Hernandez v. Stephens

Filing 50

MEMORANDUM OPINION AND ORDER. IT IS ORDERED that Petitioner Fabian Hernandezs request for an evidentiary hearing is DENIED. IT IS FURTHER ORDERED that Petitioner Fabian Hernandez=s First Amended Petition for a Writ of Habeas Corpus (ECF No. 34) is DE NIED, and his cause is DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that Petitioner Fabian Hernandez is DENIED a certificate of appealability. IT IS FURTHER ORDERED that all pending motions are DENIED AS MOOT. Signed by Judge Philip R. Martinez. (scf)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
FABIAN HERNANDEZ,
TDCJ No. 999553
Petitioner,

§
§
§
§
v.
§
§
LORIE DAVIS, Director,
§
Texas Department of
§
Criminal Justice, Correctional §
Institutions Division,
§
Respondent.
§

EP-15-CV-51-PRM

MEMORANDUM OPINION AND ORDER
On this day, the Court considered Petitioner Fabian Hernandez’s
“First Amended Petition for a Writ of Habeas Corpus” (ECF No. 34) 1
[hereinafter “Amended Petition”] filed on January 27, 2016; Respondent
Lorie Davis’s “Answer with Brief In Support” (ECF No. 46) [hereinafter
“Answer”], filed on June 8, 2016; and Petitioner’s “Reply to
Respondent’s Answer” (ECF No. 49) [hereinafter “Reply], filed on July
28, 2016, in the above-captioned cause.

“ECF No.” refers to the Electronic Case Filing number for documents
docketed in this case. Where a discrepancy exists between page
numbers on filed documents and page numbers assigned by the ECF
system, the Court will use the latter page numbers.
1

Pursuant to 28 U.S.C. §§ 2241(d), 2254, Petitioner challenges the
death sentence that the state trial court imposed in his case after a jury
found him guilty of capital murder. The Texas Court of Criminal
Appeals affirmed his conviction and sentence,2 and denied his petition
for state habeas relief. 3 For the reasons discussed below, the Court
concludes that Petitioner is entitled to neither federal habeas corpus
relief nor a certificate of appealability.
I.

BACKGROUND AND PROCEDURAL HISTORY
A.

Guilt-Innocence Phase of Trial

Evidence presented during the guilt-innocence phase of
Petitioner’s trial revealed the following factual scenario.
Petitioner became romantically involved with Rene Urbina
(Urbina Hernandez) 4 and together they had two children. 66 Rep. R.
63. Petitioner and Urbina Hernandez had a tumultuous relationship,
Hernandez v. State, 390 S.W.3d 310 (Tex. Crim. App. 2012), cert.
denied, 134 S.Ct. 823 (2013).
2

Ex Parte Hernandez, No. WR-81,577-01, 2015 WL 376357 (Tex. Crim.
App. Jan. 28, 2015).

3

Rene Urbina adopted Petitioner’s name once she married Petitioner,
changing her name to Rene Urbina Hernandez.
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which led to several brief periods of separation. 66 Rep. R. 303–305; 67
Rep. R. 68–70; 69 Rep. R. 15–17, 28. Petitioner and Urbina Hernandez
eventually married on March 23, 2004. 66 Rep. R. 67; 69 Rep. R. 17; 69
Rep. R. 12. Their relationship remained tumultuous, however, and they
permanently separated in April of 2006. 66 Rep. R. 61; 67 Rep. R. 68.
On November 2, 2006, Petitioner encountered Diesta Dee Torres,
an acquaintance of over twelve years, at an El Paso bar at
approximately 10:00 p.m. 66 Rep. R. 271, 275. Petitioner, who had
been consuming alcohol, confided in Torres regarding his deep sadness
about the course of his life, and his concern for his estranged wife and
their children. 66 Rep. R. 276–77; 67 Rep. R. 8. Petitioner and Torres
left the bar together, and Petitioner asked Torres to drive him to a
nearby hotel, where Petitioner planned to spend the night. 66 Rep. R.
278–80. As Torres drove Petitioner to the hotel, Petitioner asked Torres
to let him exit the vehicle at an intersection within walking distance
from Urbina Hernandez’s home. 66 Rep. R. 272, 280–92, 294; 68 Rep.
R. 14. At that time, Urbina Hernandez lived with her mother and two
children. 66 Rep. R. 272, 294; 68 Rep. R. 14.
-3-

That same evening, Urbina Hernandez’s sister, Cynthia Estevez,
was waiting at the Urbina Hernandez residence for Urbina Hernandez
to return home. 66 Rep. R. 38–44. A little after two o’clock in the
morning of November 3, 2006, Estevez heard three gunshots in fairly
rapid succession outside of the house. Id. at 46, 66–67. When Estevez
went outside to investigate, she saw the body of her sister’s friend,
Arturo Fonseca, lying prone on the ground at the curb between two
parked vehicles. Id. at 57–58, 129–30. As Estevez rushed back inside
to call for emergency-medical assistance, her mother passed by her and
exited the house. Id. at 49. When Estevez returned outside, she saw
her mother crying over another body lying supine on the road, which
she recognized as her sister, Urbina Hernandez. Id. at 49–52.
A neighbor, Isela Cordero, woke up at approximately 2:20 a.m.
that morning to care for a sick child. Id. As she returned to her
bedroom, she heard some “pops” outside, peered out her living room
window, and saw a white, two-door Honda driving away slowly. 66 Rep.
R. 95–99.
Crime scene technicians from the El Paso Police Department
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arrived at the scene and recovered three shell casings coated with an
unusual green lacquer sealant. 66 Rep. R. 156; 67 Rep. R. 120–22. The
Medical Examiner confirmed during an autopsy that Urbina Hernandez
died from a gunshot to her forehead, fired at point blank range, which
killed her almost immediately. 66 Rep. R. 167–79. The Medical
Examiner also confirmed that Fonseca died from a close range gunshot
to the back of his head, which exited through his left temple. Id. at
182–92.
At approximately four o’clock that morning, Petitioner arrived at
the trailer home of his life-long friend, Sergio Carrasco; Carrasco lent
his car keys to Petitioner and provided Petitioner with some blankets
before going back to sleep. 67 Rep. R. 39–43, 51–53, 57–58. Petitioner
left the trailer home before Carrasco arose again to get ready for work.
Id. at 82, 92.
Carrasco went to work that morning, but he returned home during
his lunch break. When he did, he noticed a white, two-door Honda
parked behind his trailer, covered with the same blankets that he had
provided Petitioner earlier that morning. Id. at 56. After Carrasco
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returned to work, detectives contacted him and asked him to return to
his trailer home. Id. at 63. When Carrasco arrived, law enforcement
officers had already determined that the car parked behind the trailer
belonged to Fonseca. 66 Rep. R. 209, 218, 225.
Law enforcement officers were also dispatched to Petitioner’s
father’s residence, where they found Petitioner. 26 Rep. R. 14–18, 20–
31, 38–63; 27 Rep. R. 55–56, 65. Based on information that Petitioner
provided, officers also discovered a .380 caliber semi-automatic handgun
and a box of ammunition with a distinctive green sealant over the
primer in Petitioner’s father’s house. 66 Rep. R. 236–41; 67 Rep. R.
120–22; 68 Rep. R. 50–55. A Department of Public Safety forensic
firearms examiner confirmed that all of the shell casings discovered at
the murder scene were fired from the same weapon recovered from
Petitioner’s father’s residence. 67 Rep. R. 101–25.
At the conclusion of the guilt-innocence phase of trial, the jury
found Petitioner guilty beyond a reasonable doubt of the capital
murders of Urbina Hernandez and Fonseca, as charged in the
indictment. 68 Rep. R. 152.
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B.

