Martinez v. Stephens

Filing 29

MEMORANDUM AND OPINION. The Court denies Martinezs petition and dismisses thiscase with prejudice. No Certificate of Appealability will issue in this case.(Signed by Judge Melinda Harmon) Parties notified.(rhawkins)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
RAYMOND DELEON MARTINEZ,
Petitioner,
VS.
WILLIAM STEPHENS,
Defendant.

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CIVIL ACTION NO. 4:13-CV-1994

MEMORANDUM AND ORDER

In 1984, a jury first convicted Raymond Deleon Martinez of capital murder. In the
subsequent decades, Martinez has extensively litigated in both state and federal court. During
that time, Martinez has faced one retrial of his conviction and two retrials of his sentence.
Relevant to the matters now before the Court, a jury in 2009 again answered Texas’ special-issue
questions in a manner requiring the imposition of a death sentence.
Martinez has filed a federal petition for a writ of habeas corpus challenging his death
sentence. Martinez raises four grounds for relief, only one of which he presented in state court.
Respondent William Stephens has filed an answer. After considering the record, the pleadings,
and the applicable law—with particular emphasis on the operation of the Anti-Terrorism and
Effective Death Penalty Act (“AEDPA”)—the Court finds that Martinez has not shown an
entitlement to habeas relief. The Court will deny Martinez’s petition. The Court will not certify
any issue for appellate review.
BACKGROUND
This Court has already once considered, and rejected, legal challenges to the trial of
Martinez’s guilt. Martinez comes before the Court as one lawfully convicted of capital murder.
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Because the instant federal petition only raises issues relating to Martinez’s death sentence, the
Court will succinctly summarize the underlying crime.
As part of a violent crime spree in July 1983, Martinez and his accomplices entered the
Long Branch Saloon in Houston, Texas with the intention of committing robbery. During a
violent confrontation, Martinez shot the unarmed manager Herman Chavis multiple times.
Martinez later boasted that he “had to unload . . . his whole gun on the fat dude.” Tr. Vol. 21 at
86.1 Over a ten-day period, Martinez would kill four more people—including his own sister—
before his arrest.
A jury first convicted Martinez of capital murder in 1984. The succeeding years have
brought numerous legal challenges, twice requiring retrial. In 1988, the Texas Court of Criminal
Appeals overturned Martinez’s conviction and sentence because of jury-selection error.
Martinez v. State, 763 S.W.2d 413 (Tex. Crim. App. 1988). A retrial in 1989 resulted in another
capital conviction and death sentence. The Court of Criminal Appeals affirmed on direct appeal
and denied his application for state habeas corpus relief. Martinez v. State, 867 S.W.2d 30 (Tex.
Crim. App. 1993); Ex parte Martinez, No. 42,342-01 (Tex. Crim. App. 1999). Martinez then
filed a federal habeas petition challenging his conviction and sentence. After significant factual
development and an evidentiary hearing, this Court denied habeas relief. Martinez v. Dretke,
4:99-cv-3147. The Court of Appeals for the Fifth Circuit partially granted Martinez’s request for
a Certificate of Appealability, but eventually denied relief on all federal claims. Martinez v.
Dretke, 404 F.3d 878 (5th Cir. 2005). The United States Supreme Court denied certiorari
review. Martinez v. Dretke, 546 U.S. 980 (2005).
1

Through the decades of judicial review, the state court proceedings have resulted in a voluminous record.
The Court will cite the Clerk’s Record containing trial court motions and docket entries as Clerk’s Record at ___.
The reporter’s record containing third punishment hearing will be cited as Tr. Vol. ___ at ___. The Court will refer
to the record from Martinez’s most-recent state habeas proceedings as State Habeas Record at ___. Citations to the
transcript of the August 29, 2012 state habeas hearing will appear as Writ Hearing at ___.

2 / 29

In 2007, the Court of Criminal Appeals ordered a new sentencing hearing because the
jury instructions had failed to provide an adequate vehicle to consider Martinez’s mitigating
evidence. Ex parte Martinez, 233 S.W.3d 319 (Tex. Crim. App. 2007). At age 62, Martinez
again faced a death-penalty trial. Jurors would have to answer three special-issue questions: (1)
did Martinez kill deliberately; (2) would Martinez be a future societal danger and (3) did
sufficient circumstances militate against the imposition of a death sentence. Clerk’s Record at
4709-11; Tex. Code Crim. Pro art. 37.0711 §3(b), 3(e). Martinez’s attorneys2 faced a staggering
task in defending against a death sentence. Given the prior sentencing hearings, the defense
knew that the prosecution would call witness after witness to recount Martinez’s life-long violent
acts. To summarize their testimony, Martinez first entered state custody after a statutory rape
conviction at age 15. Martinez afterwards only spent a few months in free society before
returning to juvenile custody for committing theft. Martinez escaped, but was recaptured. Only
a month after his release at age 18, he committed a burglary that resulted in a two-year sentence
in the Texas Department of Corrections. Martinez later served a lengthy incarceration for
offenses such as armed robbery and theft of an automobile.
Martinez’s violent behavior continued unabated behind bars. Martinez attacked other
inmates with little provocation.

He stabbed three inmates, possessed contraband such as

marijuana, and tried to escape. Prison records described Martinez as “an organizer and leader of
the Texas Syndicate . . . [who] killed those who opposed the formation of said organization. . . .
[H]e was . . . chronically violent physically and verbally and would attack others with little
provocation.” Tr. Vol. 29 at 97; Tr. Vol. 38 at 77.
After his parole in 1982, Martinez relentlessly continued his lawlessness. Martinez’s

2

Jerome Godinich, Jr., Diana Olivera, and Amy Martin represented Martinez in the 2009 retrial of his
sentence. The Court will refer to these attorneys collectively as “trial counsel.”

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brief time in free society was marked by intermittent care in mental-health facilities, at times
because he feigned mental illness. He refused to work and bragged that he had committed
numerous robberies. He stole cars. He threatened others with weapons. He tried to enter the
narcotics trade and killed a man who sold him precursor chemicals for drugs.
On July 11, 1983, Martinez began the violent crime spree that ended in the murder for
which the jury convicted him.

