Ochoa v. Davis, Director TDCJ-CID

Filing 59

MEMORANDUM OPINION AND ORDER DENYING RELIEF: The Court denies Ochoa's petition for a writ of habeas corpus. In accordance with Federal Rule of Appellate Procedure 22(b) and 28 U.S.C. § 2253(c), and after considering the record in this case, the Court denies Ochoa a certificate of appealability because he has failed to make a substantial showing of the denial of a constitutional right. (Ordered by Judge Ed Kinkeade on 9/21/2016) (twd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ABEL REVILL OCHOA,
Petitioner,
v.
LORIE DAVIS, Director,
Texas Department of Criminal Justice
Correctional Institutions Division,
Respondent.

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Civ. Action No. 3:09-CV-2277-K
(Death Penalty Case)

MEMORANDUM OPINION AND ORDER DENYING RELIEF
Petitioner Abel Revill Ochoa, sentenced to death for capital murder, petitions the
Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, contending that his
conviction and sentence are unconstitutional. For the reasons set out below, the Court
DENIES the petition.
I. PROCEDURAL BACKGROUND
In 2003, Ochoa was convicted and sentenced to death for the capital murder of
his wife and seven-year-old daughter during a shooting spree in which he killed five
family members and seriously injured another. State v. Ochoa, No. F02-53582-M (194th
Jud. Dist. Ct., Dallas Cnty., Tex. Apr. 23, 2003). The Texas Court of Criminal Appeals
(“CCA”) unanimously affirmed the conviction and death sentence. Ochoa v. State, No.
AP-74,663 (Tex. Crim. App. Jan. 26, 2005). Ochoa’s appointed counsel filed an initial
post-conviction application for a writ of habeas corpus in the state trial court on

February 11, 2005, and Ochoa filed a pro se a “Supplementation to the Initial Writ to
be Filed for Post-Conviction Relief” on February 21, 2005.

Ex parte Ochoa, No.

W02-53582-M(A) (194th Jud. Dist. Ct., Dallas Cnty., Tex.). The trial court on habeas
review made findings of fact and conclusions of law on May 7, 2009, recommending that
relief be denied in W02-53582-M(A). The CCA expressly adopted those findings and
conclusions in its order denying relief. Ex parte Ochoa, No. WR-67,495-02, 2009 WL
2525740 (Tex. Crim. App. Aug. 19, 2009). Ochoa also filed a pro se application to
supplement his writ of habeas corpus in cause number W02-53582-M(B) on March 19,
2007, which was construed as a subsequent habeas application. Ex parte Ochoa, No.
W02-53582-M(B) (194th Jud. Dist. Ct., Dallas Cnty., Tex. Apr. 9, 2007). The CCA
found that the claims presented in the subsequent writ application failed to meet the
dictates of Article 11.071, § 5 of the Texas Code of Criminal Procedure, and dismissed
his subsequent application as an abuse of the writ. Ex parte Ochoa, No. WR-67,495-01,
2009 WL 2525740 (Tex. Crim. App. Aug. 19, 2009).
Ochoa then filed his original petition for a writ of habeas corpus in this Court on
August 19, 2010 (Doc. No. 8). On December 18, 2012, Ochoa filed a motion to stay
these proceedings pending the United States Supreme Court’s decision in Trevino v.
Thaler, which was granted. (Motion, Doc. No. 33; Order, Doc. No. 38.) Following the
decision in Trevino, this Court reopened these proceedings and ordered supplemental
briefing on the impact of Trevino on this case. (Order, doc. 40.)

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II. FACTUAL BACKGROUND
The state court described the facts of the offense as follows:
1. The Court finds that the thirty-year-old Ochoa shot several family
members after smoking crack cocaine on Sunday, August 4, 2002. (RR38:
112). The record reflects that, twenty minutes after smoking a ten-dollar
rock of crack, Ochoa entered his living room and systematically shot his
wife Cecilia, their nine-month-old daughter (Anahi), Cecilia’s father
(Bartolo), and Cecilia’s sisters (Alma and Jackie). (RR33: 32-36). Ochoa
reloaded his .9 mm Ruger and chased his 7-year-old daughter, Crystal, into
the kitchen where he shot her four times. (State’s Exhibit 2A;
RR-Examining Trial: 14). Of the six victims, only Alma survived. (RR33:
40-41).
2. The record reflects that, minutes after the shooting, the police stopped
Ochoa while driving his wife’s Toyota 4Runner. (RR33: 97-98). Ochoa
told the arresting officer that the gun he used was at his house on the
table, that he could not handle the stress anymore, and that he had gotten
tired of his life. (RR33: 105-06). In a search conducted after arrest, the
police found a crack pipe, steel wool, and an empty clear baggie on Ochoa’s
person. (RR33: 109-110). Ochoa gave the police a detailed written
statement recounting his actions in the shootings. (RR34: 35-46; State’s
Exhibit 2A).
(State Habeas Record (“SHR”) at 349.) These findings are entitled to deference. See
28 U.S.C. § 2254(e)(1).
III. CLAIMS
Ochoa presents twenty-one claims for relief in ten groups, arguing:
Effective Assistance of Counsel at Punishment
1.

His trial counsel was ineffective in failing to investigate and to
present significant mitigation evidence in the punishment phase of
his trial;

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Jury Selection
2.

His trial counsel was ineffective in failing to conduct an adequate
voir dire of his capital murder trial;

3.

His trial counsel were rendered ineffective during the voir dire of his
capital murder trial by the trial court’s rulings;

4.

He was denied the right to be tried by a fair and impartial jury by
the lack of an adequate voir dire;

5.

His appellate counsel was ineffective in failing to raise the voir dire
issues in his direct appeal;
Confrontation Clause

6.

His right to confront and cross-examine witnesses as guaranteed by
the Confrontation Clause of the Sixth Amendment was violated
when the trial court allowed testimonial evidence before the jury;

7.

His trial counsel was ineffective in failing to object to the State’s use
of testimonial statements on the basis that it violated the
Confrontation Clause;
Full and Fair Defense

8.

His right to present a fair defense under the Sixth and Fourteenth
Amendments was violated by the trial court’s exclusion of important
rebuttal evidence;

9.

His trial counsel was ineffective in failing to properly object to the
exclusion of important rebuttal evidence at the punishment stage of
his trial;
State’s Expert Evidence

10.

He was deprived of his right to due process by the State’s
presentation of unreliable psychiatric rebuttal testimony by Dr.
Richard Coons;

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11.

His appellate counsel was ineffective in failing to present the trial
court’s erroneous admission of Dr. Coons’ testimony on direct
appeal;
Shacking at Trial

12.

His right to due process was violated when he was shackled during
the punishment phase of his capital murder trial;

13.

His trial counsel was ineffective in failing to object to the trial
court’s decision to place Ochoa in shackles;
Sufficiency of Evidence of Future Dangerousness

14.

The evidence is legally insufficient to support the jury’s answer to
the first special issue finding that Mr. Ochoa would constitute a
continuing threat to society;
Destruction of Evidence

15.

He was deprived of rights to due process and to a fair trial when the
State destroyed material and exculpatory evidence;

16.

His trial counsel was ineffective in failing to preserve evidence in the
State’s possession or make a timely objection or motion to preserve
it;

17.

His appellate counsel was ineffective in failing to raise the State’s
unconstitutional destruction of evidence on direct appeal;
Mitigation Special Issue

18.

He was denied due process and the right to be free from arbitrary
and capricious punishment by the absence of a burden of proof for
the mitigation special issue;

19.

He was denied due process and the right to be free from arbitrary
and capricious punishment by the absence of a definition of
mitigating evidence in the court’s charge to the jury;

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20.

His trial and appellate counsel were ineffective in failing object at
trial and present on direct appeal the complaints raised in his
eighteenth and nineteenth claims;
Fair Cross Section

21.

His Sixth Amendment rights were violated by the empaneling of a
jury that was not selected from a fair cross section of the
community.

See Pet. at 51-153. Ochoa also requests an evidentiary hearing (Pet. at 129-41, 163).
Respondent asserts that Ochoa’s first, second, third, fourth, fifth, eighth, ninth, tenth,
eleventh, twelfth, thirteenth and twentieth claims are unexhausted and procedurally
barred and in the alternative that they lack merit (Ans. at 22-59, 75-97, 122-23), that
Ochoa’s sixth, fifteenth, eighteenth, nineteenth and twenty-first claims were denied by
the state court as procedurally barred and in the alternative that they lack merit (Ans.
at 59-70, 100-108, 113-21, 124-34), and that the state court properly adjudicated the
merits of Ochoa’s seventh, fourteenth, sixteenth and seventeenth claims (Ans. at 70-75,
97-99, 108-13). (The Court applies Ochoa’s numbering of claims, which differs from
that of Respondent, who combined Ochoa’s second and third claim.)
IV. STANDARD OF REVIEW
Federal habeas review of these claims is governed by 28 U.S.C. § 2254, as
amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
This statute sets forth the preliminary requirements that must be satisfied before
reaching the merits of a claim made in a federal habeas proceeding.

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A. Exhaustion
Under this statute, a federal court may not grant habeas relief on any claim that
the state prisoner has not first exhausted in the state courts.

See 28 U.S.C. §

2254(b)(1)(A); Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770, 787 (2011).
However, the federal court may deny relief on the merits notwithstanding any failure to
exhaust. See 28 U.S.C. § 2254(b)(2); Miller v. Dretke, 431 F.3d 241, 245 (5th Cir.
2005).
B. State-Court Procedural Determinations
If the state court denies the claim on state procedural grounds, a federal court will
not reach the merits of those claims if it determines that the state-law grounds are
independent of the federal claim and adequate to bar federal review. See Sawyer v.
Whitley, 505 U.S. 333, 338 (1992); Coleman v. Thompson, 501 U.S. 722, 729 (1991). If
the state procedural determination is based on state grounds that were inadequate to bar
federal habeas review, or if the habeas petitioner shows that an exception to the bar
applies, the federal court must normally resolve the claim without the deference to the
adjudication that 28 U.S.C. § 2254(d) otherwise requires. See Miller v. Johnson, 200 F.3d
274, 281 n.4 (5th Cir. 2000) (“Review is de novo when there has been no clear
adjudication on the merits.” (citing Nobles v. Johnson, 127 F.3d 409, 416 (5th
Cir.1997))); Mercadel v. Cain, 179 F.3d 271, 275 (5th Cir.1999) (“the AEDPA deference
scheme outlined in 28 U.S.C. § 2254(d) does not apply” to claims not adjudicated on

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the merits by the state court); Woodfox v. Cain, 609 F.3d 774, 794 (5th Cir. 2010) (the
AEDPA deferential standard of review would not apply to a procedural decision of the
state court).
When the state court included an alternative analysis of the merits of the claim,
however, AEDPA deference is applied to the state court alternative merits findings. See
Busby v. Dretke, 359 F.3d 708, 721 n.14 (5th Cir. 2004) (affording deference to merits
finding when state court “invoked a procedural bar as an alternative basis to deny
relief”); accord Rolan v. Coleman, 680 F.3d 311, 319 (3rd Cir. 2012) (holding that
“AEDPA deference applies when a state court decides a claim on procedural grounds
and, alternatively, on the merits”); Stephens v. Branker, 570 F.3d 198, 208 (4th Cir.
2009) (“we agree with our sister circuits that an alternative merits determination to a
procedural bar ruling is entitled to AEDPA deference”); Brooks v. Bagley, 513 F.3d 618,
624-25 (6th Cir. 2008) (holding that the state “court’s alternative merits ruling receives
AEDPA deference”); Zarvela v. Artuz, 364 F.3d 415, 417 (2d Cir. 2004) (affording
deference when state court found “claim to be unpreserved, and, in any event, without
merit”); Johnson v. McKune, 288 F.3d 1187, 1192 (10th Cir. 2002) (affording deference
when “the state court relied on the merits as an alternative basis for its holding”); Bigby
v. Thaler, No. 4:08-CV-765-Y, 2013 WL 1386667, at *19-*20 (N.D.Tex. Apr.5, 2013)
(affording deference to state court’s “alternative analysis” of claim on the merits”);
Battaglia v. Stephens, No. 3:09-CV-1904-B, 2013 WL 5570216, at *24 (N.D. Tex. Oct.