Punishment Phase of Trial

The prosecution sought a death sentence in Petitioner’s case. 5 To
secure a death sentence, the prosecution relied on Petitioner’s affiliation
with the Barrio Azteca criminal enterprise. 6 69 Rep. R. 60–74; 70 Rep.
“[O]nce a defendant is convicted of capital murder, he becomes eligible
for the death penalty only if the State seeks a separate sentencing
hearing.” Sonnier v. Quarterman, 476 F.3d 349, 366 (5th Cir. 2007)
(emphasis in original). After hearing the evidence at the sentencing
hearing, the jury is first asked “whether there is a probability that the
defendant would commit criminal acts of violence that would constitute
a continuing threat to society” (i.e., “future dangerousness special
issue”). Tex. Code Crim. Proc. Ann. art. 37.071, § 2(b)(1) (West 2017).
In deliberating on this interrogatory, the jury “shall consider all
evidence admitted at the guilt or innocence stage and the punishment
stage, including evidence of the defendant’s background or character or
the circumstances of the offense that militates for or mitigates against
the imposition of the death penalty.” Id. § 2(d)(1). If the jury returns a
unanimous affirmative finding as to the first issue, it must then
consider: “Whether, taking into consideration all of the evidence,
including the circumstances of the offense, the defendant’s character
and background, and the personal moral culpability of the defendant,
there is a sufficient mitigating circumstance or circumstances to
warrant that a sentence of life imprisonment without parole rather
than a death sentence be imposed” (i.e., mitigation special issue). Id.
§ 2(e)(1).
5

“The Barrio Azteca was a violent paramilitary gang originally
organized by prisoners from El Paso, Texas, to protect its members,
fight rival gangs, generate profits by importing and distributing
controlled substances, and collect ‘quotas’ or fees from others selling
drugs in its territory.” Galindo v. United States, No. EP-CR-2213-KC13, 2016 WL 5956076, at *1 (W.D. Tex. 2016).
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R. 94–158. A gang intelligence officer with the El Paso County Sheriff’s
Department, Officer Jose Soria, testified that Petitioner was a
confirmed Barrio Azteca member. 69 Rep. R. 64, 71–72. The
prosecution also relied on a letter Petitioner wrote while in jail and
awaiting trial, which called for fellow Barrio Azteca members to murder
prosecution witnesses Torres and Carrasco—both of whom were also
Petitioner’s long-time friends. 69 Rep. R. 81–91; 70 Rep. R. 7, 27–35,
150–56. Officer Soria explained that the letter was addressed to
another known Barrio Azteca member and was signed “Spook,”
Petitioner’s gang moniker. 69 Rep. R. 83, 89–90. In addition to this
letter, the prosecution introduced other letters in which Petitioner
sought to have other individuals assaulted in retaliation for their
actions against the Barrio Azteca. 70 Rep. R. 124–49.
The prosecution also presented evidence that Petitioner had a
prior conviction in New Mexico for manslaughter when he was eighteen
years of age, and two prior convictions in Texas for misdemeanor theft.
70 Rep. R. 124; 71 Rep. R. 41–49; 72 Rep. R. 89–90, 109, 116, 124–33,
173.
-8-

In an effort to avoid a death sentence, defense counsel presented
evidence explaining the circumstances of Petitioner’s manslaughter
conviction. 71 Rep. R. 41–49; 72 Rep. R. 125–33. Petitioner’s sister,
Diane Hernandez Valdez, testified that the conviction resulted from an
altercation in which she was involved with other individuals. 71 Rep.
R. 41–45. She testified that Petitioner only became involved in
response to a direct challenge. 71 Rep. R. 41–45. Hernandez Valdez
claimed she fought until she heard a gunshot. Id. at 46–47. She
explained that Petitioner had shot someone in the throat. Id. at 92.
A Bureau Chief in the New Mexico Department of Corrections,
Colleen McCarney, testified about Petitioner’s non-violent behavior
during his incarceration for manslaughter from July 1994 through June
1996. 72 Rep. R. 42–106. An inmate-classification expert, Frank
AuBuchon, explained that the Texas Department of Criminal Justice
(“TDCJ”) would likely be able to control Petitioner’s actions in prison.
73 Rep. R. 5–84. A forensic psychologist, Dr. Mark Douglass
Cunningham, testified, based on his statistical analysis and review of
Petitioner’s records, that there was a “very low risk” that Petitioner
-9-

would commit acts of violence while in prison. 74 Rep. R. 217–29,
274–306.
Defense counsel also presented testimony from several family
members and friends regarding Petitioner’s disadvantaged childhood,
which included evidence that his father was an alcoholic who failed to
provide guidance during Petitioner’s formative years and was verbally
abusive toward Petitioner’s mother. 71 Rep. R. 29–35, 120–23, 145–56,
185–86, 205–12, 238–40, 268–80; 72 Rep. R. 20–24; 74 RR 237–58.
Petitioner’s family and friends also testified that Urbina
Hernandez was verbally abusive toward Petitioner. 71 Rep. R. 51–57,
175, 224–27, 237–42; 72 Rep. R. 24–31, 140–43; 74 Rep. R. 260. The
defense presented testimony that Urbina Hernandez was condescending
toward Petitioner and would insult, embarrass, and humiliate him in
front of his family; specifically, Urbina Hernandez would call him
names in front of his family, yell obscenities at him in front of their
children, throw items, and mistreat Petitioner in front of his mother.
71 Rep. R. 57, 224–26; 72 Rep. R. 142–43; 74 Rep. R. 260.
Another major component of Petitioner’s mitigation case involved
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his alleged impaired intellectual development and deficiencies.
Petitioner’s mother testified that she had poor nutrition during her
pregnancy with him. 74 Rep. R. 248–49. She also testified that when
Petitioner was six or seven years old, he contracted scarlet fever and
was in the hospital for almost a month. Id. at 251–53, 267–68. During
that time, Petitioner also developed meningitis, and the doctor informed
Petitioner’s mother that Petitioner developed mental health problems
as a result of the illness. Id. at 252. When Petitioner returned home
from the hospital, his mother noticed that he was “quieter” and
“slower”; as a result, Petitioner’s mother placed Petitioner in special
education classes. Id. at 252–53. According to Dr. Cunningham, these
adverse factors affected Petitioner’s “coping capacity,” which he
described as the amount of stress a person can bear before “doing
something stupid.” Id. at 111–16.
Dr. Cunningham further testified that Petitioner suffered from an
“intellectual deficiency” and had “deficient intelligence.” Id. at 108, 114,
121–22, 133–36. He described Petitioner’s overall intelligence and
intellectual abilities as being in the lower zone of the intelligence
-11-