With his accomplices, Martinez committed violent armed

robberies. After a disagreement, Martinez killed his sister and her boyfriend. He killed a
prostitute because she was “trying to get slick” with him and “he didn’t like her.” Tr. Vol. 19 at
26; Tr. Vol. 21 at 133; Tr. Vol. 38 at 77. The police arrested Martinez on July 23, 1983.
Throughout the decades of subsequent incarceration, Martinez’s behavior did not
improve. Between 1986 and 2005 he committed thirty-four documented disciplinary incidents,
including sixteen assaults on correctional officers. He assaulted other inmates. He incited others
to violence. He would spit at officers after minor inconveniences. He claimed to have gang
connections that could extend to the outside world. In extremely graphic terms, he described
raping other inmates. He referred to himself as a “psychopath.” Tr. Vol. 25 at 167. Even when
housed in the most secure areas of a facility, he would bypass security measures to assault other
inmates.
In all, Martinez claimed to have “murdered at least 8 people.” Tr. Vol. 38 at 77.
Martinez “ha[d] little remorse and appear[ed] to place the blame on others.” Tr. Vol. 29 at 62;
Tr. Vol. 38 at 77. With that lengthy, detailed, and extremely incriminating background, the
prosecution had an overwhelmingly strong case for finding that Martinez would be a future
danger to society.
Martinez’s attorneys came to his third sentencing hearing with a full awareness of what
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evidence both the State and the defense had previously presented. Trial counsel’s case for a life
sentence emphasized mitigating factors in Martinez’s background. Martinez grew up in a family
of migrant workers with a mother who suffered from mental illness. Martinez himself had a
history of paranoia, panic attacks, and anxiety. As a child, Martinez developed a reputation for
“being crazy.”

Tr. Vol. 26 at 90.

Mental-health experts eventually diagnosed him with

schizophrenia. He suffered from physical conditions such as headaches and stomach problems
throughout his life. Witnesses from some of the robberies that ended in death testified that they
had not actually seen who had pulled the trigger, potentially lessening Martinez’s culpability.
Trial counsel also argued that, despite his past behavior, his age would influence whether he
would constitute a future danger.
For the third time, the jury answered Texas’ special issues in manner requiring the
imposition of a death sentence.
Through appointed counsel, Martinez challenged his third death sentence on automatic
direct appeal to the Texas Court of Criminal Appeals. On December 15, 2010, the Court of
Criminal Appeals affirmed in a published decision. Martinez v. State, 327 S.W.3d 727 (Tex.
Crim. App. 2010). The United States Supreme Court denied Martinez’s petition for writ of
certiorari. Martinez v. Texas, ___ U.S. ___, 131 S. Ct. 2966 (2011).
Under Texas law, state appellate and habeas review run concurrently. Through appointed
habeas counsel,3 Martinez filed a state habeas application raising ten grounds for relief. With
relevance to the instant proceedings, one of Martinez’s claims argued that he “is ineligible for the
death penalty under Atkins v. Virginia because he is mentally retarded with an IQ of 65” and that
“trial counsel failed to raise his retardation as a viable defense.” State Habeas Record at 6. After

3

Patrick F. McCann represented Martinez on state habeas review. The Court will refer to Mr. McCann as
“state habeas counsel.”

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testing by a court-appointed psychologist resulted in IQ scores well above the cut-off for mental
retardation, state habeas counsel withdrew the Atkins-related claims. On October 4, 2012, the
trial-level habeas court entered findings of fact and conclusions of law recommending that the
Texas Court of Criminal Appeals deny habeas relief. State Habeas Record at 1160-86. The
Court of Criminal Appeals adopted the lower court’s findings and conclusion and, after its own
review, denied relief. Ex parte Martinez, No. 42,342-03 (Tex. Crim. App. June 26, 2013).
Federal review followed.
MATTERS BEFORE THE COURT
Through appointed counsel, Martinez raises four claims in his federal petition for a writ
of habeas corpus, all of which assert that trial counsel provided ineffective representation under
Strickland v. Washington, 466 U.S. 668 (1984). (Instrument No. 20). A court reviewing a
Strickland claim ask whether “a defense attorney’s performance f[ell] below an objective
standard of reasonableness and thereby prejudice[d] the defense.” Yarborough v. Gentry, 540
U.S. 1, 4 (2003) (emphasis added); see also Lafler v. Cooper, ___ U.S. ___, 132 S. Ct. 1376,
1384 (2012); Wiggins v. Smith, 539 U.S. 510, 520 (2003). Martinez contends that the trial
representation failed to meet constitutional expectations when counsel:
1.

2.

did not present evidence that Martinez suffered from organic brain damage
as a result of his exposure to organophosphate pesticides;

3.

did not object to allegedly improper questioning and argument by the
prosecutor; and

4.

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did not object under Crawford v. Washington, 541 U.S. 36 (2004) to a
medical examiner’s testimony about autopsies he had neither performed
nor witnessed;

did not argue that Martinez was ineligible for execution under Atkins v.
Virginia, 536 U.S. 304 (2002).

Martinez’s petition acknowledges that all but one of his claims come before the Court in
a compromised procedural posture. Under 28 U.S.C. § 2254(b)(1), “[a]n 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 unless it appears that . . . the applicant has exhausted the remedies available in the
courts of the State[.]” Exhaustion “reflects a policy of federal-state comity designed to give the
State an initial opportunity to pass upon and correct alleged violations of its prisoners’ federal
rights.”

Anderson v. Johnson, 338 F.3d 382, 386 (5th Cir. 2003) (internal citations and

quotations omitted). Martinez concedes in his petition that he did not present his first three
claims in state court. Martinez, however, argues that jurisprudential principles should allow for
full federal consideration of his unexhausted claims.
Respondent has filed an answer arguing that procedural and substantive law preclude
habeas relief on Martinez’s claims. (Instrument No. 27). Martinez has filed a reply. (Instrument
No. 28). This matter is ripe for adjudication. The Court will first address Martinez’s exhausted
claim before deciding whether federal procedure allows for judicial consideration of his
remaining grounds for relief.
THE CLAIM RAISED IN STATE COURT
Martinez’s fourth claim faults trial counsel for not arguing that intellectual disability,
formerly known as mental retardation,4 precludes his execution. The Supreme Court in Atkins v.
Virginia, 536 U.S. 304 (2002) held that “death is not a suitable punishment for [an intellectually
disabled] criminal.”

Id. at 321.

The Atkins Court relied on standards provided by the

psychological profession to define intellectual disability:
[Intellectual disability] refers to substantial limitations in present functioning. It
4

The Supreme Court used the term “mental retardation in the Atkins decision. Recent cases, however, have
adopted the psychological community’s current use of the term “intellectual disability.” See Hall v. Florida, ___
U.S. ___, 134 S. Ct. 1986, 1992 (2014).