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9, 2013), certificate of appealability denied, 621 F. App’x 781 (5th Cir. 2015), cert. denied,
136 S. Ct. 803 (2016).
C. State-Court Merits Determinations
If the state court denies the claim on the merits, a federal court may not grant
relief unless it first determines that the claim was unreasonably adjudicated by the state
court, as defined in § 2254(d).
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted 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 proceeding.
28 U.S.C. § 2254(d). In the context of § 2254(d) analysis, “adjudicated on the merits”
is a term of art referring to a state court’s disposition of a case on substantive rather than
procedural grounds. Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997). This
provision does not authorize habeas relief, but restricts this Court’s power to grant relief
to state prisoners by barring claims in federal court that were not first unreasonably
denied by the state courts. The AEDPA limits rather than expands the availability of
habeas relief. See Fry v. Pliler, 551 U.S. 112, 119 (2007); Williams v. Taylor, 529 U.S.
362, 412 (2000). “By its terms § 2254(d) bars relitigation of any claim ‘adjudicated on
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the merits’ in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2).”
Richter, 562 U.S. at 98. “This is a ‘difficult to meet,’ and ‘highly deferential standard for
evaluating state-court rulings, which demands that state-court rulings be given the
benefit of the doubt.’” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (internal citations
omitted) (quoting Richter, 562 U.S. at 102, and Woodford v. Visciotti, 537 U.S. 19, 24
(2002) (per curiam)).
Under the “contrary to” clause, a federal court is not prohibited from granting
federal habeas relief if the state court either arrives at a conclusion opposite to that
reached by the United States Supreme Court on a question of law or decides a case
differently from the United States Supreme Court on a set of materially
indistinguishable facts. See Williams, 529 U.S. at 412-13; Chambers v. Johnson, 218 F.3d
360, 363 (5th Cir. 2000). Under the “unreasonable application” clause, a federal court
may also reach the merits of a claim on federal habeas review“if the state court identifies
the correct governing legal rule . . . but unreasonably applies it to the facts of the
particular state prisoner’s case.” White v. Woodall, — U.S. —, 134 S. Ct. 1697, 1705
(2014) (quoting Williams, 529 U.S. at 407-408). “‘[C]learly established Federal law’ for
purposes of § 2254(d)(1) includes only ‘the holdings, as opposed to the dicta, of [the
United States Supreme] Court’s decisions.’” Woodall, — U.S. —, 34 S. Ct. at 1702
(quoting Howes v. Fields, — U.S. —, 132 S. Ct. 1181, 1187 (2012)). The standard for
determining whether a state court’s application was unreasonable is an objective one and

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applies to federal habeas corpus petitions that, like the instant case, were filed after April
24, 1996. See Lindh v. Murphy, 521 U.S. 320, 327 (1997).
Federal habeas relief is not available on a claim adjudicated on the merits by the
state court unless the record before that state court first satisfies § 2254(d). “[E]vidence
introduced in federal court has no bearing on § 2254(d)(1) review. If a claim has been
adjudicated on the merits by a state court, a federal habeas petitioner must overcome the
limitation of § 2254(d)(1) on the record that was before that state court.” Pinholster,
563 U.S. at 185. The evidence required under § 2254(d)(2) must show that the statecourt adjudication “resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.”
V. ANALYSIS
A. Ineffective Assistance of Counsel
Throughout his petition, Ochoa contends that he was deprived of the effective
assistance of counsel in various ways. Respondent asserts that most of these claims are
procedurally barred and that all of them lack merit, frequently making that argument in
the alternative. Because the same standard applies to each of these claims, they are
reviewed together.

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1. Claims
Ochoa claims that trial counsel were ineffective in: (1) failing to investigate and
present significant mitigation evidence at the punishment phase of his trial (Pet. at 5188); (2) failing to question potential jurors about their ability to give meaningful
consideration to defense mitigation evidence and on their ability to be fair in a case
involving five victims (Pet. at 89-102); (3) failing to make proper and timely objections
to the State’s use of testimonial statements under the Confrontation Clause (Pet. at
104-14); (4) failing to make proper and timely objections to the trial court’s ruling
excluding important rebuttal evidence (Pet. at 114-17); (5) failing to object to the trial
court’s decision to place Ochoa in shackles (Pet. at 144-46); (6) failing to preserve
evidence in the State’s possession or make a timely objection or motion to preserve it
(Pet. at 151-53); and (7) failing to object to the failure of the jury charge to define
mitigating evidence and to include a burden of proof on the mitigation special issue (Pet.
at 154-61). Ochoa claims that his counsel on direct appeal was ineffective in: (1) failing
to present the inadequate voir dire complaints on direct appeal (Pet. at 102-103); (2)
failing to present the issue concerning the trial court’s erroneous admission of Dr. Coons’
unconstitutionally unreliable testimony on direct appeal (Pet. at 135-41); (3) failing to
raise the issue concerning the State’s unconstitutional destruction of evidence on direct
appeal (Pet. at 153); and (4) failing to raise the issue concerning the lack of a burden of
proof for the mitigation special issue and definition of mitigating evidence in the jury

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instructions (Pet. at 154-61).
Respondent contends that all of these claims are procedurally barred except for
Ochoa’s seventh claim (failure to make Confrontation Clause objection at trial),
sixteenth claim (failure to preserve evidence or object at trial), seventeenth claim (failure
to raise issue of destroyed evidence on appeal), and that portion of the twentieth claim
complaining about appellate counsel (failure to define mitigating evidence and assign a
burden of proof to the mitigation special issue), which Respondent asserts were
reasonably denied on the merits by the state habeas court. (Ans. at 70-75, 108-13, 123.)
2. Legal Standard
Claims of ineffective assistance of counsel are measured by the two-pronged
standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). The first prong of
Strickland requires the defendant to show that counsel’s performance was deficient. Id.
at 687. The second prong of this test requires the defendant to show prejudice resulting
from counsel’s deficient performance. Id. at 694. The court need not address both
prongs of the Strickland standard if the complainant has made an insufficient showing
on one. Id. at 697.
In measuring whether counsel’s representation was deficient, a petitioner must
show that counsel’s representation fell below an objective standard of reasonableness.
Id. at 687-88; Lackey v. Johnson, 116 F.3d 149, 152 (5th Cir. 1997). “It is well settled
that effective assistance is not equivalent to errorless counsel or counsel judged

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ineffectively by hindsight.” Tijerina v. Estelle, 692 F.2d 3, 7 (5th Cir. 1982). A court
reviewing an ineffectiveness claim must indulge a strong presumption that counsel’s
conduct fell within the wide range of reasonable professional competence or that, under
the circumstances, the challenged action might be considered sound trial strategy. Gray
v. Lynn, 6 F.3d 265, 268 (5th Cir. 1993); Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th
Cir. 1992). There are “countless ways to provide effective assistance in any given case.
Even the best criminal defense attorneys would not defend a particular client in the same
way.” Richter, 562 U.S. at 106. In Richter, the Supreme Court noted the “wide latitude
counsel must have in making tactical decisions” and the need to avoid judicial secondguessing. Id. (quoting Strickland, 466 U.S. at 689). “Just as there is no expectation that
competent counsel will be a flawless strategist or tactician, an attorney may not be
faulted for a reasonable miscalculation or lack of foresight or for failing to prepare for
what appear to be remote possibilities.” Id. at 110.
To satisfy the second prong of the Strickland test, the petitioner must show that
counsel’s errors were so egregious “as to deprive the defendant of a fair trial, a trial
whose result is reliable.” Strickland, 466 U.S. at 687. The test to establish prejudice
under this prong is whether “there is a reasonable probability that, but for the counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at
694. A reasonable probability under this test is “a probability sufficient to undermine
confidence in the outcome.” Id.

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3. Analysis
a. Exhausted Claims
Ochoa presented his seventh, sixteenth, seventeenth and a portion of his
twentieth claims to the state court in his post-conviction habeas proceeding. These
claims are reviewed under the deferential standard set out in 28 U.S.C. § 2254(d).
1. Confrontation Clause
In his seventh claim, Ochoa claims that trial counsel were ineffective in failing to
make proper and timely objections under the Confrontation Clause to the State’s use of
testimonial statements. (Pet. at 104-14.) Respondent argues that the state court
reasonably denied this claim for lack of merit. (Ans. at 70-75.)
This claim was presented to the state court in Ochoa’s fourth ground for relief in
his state habeas application. In that ground, Ochoa argued that his trial counsel was
ineffective for failing to raise a Confrontation Clause objection to the admission of (1)
a tape recording of a 1997 telephone conversation between Ochoa and his wife, and (2)
testimony by Alma Alvizo that Cecilia reported that Ochoa put a gun to Cecilia’s head
three weeks before the capital offense. (SHR at 368.)
The state habeas court found that trial counsel obtained a hearing outside of the
presence of the jury in which they objected to the admissibility of this evidence and did
not perform deficiently based on the law as it existed at the time. (SHR at 368-71, 37780.) The state habeas court further found that, even if trial counsel was deficient, Ochoa

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had not shown prejudice under Strickland. (SHR at 371-77, 380-82.) These findings
were expressly adopted by the CCA in its order denying relief. Ex parte Ochoa, 2009 WL
2525740 at *1.
Ochoa has not shown the state court’s adjudication to be contrary to or an
unreasonable application of clearly established federal law as determined by the Supreme
Court, or based on an unreasonable determination of facts on the record that was before
the state court.

As set out in the analysis of Ochoa’s sixth claim in subsection

(B)(2)(a)(1) below, the Confrontation Clause does not apply to the punishment phase
of a capital murder trial, as when this evidence was admitted. See United States v. Fields,
483 F.3d 313, 326 (5th Cir. 2007). Ochoa acknowledges that the Supreme Court has
not applied the Confrontation Clause to capital sentencing. (Reply at 51.) Counsel
could not have been ineffective for failing to make a meritless objection. “Failure to raise
meritless objections is not ineffective lawyering; it is the very opposite.” Clark v. Collins,
19 F.3d 959, 966 (5th Cir. 1994); Wood v. Quarterman, 503 F.3d 408, 413 (5th Cir.
2007).
Further, the evidence was largely cumulative of evidence admitted from other
sources. Ochoa admitted on cross examination that on the same recording he threatened
to shoot Cecilia. Ochoa, slip op. at 17. Ochoa’s father and his expert on future
dangerousness also admitted that Cecilia had reported Ochoa putting a gun to her head.
Id. at 20-23. The state court found that this rendered any error in admitting Cecilia’s

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similar statements harmless and not reversible, and that a Confrontation Clause
objection would not have changed the outcome of the trial. Id. at 17, 23; (SHR at 369,
376-77, 382.) Before this Court, Ochoa has not satisfied either prong of Strickland, and
has not shown that the state court’s adjudication was incorrect, much less unreasonable.
Therefore, Ochoa’s seventh claim is DENIED for lack of merit.
2. Destruction of Evidence
In his sixteenth claim, Ochoa claims that his trial counsel was ineffective in failing
to preserve evidence in the State’s possession or make a timely objection or motion to
preserve it (Pet. at 146-53). In his seventeenth claim, Ochoa claims that his counsel on
direct appeal was ineffective in failing to raise the issue concerning the State’s
unconstitutional destruction of evidence (Pet. at 153). Respondent argues that the state
court reasonably denied these claims for lack of merit. (Ans. at 108-13.)
These claims were presented to the state habeas court as Ochoa’s fifth and
seventh claims in his application for state post-conviction habeas relief. The state court
found that Ochoa had not shown that the evidence in question, drug paraphernalia, was
the same that was used in connection with the murders or had any residue to test. (SHR
at 383.) The state court also found that trial counsel moved in the trial court to preserve
all such evidence and that, even though it was not made soon enough to preserve this
evidence, counsel’s conduct was reasonably based on his past experience and normal
circumstances in accordance with prevailing professional norms. (SHR at 385-86.) The

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state court also found based on the record that the evidence was destroyed pursuant to
administrative protocol and did not demonstrate what would have been necessary to win
such a claim on appeal, specifically including the bad faith of the police. The state court
concluded that Ochoa had not satisfied either prong of Strickland with respect to either
trial or appellate counsel’s assistance. (SHR at 386-87, 392-94.) These findings were
expressly adopted by the CCA in its order denying relief. Ex parte Ochoa, 2009 WL
2525740 at *1.
Ochoa has not shown the state court’s adjudication to be contrary to or an
unreasonable application of clearly established federal law as determined by the Supreme
Court, or based on an unreasonable determination of facts on the record that was before
the state court.