continuum toward intellectual disability. Id. at 159–60. As a result of
this diminished “intellectual horsepower,” Dr. Cunningham explained
that Petitioner could not understand notions “with the same quality
and awareness that you do when you have an intact mind.”
Id. at 163–64.
In summation, defense counsel argued to the jury that, based on
the testimony from McCarney, AuBuchon, and Cunningham, the State
failed to show that Petitioner would be a continuing threat to society,
since he would be incarcerated for the rest of his life, and TDCJ would
be able to prevent Petitioner from committing future acts of violence in
prison. 75 Rep. R. 93–96, 106–11, 119–22, 129–31.
After the punishment phase of Petitioner’s trial, the jury
unanimously concluded beyond a reasonable doubt that there was a
probability that Petitioner would commit criminal acts of violence that
would constitute a continuing threat to society. Additionally, after
taking into consideration all of the evidence—including the
circumstances of the offense, Petitioner’s character and background,
and Petitioner’s personal moral culpability—the jury further
-12-

determined that no sufficient mitigating circumstances warranted
imposing a life sentence rather than a death sentence. 76 Rep. R. 5–6.
The same day, the state trial court imposed a sentence of death in
accordance with state law. 76 Rep. R. 9–14.
C.

Direct Appeal

After the state trial court imposed the death sentence, Petitioner
appealed. He argued that the state trial court erred when it
(1)

refused to permit defense counsel to ask the jury venire
questions regarding their views on whether specific types of
evidence would constitute mitigating evidence for the
purpose of allowing them to make challenges for cause and
inform [counsel’s] use of peremptory challenges;

(2)

denied defense counsel’s challenges for cause of six venire
members;

(3)

granted the prosecution’s challenges for cause of two venire
members;

(4)

ordered a mental health examination of Petitioner by
[Dr. Richard E. Coons] after defense counsel had him tested
for mental retardation without first limiting the prosecution
expert’s examination to the issue of measures of intelligence;
and

(5)

excluded, during the punishment-phase of trial, the
Petitioner’s proffered testimony of Urbina Hernandez’s drug
abuse and promiscuity.
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Appellant’s Br. iii-v, AP 76,276.
The Texas Court of Criminal Appeals affirmed Petitioner’s
conviction and sentence in an opinion issued on November 21, 2012.
Hernandez v. State, 390 S.W.3d 310 (Tex. Crim. App. 2012). The United
States Supreme Court denied Petitioner’s petition for writ of certiorari
on December 16, 2013. Hernandez v. Texas, 134 S.Ct. 823 (2013).
D.

State Habeas Corpus Proceedings

After exhausting his state appellate remedies, Petitioner filed an
application for state habeas corpus relief on February 2, 2012, asserting
that both his trial and appellate counsel rendered ineffective assistance
and that the state trial court committed error.
First, Petitioner alleged that his trial counsel rendered ineffective
assistance by failing to
(1)

object to the testimony of prosecution mental health
expert [Dr. Coons];

(2)

raise Fifth and Eighth Amendment challenges to the
state trial court’s pretrial ruling requiring Petitioner to
submit to evaluation by prosecution mental health expert,
Dr. Coons, if he wished to introduce the testimony of
defense mental expert, Dr. Luiz Natalicio, regarding his
alleged low intellectual level;
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(3)

permit the examination of Petitioner by Dr. Coons
conditioned upon Dr. Coons not expressing an opinion
regarding Petitioner’s future dangerousness;

(4)

object to the state trial court’s exclusion of the testimony
of defense expert . . . AuBuchon regarding Petitioner’s
lack of future dangerousness if sentenced to a term of life
without parole;

(5)

object when the prosecution argued that the term
“probability,” as used in the Texas future-dangerousness
capital sentencing special issue, meant “more than a mere
possibility”; and

(6)

object to the absence of a provision in the punishmentphase jury charge instructing the jury that the
prosecution was required to bear the burden of proving a
negative answer to the mitigation special issue beyond a
reasonable doubt.

1 State Habeas R. 13–14.
Petitioner also claimed that his state appellate counsel rendered
ineffective assistance by failing to argue that the Texas twelve-ten rule
is unconstitutional. 7

The so called “Texas twelve-ten rule” refers to the requirement that
the state trial court “instruct the jury that it must have at least 10 ‘no’
votes to answer ‘no’ on the aggravating special issue and at least 10 ‘yes’
votes to answer ‘yes’ on the mitigation special issue—either of which
would result in a life sentence, not death. See Druery, 647 F.3d at 542
(discussing the Texas twelve-ten rule).
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Finally, Petitioner claimed that the state trial court erred in
requiring Petitioner to submit to an examination by prosecution mental
health expert Dr. Coons before allowing Petitioner to introduce the
testimony of Dr. Natalicio regarding his low intellectual level. 1 State
Habeas R. 13–14.
On November 19, 2012, the state trial court held an evidentiary
hearing on Petitioner’s claims, and Petitioner presented testimony from
his former trial counsel, Jamie Gandara and Edythe Marie Payan. 8 The
state trial court then issued its findings of fact and conclusions of law
and recommended that state habeas corpus relief be denied. 2 State
Habeas R. 572–86. The Texas Court of Criminal Appeals adopted all
but one of the state habeas trial court’s findings of fact and all but one
of the trial court’s conclusions of law and denied state habeas corpus
relief. Ex parte Fabian Hernandez, 2015 WL 376357, at *1.

The verbatim transcription of the evidentiary hearing in Petitioner’s
state habeas corpus proceeding appears at State Habeas R., vol. I, pp.
401–90. Specifically, Attorney Gandara’s testimony appears at State
Habeas R., vol. I, pp. 401–87, and Attorney Payan’s testimony appears
at State Habeas R., vol. I, pp. 489–90.
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E.

