent
[Mendoza] from being a future danger.

4 SHCR 1836, 1839, 1848.
The record is abundantly clear that initial state habeas counsel repeatedly alleged that trial
counsel was ineffective for calling Dr. Vigen as an expert witness during the punishment phase of
the trial. This is the case even though the exact wording employed by initial state habeas counsel
did not specifically state that trial counsel was ineffective for calling Dr. Vigen as a witness.
Moreover, the findings of fact and conclusions of law make it clear that initial state habeas counsel
had, in fact, challenged trial counsel’s decision to present the testimony of Dr. Vigen during the
24

punishment phase of the trial. The issue of whether trial counsel was ineffective for calling Dr.
Vigen as an expert witness was front and center in the state habeas corpus proceedings, and the
state trial court found that trial counsel’s representation was not deficient for calling Dr. Vigen as
an expert witness. The Texas Court of Criminal Appeals subsequently denied the application for
a writ of habeas corpus on the findings and conclusions of the trial court and its own review.
Mendoza, 2009 WL 1617814.
In the present supplemental habeas proceedings, Mendoza 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.
The precise issue before the Court with respect to the first two supplemental grounds for
relief is not, however, whether Mendoza has overcome the requirements of § 2254(d). Instead,
consistent with Martinez and Trevino, the issue before the Court is whether he has shown that (1)
his underlying claims of ineffective assistance of trial counsel are substantial, and (2) his initial
state habeas counsel was ineffective in failing to present those claims in his first state habeas
application. Preyor, 536 F. App’x at 421. For reasons heretofore explained, the Court is of the
opinion, and so finds, that Mendoza has not satisfied either requirement in order to overcome the
procedural default. Nonetheless, to the extent that Mendoza’s supplemental ineffective assistance
of counsel claims overlap with claims that were actually raised by initial state habeas counsel, he
has not satisfied the requirements of § 2254(d). Mendoza has not shown that he is entitled to
relief on his first two supplemental claims.
25

3.

Mendoza claims that the State of Texas used potentially false testimony at the
punishment stage of the trial in violation of the Due Process Clause of the
Fourteenth Amendment to the United States Constitution and trial counsel
was ineffective in violation of the Sixth Amendment of the United States
Constitution for failing to discover the State’s use of false evidence.

4.

Mendoza alleges, pursuant to Martinez, that trial counsel rendered ineffective
assistance of counsel in violation of the Sixth Amendment to the United States
Constitution by failing to interview Melvin Johnson and presenting his
testimony during the trial.

5.

Mendoza alleges, pursuant to Martinez, that post-conviction counsel rendered
ineffective assistance of counsel in violation of the Sixth Amendment to the
United States Constitution by failing to interview Melvin Johnson and by
consequently failing to raise the ineffective assistance of trial counsel on
collateral review by trial counsel’s failure to interview, investigate and present
Melvin Johnson’s testimony at trial or discover the use of the State’s false
evidence.

Mendoza’s final three supplemental grounds for relief are related. All three claims relate
to the State’s rebuttal witness, Officer Robert Hinton, a detention officer with the Collin County
Sheriff’s Department, who may have testified falsely during the punishment phase of the trial
regarding an incident involving Mendoza and Melvin Johnson, another inmate. Supplemental
habeas counsel acknowledges that Mendoza “cannot allege with certainty that the testimony
propounded by Officer Hinton was indeed false. Rather at best all he can show is that potentially
it may be false.” See Amended petition (Docket No. 86), page 38 (emphasis added). In the third
ground for relief, Mendoza claims that the State of Texas may have used false testimony and that
trial counsel was ineffective for failing to discover the State’s use of false testimony. In the fourth
ground for relief, Mendoza argues that trial counsel was ineffective for failing to interview inmate
Johnson and presenting his testimony at trial. In the fifth ground for relief, Mendoza argues that
post-conviction counsel was ineffective for failing to interview inmate Johnson and failing to raise
an ineffective assistance of trial counsel claim.
26