Ochoa acknowledges that he “must show that the officer or

governmental agent who destroyed the evidence was acting in bad faith.” (Pet. at 147
(citing Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988) and California v. Trombetta, 467
U.S. 479, 488-89 (1984)).)
The record indicates that the trial court conducted a hearing on Ochoa’s motion
to dismiss the indictment for failure to preserve exculpatory evidence in which Officer
Jason Cox testified that he obtained a crack pipe, some brillo and a small clear plastic
baggie incident to Ochoa’s arrest. (32 State Reporter’s Record (“RR”) at 7.) Officer Cox
informed the detectives about the seized items and the detectives told him to “do what
you want to with it,” which Officer Cox took to mean to put it in the evidence property

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room. (32 RR at 10.) Officer Cox explained how he designated the property on the
form.
A.

They told me that -- do what I wanted to with the property, so I
had to do like a offense page so you can locate the property. And
on the offense page I did a found property, because it was found on
his person, but they weren’t charging him with possession of crack
pipe, so I just put it in found property. And I was unaware in 61
days they were going to destroy it.

Q.

Okay. You certainly would not have done that if you had known that they
were going to destroy it?

A.

No, sir.

(32 RR at 18.)
The officer also testified that there did not appear to be any drug residue on the
items.
Q.

Officer, you said you -- you took a -- what looked like a brand new
shiny crack pipe off the defendant when you arrested him?

A.

Yes, sir.

Q.

Did it look like it had any residue on it?

A.

No. If it would have had residue on it, I would have to put it in the
-- in the actual drug room instead of just found property.

Q.

Same with the baggie and the brillo?

A.

Correct. If it looks like it has drug residue, the property room won’t
take it as like found property -- or they’ll take it as found property,
but you have to put it in a drug baggie and get it sealed and all that.
I just put it in like a paper sack.

(32 RR at 20.)
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Dallas Police Sergeant Judy Katz testified at the hearing that the evidence was
destroyed in accordance with the standard procedures for the Dallas Police Department
in retaining and destroying found property. (32 RR at 30.) The trial court denied the
motion and later on habeas review found that, “but for Officer Cox’s good-faith decision
to designate the paraphernalia as found property rather than evidence, the paraphernalia
would not have been destroyed.” (SHR at 385.)
The evidence before the state court and this court indicates no bad faith in the
destruction of the evidence. Therefore, its conclusion that trial and appellate counsel
were not shown ineffective in failing to do more to preserve this evidence or raise it on
appeal appears correct. Trial counsel moved to protect the evidence and later to dismiss
the indictment based on the destruction. Ochoa has not overcome the state court’s
findings that trial counsel’s conduct was not ineffective or that a claim on appeal would
not have prevailed. “When the petitioner challenges the performance of his appellate
counsel, he must show that with effective counsel, there was a reasonable probability
that he would have won on appeal.” Moreno v. Dretke, 450 F.3d 158, 168 (5th Cir.
2006) (citing Smith v. Robbins, 528 U.S. 259, 285 (2000)). Ochoa has not shown that
he would have prevailed on appeal or that the state court findings that counsel were not
ineffective were incorrect, much less unreasonable. Accordingly, Ochoa’s sixteenth and
seventeenth claims are DENIED for lack of merit.

20

3. Mitigation Special Issue
Ochoa asserts as a part of his twentieth claim that appellate counsel was
ineffective for failing to object to the charge to the jury regarding the lack of a burden
of proof to the mitigation special issue. This issue was referenced in his statement of the
claim (Pet. at 154), but not in his briefing on the claim. (Pet. at 161.) Respondent
argues that this claim should be considered waived because it was inadequately briefed.
(Ans. at 123.) This position is well taken, but it is unnecessary to find that this claim
is waived because, even reading the allegations to include this claim, Ochoa has not
made the showing required by 28 U.S.C. § 2254(d) to obtain relief.
This claim was presented to the state court in Ochoa’s seventh ground for state
habeas relief and was denied for lack of merit. (SHR at 392-94.) This finding was
expressly adopted by the CCA in its order denying relief. Ex parte Ochoa, 2009 WL
2525740 at *1.
Appellate counsel’s conduct is measured by the same Strickland standard, requiring
a habeas petitioner to show constitutionally deficient performance and prejudice. See
United States v. Reinhert, 357 F.3d 521, 525 (5th Cir. 2004). Where the allegation of
ineffective assistance of appellate counsel is based on counsel’s failure to advance certain
issues on appeal, courts have refused to find counsel ineffective when the proposed issues
are without merit. See Williams v. Collins, 16 F.3d 626, 635 (5th Cir. 1994); Mendiola
v. Estelle, 635 F.2d 487, 491 (5th Cir. 1981).

21

As set out in subsection (c)(6) below, this claim has been rejected in this circuit.
See Rowell v. Dretke, 398 F.3d 370, 378 (5th Cir. 2005). Ochoa has not shown that the
state court’s finding was incorrect, much less that its adjudication was an unreasonable
one. In fact, the state court’s finding and adjudication are supported by the record and
binding precedent.
That part of Ochoa’s twentieth claim complaining that appellate counsel was
ineffective for failing to object to the charge to the jury regarding the lack of a burden
of proof to the mitigation special issue is DENIED for lack of merit.
b. Procedural Bar
Respondent asserts that Ochoa’s first, second, third, fifth, ninth, eleventh and
thirteenth claims, and that portion of his twentieth claim complaining about trial
counsel, are all unexhausted and now procedurally defaulted. (Ans. at 24-28, 46, 57, 78,
87, 95, 122-23.) Of those allegedly defaulted claims, Ochoa does not dispute that they
were not presented to the state court in the original state habeas proceeding. In fact, he
lists all but the twentieth claim in his request for a stay to return to the state court to
exhaust these claims. (Reply at 54-55.) Because only that portion of his twentieth claim
asserting a complaint against trial counsel regarding the burden of proof for the
mitigation special issue was presented to the state court, the Court finds that the
remainder of Ochoa’s twentieth claim along with his first, second, third, fifth, ninth,
eleventh and thirteenth claims were not presented to the state courts.

22

As mentioned above, federal habeas petitioners are required to exhaust their
claims by fairly presenting them to the highest state court before asserting them in
federal court. See Richter, 562 U.S. at 103; Picard v. Connor, 404 U.S. 270, 275 (1971);
Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993). This Court cannot grant relief on
an unexhausted claim. See 28 U.S.C. § 2254(b)(1)(A). Generally, a petition containing
both exhausted and unexhausted claims must be dismissed or stayed so that the
petitioner may return to state court to exhaust state remedies. See Rhines v. Weber, 544
U.S. 269, 277-78 (2005); Rose v. Lundy, 455 U.S. 509, 519-20 (1982). Such action
would be futile and the federal court should find claims to be procedurally barred if “the
court to which the petitioner would be required to present his claims in order to meet
the exhaustion requirement would now find the claims procedurally barred.” Coleman,
501 U.S. at 735 n.1; see also Neville v. Dretke, 423 F.3d 474, 480 (5th Cir. 2005) (holding
unexhausted claims ineligible for stay when state court would find them procedurally
barred).

However, a habeas petitioner may avoid the imposition of this bar by

demonstrating a recognized exception. Coleman, 501 U.S. at 750.
Texas law precludes successive habeas claims except in narrow circumstances. See
TEX. CODE CRIM. PROC. ANN. art. 11.071, § 5 (West 2015). This is a codification of the
judicially created Texas abuse-of-the-writ doctrine. See Barrientes v. Johnson, 221 F.3d
741, 759 n.10 (5th Cir. 2000). Under this state law, a habeas petitioner is procedurally
barred from returning to the Texas courts to exhaust his claims unless the petitioner

23

presents a factual or legal basis for a claim that was previously unavailable or shows that,
but for a violation of the United States Constitution, no rational juror would have found
for the State. See id. at 758 n.9. This is an independent and adequate state law ground
to bar federal habeas review. Hughes v. Quarterman, 530 F.3d 336, 342 (5th Cir. 2008);
Canales, 765 F.3d at 566. Therefore, unexhausted claims that could not make the
showing required by this state law would be considered procedurally barred from review
on the merits in this Court unless an exception is shown. See Beazley v. Johnson, 242 F.3d
248, 264 (5th Cir. 2001). Ochoa asserts that each of these allegedly defaulted claims
come within the exception to procedural bar created in Martinez v. Ryan, — U.S. —, 132
S. Ct. 1309 (2012). (P’s Supp. Br., doc. 44.)
1. Appellate Counsel
The Martinez exception does not apply to claims of ineffective assistance of
appellate counsel. Reed v. Stephens, 739 F.3d 753, 778 n.16 (5th Cir.), cert. denied, 135
S. Ct. 435 (2014).

Therefore, this exception would not apply to three of Ochoa’s

unexhausted and now procedurally barred claims: (1) Ochoa’s fifth claim, that his
counsel on direct appeal was ineffective in failing to raise on direct appeal the complaints
in his second, third and fourth claims before this Court (Pet at 102-103); (2) Ochoa’s
eleventh claim, that his counsel on direct appeal was ineffective in failing to present the
issue concerning the trial court’s erroneous admission of Dr. Coons’ unconstitutionally
unreliable testimony on direct appeal (Pet. at 135-41); and (3) that portion of Ochoa’s

24

twentieth claim complaining that his counsel on direct appeal did not raise the issue
concerning the lack of a definition of mitigating evidence in the jury charge (Pet. at
161). These claims were not presented to the state court, and would now be barred by
the Texas abuse-of-the-writ rule. Because the Martinez exception does not apply to these
claims, these three claims are DENIED as procedurally barred.
Further, as shown in the alternative analysis in subsection (c) below, each of these
claims lacks merit. Therefore, if these claims were not procedurally barred, they would
each be denied for lack of merit.
2. Trial Counsel
Ochoa’s first, second, third, ninth, thirteenth and a portion of his twentieth claim
each assert ineffective assistance of trial counsel claims that were presented to the state
court. If these claims were presented to the state court in a subsequent state habeas
application, they would be barred by the Texas abuse-of-the-writ rule. To show that any
of these claims come within the exception to procedural bar created in Martinez, Ochoa
must show that it is a substantial claim that was not presented to the state court in the
initial-review collateral proceeding because counsel in that proceeding was ineffective.
Martinez, 132 S. Ct. at 1320. The habeas petitioner must “demonstrate that the
underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to
say that the prisoner must demonstrate that the claim has some merit.” Id. at 1318-19
(citing Miller-El v. Cockrell, 537 U.S. 322 (2003) (describing standards for certificates of

25

appealability)). To determine whether a claim has some merit, this Court applies the
familiar standard set forth in Strickland.
As set out in the alternate merits analysis in subsection (c) below, none of these
claims have any merit. Ochoa has not shown a lack of diligence by his original state
habeas counsel in those proceedings, but even if he had, such counsel could not be found
ineffective for the purpose of the Martinez exception for failing to present a meritless
claim. See Garza v. Stephens, 738 F.3d 669, 676 (5th Cir. 2013) (agreeing with the
district court that “habeas counsel was not ineffective in failing to raise [a] claim at the
first state proceeding” because “there was no merit to [the petitioner’s] claim”), cert.
denied, 134 S. Ct. 2876 (2014); Beatty v. Stephens, 759 F.3d 455, 466 (5th Cir. 2014);
Braziel v. Stephens, No. 3:09-CV-1591-M, 2015 WL 3454115, at *10 (N.D. Tex. May
28, 2015), certificate of appealability denied, 631 F. Appx. 225 (5th Cir. 2015), cert. denied,
136 S. Ct. 1825 (May 2, 2016). Therefore, these claims are all DENIED as barred.
c. Alternative Merits Analysis
In the alternative, Ochoa has not shown that any of his procedurally barred claims
of ineffective assistance of counsel have any merit.
1. Mitigation Evidence
In his first claim, Ochoa complains that trial counsel were ineffective in failing to
investigate and to present significant mitigation evidence at the punishment phase of his
trial (Pet. at 51-88). At his trial, Ochoa’s attorneys presented evidence that he was