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is characterized by significantly subaverage intellectual functioning, existing
concurrently with related limitations in two or more of the following applicable
adaptive skill areas: communication, self-care, home living, social skills,
community use, self-direction, health and safety, functional academics, leisure,
and work. [Intellectual disability] manifests before age 18.
Atkins, 536 U.S. at 308 n.3 (quoting American Association on Mental Retardation, Mental
Retardation: Definition, Classification, and Systems of Supports 5 (9th ed. 1992)). From this
definition, courts have distilled three indispensable criteria for arriving at a diagnosis of
intellectual disability: (1) significantly subaverage intellectual functioning; (2) related significant
limitations in adaptive skill areas; and (3) manifestation of those limitations before age 18. See
Lewis v. Quarterman, 541 F.3d 280, 283 (5th Cir. 2008); Clark v. Quarterman, 457 F.3d 441,
444 (5th Cir. 2006).
Martinez argues that his “previous attorneys made the determination that he was not
mentally retarded based solely on IQ tests results administered much later in Mr. Martinez’s life.
They never retained an expert to determine whether Mr. Martinez had deficits in adaptive
functioning as a result of an intellectual disability.” (Instrument No. 20 at 43). Martinez alleges
that constitutionally adequate trial preparation would have resulted in evidence relating to the
first two prongs of Atkins tri-partite analysis. Martinez relies on the following information to
meet the first Atkins prong:
•

•

Martinez performed poorly in school, repeating first grade three times and
fifth grade once;

•

Martinez received little education while in juvenile custody;

•

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a test administered by the Texas Department of Corrections at age 18 resulted
in an IQ score of 65;

testing by Martinez’s expert on federal review, Dr. Paula Lundberg-Love,
placed Martinez’s reading ability at a fourth-grade level;

•

Dr. Lundberg-Love opined that he had weak logical abstract thinking skills
and little foresight;

•

Texas Department of Corrections records noted cognitive problems,
particularly with regard to logical and abstract reasoning.

(Instrument No. 20 at 40-41). Martinez supports his argument relating to Atkins’ second prong,
existence of adaptive deficits, by pointing to: his history of problems in school, disturbed
childhood, limited work experience, lack of close relationships, failure to evade authorities after
committing crimes, reliance on others when engaging in criminal activity, and long-standing
problems functioning normally in society. (Instrument No. 20 at 43). Martinez asks the Court to
appoint a psychological expert so that he can develop additional evidence relating to his Atkins
arguments. (Instrument No. 20 at 44).
Martinez’s petition, however, fails to provide a full background of his cognitive abilities
and his prior intellectual testing.

In Martinez’s initial round of federal review, the Court

authorized factual development relating to his claim that he suffered from neurological
impairment. Dr. Stephen Taylor Martin performed a neuropsychological evaluation in 2001,
resulting in a Full Scale IQ score of 107, a Performance IQ of 97, and a Verbal IQ of 114—all
scores considerably above the cut-off for mental retardation. The defense’s expert at the third
sentencing hearing (Dr. Lundberg-Love) “considered accurate the 2001 intelligence testing[.]”
State Habeas Record at 1163. Trial counsel submitted an affidavit on habeas review explaining
that the defense “review[ed] [Martinez’s] voluminous records and court proceedings and
consult[ed] with his mental health expert, Paula Lundberg-Love, Ph.D., who considered
[Martinez] an intelligent individual.” State Habeas Record at 1163. Also six assessments over
twenty-two years determined that Martinez had “average intelligence,” including a 1967
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Weschsler Adult Intelligence Full Scale IQ score of 93 and testing from 1969 showing a “79
IQ.” State Habeas Record at 1164-65.
In a state habeas hearing, counsel conceded that “Martinez is not retarded.” State Writ
Hearing at 4.

State habeas counsel explained: “I’m here today to abandon[] the mental

retardation claim. And of course as a result of that the claim regarding the failure to investigate
evidence of mental retardation against [trial counsel], I believe that this is the fair thing to do.”
State Writ Hearing at 5. Because “the lack of a full-scale IQ score of 75 or lower is fatal to an
Atkins claim.” Blue v. Thaler, 665 F.3d 647, 658 (Tex. Crim. App. 2011), state habeas counsel
“withdrew [Martinez’s] . . . ground for relief alleging that [Martinez] is mentally retarded.” State
Habeas Record at 1162.
Even though the state habeas court recognized that it did “not need to consider
[Martinez’s] mental retardation claim,” the state habeas court still adjudicated his allegation.
State Habeas Record at 1163. The state habeas court credited trial counsel’s decision that
“mental retardation was not a viable defense to urge at the instant retrial.” State Habeas Record
at 1163. The state habeas court emphasized that “intelligence testing indicat[ed] that [Martinez]
functioned at a level higher than that of a mentally retarded individual[.]” State Habeas Record
at 1165. The state habeas court also extensively reviewed the factual indications of adaptive
deficits, finding strong evidence of good adaptive skills. State Habeas Record at 1165-68.
Based on its thorough review of the record, the state habeas court concluded that
there is no credible evidence of mental retardation and no credible basis for
believing that [Martinez] is a mentally retarded person in terms of the prevailing
diagnostic standards. Further, [Martinez] fails to meet his burden to establish the
criteria requisite to demonstrate that he is a mentally retarded individual and not
eligible for the death penalty under Atkins.

State Habeas Record at 1168. Martinez “fail[ed] to demonstrate that he was a low IQ, much less
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that [he] is mentally retarded.” State Habeas Record at 1173. Thus, “trial counsel was not
ineffective for failing to urge [Martinez’s] alleged mental retardation.” State Habeas Record at
1170.
Because the state habeas court adjudicated the merits of his ineffective-assistance claim,
Martinez bears a heavy burden in seeking federal habeas relief. “Surmounting Strickland’s high
bar is never an easy task.” Padilla v. Kentucky, 559 U.S 356, 372 (2010). Even when engaging
in a de novo review of Strickland claims, “the standard for judging counsel’s representation is a
most deferential one.”

Harrington v. Richter, 562 U.S. 86, 105 (2011).

However,

“[e]stablishing that a state court’s application of Strickland was unreasonable under § 2254(d) is
all the more difficult.” Id. “The standards created by Strickland and § 2254(d) are both highly
deferential, and when the two apply in tandem, review is doubly so.” Id. (internal quotation
marks and citations omitted). “When § 2254(d) applies, the question is not whether counsel’s
actions were reasonable,” but “whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.” Id.
The evidence before the state habeas court was so weak that state habeas counsel
abandoned his claim that Martinez was intellectually disabled.

By now cherry-picking

information from the well-developed record, Martinez argues that trial counsel did not
adequately investigate his mental condition. Martinez, however, provides no reason to suppose
that additional investigation by counsel would have resulted in a picture much different from that
drawn from the previous decades of testing. Importantly, Martinez gives the Court no reason to
question the testing of his own expert during the first round of federal habeas review which
conclusively placed his intelligence outside Atkins’ protection.