Petitioner’s Federal Habeas Petition

Petitioner filed the instant Amended Petition on January 27, 2016
(ECF No. 34), along with a series of exhibits. As grounds for relief in
his Amended Petition, Petitioner asserts six claims:
Petitioner was denied effective assistance of
counsel at the punishment stage of his capital
murder trial because his trial counsel failed to:

1.

a.

object when the trial court ruled that he
was not allowed to introduce evidence of his
low scores on standardized intelligence tests
unless he waived his Fifth Amendment
privilege and submitted to a comprehensive
examination by the prosecution’s mental
health expert;

b.

permit an examination by the State’s
psychiatrist on the condition that the
psychiatrist not express any opinion on the
question of Petitioner’s future
dangerousness;

c.

object to the prosecution’s statements
during voir dire and closing argument that
the term “probability,” as used in Texas first
capital sentencing special issue, meant
“more than a mere possibility”;

d.

object to the absence of an instruction in the
punishment-phase jury charge instructing
the jury that the prosecution was required
to bear the burden of proving a negative
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answer to the second capital sentencing
special issue, the mitigation special issue,
beyond a reasonable doubt; and
e.

adequately investigate and present
available evidence (such as a brain scan)
showing Petitioner suffered from organic
brain dysfunction due to in utero exposure
to alcohol and childhood head trauma.
Petitioner was denied effective assistance of
counsel on appeal because his appellate
counsel failed to:

2.

a.

argue that the state trial court abused its
discretion when it ruled that the testimony
of the State’s expert satisfied the standards
for scientific testimony;

b.

argue that the state trial court erred in
excluding the defense expert’s opinion on
future dangerousness; and

c.

argue that the state trial court erred in
allowing the coercive jury instruction on
mitigation. 9

Namely, Petitioner argues that the “Texas twelve-ten rule” had a
coercive effect on the jury because this rule misled the jury into
believing that Petitioner would not receive a life sentence unless at
least ten jurors agreed on an answer to one of the special issues, when
in reality, the state trial court is required to impose a life sentence if the
jury is unable to answer either special issue. See Am. Pet. 58–59; see
also Druery, 647 F.3d at 542 (discussing the same argument).
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9

3.

4.

5.

6.

Petitioner’s sentence violates the Fifth and
Fourteenth Amendments because the state
trial court did not allow him to adduce
evidence of his low scores on standardized
intelligence tests unless he first submitted to a
comprehensive examination from the State’s
expert.
Petitioner’s sentence violates the Eighth and
Fourteenth Amendments because the state
trial court did not allow him to introduce
evidence of his low scores on standardized
intelligence tests unless he first submitted to a
comprehensive examination by the State’s
expert.
The state trial court erred in not allowing
Petitioner to ask the jury panel questions
regarding whether they could consider specific
kinds of mitigating evidence in determining
the mitigation special issue because such
questions could have led to challenges for
cause, pursuant to the Sixth, Eighth, and
Fourteenth Amendments.
The state trial court erred in not allowing
Petitioner to ask the jury panel questions
regarding whether they could consider specific
kinds of mitigating evidence in determining
the mitigation special issue because such
questions could have assisted in the effective
utilization of peremptory challenges, pursuant
to the Sixth, Eighth, and Fourteenth
Amendments.

Am. Pet. 2–76.
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Respondent thereafter filed her Answer on June 8, 2016, and
Petitioner filed his Reply on July 28, 2016.
II.

STANDARD OF REVIEW
The Anti-Terrorism and Effective Death Penalty Act of 1996

(“AEDPA”) governs the Court’s review of Petitioner’s claims for federal
habeas corpus relief. Penry v. Johnson, 532 U.S. 782, 792 (2001). The
AEDPA “imposes a highly deferential standard of review for evaluating
state-court rulings and demands that state-court decisions be given the
benefit of the doubt.” Hardy v. Cross, 565 U.S. 65, 66 (2011) (per
curiam) (quoting Felkner v. Jackson, 562 U.S. 594, 598 (2011) (per
curiam)).
A.

Claims Adjudicated in State Court

A federal habeas court presumes that claims raised in state-court
proceedings have been adjudicated “on the merits in the absence of any
indication or state-law procedural principles to the contrary.” Johnson
v. Williams, 133 S.Ct. 1088, 1094 (2013). It reviews adjudicated claims
under 28 U.S.C. § 2254(d). Harrington v. Richter, 562 U.S. 86, 98–99
(2011). A federal habeas court’s review under § 2254(d) “is limited to
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the record that was before the state court.” Cullen v. Pinholster, 563
U.S. 170, 181 (2011). It may not grant habeas relief unless the state
court 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); Brown v. Payton, 544 U.S. 133, 141 (2005);
Williams v. Taylor, 529 U.S. 362, 404–05 (2000).
The “contrary to” and “unreasonable application” clauses of
28 U.S.C. § 2254(d)(1) have independent meanings. Bell v. Cone, 535
U.S. 685, 694 (2002). Pursuant to the “contrary to” clause, a federal
habeas court may grant relief if (1) the state court arrives at a
conclusion opposite to that reached by the Supreme Court on a question
of law or (2) the state court decides a case differently than the Supreme
Court on a set of materially indistinguishable facts. Brown, 544 U.S. at
141; Mitchell v. Esparza, 540 U.S. 12, 15–16 (2003) (“A state court’s
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decision is ‘contrary to’ . . . clearly established law if it ‘applies a rule
that contradicts the governing law set forth in [Supreme Court] cases’
or it ‘confronts a set of facts that are materially indistinguishable from
a decision of [the Supreme Court] and nevertheless arrives at a result
different from [Supreme Court] precedent.’”). A state court’s failure to
cite governing Supreme Court authority does not, per se, establish that
the state court’s decision is “contrary to” clearly established federal law:
“the state court need not even be aware of [Supreme Court] precedents,
so long as neither the reasoning nor the result of the state-court
decisions contradicts them.” Mitchell, 540 U.S. at 16 (citation omitted).
Pursuant to the “unreasonable application” clause, a federal
habeas court may grant relief if the state court identifies the correct
governing legal principle from the Supreme Court’s decisions, but
unreasonably applies that principle to the facts of the petitioner’s case.
Brown, 544 U.S. at 141; Wiggins v. Smith, 539 U.S. 510, 520 (2003). A
federal court making the “unreasonable application” inquiry should ask
whether the state court’s application of clearly established federal law
was “objectively unreasonable.” McDaniel v. Brown, 558 U.S. 120, 132–
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33 (2010); Wiggins, 539 U.S. at 520–21. An “unreasonable” application
is different from a merely “incorrect” one. Schriro v. Landrigan, 550
U.S. 465, 473 (2007) (“The question under the AEDPA is not whether a
federal court believes the state court’s determination was incorrect but
whether that determination was unreasonable—a substantially higher
threshold.”); Wiggins, 539 U.S. at 520; Price v. Vincent, 538 U.S. 634,
641 (2003) (“[I]t is the habeas applicant’s burden to show that the state
court applied that case to the facts of his case in an objectively
unreasonable manner.”).
As the Supreme Court has explained, the petitioner “must show
that the state court’s ruling on the claim . . . was so lacking in
justification that there was an error well understood and comprehended
in existing law beyond any possibility for fairminded disagreement.”
Bobby v. Dixon, 565 U.S. 23, 24 (2011) (quoting Harrington, 562 U.S. at
103).
Legal principles are “clearly established” for purposes of AEDPA
review when the holdings, as opposed to the dicta, of Supreme Court
decisions, as of the time of the relevant state-court decision, establish
-23-