26

raised in a poor, disadvantaged family that emigrated from rural Mexico, that he had a
good school record, that he was a kind and quiet person with strong moral and religious
beliefs who did not normally hurt people, threaten people, or even have a criminal
record. Instead, he had a good employment record and had been attentive to the needs
of his family before the offense. His attorneys also presented lay and expert testimony
that Ochoa had a severe drug addiction that resulted in the serious mental health
problems that triggered these tragic murders.
Ochoa acknowledges that trial counsel obtained and presented an extensive
mitigation case before the jury, but argues that his background and early life were
presented in a truncated form that did not properly make the link with the
drug-addiction and brain-damage evidence presented to the jury due to counsel’s poor
preparation and failure to obtain the needed investigative assistance sooner. (Pet. at 8285, 87-88.)
Mr. Ochoa’s defense counsel presented considerable mitigation evidence
of Mr. Ochoa’s drug addiction and brain damage, and through expert
testimony, linked these factors to his behavior to explain what went wrong
with an otherwise peaceable and humble man. But what was lacking in the
case was the background that may have explained Mr. Ochoa’s fateful
choice to try cocaine or placed it in the overall context of Mr. Ochoa’s life.
There was little evidence presented, other than a few lines of testimony
from Abel, Sr., Gabriel, and Javier, as well was some testimony from Mr.
Ochoa himself, about his father’s alcoholism and abuse Mr. Ochoa and the
rest of the family endured during his most important formative years.
These witnesses, as well as others in the family, could have presented much
fuller and more compelling portraits of what life was like growing up in the
Ochoa home.

27

(Pet. at 87.) Ochoa argues that “the jury heard some of this evidence, it surely did not
hear all of it” because the mitigation investigator was not obtained early enough, the
witnesses were not prepared well enough, and counsel did not present it well enough.
(Pet. at 88.)
In order to prevail on a claim that trial counsel was ineffective for failing to
conduct a sufficient mitigation investigation and presentation, a habeas petition must
do more than complain that the presentation at trial could have been better. See
Strickland, 466 U.S. at 689. In order to avoid the “distorting effects of hindsight,” the
United States Court of Appeals for the Fifth Circuit has cautioned: “We must be
particularly wary of arguments that essentially come down to a matter of degrees. Did
counsel investigate enough? Did counsel present enough mitigating evidence? Those
questions are even less susceptible to judicial second-guessing.” Carty v. Thaler, 583 F.3d
244, 258 (5th Cir. 2009) (quoting Dowthitt v. Johnson, 230 F.3d 733, 743 (5th Cir.
2000)); see also Ward v. Stephens, 777 F.3d 250, 265 (5th Cir.), cert. denied, 136 S. Ct. 86,
193 L. Ed. 2d 76 (2015). Ochoa’s claim comes down to a matter of degrees, relying
upon precisely the sort of judicial second-guessing that Strickland was intended to avoid.
Ochoa has not satisfied either prong of Strickland. He has not shown that counsel
did not know enough about this mitigating evidence to make a “reasonable strategic
decision ‘to balance limited resources’ and to focus on expensive clinical psychologists
and forensic experts rather than on investigators.” Ward, 777 F.3d at 264 (citing Richter,

28

562 U.S. at 107 (“Counsel was entitled to formulate a strategy that was reasonable at
the time and to balance limited resources in accord with effective trial tactics and
strategies.”)). Further, Ochoa has not shown that presenting more evidence on these
points or additional details would have changed the outcome of the trial.

“The

likelihood of a different result must be substantial, not just conceivable.” Gates v. Davis,
— Fed. Appx. —, 2016 WL 4473230 at *1 (5th Cir. Aug. 24, 2016) (quoting Richter,
562 U.S. at 112). Accordingly, if this claim were not procedurally barred, it would be
denied for lack of merit.
2. Jury Selection
In his second and third claims, Ochoa complains that trial counsel were ineffective
in failing to conduct an adequate voir dire made the subject of his fourth claim,
specifically that counsel did not question potential jurors about their ability to give
meaningful consideration to defense mitigation evidence and to be fair in a case
involving five victims and did not properly object to the trial court’s ruling limiting
questioning of the potential jurors. (Pet. at 89-102.) In his fifth claim, Ochoa asserts
that his counsel on direct appeal was ineffective in failing to raise these jury selection
issues. (Pet. at 102-103.) In addition to asserting the procedural bar, Respondent
argues that these claims lack merit (Ans. at 46-55, 57-59), specifically pointing out that
Ochoa has not demonstrated prejudice by showing that any juror was actually biased
against him (Ans. at 47, 56).

29

In support of these claims, Ochoa asserts that prejudice is shown in that the
prosecutor argued in the punishment stage that the death sentence should be imposed
because there were five victims. (Pet. at 100.) He also argues that prejudice should be
presumed. (Pet. at 100-101.)
In Neville, 423 F.3d at 482, the United States Court of Appeals for the Fifth
Circuit addressed the prejudice required to show that trial counsel was ineffective in
failing to question potential jurors during voir dire about their position on an alleged
“linchpin defense” that he suffered from lupus. The Court of Appeals held that the
habeas petitioner had not satisfied either prong of Strickland. Regarding the prejudice
prong, Neville had failed to show two things: “First, he failed to show that any particular
juror was in fact prejudiced against the lupus defense. Second, he failed to establish
that, even if Neville’s counsel had indeed questioned the jurors about lupus, the jurors
would have found the lupus evidence persuasive enough to affect the outcome.” Id. at
483. Similarly, in United States v. Fisher, 480 F. Appx. 781, 782 (5th Cir. 2012), the
Court of Appeals held that trial counsel was not ineffective in failing to question or
challenge a potential juror because there was no credible evidence that the juror was
biased.
More specifically, in holding that a claim was not shown to be substantial under
Martinez, the Court of Appeals in Garza, 738 F.3d at 675-76, held that an allegation that

30

trial counsel was ineffective in failing to ask potential jurors about their views on the
death penalty failed to sufficiently allege prejudice.
Garza utterly fails to satisfy Strickland’s second prong, relying solely on
speculation. Indeed, Garza does not even argue that, without the alleged
errors, there is a reasonable probability that the jury would not have
answered the special issues in the state’s favor. Instead, Garza argues that,
because [trial counsel] did not ask what the jurors would do in a case
exactly like this one, the jurors may not have been fair and impartial.
Garza therefore fails to establish that he suffered prejudice as a result of
trial counsel’s alleged error.
Id. at 676.
Ochoa points out that a juror who had been seated was excused when she later
remembered the pretrial publicity on this case and told the court that she could not be
fair. (Pet. at 94.) This may have been a sufficient showing of prejudice if the juror had
not been excused. But to find based on this that other jurors were biased against Ochoa,
or would have remembered unfavorable pretrial publicity, because of the failure to ask
that question would be the kind of speculation that the Court of Appeals has
discouraged in opinions like Garza.
Because Ochoa has not alleged sufficient prejudice to satisfy the second prong of
Strickland, Ochoa’s second and third claims have no merit. Accordingly, if they were not
procedurally barred, these claims would be denied for lack of merit.
In Ochoa’s fifth claim, he complains that his counsel on direct appeal was
ineffective in failing to raise on direct appeal the complaints in his second, third and
fourth claims before this Court. (Pet. at 102-103.) As mentioned above, appellate
31

counsel’s conduct is measured by the same two-prong Strickland standard. “[A]ppellate
counsel who files a merits brief need not (and should not) raise every nonfrivolous claim,
but rather may select from among them in order to maximize the likelihood of success
on appeal.” Smith, 528 U.S. at 288 (citing Jones v. Barnes, 463 U.S. 745 (1983)). When
appellate counsel filed a brief on appeal, a habeas petitioner must show “that a particular
nonfrivolous issue was clearly stronger than issues that counsel did present. In both
cases, however, the prejudice analysis will be the same.” Id. at 288. Ochoa has not
presented any comparison between the underlying due process claim (his fourth claim)
and the ones that were presented on appeal.
The trial court has wide discretion in determining the scope and content of the
voir dire. To show a violation of due process from the trial court’s limits on a voir dire
examination, a complaint must show the deprivation of a question that was
constitutionally compelled. To make this showing “it is not enough that requested voir
dire questions might be helpful. Rather, the trial court’s failure to ask (or permit counsel
to ask) the questions must render the defendant’s trial fundamentally unfair.” Sells v.
Thaler, Civ. No. SA-08-CA-465-OG, 2012 WL 2562666, at *18 (W.D. Tex. June 28,
2012) (citing Morgan v. Illinois, 504 U.S. 719, 730 n.5 (1992); Mu’Min v. Virginia, 500
U.S. 415, 425-26 (1991)). Only two specific inquiries of voir dire have been found by
the Supreme Court to be constitutionally compelled: inquiries into a juror’s racial
prejudice, Mu’Min, 500 U.S. at 424, and whether a juror in a capital case had “general

32

objections to the death penalty or expressed conscientious or religious scruples against
its infliction.” Morgan, 504 U.S. at 732 (quoting Witherspoon v. Illinois, 391 U.S. 510,
522 (1968)); see Perez v. Prunty, 139 F.3d 907, at *1 (9th Cir. 1998). Ochoa has not
shown that the questions he sought were constitutionally compelled. Therefore, he has
not shown that his underlying fourth claim for relief would have merit.
Ochoa has not shown that any of the claims that were not raised on appeal would
have prevailed and has not satisfied either prong of Strickland regarding his fifth claim.
Accordingly, if this claim were not procedurally barred, it would also be denied for lack
of merit.
3. Rebuttal Evidence
In his ninth claim, Ochoa complains that trial counsel were ineffective in failing
to make proper and timely objections to the trial court’s ruling excluding important
rebuttal evidence of Bessie McClendon and Victor Faz from the punishment phase of
his trial. (Pet. at 114-17.) Respondent argues that Ochoa has not proven trial counsel’s
conduct to be deficient and has not proven the content of the excluded testimony. (Ans.
at 78-79.)
“The right of an accused in a criminal trial to due process is, in essence, the right
to a fair opportunity to defend against the State’s accusations.” Chambers v. Mississippi,
410 U.S. 284, 294 (1973). This constitutional right of criminal defendants to present
evidence in their defense is important, but not absolute. It does not include evidence

33

that is cumulative, confusing, harassing, prejudicial, or only marginally relevant. See
Kittelson v. Dretke, 426 F.3d 306, 319 (5th Cir. 2005); Miller v. United States, No.
A-06-CR-125 LY, 2012 WL 727897, at *4 (W.D. Tex. Mar. 5, 2012). “[S]tate and
federal rulemakers have broad latitude under the Constitution to establish rules
excluding evidence from criminal trials.” United States v. Scheffer, 523 U.S. 303, 308
(1998). Such rules “do not abridge an accused’s right to present a defense so long as
they are not ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve’”
and their application does not infringe “upon a weighty interest of the accused.” Id.
(quoting Rock v. Arkansas, 483 U.S. 44, 56 (1987)). “The constitutional right to present
a defense is not abridged unless the evidence was so material that it deprived the
defendant of a fair trial.” Miller, 2012 WL 727897, at *5 (citing Allen v. Howes, 599
F.Supp.2d 857, 872 (E.D. Mich. 2009)).
The evidence that Ochoa complains was omitted appears to be either cumulative
of other evidence that was before the jury or of limited mitigating value. Ochoa
complains that trial counsel was not able to get the following testimony admitted
through McClendon and Faz: (1) what Cecilia told them about a secret between Cecilia
and her mother regarding her first child, Jonathan, that hurt Ochoa when he learned
about it and caused their separation; (2) about the close and loving relationship between
Cecilia and Ochoa and their children; (3) that Ochoa had not abused Cecilia; and (4)
that Cecilia was not afraid of Ochoa. (Pet. at 114-15.) Respondent points out that no

34

affidavits have been produced to show the missing content of the witnesses’ testimony
and, therefore, the content of their testimony is completely speculative and insufficient
to show a violation of Strickland. (Ans. at 79.)
Ochoa’s complaint focuses on counsel’s examination of witnesses and responses
to objections and evidentiary rulings during the trial.