Given the extensive

consideration of his intellectual ability in earlier proceedings, Martinez has not given the Court
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any basis on which to question the reasonableness of the state habeas court’s conclusion that trial
counsel performed adequately in this regard. See 28 U.S.C. §2254(d)(1). The Court, therefore,
will deny relief on Martinez’s only exhausted ground for relief.
THE UNEXHAUSTED CLAIMS
Martinez did not raise claims one through three in state court.

Federal habeas relief is

not available to petitioners who have not exhausted state court remedies. See 28 U.S.C. §
2254(b)(1). An inmate who files a petition containing unexhausted claims usually cannot return
to state court because Texas’ abuse-of-the-writ doctrine (codified at Tex. Code Crim. Pro. art.
11.071 § 5) generally prohibits the filing of successive state habeas applications. Accordingly, a
procedural default results when an inmate advances for the first time in federal court a claim that
the state courts would bar on procedural grounds. See Nobles v. Johnson, 127 F.3d 409, 420 (5th
Cir. 1997) (“A procedural default . . . occurs when a prisoner fails to exhaust available state
remedies and ‘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.’”) (quoting
Coleman v. Thompson, 501 U.S. 722, 734 n.1 (1991)); see also Steele v. Young, 11 F.3d 1518,
1524 (10th Cir. 1993) (holding that when “it is obvious that the unexhausted claim would be
procedurally barred in state court, we will forego the needless ‘judicial ping-pong’ and hold the
claim procedurally barred from habeas review”). Because Martinez did not raise claims one
through three previously, and could not do so now, a procedural bar forecloses federal review of
those issues.
An inmate may overcome the procedural bar of his claims. The Supreme Court has noted
that
[i]n all cases in which a state prisoner has defaulted his federal claims in state
court pursuant to an independent and adequate state procedural rule, federal
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habeas review of the claims is barred unless the prisoner can demonstrate cause
for the default and actual prejudice as a result of the alleged violation of federal
law, or demonstrate that failure to consider the claims will result in a fundamental
miscarriage of justice.
Coleman, 501 U.S. at 750 (emphasis added).

A petitioner bears the burden of making a

sufficient showing that he can meet the standards to forgive procedural deficiencies. See Gray v.
Netherland, 518 U.S. 152, 161-62 (1996); Jones v. Johnson, 171 F.3d 270, 277 (5th Cir. 1999).
Martinez argues that he can show cause because his state habeas counsel did not raise the
unexhausted claims in state court.

Until 2012, the Fifth Circuit did not allow deficient

performance by habeas attorneys to forgive a procedural bar. In Martinez v. Ryan, ___ U.S. ___,
132 S. Ct. 1309, 1320 (2012), the Supreme Court recently found that ineffective assistance by a
state habeas attorney may amount to cause under some circumstances. See Trevino v. Thaler,
___ U.S ___, 133 S. Ct. 1911 (2013) (applying Martinez to cases arising from Texas courts).
Martinez contends that “[s]tate habeas counsel had an obligation to raise all potentially
meritorious claims on [his] behalf.” (Instrument No. 20 at 22). Yet merely showing that habeas
counsel did not raise a claim is insufficient to qualify for the Martinez exception. See Smith v.
Murray, 477 U.S. 527, 535 (1986) (“‘[T]he mere fact that counsel failed to recognize the factual
or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute
cause for a procedural default.’”) (quoting Murray v. Carrier, 477 U.S. 478, 486-87 (1986)). An
effective attorney does not raise every nonfrivolous claim. See Smith, 477 U.S. at 536 (focusing
on issues “more likely to prevail, far from being evidence of incompetence, is the hallmark of
effective . . . advocacy”).

Instead, an inmate must: (1) prove that his habeas attorney’s

representation fell below the standards established in Strickland and (2) show that his underlying
ineffective-assistance claim “has some merit[.]” Martinez, ___ U.S. at ___, 132 S. Ct. at 1318;
see also Crutsinger v. Stephens, 540 F. App’x 310, 317 (5th Cir. 2013); In re Sepulvado, 707
13 / 29

F.3d 550, 556 n. 12 (5th Cir. 2013). The Fifth Circuit has also recognized that a habeas attorney
“’need not (and should not) raise every nonfrivolous claim, but rather may select from among
them in order to maximize the likelihood of success[.]’” Vasquez v. Stephens, ___ F.3d ___,
2015 WL 301181, at *___ (5th Cir. Jan. 23, 2015) (quoting Smith v. Robbins, 528 U.S. 259, 288
(2000)). Accordingly, to prove ineffective assistance of habeas counsel, a petitioner “must
demonstrate that ‘a particular nonfrivolous issue was clearly stronger than issues that counsel did
present.’” Robbins, 528 U.S. at 288.
The Court, therefore, will address Martinez’s argument that habeas counsel should have
raised each unexhausted ineffective-assistance-of-trial-counsel claim in state court.
A.

Confrontation Clause (claim one)

Martinez contends that trial counsel should have objected to testimony by a medical
examiner on confrontation clause grounds. The confrontation clause of the Sixth Amendment
guarantees the right of a criminal defendant “to be confronted with the witnesses against him.”
Cruz v. New York, 481 U.S. 186, 189 (1987) (quoting U.S. Const. amend. VI). At the time of
Martinez’s conviction in 1989, Ohio v. Roberts, 448 U.S. 56, 63-66 (1980), and its progeny
required that a reviewing court evaluate the admissibility of statements by evaluating whether the
declarant was unavailable and whether the challenged testimony bore sufficient “indicia of
reliability.” See also Lilly v. Virginia, 527 U.S. 116, 138 (1999); Idaho v. Wright, 497 U.S. 805,
816 (1990).
Before the retrial of Martinez’s sentence, the Supreme Court issued Crawford v.
Washington, 541 U.S. 36 (2005) that altered the manner in which courts evaluated the
admissibility of out-of-court statements.

In Crawford, the Supreme Court held that

“[t]estimonial statements of witnesses absent from trial” are admissible “only where the
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declarant is unavailable, and only where the defendant has had a prior opportunity to crossexamine [the witness].”

541 U.S. at 59.

While not comprehensively delineating which

statements may be testimonial,5 the Crawford court observed that “[m]ost of the hearsay
exceptions covered statements that by their nature were not testimonial[.]” Id. at 56.
At the third punishment hearing, Dr. Albert Chu, an assistant medical examiner with
Harris County, testified about what caused the death of five individuals Martinez had killed
during his crime spree: Herman Chavis (the victim in the instant case); Julia Gonzales
(Martinez’s sister); Guillermo Chavez (his sister’s boyfriend); Moses Mendez (a victim during
another robbery); and Tina Pelkey (the prostitute Martinez killed). Dr. Chu did not perform any
of those autopsies and did not prepare the autopsy reports. Tr. 23 at 59, 166, 177, 178. Martinez
argues that trial counsel should have objected to Dr. Chu’s testimony as violating Crawford.
At the time of the punishment hearing, neither the United States Supreme Court nor the
Texas Court of Criminal Appeals had specifically decided whether autopsy records were
testimonial or non-testimonial under Crawford.