those principles. Yarborough v. Alvarado, 541 U.S. 652, 660–61 (2004);
Lockyer v. Andrade, 538 U.S. 63, 71–72 (2003). Pursuant to AEDPA,
what constitutes “clearly established federal law” is determined through
review of the decisions of the Supreme Court, not the precedent of other
federal courts. See Lopez v. Smith, 135 S. Ct. 1, 2 (2014) (holding that
AEDPA prohibits the federal courts of appeals from relying on their
own precedent to conclude that a particular constitutional principle is
“clearly established”).
AEDPA also significantly restricts the scope of federal habeas
review of state courts’ findings of fact. Section 2254(d)(2) precludes
federal habeas corpus relief on any claim that was adjudicated on the
merits in the state court unless the state court’s adjudication resulted
in a decision based on an unreasonable determination of the facts in
light of the evidence presented in the state court proceeding. Wood v.
Allen, 558 U.S. 290, 301 (2010). Even if reasonable minds reviewing the
record might disagree about the factual finding in question (or the
implicit credibility determination underlying the factual finding), this
does not suffice to supersede the state trial court’s factual
-24-

determinations on habeas review. Wood, 558 U.S. at 301; Rice v.
Collins, 546 U.S. 333, 341–42 (2006).
Moreover, § 2254(e)(1) requires that a petitioner challenging state
court factual findings establish by clear and convincing evidence that
the state court’s findings were erroneous. Schriro, 550 U.S. at 473–74
(“AEDPA also requires federal habeas courts to presume the correctness
of state courts’ factual findings unless applicants rebut this
presumption with ‘clear and convincing evidence.’”); Rice, 546 U.S. at
338–39; Miller-El v. Dretke, 545 U.S. 231, 240 (2005). 10
However, the deference to which state-court factual findings are
entitled under AEDPA does not imply an abandonment or abdication of
federal judicial review. See Miller-El v. Dretke, 545 U.S. at 240
(explaining that the standard is “demanding but not insatiable”);
Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (“Even in the context of

It remains unclear at this juncture whether § 2254(e)(1) applies in
every case presenting a challenge to a state court’s factual findings
under § 2254(d)(2). See Wood, 558 U.S. at 300 (choosing not to resolve
the issue of § 2254(e)(1)’s possible application to all challenges to a state
court’s factual findings); Rice, 546 U.S. at 339 (refusing to resolve the
Circuit split regarding the application of § 2254(e)(1)).
10

-25-

federal habeas, deference does not imply abandonment or abdication of
judicial review. Deference does not by definition preclude relief.”).
A federal habeas court reviewing a state court’s rejection on the
merits of a claim for relief pursuant to the AEDPA must focus
exclusively on the propriety of the ultimate decision reached by the
state court and not evaluate the quality, or lack thereof, of the state
court’s written opinion supporting its decision. Maldonado v. Thaler,
625 F.3d 229, 239 (5th Cir. 2010); Pondexter v. Dretke, 346 F.3d 142,
148 (5th Cir. 2003); Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002)
(en banc).
B.

Claims Not Adjudicated in State Court

A petitioner may not escape § 2254(d)’s deferential review by
“using evidence that is introduced for the first time” in federal court.
Blue v. Thaler, 665 F.3d 647, 656 (5th Cir. 2011). Claims without a
state-court merits adjudication are subject to § 2254(e)(2)’s limitation on
new evidence. Pinholster, 563 U.S. at 185–86. A petitioner must first
prove that he “made adequate efforts during state-court proceedings to
discover and present the underlying facts.” Williams, 529 U.S. at 430.
-26-

If the petitioner was less than diligent in developing the facts, an
evidentiary hearing is permissible only where (1) there is a new,
retroactive rule of constitutional law, or (2) the facts could not have
been discovered with due diligence and such facts demonstrate actual
innocence of the crime by clear and convincing evidence. 28 U.S.C.
§ 2254(e)(2)(A)–(B). If, on the other hand, the petitioner did exercise
diligence, a district court nevertheless has discretion to deny a hearing.
Schriro, 550 U.S. at 468. A district court should grant a hearing only
where the inmate was denied a full and fair hearing in state court and
the inmate’s allegations, if true, would warrant relief. Blue, 665 F.3d at
655. Further, a district court may deny a hearing if the federal record
is sufficiently developed to make an informed decision. McDonald v.
Johnson, 139 F.3d 1056, 1060 (5th Cir. 1998).
C.

Ineffective-Assistance-of-Counsel Claims

The standard set forth in Strickland v. Washington, 466 U.S. 668
(1984), governs ineffective-assistance-of-trial-counsel claims. To prove
such a claim, a petitioner must satisfy both prongs of the Strickland
test by showing (1) constitutionally deficient performance by counsel,
-27-

and (2) actual prejudice to his legal position. Id. at 689–94; Motley v.
Collins, 18 F.3d 1223, 1226 (5th Cir. 1994). A court need not address
both components if the petitioner makes an insufficient showing on one.
Strickland, 466 U.S. at 697.
To demonstrate deficiency, a petitioner must show that “counsel
made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Id. at 687. A
court considering such a claim “must indulge a strong presumption that
counsel’s representation was within the wide range of reasonable
professional assistance.” Id. at 689.
To demonstrate prejudice, a petitioner must show “that there is a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Porter v.
McCollum, 558 U.S. 30, 38–39 (2009) (citation omitted). A mere
allegation of prejudice is not sufficient to satisfy the prejudice prong of
Strickland. Armstead v. Scott, 37 F.3d 202, 206 (5th Cir. 1994). The
probability “of a different result must be substantial, not just
conceivable.” Harrington, 562 U.S. at 112. Thus, counsel’s performance
-28-

is entitled to “a heavy measure of deference” by a reviewing court.
Cullen, 563 U.S. at 197 (citation omitted).
Moreover, where a state court has adjudicated a petitioner’s
ineffective-assistance-of-counsel claims, the federal court must review
those claims “through the deferential lens of § 2254(d),” id. at 190, and
must consider not only whether the state court’s determination was
incorrect, but also “whether that determination was unreasonable.”
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citing Schriro, 550
U.S. at 473). Pursuant to § 2254(d), “because the Strickland standard
is a general standard, a state court has even more latitude to
reasonably determine that a defendant has not satisfied that standard.”
Id. As such, “[e]stablishing that a state court’s application of Strickland
was unreasonable . . . is all the more difficult.” Harrington, 562 U.S. at
105. Accordingly, “[w]hen § 2254(d) applies, the question is not whether
counsel’s actions were reasonable. The question is whether there is any
reasonable argument that counsel satisfied Strickland’s deferential
standard.” Id.