Because counsel has wide

discretion, “decisions as to whether or not to call certain witnesses to the stand, whether
to ask or refrain from asking certain questions, and the like, are tactical determinations.
Errors, even egregious ones, in this respect do not provide a basis for post-conviction
relief.” United States v. Rubin, 433 F.2d 442, 445 (5th Cir. 1970). As in complaints
regarding counsel’s failure to call witnesses, Ochoa’s complaint about the failure to get
specific testimony from those witnesses before the jury calls the missing testimony into
question. Therefore, he should submit the same type of proof required to support those
complaints as it pertains to the content of the witness testimony.
“To prevail on an ineffective assistance claim based upon uncalled witnesses, an
applicant must name the witness, demonstrate that the witness would have testified, set
out the content of the witness’s proposed testimony, and show that the testimony would
have been favorable.” Gregory v. Thaler, 601 F.3d 347, 352 (5th Cir. 2010) (citing
Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985)).

In construing this

requirement, federal courts require habeas petitioners “to provide affidavits or other
probative proof to establish the content of the proposed witnesses’ testimony.” Sandifer

35

v. Stephens, Civ. Action No. H-14-0688, 2015 WL 4207200, at *7 (S.D. Tex. July 2,
2015); Gregory, 601 F.3d at 353 (“conclusory statements regarding the content of the
uncalled witnesses testimony are insufficient to demonstrate ineffective assistance”);
Gamble v. Stephens, Civ. Action No. H-14-1492, 2014 WL 5305860, at *5 (S.D. Tex.
Oct. 15, 2014) (conclusory allegations that are not supported in the record are
insufficient to establish ineffective assistance of counsel); Koch v. Puckett, 907 F.2d 524,
530 (5th Cir.1990) (“mere conclusory allegations on a critical issue are insufficient to
raise a constitutional issue” in federal habeas review).
Ochoa presents no affidavits or other proof from these witnesses, and offers only
his own conclusory allegations regarding what those witnesses would have said. The
Court of Appeals has explained that “[w]here the only evidence of a missing witnesses’
testimony is from the defendant, this Court views claims of ineffective assistance with
great caution.” Sayre v. Anderson, 238 F.3d 631, 636 (5th Cir. 2001) (quoting Lockhart
v. McCotter, 782 F.2d 1275, 1282 (5th Cir. 1986)); see also Evans v. Cockrell, 285 F.3d
370, 377 (5th Cir. 2002) (reversing district court for assuming that witnesses, from
whom no affidavits were presented, would have testified favorably for the defense).
Since these witnesses were called by Ochoa’s attorney it would appear to have been easy
for him to obtain the necessary affidavits. Because Ochoa has not submitted any proof
of the content of the proposed testimony, he has not satisfied either prong of Strickland,
and this claim may be denied on that basis.

36

Even if Ochoa had submitted supporting proof, however, his allegations do not
show that the underlying due process claim would have any merit. The substance of the
allegedly excluded evidence was almost entirely cumulative of other evidence admitted
at trial. Trial counsel was able to show how Cecilia and her mother kept the secret
about Jonathan. Ochoa’s father, Abel Ochoa Sr. testified that he did not know the truth
about Jonathan either, and when Ochoa found out, he was deeply upset and hurt. (35
RR at 117-118, 120.) Gabriel, Ochoa’s brother, testified that he did not know much
about the situation with Jonathan, but he knew that Ochoa was hurt by it. (35 RR
137-138.) Javier, another brother of Ochoa, also testified that the only problem Ochoa
told him that he had with his marriage to Cecilia was when Ochoa found out the truth
about Jonathan, but they didn’t talk about it much. (36 RR at 180.) And trial counsel
was able to indicate trouble in the relationship between Cecilia and her mother through
Faz, who testified that Cecilia confided in him about a recording that she had made of
a conversation with her mother and played a portion of it for him. (37 RR at 171-72.)
Ochoa himself also testified about this secret, about the argument between Cecilia and
her mother that led to him finding out the truth, and how that made him feel. (38 RR
at 48-50.)
Regarding the close and loving relationship between Cecilia and Ochoa and their
children, trial counsel was able to establish this through many sources. McClendon was
able to express her belief that Ochoa and Cecilia had a close, loving relationship (37 RR

37

at 133), that Ochoa loved her dearly (37 RR at 148), and that they were a normal,
caring couple and outwardly appeared affectionate towards one another. (37 RR 134).
McClendon saw Ochoa playing with his children in the yard, and he was very proud
when Anahi was born. (37 RR at 134, 141.) He carried her around and showed her
affection. (37 RR an 141.) He played with Crystal and taught her how to ride a bicycle.
(37 RR at 141-42.) McClendon also saw Ochoa playing with Jonathan and treating him
like he was Ochoa’s own son. (37 RR at 142-43.)
Faz also testified that Ochoa and Cecilia had a loving relationship and loved their
children. He believed that Cecilia and Ochoa loved one another and were happy. (37
RR at 159-60.) Faz testified that Ochoa and Cecilia loved their children and took good
care of them. (37 RR at 160-61.) They took in Cecilia’s father, who had half of his leg
amputated, to take care of him. (37 RR at 162-64.) Faz also observed Ochoa treating
Jonathan as well as he treated his own daughter. (37 RR at 165-66.) Ochoa’s brother
Gabriel also testified that Ochoa loved Cecilia and their daughters and would take them
to church on Sundays. (35 RR at 138, 143-44.) Gabriel saw them frequently, including
every day after Ochoa’s daughter was born. (35 RR at 138-39.) Ochoa’s brother Javier
also testified that Ochoa loved his wife and children. (36 RR at 174.) Ochoa’s father,
Abel Sr. also testified that he could tell Ochoa and Cecilia were in love and how happy
they all were when they married and had a daughter. (35 RR at 116-17.) And, of

38

course, Ochoa himself testified about his love for Cecilia and the children, and how
happy they were together. (38 RR at 29-36, 45-47.)
Regarding the purported missing testimony that Cecilia told others that Ochoa
had not abused her and that she was not afraid of him, even if proof of such statements
were made, it would add little to the evidence admitted. McClendon also testified that
she never noticed any bruises on Cecilia, and she never saw Ochoa abuse his wife in any
way. (37 RR at 136.) In the six years she had known Ochoa, she had never seen him
do anything violent. (37 RR at 145.) McClendon did not believe that Ochoa was
jealous of Cecilia and knew of nothing to suggest that. (37 RR at 147.) In fact, Cecilia
had never told McClendon anything in confidence that gave her any reason to believe
Cecilia was afraid of Ochoa. (38 RR at 149.) Likewise, Faz testified before the jury that
he never saw any evidence of abuse of Cecilia and he believed that Cecilia would have
told him if Ochoa were abusing her. (37 RR at 172-73.)
In addition, Gabriel testified that he was constantly around Cecilia and Ochoa
and their family, and never saw Ochoa abuse, hit, or slap Cecilia. (35 RR at 138-39.)
Gabriel recalled an incident when Ochoa showed restraint after Cecilia slapped a drink
from his hand; Ochoa did not get angry but just laughed it off. (35 RR at 148-49.)
Javier also testified that he never saw Ochoa react in a violent manner towards Cecilia
and confirmed the incident where Ochoa showed unusual restraint when she slapped the
drink from his hand. (36 RR at172-73.) Ochoa’s friend Mike Barrera also testified that

39

he worked with Ochoa for three years, socialized with him and Cecilia, and he never saw
Ochoa get violent or even talk inappropriately with anyone, including Cecilia, in the
three years he worked with Ochoa. (36 RR at 122-24.)
Ochoa’s argument exceeds the limits of an accused’s right to the effective
assistance of counsel. He does not contend that trial counsel failed to adequately
investigate, find witnesses, prepare them to testify and present them at the punishment
phase of his trial. Indeed, trial counsel did precisely that, but were thwarted in their
attempt to get the precise evidence before the jury because of the prosecutor’s hearsay
objections that were sustained by the trial court. Further, trial counsel pressed the issue
with the trial court and argued for leniency in the enforcement of the hearsay rule in
light of the testimony of Alma regarding other statements made by Cecilia. (37 RR at
156-57.) And trial counsel worked around the trial court’s refusal to allow hearsay
evidence by getting the substance of the evidence sought before the jury in other ways
and getting the balance of any evidence with mitigating value in through other sources.
Ochoa contends that “trial counsel were deficient for not making the proper and
timely objections and securing a proper ruling from the trial court” (Pet. at 117), but he
does not specify what further objections counsel could have made. To the extent that
Ochoa complains that trial counsel did not make an adequate “proffer of the evidence”
to the trial court regarding the content of the excluded testimony (Pet. at 116), his
presentation to this Court contains the same deficiency, the lack of an affidavit from the

40

witnesses showing the omitted testimony, which is “fatal to his claim.” Gregory, 601
F.3d at 353. Further, Ochoa has not shown that the statements Cecilia allegedly made
to these witnesses were not hearsay, or that some other method of getting this evidence
admitted would have been more successful. He merely complains about the trial court’s
mechanistic enforcement of the rules of evidence. (Pet. at 116.)
Ochoa has not shown that his due process rights were violated by the exclusion
of hearsay testimony of McClendon or Faz, much less that his trial counsel were in any
way ineffective regarding this evidence.

Ochoa has not shown that trial counsel

performed deficiently or that any omitted testimony would have changed the outcome
of the trial. Therefore, if this claim was not denied as procedurally barred, it would be
denied for lack of merit.
4. Unreliable Expert Testimony
In Ochoa’s eleventh claim, he complains in the alternative that his appellate
counsel was ineffective in failing to present on direct appeal the substance of Ochoa’s
tenth claim complaining about the trial court’s erroneous admission of Dr. Coons’
testimony as unconstitutionally unreliable. (Pet. at 124, 135-41.) In addition to
asserting that both of those claims are procedurally barred, Respondent argues that they
lack merit. (Ans. at 79-91.)
Respondent also incorrectly asserts that Ochoa complains that his trial counsel
was ineffective in failing to make a proper motion to exclude this testimony. (Ans. at

41

86-91.) In fact, it is the trial court’s denial of trial counsel’s motions that forms the
basis for Ochoa’s tenth claim. In his eleventh claim, Ochoa points out that trial counsel
“sought to exclude Dr. Coons’ prospective rebuttal evidence through a Motion to
Exclude and Memorandum in Opposition to the Testimony of Dr. Richard E. Coons,
and which relied on both due process and state evidentiary grounds as a basis for
exclusion.” (Pet. at 136 (citing 1 State Clerk’s Record (“CR”) at 124-38).) This motion
was taken under advisement before trial and presented in a hearing under Rule 705 of
the Texas Rules of Evidence during the punishment stage that was outside of the
presence of the jury. (31 RR 8; 38 RR 189-213.) Ochoa argued that “trial counsel
submitted a well-researched, thoroughly cited motion and memorandum of law. Review
of the memo within the appellate record indicates the memo is legally sound, and
certainly not implausible on its face.” (Pet. at 137-38.) Ochoa castigates appellate
counsel for failing to raise the trial court’s denial of this motion in his brief on direct
appeal. (Pet. at 136.) “At a minimum, appellate counsel could have simply ‘cut and
pasted’ the contents of the motion into the appellate brief with minor revisions.” (Pet.
at 138.)
As set out above, appellate counsel’s conduct is measured by the same Strickland
standard. See Reinhert, 357 F.3d at 525 (habeas petitioner must show constitutionally
deficient performance and prejudice); Williams, 16 F.3d at 635 (appellate counsel not
ineffective in failing to raise meritless issues); Mendiola, 635 F.2d at491. Further,