Intermediate Texas state appellate courts,

however, had distinguished Crawford by concluding that the “sterile recitation of facts” in an
autopsy report was non-testimonial. Campos v. State, 256 S.W.3d 757, 762-63 (Tex. App. –
Houston [14 Dist.] 2008); see also Moreno Denoso v. State, 156 S.W.3d 166 (Tex. App. –Corpus
Christi 2005); Mitchell v. State, 191 S.W.3d 219, 221–22 (Tex. App. -San Antonio 2005, pet.
ref'd). The Texas Court of Criminal Appeals had cited those cases as recognizing a “distinction
between official records that set out a sterile[,] routine recitation of an official finding or
unambiguous factual matter . . . and a factual description of specific observations or events that

5

A testimonial statement “is typically ‘[a] solemn declaration or affirmation made for the purpose of
establishing or proving some fact’” and includes “statements that were made under circumstances which would lead
an objective witness reasonably to believe that the statement would be available for use at a later trial.’” Crawford,
541 U.S. at 51-52.

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is akin to testimony.” Segundo v. State, 270 S.W.3d 79, 107 (Tex. Crim. App. 2008) (citing
Campos, 256 S.W.3d at 761-62).
Martinez, however, claims that an extension of the Supreme Court’s Crawford
jurisprudence would treat autopsy reports as testimonial evidence.

On June 25, 2009, the

Supreme Court decided Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311 (2009) which
acknowledged that business records are “generally admissible absent confrontation not because
they qualify under an exception to the hearsay rules, but because—having been created for the
administration of an entity’s affairs and not for the purpose of establishing or proving some fact
at trial—they are not testimonial.” 557 U.S. at 324. Nevertheless, the Supreme Court held that
the statement of a lab analyst “prepared specifically for use at . . . trial” fell within the core class
of testimonial statements. Id. In 2011, the Supreme Court in Bullcoming v. New Mexico, ___
U.S. ___, 131 S. Ct. 2705 (2011), extended Crawford to testimony by a scientist relying on a
forensic laboratory report that he did sign and about an experiment which he had not observed.
Martinez claims that trial counsel should have objected to the witness’ use of the autopsy reports
because the Melendez-Diaz and Bullcoming decisions would consider that any “forensic
certificates reciting test results are testimonial statements for Confrontation Clause purposes.”
(Instrument No. 20 at 10). Martinez argues that state habeas counsel’s representation should
provide cause for his failure to exhaust because he should have argued that, in a manner similar
to Melendez-Diaz and Bullcoming, trial counsel should have argued that autopsy reports are
testimonial under Crawford.
At the time of the third punishment hearing, no relevant case law placed autopsy reports
within the purview of Crawford. In fact, by that point all Texas cases to consider the issue found
that autopsy records were not testimonial. “Counsel is required to research facts and law and
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raise meritorious arguments based on controlling precedent, but the law of this circuit is clear
that counsel need not anticipate changes in the law or raise meritless objections.” United States
v. Fields, 565 F.3d 290, 296 (5th Cir. 2009) (citations omitted); see also Chaidez v. United
States, ___ U.S. ___, 133 S. Ct. 1103, 1111 (2013); Debrow v. Cain, 286 F. App’x 158, 160 (5th
Cir. 2008); Lucas v. Johnson, 132 F.3d 1069, 1078-79 (5th Cir.1998).
Even though the Supreme Court issued Melendez–Diaz before Martinez’s case was final
on direct appeal, Martinez has not persuasively shown that it would prohibit the introduction of
the autopsy reports in his case.

“Melendez–Diaz did not say one way or the other

whether autopsy reports should be considered testimonial.” Hensley v. Roden, 755 F.3d 724,
732 (1st Cir. 2014). Accordingly, the application of Melendez-Diaz to autopsy records has not
been uniform in Texas or nationwide. Some courts have observed that in Crawford itself the
Supreme Court “in no way—explicitly or implicitly—indicated that autopsy reports are
testimonial in nature.” Hensley, 755 F.3d at 732. Most federal cases have held that an autopsy
report is a non-testimonial business record. See United States v. James, 712 F.3d 79, 99 (2d Cir.
2013); Mitchell v. Kelly, 520 F. App’x 329, 331 (6th Cir. 2013); McNeiece v. Lattimore, 501 F.
App’x 634, 636 (9th Cir. 2012); United States v. De La Cruz, 514 F.3d 121, 133 (1st Cir. 2008);
United States v. Feliz, 467 F.3d 227, 236 (2d Cir. 2006). At least one Supreme Court Justice has
worried that courts would extend Crawford to “bar the admission of other reliable case-specific
technical information such as, say, autopsy reports” which “could undermine, not fortify, the
accuracy of factfinding at a criminal trial.” Williams v. Illinois, ___ U.S. ___, 132 S. Ct. 2221,
2251 (2012) (Breyer, J., concurring).
Some courts applying the logic of Crawford and its progeny have found that autopsy
reports were testimonial. See United States v. Ignasiak, 667 F.3d 1217, 1231 (11th Cir. 2012).
17 / 29