Officer Hinton testified that he was working as a detention officer in the Collin County
detention facility on September 22, 2004. 24 RR 221. He testified that he observed Mendoza go
into a segregated recreation yard by himself. Id. at 229. From his vantage point, he believed that
the door had closed behind Mendoza, and that he was in the recreation yard. Id. He then
observed that another inmate, Melvin Johnson, was released from his cell to finish mopping and
sweeping the dayroom on the segregation side. Id. at 230. Hinton testified that he observed
Mendoza re-enter the housing unit, which prompted him to order Mendoza to return to the
recreation yard. Id. Mendoza, however, walked up the stairs towards Johnson, and a “fist fight
broke out.” Id. He stated that inmate Johnson “took a defensive posture and was blocking the
swings and returning them, too.” Id. at 231. Mendoza was disciplined as a result of the incident.
Id. at 233.
Supplemental habeas counsel states that he was able to interview Melvin Johnson, who
provided the following affidavit regarding the incident:
My name in Melvin Jermaine Johnson, I am presently [a]n inmate in the Wynne
Unit in the Texas Department of Corrections. In 2004, I was incarcerated in the
Collin County Jail where I came into contact with Moises Mendoza. Moises
Mendoza was not very well liked by other inmates and the guards. Mr. Mendoza
would continually use racial slurs and had a bad attitude. Due to the nature of Mr.
Mendoza’s offense he was confined to what is called the SHU, the special housing
unit. On one occasion, due to a disciplinary problem, I was placed in the SHU
also. While confined in the SHU inmates were allowed one hour a day to recreate.
Mr. Mendoza would recreate by himself. As Mr. Mendoza was heading toward
the rec yard, my cell[] was rolled. What this means is for some reason, my cell
door was opened. This can only happen by a guard opening the door. As soon as
the door opened, I figured what the guards wanted and I exited my cell and started
a fight with Mr. Mendoza. I was definitely the aggressor. Mr. Mendoza was
defending himself, but wasn’t fighting back. After a short period of time, guards
arrived and broke the fight up. That night I received an extra tray of food which I
figured was a bonus for my actions in fighting Mr. Mendoza. Although, no one
ever spoke to me about this incident, I am sure that the guards had planned this
situation. I was told that there was trial testimony that Mr. Mendoza was in the
27

rec yard when I was allowed to exit my cell to finish mopping the floor in the day
room and Mr. Mendoza attacked me, this testimony is patently false. I have never
been contacted until recently by anyone in regards to the facts of this situation, but
had I been so contacted, I would have testified at trial as to what really happened
on that occasion which is what I have stated in this affidavit.
Amended petition (Docket No. 86), Exhibit A. The affidavit was signed on November 2, 2016.
Mendoza appropriately observes that Hinton and Johnson have given two conflicting rendition of
events, and that potentially his due process rights were violated by the admission of false
testimony.
“[I]t is established that a conviction obtained through use of false evidence, known to be
such by representatives of the State, must fall under the Fourteenth Amendment.” Napue v.
Illinois, 360 U.S. 264, 269 (1959) (citations omitted). Moreover, the “deliberate deception of a
court and jurors by the presentation of known false evidence is incompatible with ‘rudimentary
demands of justice.’” Giglio v. United States, 405 U.S. 150, 153 (1972) (citations omitted).
“[T]he same result obtains when the State, although not soliciting false evidence, allows it to go
uncorrected when it appears.” Id. (citations omitted). The Fifth Circuit applied the standards set
forth in Napue and Giglio in Kutzner v. Cockrell, 303 F.3d 333, 336 (5th Cir.), cert. denied, 536
U.S. 978 (2002). A petitioner must prove that the prosecution knowingly presented or failed to
correct materially false testimony during trial. Id. at 337. Due process is not implicated by the
prosecutions’s introduction or allowance of false or perjured testimony unless the prosecution
actually knows or believes the testimony to be false or perjured; it is not enough that the testimony
is challenged by another witness or is inconsistent with prior statements. Id. Perjury is not
established by mere contradictory testimony from witnesses, inconsistencies within a witness’
testimony and conflicts between reports, written statements and the trial testimony of prosecution
28

witnesses.

Koch, 907 F.2d at 531.

To prove a due process violation, a petitioner must

demonstrate: (1) that the testimony in question was actually false, (2) that the State knew it was
false, and (3) that the testimony was material. Canales v. Stephens, 765 F.3d 551, 573 (5th Cir.
2014); Faulder v. Johnson, 81 F.3d 515, 519 (5th Cir. 1996). Perjured testimony is material only
when there is any reasonable likelihood that the false testimony could have affected the judgment
of the jury. United States v. Agurs, 427 U.S. 97, 103 (1976); Canales, 765 F.3d at 573.
In the present case, Mendoza has not satisfied his burden of showing a violation of his due
process rights under Napue and Giglio. He acknowledges that he can only say that Officer Hinton
may have testified falsely. As such, he can only say that potentially his due process rights under
Napue and Giglio were violated. Johnson’s affidavit does not establish that Hinton testified
falsely. It is not enough that a witness’ testimony is challenged by another witness. Kutzner,
303 F.3d at 337. At best, Johnson’s affidavit establishes a credibility issue, but it does not
demonstrate that Hinton testified falsely. Koch, 907 F.2d at 531.