-29-

In those instances where a state court failed to adjudicate a claim
under the Strickland test, such as when the state court summarily
dismissed the claim under the Texas writ-abuse statute or the
petitioner failed to fairly present the claim to the state court, a federal
habeas court’s review of the un-adjudicated claim is de novo. See Porter,
558 U.S. at 39 (holding de novo review of the allegedly deficient
performance of petitioner’s trial counsel was necessary because the
state courts failed to address this prong of the Strickland analysis);
Rompilla v. Beard, 545 U.S. 374, 390 (2005); Wiggins, 539 U.S. at 534.
III. ANALYSIS
A.

Grounds 3 and 4--The State Trial Court Erred When It
Excluded Petitioner’s Standardized Mental Health
Testing Evidence.

Two of Petitioner’s grounds for relief relate to the state trial
court’s ruling requiring that he submit to an examination by the
prosecution’s expert as a prerequisite to introducing his own expert
testimony. Specifically, Petitioner argues that the state trial court
violated his Fifth, Eighth, and Fourteenth Amendment rights when the
state trial court refused to permit his trial counsel to introduce the
-30-

testimony of defense expert Dr. Natalicio—a psychologist—regarding
Petitioner’s scores on standardized IQ tests unless Petitioner submitted
to a comprehensive examination by prosecution expert Dr. Coons—an
attorney and psychiatrist—regarding Petitioner’s future dangerousness.
Am. Pet. 63B67. Petitioner asserts that, as a result, he “lost the
opportunity to put important evidence about his mental limitations
before the jury.” Id. at 59.
1.

State Court Disposition

Pretrial litigation concerning Petitioner’s mental health lasted
several months and continued into his trial. Given defense counsel’s
desire to introduce Dr. Natalicio’s testimony, the prosecution sought to
compel Petitioner to submit to an evaluation by Dr. Coons. See 30 Rep.
R. 5–16. The state trial court held a pretrial hearing in which this
matter was discussed in July of 2009. Id. at 5–54. During this hearing,
defense counsel argued that the examination should be limited to the
parameters of the defense expert’s evaluation, while the prosecution
sought a more robust examination. Id. at 17–31. The state trial court

-31-

postponed its ruling on the prosecution’s motion to compel the
examination. See id. at 54.
The following day, the state trial court held a hearing on defense
counsel’s motion to suppress Petitioner’s statement, and Dr. Natalicio
testified. 31 Rep. R. 60–156. Dr. Natalicio’s testimony at this hearing
consisted of his initial assessment of Petitioner’s intellect and school
achievement; in the course of preparing his assessment, he had
reviewed Petitioner’s police record, indictment, social history, and
videotaped interview with detectives. Id. at 60–97, 141–56.
Dr. Natalicio opined that Petitioner did not understand the
Miranda warnings provided before his videotaped interrogation and
that he was likely mentally incompetent throughout the videotaped
interview. Id. at 67–69. Dr. Natalicio testified that Petitioner’s
comprehension level was below the fifth grade level. Id. at 69. He
added that Petitioner suffered from a language processing deficit
involving the left frontal lobe of his brain, and simply could not process
language. Id. at 89–90. Dr. Natalicio also testified that Petitioner
suffered from organic brain damage, most likely the result of his
-32-

mother’s excessive alcohol consumption while pregnant with Petitioner,
a head injury Petitioner suffered when ejected from a moving vehicle
around age four, and further brain injury resulting from the scarlet
fever Petitioner contracted around age seven. Id. at 91. He explained
that Petitioner’s school records show Petitioner suffered from a
developmental problem, which left him unable to learn certain things.
Id. at 92.
During cross-examination, Dr. Natalicio testified that as part of
his evaluation of Petitioner, he performed a mental status examination,
administered the Wechsler Adult Intelligence Scale Revised (“WAIS-R”)
and a wide-range of achievement tests, and spent approximately seven
and a half hours interviewing Petitioner over three different sessions.
31 Rep. R. 118–22. He added that he conducted a “political interview”
of Petitioner during the mental status examination, which covered
Petitioner’s appearance, sensory functions, mood, and ability to use his
intellect. Id. at 120–24. During the interviews, Dr. Natalicio also
discussed Petitioner’s prior conviction for manslaughter and the factual
basis for that conviction. Id. at 126. Dr. Natalicio claimed that
-33-

Petitioner informed him that he shot someone to protect his sister from
an assault. Id.
Thereafter, Petitioner’s trial counsel filed two motions to prohibit
the examination of Petitioner by the prosecution’s mental health expert
or, in the alternative, to limit the scope of the expert’s examination of
Petitioner to assessing the level of Petitioner’s intellectual functioning.
2 Clerk’s R. 764–71, 778–82. The state trial court subsequently granted
the prosecution’s motion to have Petitioner evaluated by Dr. Coons. 3
Clerk’s R. 791–92.
During a pretrial Daubert hearing in August of 2009, the
prosecution’s mental health expert, Dr. Coons, testified that he was
licensed both as an attorney and a physician and had previously
testified on the subject of future dangerousness in capital murder trials
on thirty to fifty occasions. 34 Rep. R. 13–21. He explained that, in the
course of evaluating an individual for possible mental health
commitment, psychiatrists routinely made predictions regarding
whether the individual will engage in violence in the future—more
specifically, whether the individual was homicidal or suicidal. Id. at
-34-

24–25. He testified that when evaluating an individual for future
dangerousness, he examines the person’s history of violence, attitude
toward violence, personality in general and the existence of any
personality disorders, criminal record and the facts surrounding the
most recent offense, and treatment of other people generally. Id. at 22–
23. He further explained that, in the course of preparing to testify at
trial, he reviewed Petitioner’s offense reports for the murders of Urbina
Hernandez and Fonseca; prison and medical records from the New
Mexico Department of Corrections; school records; and Petitioner’s
videotaped statement. Id. at 31–33. He also reviewed the letter,
attributed to Petitioner, soliciting the murder of two potential
prosecution witnesses and longtime friends, Torres and Carrasco. Id. at
33.
Dr. Coons ultimately concluded that there was a probability that
Petitioner posed a future danger. Id. at 38.
During cross-examination, Dr. Coons testified that he disagreed
with the American Psychiatric Association’s position on the efficacy of
expert testimony on future dangerousness. Id. at 50–52. He also
-35-