Again, the Texas Court of Criminal Appeals has not expressly considered Crawford’s
application to autopsy records. Martinez points to cases from Texas intermediate appellate
courts which “would have been obligated [the trial court] to apply the Supreme Court’s holding
in Melendez Diaz” to the autopsy records. (Instrument No. 20 at 13) (citing Woods v. State, 299
S.W.3d 200, 208 (Tex. App. -Austin 2009); Lee v. State, 2013 Tex. App. LEXIS 15244 at 17
(Tex. App. - Houston 2013); Martinez v. State, 311 S.W.3d 104, 111 (Tex. App. - Amarillo
2010); Herrera v. State, No. 07-09-00335-CR 2011 Tex. App. LEXIS 7021, 2011 WL 3802231,
at *1-*3 (Tex. App. - Amarillo 2011); Gilstrap v. State, No. 04-09-00609-CR, 2011 Tex. App.
LEXIS 181, 2011 WL 192688, at 2-3 (Tex. App. - San Antonio 2011)). Even those cases—all
decided after Martinez’s third punishment hearing—recognize that not “all autopsy reports are
categorically testimonial.” Wood, 299 S.W.3d at 209. Those cases require courts to “determine
whether the primary purpose of the autopsy report was to establish or prove past events
potentially relevant to later criminal prosecution.” Martinez, 311 S.W.3d at 111. This reasoning
comports with Melendez–Diaz which asked if the relevant records were created “for the purpose
of establishing or proving some fact at trial.” Melendez–Diaz, 557 U.S. at 324; see also
Bullcoming, ___ S. Ct. ___, 131 S. Ct. at 2719–20 (Sotomayor, J., concurring) (“When the
‘primary purpose’ of a statement is ‘not to create a record for trial,’ ‘the admissibility of the
statement is the concern of state and federal rules of evidence, not the Confrontation Clause.’”
(quoting Michigan v. Bryant, 562 U.S. 344, ___, 131 S. Ct. 1143, 1155 (2011)).
Martinez does not argue that the autopsy reports in question were created specifically to
be used in a criminal trial. Thus, Martinez has not shown that trial counsel possessed a viable
objection based on the application of Crawford and its progeny to the records used by Dr. Chu.
While trial counsel could have made a Crawford objection, Martinez has not shown that, given
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Texas state law at the time, the trial court would have excluded Dr. Chu’s testimony. With that
unsure foundation, Martinez has not shown that state habeas counsel failed to raise a claim
stronger than those contained in the habeas application. Even when Martinez filed his state
habeas application, on July 28, 2010, the unsettled state of federal law and conditional nature of
the Texas intermediate appellate court’s application of Crawford would not have provided a
particularly strong argument for habeas relief. See United States v. McGhee, 627 F.3d 454, 459
(1st Cir. 2010) (noting that the Melendez–Diaz Court was “sharply divided” and that the
Supreme Court’s “new slant on the Confrontation Clause is likely to be contested territory for
some years”). Martinez has not raised a strong claim of ineffective representation by trial or
habeas counsel.
Even if his prior attorneys should have raised a Crawford challenge, however, Martinez
has not made a strong showing of actual prejudice. Dr. Chu’s reliance on the autopsy reports
was far from the only—and not even the most convincing—evidence that Martinez had killed
several individuals. Martinez appeared before the jury as conclusively guilty of Chavis’ murder.
A witness who was present at the murders testified that Martinez was the one who shot Chavis
and others. Martinez later bragged about the killings. Another witness could at a minimum
testify that Martinez was involved in the robberies. The jury had to plug that testimony into a
deeply aggravating life history containing decades of unremittingly violent acts. Removing the
autopsy reports from the evidentiary picture would not significantly alter the jury’s consideration
of Martinez’s sentence.
Martinez has not shown a reasonable probability of a different result had trial counsel
lodged a Crawford objection. The Court, therefore, finds that Martinez has not overcome the
procedural bar of his first ground for relief.
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B.

Organic Brain Damage (claim 2)

Martinez faults trial counsel for not informing the jury that he had “suffered organic brain
damage as a result of his and his mother’s exposure to pesticides while trying to make a living in
the cotton fields of South Texas and that this brain damage made it difficult for him to control his
behavior[.]” (Instrument No. 20 at 33). Martinez bases this claim on evidence he developed
during his initial federal habeas corpus action.

In his first habeas proceedings, Martinez

complained that he suffered from organic brain damage caused by exposure to pesticides in utero
and as a child.

This Court received evidence through evidentiary hearing and deposition

testimony in which Dr. Lundberg-Love, Dr. Martin, and various fact witnesses described
evidences of mental illness in Martinez’s life. Dr. Lundberg-Love observed a long history of
symptoms and diagnoses of mental illness, including olfactory hallucinations, schizophrenia, and
paranoia. With most relevance to the instant proceedings, Dr. Lundberg-Love explained that
Martinez “was exposed to highly neurotoxic organophosphate and chlorinated hydrocarbon
pesticides because he and the members of his family worked as migrant farm laborers picking
cotton across the state of Texas during 1945 to 1960, a time when such toxic pesticides were
routinely used and workers were not educated about the dangers of such exposure.” (Instrument
No. 20 at 25). According to Dr. Martin, the exposure to pesticides caused organic brain damage
that made Martinez aggressive and unable to control his impulses.
The Court, however, found no Strickland deficient performance or prejudice in trial
counsel’s failure to present organic-brain-injury evidence. This Court observed that “Martinez’
new evidence suggesting that he might have suffered from poor impulse control caused by
organic brain damage raises some concerns.” The Court, however, found that Martinez’s
evidence of impulsivity was discordant with the evidence showing his planning and commission
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of the murder for which the jury convicted him. While some of his crimes showed some
measure of impulsivity, the court ultimately held that
[i]nformation about brain damage and its effects on impulse control might have
served to mitigate the jury's sense of Martinez’ moral culpability for his
extraneous offenses, many of which appear more impulse-driven than the Chavis
murder. Such evidence, however, is double-edged: While it might have had some
mitigating value, it might also have increased the jury’s sense of his future
dangerousness because, according to Martinez’ theory, his violence was caused
by a permanent physical condition. See, e.g., Kitchens v. Johnson, 190 F.3d 698,
703 (5th Cir. 1999). Considering the evidence of Martinez’ methodical planning
and execution of the Long Branch robbery, the sheer brutality of his other
offenses, and the double-edged nature of his new evidence, the state habeas
court’s conclusion that “the applicant cannot demonstrate that he was harmed by
defense counsels' alleged deficient performance,” id. at 28, was not unreasonable.
Accordingly, Martinez is not entitled to relief on this claim.
(Martienz v. Dretke, 4:99-cv-3147, Instrument No. 93 at 28-29).
On appeal, the Fifth Circuit entered an order that summarily granted a Certificate of
Appealability on Martinez’s claim that trial counsel should have introduced evidence of his
neurological impairment as a mitigating factor, but still denied habeas relief. The Fifth Circuit
observed that
[a]lthough Martinez proffered expert testimony in 2003 that his exposure to
pesticides in utero and through adolescence could have caused a brain
disorder that rendered him unable to control his impulses, his own expert witness,
Dr. Love, admitted that such a diagnoses would be no more than post-hoc
conjecture otherwise contradicted by Martinez’s mental health history as it stood
in 1989.
Martinez, 404 F.3d at 889. Nothing “suggested the viability of an insanity defense based on
Martinez’s exposure to neurotoxins in the course of migrant farm work” and “nothing in the
mainstream media put counsel on notice of such a connection.” Id. at 889.
Most importantly, “counsel’s decision not to introduce evidence of neurological
impairment (i.e., organic brain damage) as mitigating evidence at the punishment phase
constituted reasonable and protected professional judgment.” Id. The Fifth Circuit has held that
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“evidence of organic brain injury presents a ‘double-edged’ sword, and deference is accorded to
counsel’s informed decision to avert harm that may befall the defendant by not submitting
evidence of this nature.” Id. at 889-90. The Fifth Circuit’s review of the record indicated that
“[t]he introduction of evidence that Martinez suffered from organic (i.e., permanent) brain
damage, which is associated with poor impulse control and a violent propensity, would have
substantiated the state’s evidence and increased the likelihood of a future dangerousness
finding.” Id. Thus, a reasonable attorney could conclude that “the availability of other, less
damaging, mitigating evidence” would caution against presenting testimony that could harm the
defense. Id. at 890.
Additionally, the Fifth Circuit found that Martinez could not show that not adducing
evidence of poor impulse control attributable to organic brain damage caused a reasonable
probability of a different result. Any suggestion that pesticide exposure impaired Martinez’s
cognitive abilities conflicted with “evidence of Martinez’s methodical planning and execution of
the crime of conviction.” Id. “The evidence depicted a man capable of planning and executing
criminal acts and victimizing anyone who would get in his way, which was more than sufficient
to belie any ‘tragic impulse’ defense that Martinez could have asserted.” Id. “[E]ven if counsel
had asserted the presumption and defense of insanity and presented evidence of neurological
impairment in mitigation during Martinez’s trial, it is highly improbable that the outcome would
have been different.” Id.
Trial counsel called Dr. Lundberg-Love as a witness at the retrial of his punishment. Dr.
Lundberg-Love testified that Martinez’s mental-health records indicated that he “has difficulty
controlling his behavior” and “was impulsive,” Tr. Vol. 28 at 123, but did not connect those
neurological impairments to pesticide exposure. Martinez contends that trial counsel “has not
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offered this as an explanation as to why they failed to present this evidence. There is nothing in
the record to indicate that trial counsel failed to present evidence of Mr. Martinez’s organic brain
damage because of its double-edged nature.” (Instrument No. 28 at 11).
The record lacks an explanation for trial counsel’s decisions, primarily because Martinez
did not raise the instant Strickland claim on state habeas review. Yet Martinez’s federal claim
does not introduce any fact not presented in his initial federal habeas action and does not suggest
that additional inquiry would have seriously altered trial counsel’s decisions about presenting
mental-health testimony. His recent allegations rely entirely on the record as it stood at the time
of his retrial. Nothing suggests that the attorney representing Martinez in his third punishment
hearing was unaware of the record, particularly Dr. Lundberg-Love’s knowledge of his alleged
organic brain damage. In fact, the extent of trial counsel’s questioning suggests an impressive
familiarity with the record.6
Even in the absence of explanation of trial counsel’s specific strategic decisions,
“Strickland directs courts to consider the conduct of defense counsel based on the objective
standard of the reasonable attorney.” Druery v. Thaler, 647 F.3d 535, 540 (5th Cir. 2011).
Courts must determine “whether there is a gap between what counsel actually did and what a
reasonable attorney would have done under the circumstances.” Neal v. Puckett, 239 F.3d 683,
687 (5th Cir. 2001). In doing so, federal courts presume that defense counsel is competent and
indulge a strong presumption that counsel’s conduct is within the wide range of reasonable
professional assistance. Strickland, 466 U.S. at 689; Robison v. Johnson, 151 F.3d 256, 260 (5th
Cir. 1998).