The State appropriately

observes that courts should view last-minute affidavits with “‘a degree of skepticism’ because ‘[i]t
seems that, when a prisoner’s life is at stake, he often can find someone new to vouch for him.’”
Wilkerson v. Cain, 233 F.3d 886, 893 (5th Cir. 2000) (Garza, J., concurring) (quoting Herrera v.
Collins, 506 U.S. 390, 423 (1993)).

In addition to the foregoing, assuming arguendo that

Hinton’s testimony was false, Mendoza has not provided any evidence showing that the prosecutor
was aware that Hinton’s testimony was false or that the testimony was material. He has not
satisfied the three-pronged test in order to show a due process violation based on the State’s
knowing use of false evidence.

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The State also appropriately notes, in response, that the issue before the Court at this
juncture is whether Mendoza is entitled to relief based on ineffective assistance of counsel in light
of Martinez and Trevino. To the extent that Mendoza is seeking relief based directly on Napue
and Giglio, neither the Supreme Court nor the Fifth Circuit have extended the holdings in Martinez
and Trevino. Davila v. Davis, 582 U.S. ___, 137 S. Ct. 2058, 2065 (2017) (declining to extend
“Martinez to allow a federal court to hear a substantial, but procedurally defaulted, claim of
ineffective assistance of appellate counsel”); Martinez, 566 U.S. at 15 (“Coleman held that an
attorney’s negligence in a postconviction proceeding does not establish cause, and this remains
true except as to initial-review proceedings for claims of ineffective assistance at trial.”); Prystash
v. Davis, 854 F.3d 830, 836 (5th Cir. 2017) (declining to extend Martinez/Trevino to claims that
could have been raised on direct appeal); Reed, 739 F.3d at 778 n.16 (declining to extend Martinez
to ineffective assistance of appellate counsel claims); Wilkins v. Stephens, 560 F. App’x 299, 306
n.44 (5th Cir. 2014) (claim alleging denial of right to a public trial under the Sixth Amendment
“does not fall within the scope of Martinez or Trevino and is therefore procedurally barred”).
Martinez and Trevino do not provide a basis for relief based on a due process claim under Napue
and Giglio.
As a second part of claim number three, Mendoza attempts to link the Napue/Giglio claim
to Martinez/Trevino by arguing that trial counsel was ineffective for failing to discover the State’s
use of false evidence. It is noted once again, however, that he failed to establish that Hinton’s
testimony was actually false; thus, he cannot show that counsel was ineffective for failing to
discover that the State engaged in the use of false evidence.

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Despite the foregoing, Mendoza attempts to satisfy Martinez/Trevino by claiming that trial
counsel was ineffective for failing to interview Melvin Johnson and presenting his testimony at
trial (Claim Four) and that initial post-conviction counsel was ineffective for failing to interview
Melvin Johnson and then failing to raise an ineffective assistance of trial counsel claim on
collateral review by trial counsel’s failure to interview, investigate and present Melvin Johnson’s
testimony at trial or discover the use of the State’s false evidence (Claim Five). In support of
claims four and five, Mendoza notes that Johnson states that he was never contacted by anyone
until just recently. Mendoza asserts that Johnson was not contacted by any member of the defense
team, nor was he contacted by any state prosecutor. He argues that Johnson’s name was known
and the defense team was aware or should have been aware of both Officer Hinton’s testimony
and Johnson’s testimony, but no one bothered to investigate the situation and interview Johnson.
Mendoza’s supplemental habeas counsel states that he has communicated with lead trial counsel
and initial post-conviction counsel about this matter. Lead trial counsel states that he was not
aware of any member of the defense team who actually interviewed Johnson. Initial state habeas
counsel likewise states that she does not recall if she ever spoke to Johnson.
The State’s response initially notes that Mendoza does not prove that members of the
defense team did not interview or attempt to interview Johnson, or that state habeas counsel did
not interview or attempt to interview Johnson. Mendoza asserts only that he has communicated
with lead trial counsel, who was not aware of any member of the defense team who interviewed
Johnson, and initial state habeas counsel, who did not recall speaking to Johnson. The State
characterizes Mendoza’s statement as hearsay and insufficient proof that no member of the defense
team, at any stage, investigated or attempted to investigate this witness.
31

Regardless of whether trial counsel or initial state habeas counsel failed to interview
Johnson, trial counsel’s cross-examination of Hinton reveals that he was clearly prepared to crossexamine him. Trial counsel started his cross-examination by having Hinton identify the jail
incident report. 24 RR 234. Hinton acknowledged that his report stated that it appeared that
Mendoza had left the housing pod, but he could not say for sure.