indicated that there was a difference of opinion within the medical
community regarding the efficacy of future dangerousness predictions
by mental health experts. Id. at 54.
Petitioner’s trial counsel subsequently filed a notice of Petitioner’s
intention not to submit to any evaluation or interview by Dr. Coons and
two motions seeking to preclude imposition of the death penalty based
upon assertions that Petitioner was mentally retarded and mentally
immature. 3 Clerk’s R. 812–15.
During a third and fourth pretrial hearing, the parties discussed
extensively the admissibility of Dr. Natalicio’s opinions regarding
Petitioner’s low intellectual level and mental retardation and the state
trial court’s prior ruling mandating Petitioner’s submission to
examination by Dr. Coons as a precondition to Dr. Natalicio testifying
at trial. 36 Rep. R. 142–55. At the conclusion of both hearings, the
state trial judge postponed any final ruling on the admissibility of
Dr. Natalicio’s trial testimony.
After these four pretrial hearings, the prosecution filed a brief
arguing in favor of its second motion to allow the prosecution’s mental
-36-

health expert to evaluate Petitioner and to compel the production of the
factual bases for Dr. Natalicio’s proposed trial testimony. 3 Clerk’s R.
903–07. The state trial court subsequently issued two brief orders
granting the prosecution’s motions, requiring Petitioner to submit to a
mental health evaluation by its expert. Id. at 309. Petitioner’s trial
counsel filed a second motion requesting that the state trial court limit
the scope of Dr. Coons’s examination of Petitioner to assess Petitioner’s
intellectual functioning level and a second notice of Petitioner’s
invocation of his right to refuse psychiatric examination by the
prosecution’s mental health expert. Id. at 919–22.
During the punishment phase of Petitioner’s capital murder trial,
the defense called Dr. Natalicio to testify outside the jury’s presence in
a bill of review proceeding. 72 Rep. R. 177–95. During the proceeding,
Dr. Natalicio testified that he evaluated Petitioner regarding his
intellectual functioning and achievement and studied “the social context
of his development.” Id. at 178. He reported that Petitioner had an
estimated IQ of 62 and a mental age of nine, his verbal score on the
WAIS-R was 68, his performance score was 106, and his full scale was
-37-

84. Id. at 182, 186. He explained that Petitioner’s low scores on
standardized testing were likely the product of in utero exposure to
alcohol. Id. at 187–88. These scores also indicated that Petitioner
suffered from frontal and prefrontal lobe damage and limited
intellectual functioning. Id. at 191–92. He concluded that, as a result,
Petitioner suffered from deficits in his ability to make judgments. Id. at
192–93.
At the conclusion of Dr. Natalicio’s testimony, the parties re-urged
their previously asserted positions, and the state trial court ruled that
Dr. Natalicio would not be permitted to testify before the jury because
Petitioner refused to submit to an examination by the prosecution’s
mental health expert. 72 Rep. R. 195B97. Accordingly, Dr. Coons did
not testify during either phase of trial.
On direct appeal, Petitioner alleged that the state trial court erred
when it ordered his examination by the State’s mental-health expert.
Appellant’s Br. 37–44, AP 76,276; Hernandez v. State, 390 S.W.3d 310,
321 (Tex. Crim. App. 2012). Specifically, he asserted that the state trial
court refused to limit the expert’s examination to the scope of the
-38-

limited matters covered by his own expert. Relying on Estelle v. Smith,
451 U.S. 454 (1981), 11 Soria v. State, 933 S.W.2d 46 (Tex. Crim. App.
1996),12 and Lagrone v. State, 942 S.W.2d 602 (Tex. Crim. App. 1997), 13
Petitioner argued that the state trial court’s refusal to limit the State
expert’s examination deprived him of his Fifth Amendment right
against self-incrimination and denied him the opportunity to present a
defense during the punishment phase of his trial.
The Texas Court of Criminal Appeals rejected Petitioner’s point of
error, noting that “[w]hen a defendant intends to present mental-health
In Estelle v. Smith, the Supreme Court explained that the
“respondent’s statements . . . were not ‘given freely and voluntarily
without any compelling influences’” because the respondent was faced
with a court-ordered psychiatric exam while in custody. 451 U.S. at 469.
Thus, the Supreme Court held that such statements “could be used . . .
at the penalty phase only if respondent had been apprised of his rights
and had knowingly decided to waive them.” Id.
11

12 In

Soria, the Texas Court of Criminal appeals held that a defendant
who presented expert testimony putting his psychological state at issue
constructively waived his Fifth Amendment right with respect to that
issue. 933 S.W.2d at 52–59.
In Lagrone, the Court of Criminal Appeals reaffirmed Soria and
extended its rule to allow the state trial court to order an examination
of the defendant by the State’s expert as soon as a defendant indicated
an intent to introduce such testimony from a defense expert. 942
S.W.2d at 610.
13

-39-

expert testimony, the State is entitled to compel the defendant to
undergo examination by the State’s expert for rebuttal purposes
(“Lagrone examination”).” Hernandez, 390 S.W.3d at 321 (citing
Lagrone, 942 S.W.2d at 609–12)). The Texas Court of Criminal Appeals
added that it would not review a trial court’s Lagrone ruling unless the
defendant first submitted to a Lagrone examination and suffered actual
use of the results of the examination by the State. Id. at 321–22.
2.

State Habeas Review

Similarly, in his application for state habeas corpus relief,
Petitioner once again argued that the state trial court erred in refusing
to permit the defense to call Dr. Natalicio to testify regarding
Petitioner’s low intellectual functioning without requiring Petitioner to
submit to an examination by Dr. Coons. 1 State Habeas R. 13, 50–60.
After the evidentiary hearing held in Petitioner’s state habeas
corpus proceeding, the state habeas trial court concluded that
Dr. Natalicio’s interviews and examination of Petitioner allowed him to
form opinions which were relevant not only to the issue of Petitioner’s
intellectual level, but also to the mitigation and future dangerousness
-40-

special issues. 2 State Habeas R. 577. The state habeas trial court
further determined that Petitioner’s trial counsel made a strategic
decision to forego Dr. Natalicio’s testimony based upon a full
understanding of the facts and law and for the purpose of precluding
possibly harmful testimony by the State. 2 State Habeas R. 578.
Consequently, the state habeas trial court concluded that
Dr. Natalicio’s examination of Petitioner was relevant to the issues of
future dangerousness and mitigation, the admissibility of
Dr. Natalicio’s testimony was addressed on direct appeal, and Petitioner
could not re-litigate the issue during his state habeas corpus
proceeding. Id. at 581–82. The Texas Court of Criminal Appeals
adopted these findings and conclusions when it denied Petitioner’s state
habeas corpus application. Ex parte Fabian Hernandez, 2015 WL
376357, at *1.
3.