42

appellate counsel’s performance is “viewed as of the time of counsel’s conduct.” Schaetzle
v. Cockrell, 343 F.3d 440, 448 (5th Cir. 2003) (quoting Strickland, 466 U.S. at 690).
State and federal courts have upheld the use of Dr. Coons’ testimony over similar
challenges. Expert psychiatric testimony has been held admissible in capital murder
trials over the argument that expert testimony predicting future dangerousness too
unreliable. Fields, 483 F.3d at 341-45. In that case, the United States Court of Appeals
for the Fifth Circuit upheld the admission of Dr. Coons’ testimony of future
dangerousness in a federal death penalty trial, rejecting “the claim that Dr. Coons’s
testimony was so unreliable that the district court abused its discretion by admitting it”
under the Constitution and the Federal Rules of Evidence. Id. at 345.
The CCA also upheld the use of Dr. Coons’ testimony in 2008 in Espada v. State,
No. AP-75,219, 2008 WL 4809235, at *9 (Tex. Crim. App. Nov. 5, 2008). In 2010,
the CCA held that the admission of Dr. Coons’ testimony violated state evidentiary rules
but that such violation of state law was harmless. See Coble v. State, 330 S.W.3d 253,
277-86 (Tex. Crim. App. 2010). In federal court, that error in admitting Dr. Coons’
testimony at Coble’s trial was found to be a matter of state law that did not rise to a
“constitutionally cognizable claim for which federal habeas relief may be granted.” Coble
v. Stephens, Civ. Action No. W-12-CV-039, 2015 WL 5737707, at *19 (W.D. Tex. Sept.
30, 2015), application for certificate of appealability pending, No. 15-70037 (5th Cir.). This
Court has found no state or federal court holding that Dr. Coons’ testimony violated the

43

due process right asserted in Ochoa’s tenth claim, and the record before this Court does
not make the required showing.
The record indicates that the state called Dr. Coons to rebut the testimony of
Ochoa’s experts, Dr. Theodore Simon and Dr. Edgar Nace, regarding Ochoa’s brain
damage from cocaine abuse, that Ochoa committed the offense in a cocaine-induced
delirium, and that he did not pose a future danger. (36 RR at 40-105.) The record also
indicates that trial counsel filed a motion before trial to exclude this evidence and the
trial court conducted a hearing during the trial outside of the presence of the jury under
Rule 705 of the Texas Rules of Evidence before allowing this expert to testify before the
jury. (38 RR 189-213.) Trial counsel extensively examined Dr. Coons regarding his
methods and the existence of studies or literature to support his methods and
conclusions. (38 RR 196-213.) The trial court denied the motion to exclude the
testimony and allowed trial counsel to cross examine Dr. Coons before the jury regarding
all of these asserted deficiencies in his expert opinions and even the fact that Dr. Coons
did not comply with a subpoena duces tecum. (38 RR at 243-62, 263-64.)
Federal courts on habeas review do “not sit to review the mere admissibility of
evidence under state law.” Little v. Johnson, 162 F.3d 855, 862 (5th Cir. 1998). “A
federal court may grant habeas relief based on an erroneous state court evidentiary ruling
only if the ruling violates a specific federal constitutional right or is so egregious that it
renders the petitioner’s trial fundamentally unfair.” Kittelson, 426 F.3d at 320 (quoting

44

Brown v. Dretke, 419 F.3d 365, 376 (5th Cir.2005)). Ochoa asserts a broad due process
right to the exclusion of this testimony. He has not supported his argument with
authority to show that he has a specific constitutional right to exclude unreliable expert
testimony and what the constitutional standard to test such reliability would be.
Instead, he argues principles from Rule 702 of the Federal Rules of Evidence and the
standard of evidentiary reliability applied in that and subsequent cases construing
evidentiary rules. (Pet. at 125-29 (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S.
579 (1993)).) This does not provide a sufficient basis to grant federal habeas relief from
a state conviction and death sentence. Ochoa’s due process claims lacks merit, and
appellate counsel could not have been ineffective in failing to raise it.
Because he has not shown that the complaint raised in his tenth claim would have
prevailed in his direct appeal, he has failed to show either prong of Strickland with respect
to his eleventh claim. Appellate counsel does not perform deficiently by failing to make
a meritless claim, and failing to raise it would not have any impact on the outcome of
his appeal. See Williams, 16 F.3d at 635; Mendiola, 635 F.2d at 491. Therefore, if
Ochoa’s eleventh claim was not procedurally barred, it would be denied for lack of merit.
5. Shackles
In his thirteenth claim, Ochoa complains that trial counsel were ineffective in failing to
object to the trial court’s decision to place Ochoa in shackles.

(Pet. at 144-46.)

Respondent argues that this claim lacks merit and that Ochoa has not proven that he

45

was placed in shackles or that, if he was, his attorneys failed to object. (Ans. at 96-97.)
Ochoa’s reply did not respond to this argument or provide any additional information
on this claim.
The Supreme Court stated the rule that,
[C]ourts cannot routinely place defendants in shackles or other physical
restraints visible to the jury during the penalty phase of a capital
proceeding. The constitutional requirement, however, is not absolute. It
permits a judge, in the exercise of his or her discretion, to take account of
special circumstances, including security concerns, that may call for
shackling. In so doing, it accommodates the important need to protect the
courtroom and its occupants. But any such determination must be case
specific; that is to say, it should reflect particular concerns, say, special
security needs or escape risks, related to the defendant on trial.
Deck v. Missouri, 544 U.S. 622, 633 (2005).
In conducting this inquiry, a Texas trial court would consider the circumstances
of the specific case and an appellate court would evaluate the claim by looking to the
record. “[S]hackling error may rise to the level of constitutional error when the record
reflects a reasonable probability that the jury was aware of the defendant’s shackles.”
Bell v. State, 415 S.W.3d 278, 283 (Tex. Crim. App. 2013). Once a Texas appellate
court makes that determination, it must determine whether the shackling was justified.
A federal habeas petitioner carries the burden of proof to show ineffective
assistance of counsel, which includes the burden to show both deficient performance and
prejudice.
With respect to prejudice, a challenger must demonstrate “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
46

proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
[Strickland, 466 U.S.] at 694, 104 S.Ct. 2052. It is not enough “to show
that the errors had some conceivable effect on the outcome of the
proceeding.” Id., at 693, 104 S.Ct. 2052. Counsel’s errors must be “so
serious as to deprive the defendant of a fair trial, a trial whose result is
reliable.” Id., at 687, 104 S.Ct. 2052.
Richter, 562 U.S. at 104.
The record does not reflect that Ochoa was even shackled, much less a reasonable
probability that the jury was aware of it. In fact, both parties point to the lack of any
mention of this in the record. (Pet. at 143-44; Ans. at 93-94, 96-97.)
To show that he had been shackled before the jury at the punishment phase of
his trial, Ochoa relies upon a second affidavit from his trial mitigation investigator, Tena
Francis. This affidavit could be read to assert merely her conclusion that Ochoa must
have been shackled because of the way he was walking. (Francis Aff., doc. 8-1, at 12.)
Assuming that this affidavit is capable of showing that Ochoa was shackled, however, it
does not provide any indication of the reasons for placing him in shackles or whether it
was part of any routine.
Ochoa has not attempted to negate any of the justifications that may have existed
to place him in restraints. Instead, he relies upon a prior state appellate standard
expressed in a CCA opinion that has since been overturned. (Pet. at 142-43 (citing Long
v. State, 823 S.W.2d 259, 282 (Tex. Crim. App. 1991)).) While counsel’s conduct is to
be judged under the law existing at the time of the conduct, Strickland prejudice “is

47

measured by current law and not by the law as it existed at the time of the alleged error.”
Westley v. Johnson, 83 F.3d 714, 723 (5th Cir. 1996) (citing Lockhart v. Fretwell, 506 U.S.
364, 372-73 (1993)).
Ochoa has not provided the information needed on federal habeas review to show
that any shackling, if it indeed occurred, would have been unjustified under Deck, that
an objection at trial would have prevailed, or that a point of error on appeal would have
been sustained. Ochoa has not established that the due process complaint made the
basis of his twelfth claim has merit, much less that his counsel was ineffective for failing
to assert it in an objection.

“Unsupported allegations and pleas for presumptive

prejudice are not the stuff that Strickland is made of.” Sawyer v. Butler, 848 F.2d 582,
589 (5th Cir. 1988), on reh’g, 881 F.2d 1273 (5th Cir. 1989), aff’d sub nom. Sawyer v.
Smith, 497 U.S. 227 (1990). Accordingly, if this claim were not procedurally barred, it
would be denied for lack of merit.
6. Mitigation Special Issue
In his twentieth claim, Ochoa complains that his trial counsel were ineffective in
failing to object to the lack of a burden of proof on the mitigation special issue and to
the lack of a definition of mitigating evidence made the basis of his eighteenth and
nineteenth claims, and that his appellate counsel was ineffective for failing to raise these
complaints in his brief on direct appeal. (Pet. at 161.) In addition to asserting a

48

procedural bar, Respondent claims in the alternative that this claim lacks merit and that
any complaints against his appellate counsel are inadequately briefed. (Ans. at 123.)
Respondent is correct that only the title to this section mentions any complaint
against appellate counsel. (Pet. at 154.) Ochoa’s briefing does not assert how his
appellate counsel may have been ineffective. (Pet. at 161.) Therefore, Ochoa has
waived his complaint against appellate counsel, but these claims are all procedurally
barred and may be denied for lack of merit as well.
Ochoa’s argument relies on broad legal principles and does not include authority
that would support these specific claims.

In fact, the arguments asserted in his

eighteenth and nineteenth claims have been previously raised and rejected in this circuit.
In Rowell, 398 F.3d at 378, the Court of Appeals held that no Supreme Court or Circuit
precedent constitutionally requires that Texas’ mitigation special issue be assigned a
burden of proof. Since then, the Supreme Court has reaffirmed that no particular
standard is required to be expressed in the jury instructions regarding the burden to
prove mitigating circumstances. See Kansas v. Carr, 136 S. Ct. 633, 643 (2016). The
Court of Appeals has also repeatedly found that the mitigation special issue sufficiently
defines mitigating evidence and allows the jury to give full consideration to it. See
Sprouse v. Stephens, 748 F.3d 609, 622 (5th Cir.), cert. denied, 135 S. Ct. 477 (2014); Blue
v. Thaler, 665 F.3d 647, 665 (5th Cir. 2011); Scheanette v. Quarterman, 482 F.3d 815,
824, 826-27 (5th Cir. 2007); Beazley, 242 F.3d at 260.

49

Because Ochoa’s eighteenth and nineteenth claims lack merit, counsel could not
have been ineffective for failing to assert them in objections at trial or raise them in
claims on direct appeal. Clark, 19 F.3d at 966; Wood, 503 F.3d at 413; Williams, 16 F.3d
at 635; Mendiola, 635 F.2d at 491. If Ochoa’s twentieth claim was not procedurally
barred, it would be denied for lack of merit.
B. Other Claims Subject to Procedural Bar
Ochoa presents other claims that were either not presented to the state court or
found to be procedurally barred by the state court. Respondent asserts a procedural bar
to each of these claims. Because the state procedural grounds appear sufficient to bar
federal habeas review and Ochoa has not shown that any of these claims come within
an exception to procedural bar, they are all denied as barred.
1. Unexhausted Claims
In addition to claims listed in subsection (A) above, Ochoa presents the following
related claims to this Court that were not presented to the state court: (1) his third and
fourth claims in which Ochoa complains that he was deprived of his right to be tried by
a fair and impartial jury when the trial court did not allow his counsel to ask potential
jurors about their ability to be fair in a case involving five victims (Pet. at 89-102); (2)
his eighth claim in which Ochoa complains that the trial court’s exclusion of important
rebuttal evidence denied him the right to present a fair defense (Pet. at 114-17); (3) his
tenth claim in which Ochoa complains that he was deprived of his right to due process