Id. at 235.

Hinton

acknowledged he did not know what had previously been said between Johnson and Mendoza.
Id. He admitted that he did not know if there was name-calling or shouting or racial epitaphs or
anything like that. Id. Hinton testified that he saw Johnson hit Mendoza and that there “was a
flurry of fists from both sides.” Id. Hinton testified that he asked Mendoza if he wanted to file
charges, and both inmates signed an affidavit of non-prosecution indicating that they did not want
to file charges. Id. at 236.
The State also appropriately observes that it is unknown what Mendoza actually told trial
counsel about the matter. There is nothing suggesting that Mendoza told counsel information
about this matter that counsel failed to investigate. Nonetheless, counsel’s cross-examination
suggests Johnson provoked Mendoza into attacking him by calling him names and racial slurs and
that the fight was mutually aggressive. Trial counsel was not ineffective for not discovering
information that Mendoza could have but did not disclose. See Johnson, 306 F.3d at 252-53 (The
Fifth Circuit “has consistently refused to hold attorneys responsible for introducing mitigation
evidence that their client and other witnesses fail to disclose.”); Blanton v. Quarterman, 543 F.3d
230, 239 (5th Cir. 2008) (trial counsel could not have uncovered abuse-of-inhalant evidence where
neither petitioner nor his family mentioned it), cert. denied, 556 U.S. 1240 (2009); Soria v.
Johnson, 207 F.3d 232, 250-51 (5th Cir.) (no deficient performance where, despite encouragement,
32

petitioner and family failed to reveal evidence of past behavior and family), cert. denied, 530 U.S.
1286 (2000).
Assuming arguendo that trial counsel’s representation was deficient for failing to interview
Johnson, Mendoza is not entitled to relief because he has not shown prejudice. There is no
reasonable probability that the outcome of the trial would have been different if trial counsel had
interviewed Johnson and Johnson had testified in a manner consistent with his affidavit. It is
unlikely that the jury would have deemed Johnson, a criminal and a disciplinary problem confined
in segregation, more credible that a detention officer.

Moreover, because Johnson was a

“disciplinary problem,” he likely had motive to discredit the sheriff’s department by suggesting
they orchestrated a fight and then lied about it at trial. The State appropriately observes that even
now counsel cannot state with any certainty that Johnson is telling the truth or that Hinton testified
falsely.
The Court further notes that Johnson’s potential testimony was “double-edged.” Any
benefit Mendoza might have reaped from discrediting Hinton’s testimony that Mendoza was the
aggressor in a fight was outweighed by the negative things Johnson would have said. Namely,
Mendoza was not well-liked by either guards or inmates, he “continually” used racial slurs, and he
had a bad attitude. The Fifth Circuit recently reiterated that it has held that “double-edged
evidence cannot support a showing of prejudice under Strickland.” Reed v. Vannoy, 703 F. App’x
264, 270 (5th Cir. 2017) (citing Dowthitt v. Johnson, 230 F.3d 733, 745 (5th Cir. 2000)). See also
Matthews v. Davis, 665 F. App’x 315, 319 (5th Cir. 2016) (trial counsel’s failure to investigate
and introduce evidence was not prejudicial because it would be double-edged); Gray v. Epps, 616
F.3d 436, 449 (5th Cir. 2010) (petitioner could not show prejudice because much of the new
33

evidence was double-edged and could be interpreted as aggravating), cert. denied, 563 U.S. 905
(2011).
Finally, even if trial counsel could have discredited Hinton’s testimony that Mendoza was
the aggressor in the fight, Mendoza cannot show that he was prejudiced in the ultimate outcome
of the case. The jury heard testimony about the brutal and callous facts of the crime; evidence of
Mendoza’s escalating violent and criminal behavior towards family, friends, and strangers;
evidence that Mendoza was unmanageable, had a temper, and was disrespectful to teachers;
evidence that, while on probation, Mendoza cut off his ankle monitor and stopped reporting to his
probation officer; and finally, while awaiting trial in the Collin County detention facility, evidence
that Mendoza created weapons and refused to take his prescribed medication.
In sum, Mendoza has not shown a substantial claim of ineffective assistance of trial counsel
in order to overcome the procedural default.
Mendoza’s final claim concerns ineffective assistance of initial post-conviction counsel.
More specifically, initial post-conviction counsel was purportedly ineffective for failing to
interview Melvin Johnson and then failing to raise an ineffective assistance of trial counsel claim
on collateral review by trial counsel’s failure to interview, investigate and present Melvin
Johnson’s testimony at trial or discover the use of the State’s false evidence. For the most part,
the analysis of the fifth supplemental claim is comparable to the analysis of Mendoza’s fourth
supplemental claim.
As with his claims regarding trial counsel, Mendoza could have told state habeas counsel
that Officer Hinton committed perjury and that this issue was worthy of an investigation or review.
There is nothing suggesting that Mendoza told initial state habeas counsel anything about this
34