Here, the Fifth Circuit court has already found that the underlying evidence of

organic brain dysfunction was double-edged, leaving a reasonable attorney able to conclude not
6

Still, trial counsel presented some “evidence during the instant punishment retrial concerning [Martinez’s]
alleged mental health issues, and the jury was able to consider [his] evidence when deliberating their answers to the
punishment special issues.” State Habeas Record at 1173-74.

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to put it before a jury. Also, the Fifth Circuit found no reasonable probability of a different result
had trial counsel called the witnesses from the state habeas proceedings. Martinez has not shown
any factual or legal distinction in the proceedings before trial counsel that would alter the
calculus performed by the Fifth Circuit in his initial federal proceedings. Thus, state habeas
counsel could rationally choose not to fault trial counsel’s choice not to present the double-edged
evidence. As such, Martinez has not overcome the procedural bar of his organic-brain damage
claim.
C.

References to Martinez’s Sexual Preferences (claim 3)

Martinez argues that trial counsel should have objected when “[t]he prosecutor . . . made
references throughout the trial to Mr. Martinez’s sexuality.” (Instrument No. 20 at 35). “The
references to Mr. Martinez’s sexuality were pervasive throughout the trial and were often
gratuitous and served no legitimate purpose.” (Instrument No. 20 at 35-36). Martinez contends
that the prosecution made such comments which “were merely designed to prejudice the jury
against Mr. Martinez and to deny him a fair trial.” (Instrument No. 20 at 36). Martinez asserts
that trial counsel provided deficient performance by not making an objection to each instance.
Martinez’s only points to five instances at trial in which the prosecution referenced
Martinez’s involvement in homosexual relations. In the first instance, the prosecution asked
Martinez’s niece a question about when Martinez engaged in sexual acts with another man in
front of her when she was eleven years old. Tr. Vol. 25 at 127. Trial counsel immediately
objected. In response, the prosecutor explained that the testimony was being offered as proof of
a “bad act” because Martinez was “[c]ommitting a crime in front of her,” but retreated by saying
that “it was not something that I have to put in.” Tr. Vol. 25 at 128. The court then instructed the

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jury to disregard the niece’s answer.7
In the second, the prosecution questioned the girlfriend of a codefendant about when she
ran away from home at a young age. She eventually visited an apartment in Fort Worth where
she met a man who “had a relationship with” Martinez. Tr. Vol. 21 at 98-99.
Third, during the cross-examination of Dr. Paula Lundberg-Love the prosecution asked
questions about the process of diagnosing mental illness. Dr. Lundberg-Love had testified on
direct that she diagnosed Martinez with schizophrenia. Tr. Vol. 28 at 114. She also had
reviewed his decades-long mental-health history and related that he had previously been
diagnosed with several disorders including chronic, underdifferentiated schizophrenia with
paranoid, catatonic features; paranoid features; “psychopsychological disorders, low average
intelligence, low self concept,” and psychoneurosis.

Tr. Vol. 28 at 121, 125, 128.

The

prosecution’s cross-examination discussed various changes in the psychological profession’s
diagnostic manual during Martinez’s long interaction with mental-health evaluations.