50

of law by the State’s presentation of unreliable psychiatric rebuttal testimony (Pet. at
117-35); and (4) his twelfth claim in which Ochoa complains that his right to due
process was denied when he was shackled during the punishment phase of his capital
murder trial (Pet. at 141-44). To each of these claims, Respondent asserts that they are
unexhausted, would be barred by the Texas abuse-of-the-writ rule if they were raised in
a subsequent state habeas petition, and therefore are procedurally barred in this Court
as well. (Ans. at 46, 55-56, 76, 80-81, 91-92.)
As set out above, this Court cannot grant relief on an unexhausted claim under
28 U.S.C. § 2254(b)(1)(A), and when a stay to exhaust a claim would be futile because
the state court would now find the claims procedurally barred, this Court may find the
claims procedurally barred as well. Coleman, 501 U.S. at 735 n.1; Neville, 423 F.3d at
480. The Texas abuse-of-the-writ doctrine would bar these claims in a subsequent state
habeas proceeding, and has been recognized as an independent and adequate state
ground for imposing a procedural bar in federal court. See Canales, 765 F.3d at 566;
Hughes, 530 F.3d at 342. Because none of these claims were exhausted in the state
court, they are all subject to this procedural bar.
Ochoa acknowledges that these claims were not exhausted and expressly did not
assert cause and prejudice to excuse the procedural bar of any of these claims. (Reply
at 55). He relies upon the exception to procedural bar created in Martinez to assert that
his prior counsel was ineffective in failing to present these claims to the state courts. (P’s

51

Supp. Br. at 1-26.) He initially argued that this Court should stay these proceedings to
allow him to present these claims to the state courts (Reply at 55-76), but withdrew that
request as futile. (P’s Supp. Br. at 3-15.) Because each of these claims would be barred
by the Texas abuse-of-the-writ rule, and no adequate cause and prejudice is shown to
excuse the procedural bar, each of these claims is DENIED as procedurally barred.
In the alternative, each of these claims lacks merit. As shown in subsection
(A)(3)(c) above, in which this Court conducted an alternative analysis of the merits of
each of the related claims of ineffective assistance of counsel for failing to assert these
claims at trial and on appeal, the Court found none of these claims have merit.
Therefore, if they were not procedurally barred, they would be denied for lack of merit.
2. Claims Denied on State Grounds
Respondent asserts that the following claims were denied by the state court on
state procedural grounds: (1) Ochoa’s sixth claim that his rights guaranteed by the
Confrontation Clause were violated when the trial court allowed testimonial evidence
before the jury (Pet. at 104-13); (2) Ochoa’s fifteenth claim that he was deprived of
rights to due process and to a fair trial when the State destroyed material and
exculpatory evidence (Pet. at 146-51); (3) Ochoa’s eighteenth claim that the Texas
mitigation special issue given in his case failed to assign a burden of proof in violation
of his rights (Pet. at 153-57); (4) Ochoa’s nineteenth claim that the Texas mitigation
special issue given in his case failed to adequately define what is meant by mitigation or

52

mitigating evidence (Pet. at 157-61); and (5) Ochoa’s twenty-first claim that his right
to be tried by a jury selected from a fair cross-section of the community was violated
(Pet. at 161-62). Respondent asserts that each of these claims were denied by the state
court on independent and adequate state grounds to bar federal habeas review and they
are now procedurally barred in this Court.

(Ans. at 65-69 (no contemporaneous

objection), 103-105 (failure to raise on direct appeal), 113-14 (failure to raise on direct
appeal), 120 (abuse of the writ), 124-25 (no contemporaneous objection and failure to
raise on direct appeal).)
a. Contemporaneous Objection
Respondent asserts that Ochoa’s sixth (Confrontation Clause) and twenty-first
(Fair Cross-Section) claims are barred by his failure to make a contemporaneous
objection at trial. (Ans. at 65-68, 124-25.) “[T]he Texas contemporaneous objection
rule constitutes an adequate and independent state ground that procedurally bars federal
habeas review of a petitioner’s claims.” Rowell, 398 F.3d at 375 (quoting Fisher v. Texas,
169 F.3d 295, 300 (5th Cir. 1999)); see also Cotton v. Cockrell, 343 F.3d 746, 754 (5th
Cir. 2003).
1. Confrontation Clause
In his sixth claim, Ochoa complains of the admission of: (1) a recording of a
telephone conversation between Ochoa and Cecilia in which she asks him why he wants
to kill them; and (2) the testimony of Cecilia’s sister, Alma Alviso, regarding the reason

53

Cecilia made those recordings and Cecilia’s statement that Ochoa had held a gun to her
head. (Pet. at 104-105.)
On direct appeal, Ochoa complained that the admission of the recording violated
his rights under the Confrontation Clause of the Sixth Amendment. (Appellant’s Brief
at 35-43.) The Court first notes that only the complaint against the recording was
presented on direct appeal. The complaint regarding Cecilia’s statements to Alma does
not appear to have been presented to the state court outside of a complaint that trial
counsel was ineffective for failing to make a Confrontation Clause objection.
Respondent does not assert any failure to exhaust regarding this portion of the claim,
but both parties clearly allege that trial counsel failed to make an objection to this based
on the Confrontation Clause. Since the unexhausted portion of this claim would now
be procedurally barred by the Texas abuse-of-the-writ rule if brought in a subsequent
state habeas proceeding, this Court may treat this entire claim as subject to a state
procedural bar. This Court may also deny this claim on the merits regardless of any
failure to exhaust.
The CCA found that trial counsel’s objections to this evidence did not assert a
violation of the Confrontation Clause, and therefore the error was not preserved for
appeal. Ochoa, slip op. at 17. Ochoa acknowledges that a contemporary objection was
not made at trial on the basis of the Confrontation Clause, but asserts that the
ineffective assistance of trial counsel constitutes sufficient cause and prejudice to excuse

54

the procedural default of this claim. (Reply at 46-49.) As set out in subsection
(A)(3)(a)(1) above, however, the state court on habeas review reasonably denied the
claim that trial counsel were ineffective for failing to make a Confrontation Clause
objection, finding that neither prong of the Strickland test had been satisfied. (SHR at
368-82.) Therefore, Ochoa has not shown cause and prejudice to excuse the procedural
bar of this claim. Ochoa’s sixth claim is DENIED as procedurally barred.
In the alternative, Ochoa has not shown that this claim has merit. As Respondent
points out, binding circuit precedent holds that “the Confrontation Clause does not
operate to bar the admission of testimony relevant only to a capital sentencing
authority’s selection decision.” Fields, 483 F.3d at 326. Because the eligibility decision
is resolved in the guilt/innocence phase of a Texas capital murder trial, the punishment
phase of Ochoa’s trial only concerned the selection decision. Since this evidence was
admitted in the punishment phase of his trial, the Confrontation Clause was not violated
by its admission.
Ochoa acknowledges that “the Supreme Court has not specifically held at this
point that the Confrontation Clause applies to capital sentencing,” but argues that the
language of the clause and developing case law in other circuits supports his argument.
(Reply at 51-53.) Ochoa’s argument appears sufficient to preserve the issue for appeal,
but not to overcome the circuit precedent that binds this Court. Accordingly, if this
claim were not procedurally barred, it would be denied for lack of merit.

55

2. Fair Cross Section
In his twenty-first claim, Ochoa complains that he was deprived of his right to a
fair and impartial jury because the venire did not reflect a fair cross-section of the
community as required by the Sixth Amendment. (Pet. at 161-62.)
Ochoa raised this as the eighth claim in his post-conviction application for a writ
of habeas corpus, which was found by the state habeas court to be procedurally barred
for failing to raise it in a contemporaneous objection at trial. (SHR at 394-95.) This
finding was expressly adopted by the CCA in its order denying relief. Ex parte Ochoa,
2009 WL 2525740 at *1. This was a reasonable finding and sufficient to bar federal
habeas review. See Turner v. Quarterman, 481 F.3d 292, 301 (5th Cir. 2007). Because
Ochoa does not show an exception to procedural bar, this claim is DENIED as
procedurally barred.
In the alternative, this claim lacks merit. The state habeas court found in the
alternative that Ochoa had not shown: (1) that young adults and persons with low
income are a distinctive group; (2) that Hispanics, young adults, and persons with low
income are consistently under represented in the venire relative to their members in the
community who are qualified to serve; or (3) an operational defect in the County’s juror
selection process. Instead, Ochoa simply complained that Hispanics, young adults, and
persons with·low income do not participate in that process. (SHR at 396-404.) This
asserts the same claim that has been rejected repeatedly in this Circuit. See Rivas v.

56

Thaler, 432 F. Appx. 395, 402-403 (5th Cir. 2011); Edwards v. Stephens, Civ. Action No.
3:10-CV-6-M, 2014 WL 3880437, at *13-14 (N.D. Tex. Aug. 6, 2014), certificate of
appealability denied, 612 F. App’x 719 (5th Cir.), cert. denied, 136 S. Ct. 403 (2015);
Battaglia, 2013 WL 5570216, at *4; Doyle v. Thaler, No. 3:08-CV-138-B, 2012 WL
2376642, at *10-11 (N.D. Tex. June 25, 2012), certificate of appealability denied sub nom.
Doyle v. Stephens, 535 F. App’x 391 (5th Cir. 2013), cert. denied, 134 S. Ct. 1294 (2014);
Escamilla v. Thaler, Civ. Action No. 3:06-CV-2248-O, 2012 WL 1019605, at *14 (N.D.
Tex. Mar. 26, 2012), aff’d sub nom. Escamilla v. Stephens, 602 F. App’x 939 (5th Cir.), cert.
denied, 136 S. Ct. 66 (2015); see also Berghuis v. Smith, 559 U.S. 314, 333 n.6 (2010)
(“We have also never ‘clearly’ decided, and have no need to consider here, whether the
impact of social and economic factors can support a fair-cross-section claim.”).
The state habeas court’s alternative findings are entitled to deference. Ochoa has
not overcome the presumption of correctness to these alternative findings, much less
that the alternative denial of this claim on the merits was unreasonable. Therefore, if
this claim were not procedurally barred, it would be denied for lack of merit.
b. Failure to Raise on Direct Appeal
Respondent asserts that Ochoa’s fifteenth, eighteenth and twenty-first claims were
found procedurally barred by the state habeas court on the state law ground that they
could have been presented on direct appeal but were not. (Ans. at 100, 103-105, 11314, 124-25.)

57

1. Destruction of Evidence
In his fifteenth claim, Ochoa asserts that he was deprived of his right to due
process when the police destroyed certain evidence that was seized upon his arrest. (Pet.
at 146-53.) This claim was not presented on direct appeal, but in Ochoa’s first claim for
relief presented in his post-conviction application for a writ of habeas corpus filed in the
state court. The state court found that this claim was procedurally barred in state
habeas review because it relied upon the record developed at trial and should have been
brought in the direct appeal to the CCA. (SHR at 353-54) These findings were
expressly adopted by the CCA in its order denying relief. Ex parte Ochoa, 2009 WL
2525740 at *1.
The state court relied upon the state procedural rule that “that habeas corpus
cannot be used as a substitute for appeal, and that it may not be used to bring claims
that could have been brought on appeal.” Ex parte Nelson, 137 S.W.3d 666, 667 (Tex.
Crim. App. 2004); see also Ex parte Gardner, 959 S.W.2d 189, 199 (Tex. Crim. App.
1996) (finding that failure to raise an issue on direct appeal bars consideration of that
issue under habeas corpus proceedings). This Texas rule has been recognized as an
independent and adequate state ground to bar federal habeas review. See Brewer v.
Quarterman, 466 F.3d 344, 347 (5th Cir.), adhered to on denial of reh’g, 475 F.3d 253 (5th
Cir. 2006). This rule was firmly established by the state courts by February of 1998,

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well before Ochoa’s conviction and direct appeal.

See Busby, 359 F.3d at 719.