matter and that state habeas counsel failed to follow-up on such information. Once again, the
record reveals that trial counsel had a copy of the jail incident report and that he effectively crossexamined Hinton with it. Without notice from Mendoza, and given the effective and thorough
cross-examination of Hinton by trial counsel, state habeas counsel had little reason to question the
veracity of Officer Hinton’s testimony or trial counsel’s preparation for this witness.
Overall, Mendoza has not shown that his Napue claim or corresponding ineffective
assistance of counsel claims have merit. He has not shown that Officer Hinton’s testimony was
false or that trial counsel should have suspected that it was false. He has not shown that trial
counsel’s representation fell below an objective standard of reasonableness in failing to present
Johnson’s testimony to counter Officer Hinton because Johnson lacked credibility and any
potential good from his testimony would have been outweighed by the harm that would have
resulted from his testimony. Deference is owed to the strategic decisions of state habeas counsel
in deciding which claims to raise. Jones v. Barnes, 463 U.S. 745, 751-54 (1983). State habeas
counsel is not ineffective nor is a petitioner prejudiced for failing to raise meritless claims.
Segundo v. Davis, 831 F.3d 345, 350-51 (5th Cir. 2016), cert. denied, 137 S. Ct. 1068 (2017).
Finally, the precise issue before the Court with respect to the last three supplemental
grounds for relief is whether Mendoza can satisfy the requirements of Martinez and Trevino. He
has not satisfied his burden of showing that (1) his underlying claims of ineffective assistance of
trial counsel are substantial, and (2) his initial state habeas counsel was ineffective in failing to
present those claims in his first state habeas application. Preyor, 536 F. App’x at 421. For
reasons heretofore explained, the Court is of the opinion, and so finds, that Mendoza has not

35

satisfied either requirement in order to overcome the procedural default with respect to
supplemental claims three, four and five.
VI. CONCLUSION
Having carefully considered the claim remanded by the Fifth Circuit, the Court is of the
opinion, and so finds, that Mendoza has not shown that he is entitled to federal habeas corpus relief
and his petition should be denied.
VII. CERTIFICATE OF APPEALABILITY
“A state prisoner whose petition for a writ of habeas corpus is denied by a federal district
court does not enjoy an absolute right to appeal.” Buck v. Davis, ___ U.S. ___, 137 S. Ct. 759,
773 (2017).

Instead, under 28 U.S.C. § 2253(c)(1), he must first obtain a certificate of

appealability (“COA”) from a circuit justice or judge. Id. Although Mendoza 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 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). To make a substantial showing,
the petitioner need only show that “jurists of reason could disagree with the district court’s
resolution of his constitutional claims or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327
36

(2003). The Supreme Court recently emphasized that the COA inquiry “is not coextensive with
merits analysis” and “should be decided without ‘full consideration of the factual or legal bases
adduced in support of the claims.’” Buck, ___ U.S. at ___, 137 S. Ct. at 773 (quoting Miller-El,
537 U.S. at 336). Moreover, “[w]hen the district court denied relief on procedural grounds, the
petitioner seeking a COA must further show that ‘jurists of reason would find it debatable whether
the district court was correct in its procedural ruling.’” Rhoades, 852 F.3d at 427 (quoting
Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012)).
In this case, reasonable jurists could not debate the denial of Mendoza’s § 2254
supplemental grounds for relief on substantive or procedural grounds, nor find that the issues
.
presented are adequate to deserve encouragement to proceed. Accordingly, the Court finds that
Mendoza is not entitled to a certificate of appealability as to his supplemental grounds for relief.
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 a certificate of appealability is DENIED. It is finally
ORDERED that all motions not previously ruled on are DENIED.
SIGNED this 23rd day of April, 2019.

____________________________________
ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

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