The

prosecution asked: “there have been things that have been diagnosed as a mental disorder that are
no longer a mental disorder, correct? Such as homosexuality, right?” Tr. Vol. 28 at 196. In fact,
Dr. Lundberg-Love identified other changes such as adding “a mathematic disorder,” “male
erectile disorder,” and “caffeine induced disorder,” but qualified that those did not represent her
diagnosis of Martinez. Tr. Vol. 28 at 197.
Fourth, during the prosecution’s cross-examination of Dr. Lundberg-Love he used
juvenile disciplinary records to emphasize Martinez’s many acts of misconduct during his years

7

The trial court commented that he was “sure it it’s going to be an issue on appeal[.]” Tr. Vol. 25 at 12-29.
Martinez faults appellate counsel for not raising a claim relating to the niece’s testimony about witnessing him
engage in homosexual relations. Like the other ineffective-assistance arguments, Martinez defaulted consideration
of that issue by not raising it in state court. At any rate, the Court finds that the prosecution’s questioning in that
instance was not so egregious that trial court’s curative instruction could not remedy any error.

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of incarceration. While reviewing records from several years, the prosecution mentioned that
juvenile custody records included “infraction of rules, details of escapes, attempted escapes,
homosexual acts, use of drugs, [and] security treatment for mass escape involvement[.]” Tr. Vol.
28 at 205.
Finally, the prosecution’s questioning of Martinez’s niece discussed various crimes and
prison rule infractions Martinez told her about in letters.8 After discussing Martinez’s “very”
explicit recitation of sexual acts with a twelve-year-old girl that resulted in his incarceration, the
prosecutor asked if Martinez had discussed “any sex acts he had in prison[.]” Tr. Vol. 25 at 165.
She testified that Martinez said: “He would force the prisoner for sex. . . . [H]e would hold the
knife up to [the other prisoner’s] neck and then he would tell them that blood on my knife or shit
on my ding-a-ling.” Tr. Vol. 25 at 165. During closing argument, the prosecution referenced the
niece’s testimony when chronicling Martinez’s violent acts while incarcerated:
You also know by the defendant’s own words that he committed sexual assaults.
“I even raped men, plural, in prison. I put a knife on their necks and said, ‘Blood
on my knife or shit on my ding-a-ling.’” These are anonymous victims. These are
the victims we don’t know who they are. And there is a long, long list of those
nameless, faceless victims.
Tr. Vol. 31 at 73.
For the most part, the State’s questions about Martinez’s homosexuality were accurate, in
light of the evidence, and were relevant to the State’s case. The prosecutor necessarily referred
to homosexuality when discussing how Martinez bragged about prison rape and sexual acts that
violated prison regulations. The one comment about a “relationship” was minor, but descriptive
of the circumstances viewed by a young runaway.

One question about the psychological

profession’s former consideration of homosexuality as mental illness, when in context, provided

8

In the letter, which the prosecution introduced into evidence in its entirety, Martinez described his
consensual and nonconsensual homosexual and heterosexual relations.

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background to the profession’s evolving understanding of human mental conditions.

Each

comment was incidental and, when properly contextualized, was not obviously intended to sway
jurors against Martinez because of sexual orientation.
Even if the State had exceeded the bounds of permissible statements, those comments
were not so egregious, pervasive, or prejudicial as to call into doubt the jury’s answers to the
special-issue questions. The prosecution never tied together the incidental hints of Martinez’s
sexual preferences when summarizing the justifications for a death sentence. The prosecutor did
not emphasize, accentuate, or needlessly belabor Martinez’s sexual activity, other than with
regard to the rapes he committed. Even so, the overwhelming weight of Martinez’s life-long
violent acts far overpowers any incidental harm, such as it was.

The comments were an

incidental and sporadic factor in the punishment phase and not a decisive consideration in the
jury’s decision making. The Court finds that state habeas counsel was not ineffective for not
raising a claim based on trial counsel’s response to the prosecutor’s references to homosexual
relations.
D.

Conclusion of Procedural Bar Discussion

Martinez has not shown that state habeas counsel’s representation meets the
Martinez/Trevino requirements for overcoming the procedural bar. Martinez’s failure to exhaust
claims one through three in state court bars federal consideration of their merits and precludes
habeas relief.
E.

Alternative Review of the Merits

Even if Martinez could overcome the procedural bar of his claims, the Court finds that
each unexhausted claim lacks merit. See 28 U.S.C. § 2254(b)(2) (stating that a federal habeas
court may reject claims on the merits despite being unexhausted). For the same reason that state
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habeas counsel did not provide deficient performance, trial counsel’s failure to object on the
grounds specified in claims one through three did not amount to constitutionally inadequate
representation.
Importantly, whether taken individually or cumulatively, the complained of errors did not
actually prejudice Martinez.

The prosecution presented an overwhelming case for a death

sentence. The jury could prognosticate Martinez’s future societal threat by tracing his violence
through decades in and outside of prison. From a young age Martinez broke the law, often
viciously threatening or harming others.

His time in custody did not squelch his violent

tendencies. Even when under the strictest levels of custody, Martinez assaulted others. Martinez
claimed to have raped men in prison while threatening their lives.

Martinez eschewed

opportunities to reform. He displayed little sincere remorse for killings. The prosecution proved
that Martinez has senselessly killed five people, including his own sister. Martinez claimed to
have killed more.

The instances in which Martinez argued that trial counsel should have

objected to evidence would not have meaningfully altered the way in which the jury assessed his
sentence. Martinez has not shown Strickland prejudice on his underlying claims. Martinez has
not presented any claim which, if presented in a procedurally proper manner, would warrant
habeas relief. The Court will alternatively deny each unexhausted claim.
CERTIFICATE OF APPEALABILITY
The AEDPA bars appellate review of a habeas petition unless a district or circuit court
certifies specific issues for appeal. See 28 U.S.C. § 2253(c); FED.R.APP.P. Rule 22(b). Martinez
has asked the Court to issue a Certificate of Appealability (“COA”). (Instrument No. 20 at 45).
The Court must address whether the circumstances justify an appeal before issuing a final
judgment.
28 / 29

See Rule 11, RULES GOVERNING SECTION 2254 CASES

IN THE

UNITED STATES

DISTRICT COURTS.
A COA may issue when “[a petitioner] has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2); see also Slack v. McDaniel, 529 U.S. 473, 484
(2000). Settled precedent forecloses relief on Martinez’s claims. Because Martinez has not
shown under the appropriate standard that any issue deserves appellate review, this Court will
not certify any of his habeas claims for consideration by the Court of Appeals for the Fifth
Circuit.
CONCLUSION
For the reasons described above, the Court finds that Martinez has not shown an
entitlement to federal habeas relief. This Court denies Martinez’s petition and dismisses this
case with prejudice. No Certificate of Appealability will issue in this case.
SIGNED at Houston, Texas, this 19th day of March, 2015.

___________________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

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