Therefore, it is a sufficient independent and adequate state ground to bar this claim.
Ochoa asserts that his trial and appeal counsel were ineffective for failing to
preserve this evidence and present this complaint on appeal. The state court denied this
on independent and adequate state grounds and Ochoa has not shown cause and
prejudice to excuse the procedural bar of this claim. Therefore, Ochoa’s fifteenth claim
is DENIED as procedurally barred.
In the alternative, this claim lacks merit. As set out in subsection (A)(3)(a)(2)
above, Ochoa has not shown that the destruction resulted from any bad faith on the part
of law enforcement. The state habeas court, in the alternative, made findings that this
claim lacks merit. (SHR at 355-60.) These findings have not been shown to be
incorrect. Therefore, if this claim was not procedurally barred, it would be denied for
lack of merit.
2. Mitigation Special Issue
In his eighteenth claim, Ochoa asserts that his rights to due process and to be free
from arbitrary and capricious punishment were violated when the state failed to assign
a burden of proof to the mitigation special issue. (Pet. at 153-61.) This claim was not
presented on direct appeal.
In his second claim for relief presented in his state post-conviction application for
a writ of habeas corpus, Ochoa complained that the failure of the state law to require

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that the state prove the absence of mitigating evidence beyond a reasonable doubt
violated his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments. (SHR
at 25-30 (citing Apprendi v. New Jersey, 530 U.S. 466 (2000), Ring v. Arizona, 536 U.S.
584 (2002), and Blakely v. Washington, 542 U.S. 296 (2004)). The state court found
that this claim was procedurally barred in state habeas review because it relied upon the
record developed at trial and should have been brought in the direct appeal to the CCA.
(SHR at 362.) These findings were expressly adopted by the CCA in its order denying
relief. Ex parte Ochoa, 2009 WL 2525740 at *1.
As set out above, this rule was well established before Ochoa’s direct appeal and
has been recognized as an independent and adequate state ground to bar federal habeas
review. See Brewer, 466 F.3d at 347; Busby, 359 F.3d at 719. Ochoa also complains that
his trial counsel were ineffective for failing to raise this issue at trial, but it is not clear
whether this is being asserted as cause and prejudice to excuse the procedural default.
(Pet. at 161.) Even so, this Court found in subsection (A)(3)(c)(6), above, that trial
counsel were not ineffective in failing to raise this claim and, in the alternative, that this
claim lacks merit.
Ochoa has not shown cause and prejudice to excuse the procedural bar applied by
the state court to deny this claim, or that the claim has merit. Therefore, this claim is
DENIED as procedurally barred and, in the alternative, for lack of merit.

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3. Fair Cross Section
As set forth in subsection (a)(2) above, Ochoa’s twenty-first claim asserts that his
right to a jury drawn from a fair cross section of the community was denied because the
venire did not reflect a fair cross-section of the community. He relies upon evidence that
was not in the record before the trial court and CCA on direct appeal. This Court has
already denied this claim as procedurally barred because it was not raised in a
contemporaneous objection before the trial court and found, in the alternative, that it
lacks merit.

Therefore, it is unnecessary to determine whether it may also be

procedurally barred on this state ground as well.
c. Abuse of the Writ
In Ochoa’s nineteenth claim, he complains that the Texas mitigation special issue
given in his case failed to adequately define what is meant by mitigation or mitigating
evidence. (Pet. at 153-61.) Respondent asserts that his claim is procedurally barred
and, in the alternative, lacks merit. (Ans. at 119-21.)
This claim was found procedurally barred by the state habeas court because it was
not brought in a timely state habeas application and was found to have been brought in
subsequent state habeas proceedings that did not meet the requirements of TEX. CODE
CRIM. PROC., art. 11.071 § 5. Ex parte Ochoa, No. WR-67,495-01, 2009 WL 2525740
at *1. The application of the Texas abuse-of-the-writ doctrine to bar these claims in a
subsequent state habeas proceeding is an independent and adequate state ground for

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imposing a procedural bar in federal court. See Canales, 765 F.3d at 566; Hughes, 530
F.3d at 342.
Ochoa also complains that his trial counsel were ineffective for failing to raise this
issue at trial, but it is not clear whether this is being asserted as cause and prejudice to
excuse the procedural default. (Pet. at 161.) Even so, this Court found in subsection
(A)(3)(c)(6), above, that trial counsel were not ineffective in failing to raise this claim
and, in the alternative, that this claim lacks merit. Ochoa has not shown an exception
to procedural bar for this claim. Therefore, it is DENIED as procedurally barred and,
in the alternative, for lack of merit.
C. Claim Adjudicated on the Merits
In his fourteenth claim, Ochoa complains that the evidence is legally insufficient
to support the jury’s answer to the first special issue in finding that Ochoa would
constitute a continuing threat to society. (Pet. at 146.) Respondent asserts that the
state court’s adjudication of this claim was reasonable. (Ans. at 97-99.)
“Under § 2254(d), the limited question before this court is whether the CCA’s
decision to reject [the habeas petitioner’s] sufficiency of the evidence claim in regard to
future dangerousness was an objectively unreasonable application of the clearly
established federal law set out in Jackson [v. Virginia, 443 U.S. 307, 323 (1979)].”
Martinez v. Johnson, 255 F.3d 229, 244 (5th Cir. 2001). In Jackson, the Supreme Court
held that “the relevant question is whether, after viewing the evidence in the light most

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favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” 443 U.S. at 319.
Ochoa raised this claim in his direct appeal.

After thorough review of the

evidence in support of the jury’s finding, covering 13 of the 24 pages of its opinion, the
CCA denied the claim for lack of merit. Ochoa v. State, No. AP-74,663, slip. op at 1-13.
The CCA explained,
The evidence shows that on Sunday, August 4, 2002, appellant shot his
wife, two of his sisters-in-law, his father-in-law, and his 18-month-old
daughter. Appellant reloaded his gun and shot his seven-year-old daughter.
This occurred in the home where appellant lived with his wife, his two
daughters, and his father-in-law. Everyone was killed except for one of the
sisters-in-law (Alma) who testified at appellant’s trial that appellant looked
“[v]ery mean, very angry” when the shooting began.
Ochoa, slip op. at 2. The state court recounted the testimony, the evidence regarding
Ochoa’s marriage and family and how his relationship with his wife changed when he
found out that the child she told him was her nephew was actually her son. “This
caused appellant and his wife to separate for about six months. The prosecution
presented evidence that appellant threatened to shoot his wife during this separation.
Alma testified that appellant became ‘more aggressive’ and ‘more mean’ to his wife after
appellant found out about Jonathan.” Slip op. at 3.
The CCA also discussed the evidence that Ochoa gave up a good job and got
addicted to cocaine, which put additional stress on his marriage. Following the shooing,
Ochoa explained to the officer the reason for the shooting was that he “couldn’t handle

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the stress anymore,” and got tired of his life. Slip op. at 3-4. The CCA also recounted
his confession that related the events of that day, including his frustration with his wife
because she would probably not let him buy more cocaine, and how he got his gun and
shot them, returning to reload his gun and then chasing down his daughter to shoot her
as well. Then, he took his wife’s purse and drove her car to get more money when the
police arrested him. Slip op. at 5. Ochoa did not remember many details about the
shooting, but he did remember reloading the gun and shooting his daughter. Ochoa
suggested on cross-examination that the police suggested some of those details. Slip op.
at 6-8.
The CCA also discussed the defense evidence of his good character, his mild brain
damage from cocaine use, and diagnosis of cocaine induced delirium. Slip op. at 8-9.
One defense expert testified that he did not think Ochoa would be a future danger away
from cocaine, but that he “‘would expect bad things could happen to’ appellant if
appellant ‘got back to a repetitive pattern of cocaine use.’” Slip op. at 10. The CCA
then explained that the prosecution’s expert provided testimony from which a jury could
infer that Ochoa would be a continuing threat to society, in that he attributed the
murders to Ochoa’s frustration and anger and not to a “cocaine-induced delirium.” Slip
op. at 10-11. The state’s expert explained,
... I don’t think it’s a delirium. I think it’s a matter of anger. I think he
was extremely frustrated with his situation. He was married–he had a
difficult relationship with his wife, partly because he was continuing to use

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cocaine and not being a husband and father. And partly because of this
Jonathan problem that he had never gotten over.
And I think that–if you look at the scene, you know this is–the first thing
that comes to your mind is anger. I mean, this was an angry slaughter of
people. And [appellant], I don’t think, is in–I asked him something about
his anger, and I don’t think he’s in good touch with his–with his angry and
frustrated feelings about the situation he was in. He didn’t have a job.
His–he didn’t have any money. He had a cocaine problem. He had made
the wrong choice. He didn’t take his father’s advice and go into this
program and get himself detoxified and off of it. Chose to stay on it. And
this is a result of it, a frustrated angry man.
Slip op. at 11-12.
The CCA applied the standard in Jackson and decided that “a rational jury could
find beyond a reasonable doubt that there is a probability that ‘a man capable of
slaughtering five members of his immediate family’ would commit criminal acts of
violence that would constitute a continuing threat to society.” Slip op. at 12 (citing
Sonnier v. State, 913 S.W.2d 511, 517-18 (Tex. Crim. App. 1995)).

The CCA’s

determination is supported by the record. Ochoa has not shown that this was contrary
to or an unreasonable application of Jackson, or based on an unreasonable determination
of the facts. Ochoa has not met the standard set it out in § 2254(d). Therefore, this
claim is DENIED.
VI. REQUEST FOR EVIDENTIARY HEARING
Ochoa requests an evidentiary hearing. (Pet. at 163.) This Court has discretion
to grant an evidentiary hearing if one is not barred under 28 U.S.C. § 2254(e)(2). See
Schriro v. Landrigan, 550 U.S. 465, 468 (2007). In exercising that discretion, the Court
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considers whether a hearing could enable petitioner to prove the petition’s factual
allegations which, if true, would entitle him to relief. Id. at 474. The Court also must
consider the deferential standards in § 2254(d), which limit the Court’s ability to grant
habeas relief. Id.
Ochoa argues that a hearing is required because these claims come within the
exception to bar created in Martinez, and that this Court should review these claims de
novo, requiring an evidentiary hearing to receive testimony on matters such as trial
counsel’s strategy. (P’s Supp. Br. at 23-33.) The United States Court of Appeals for the
Fifth Circuit has declined to hold that Martinez mandates an evidentiary hearing or
opportunity for evidentiary development in federal court. See Segundo v. Davis, — F.3d
—, 2016 WL 4056397 at *3-4 (5th Cir. July 28, 2016). Instead, the narrow exception
created in Martinez “merely allows” federal merits review of a claim that otherwise would
have been procedurally defaulted. “Reading Martinez to create an affirmative right to an
evidentiary hearing would effectively guarantee a hearing for every petitioner who raises
an unexhausted IATC claim and argues that Martinez applies.” Id. at *3. And although
the cause and prejudice inquiry is fact-specific, that does not entitle habeas petitioners
to evidentiary development.
But there “must be a viable constitutional claim, not a meritless one, and
not simply a search for evidence that is supplemental to evidence already
presented.” Ayestas, 817 F.3d at 896. The decision to grant an evidentiary
hearing “rests in the discretion of the district court.” See Schriro v.
Landrigan, 550 U.S. 465, 468, 474, 127 S.Ct. 1933, 167 L.Ed.2d 836
(2007) (“It follows that if the record refutes the applicant’s factual
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allegations or otherwise precludes habeas relief, a district court is not
required to hold an evidentiary hearing.”); see also McDonald v. Johnson, 139
F.3d 1056, 1060 (5th Cir. 1998) (“The district court had sufficient facts
before it to make an informed decision on the merits ... and, accordingly,
did not abuse its discretion in refusing to hold an evidentiary hearing.”).
Here, the district court thoroughly reviewed the record of the state-court
proceedings, and made specific findings of fact in denying relief. Given the
extent of the factual development during trial and during the state habeas
proceedings, the district court did not abuse its discretion in determining
it had sufficient evidence and declining to hold a hearing.
Id. at *4. In light of the record and this Court’s own review of the merits of these claims,
the request for an evidentiary hearing is DENIED.
VII. CONCLUSION
The Court denies Ochoa’s petition for a writ of habeas corpus. In accordance
with Federal Rule of Appellate Procedure 22(b) and 28 U.S.C. § 2253(c), and after
considering the record in this case, the Court denies Ochoa a certificate of appealability
because he has failed to make a substantial showing of the denial of a constitutional
right. See Miller-El, 537 U.S. at 338; Slack v. McDaniel, 529 U.S. 473, 483-84 (2000);
28 U.S.C. § 2253(c)(2). If Ochoa files a notice of appeal, he may proceed in forma
pauperis on appeal.
SO ORDERED.
Signed September 21st, 2016.

___________________________________
ED KINKEADE
UNITED STATES DISTRICT JUDGE

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