Clearly Established Federal Law

In Estelle v. Smith, 451 U.S. 454 (1981), the State’s psychiatrist
examined, without the benefit of Miranda warnings, a Texas defendant
charged with capital murder to determine defendant’s competence to
-41-

stand trial. At the punishment phase of the trial, the prosecution called
the State’s psychiatrist to testify in rebuttal to the defendant’s three lay
witnesses. 451 U.S. at 458–59. The psychiatrist predicted that the
defendant would pose a risk of future dangerousness. Id. at 460.
The Estelle court held that the use of the psychiatrist’s testimony
violated the defendant’s Fifth Amendment right against selfincrimination because the defendant was not warned prior to his
pretrial examination that his statements could be used against him at
trial. Id. at 466–68. The Supreme Court reasoned that “[a] criminal
defendant, who neither initiates a psychiatric evaluation nor attempts
to introduce any psychiatric evidence, may not be compelled to respond
to a psychiatrist if his statements can be used against him at a capital
sentencing proceeding.” Id. at 468. The Supreme Court also held the
defendant’s Sixth Amendment right to counsel was violated by the
admission of the State’s psychiatrist’s testimony following an unwarned
examination. Id. at 471.
The Supreme Court did distinguish, however, the facts in Estelle
v. Smith from situations in which a defendant intends to introduce
-42-

psychiatric evidence at the penalty phase, emphasizing its opinion in
Jurek v. Texas, 428 U.S. 262 (1976). See id. at 472–73. In that case, the
Supreme Court expressly recognized the predictive nature of the Texas
capital sentencing scheme’s future dangerousness special issue and the
propriety of psychiatric testimony. Jurek, at 472–73.
In Buchanan v. Kentucky, 483 U.S. 402, 408–411 (1987), the
prosecution used psychiatric evidence to rebut an “extreme emotional
disturbance” defense raised through a social worker who read several
reports relating to defendant’s mental condition to the jury. During
cross-examination, the prosecution asked the social worker to read
other reports on the defendant’s progress after his pretrial
institutionalization, including a report on a pretrial psychological
evaluation conducted pursuant to the parties’ joint motion. 483 U.S. at
410–11. The defense objected, arguing that the latter report was the
product of an unwarned examination similar to the one in Estelle v.
Smith. Id. at 411–12.
The Buchanan court rejected the argument, holding that the use
of the psychological evaluation did not violate the defendant’s Fifth
-43-

Amendment right against self-incrimination. Id. at 423–24. It
explained that where a defendant requested a psychiatric examination
in order to prove a mental-status defense, he waived the right to raise a
Fifth Amendment challenge to the prosecution’s use of the evidence
obtained through that examination to rebut the defense. Id. at 423.
The Buchanan court also rejected the defendant’s analogous Sixth
Amendment claim. Id. at 424.
More recently, in Kansas v. Cheever, 134 S. Ct. 596 (2013), the
Supreme Court confronted yet another similar situation. In Cheever, a
capital murder defendant notified a federal court that he intended to
introduce expert evidence suggesting that his voluntary
methamphetamine intoxication rendered him incapable of forming the
specific intent necessary for his offense. 134 S. Ct. at 599. The district
court ordered the defendant to submit to a psychiatric evaluation to
assess how the methamphetamine had affected him at the time of his
offense. Id.
After the federal case was dismissed without prejudice, Kansas
state officials re-instituted a capital murder case against the defendant.
-44-

Id. The defendant asserted a voluntary intoxication defense, again
arguing that his methamphetamine use rendered him incapable of
premeditation. Id. The defense presented the testimony of an expert in
psychiatric pharmacy, who testified that the defendant’s long-term
methamphetamine abuse had damaged his brain, and, on the morning
of the fatal shooting, the defendant was acutely intoxicated. Id. The
prosecution then sought to present rebuttal testimony from the forensic
psychiatrist who had evaluated the defendant during the federal
prosecution. Id. at 600. The defense objected, arguing that the
defendant’s Fifth Amendment rights would be violated by the admission
of the testimony because the defendant had not agreed to his federalcourt-ordered evaluation. Id. The state trial court allowed the
testimony. Id. On appeal, the Kansas Supreme Court reversed the
state trial court’s ruling. Id. The United States Supreme Court upheld
the state trial court’s ruling and reversed the Kansas Supreme Court,
underscoring the principle of parity: “Any other rule would undermine
the adversarial process, allowing a defendant to provide the jury,

-45-

through an expert operating as a proxy, with a one-sided and
potentially inaccurate view of his mental state.” Id. at 601
4.

Analysis

The Texas Court of Criminal Appeals’ rejection on the merits of
Petitioner’s grounds for relief was fully consistent with the principles
discussed by the Supreme Court in Buchanan and Cheever. The Fifth
Circuit has likewise recognized the fundamental fairness of permitting
the prosecution to evaluate a criminal defendant when the defendant
advises that he will present expert mental health testimony premised,
in part, upon a clinical evaluation. See Schneider v. Lynaugh, 835 F.2d
570, 576 (5th Cir. 1988) (“It is unfair and improper to allow a defendant
to introduce favorable psychological testimony and then prevent the
prosecution from resorting to the most effective and in most instances
the only means of rebuttal: other psychological testimony. The
principle also rests on ‘the need to prevent fraudulent mental defenses.’”
(footnotes omitted)).
Petitioner essentially wanted the state court to apply a new rule of
constitutional criminal procedure, which is precluded by the Supreme
-46-

Court’s non-retroactivity doctrine announced in Teague v. Lane, 489
U.S. 288 (1989). At the time that Petitioner’s conviction became final
for Teague purposes, neither the Supreme Court nor any federal circuit
court had held that that the Fifth or Eighth Amendment allowed a
criminal defendant to introduce expert mental health testimony during
the punishment phase of a capital murder trial, premised in part upon a
clinical interview of the defendant, without submitting to a clinical
interview by the prosecution’s mental health expert.
Insofar as Petitioner argues that the state trial court improperly
applied the state evidentiary rules announced in Lagrone, 942 S.W.2d
at 602 and Soria, 933 S.W.2d at 46, in ruling on the admissibility of Dr.
Natalicio’s testimony, those arguments do not furnish a basis for federal
habeas corpus relief.
It is well-settled law in the Fifth Circuit that, in reviewing state
evidentiary rulings in habeas corpus petitions, a federal court does not
sit as super state supreme court to review error under state law. Bridge
v. Lynaugh, 838 F.2d 770, 772 (5th Cir. 1988). It is not the province of a
federal habeas court to reexamine state court determinations on state-47-

law questions, such as the admissibility of evidence under state
procedural rules. Estelle v. McGuire, 502 U.S. 62, 67–68 (1991);
Goodrum v. Quarterman, 547 F.3d 249, 261 (5th Cir. 2008). A federal
court may grant habeas relief based on an erroneous state court
evidentiary ruling only if the ruling also violates a specific federal
constitutional right or renders the petitioner’s trial fundamentally
unfair. Brown v. Epps, 686 F.3d 281, 286 n.20 (5th Cir. 2012);
Goodrum, 547 F.3d at 261; Johnson v. Puckett, 176 F.3d 809, 820 (5th
Cir. 1999); Pemberton v. Collins, 991 F.2d 1218, 1226 (5th Cir. 1993).
The challenged evidence must also be a crucial, critical, or highly
significant factor in the context of the entire case. Gonzales v. Thaler,
643 F.3d 425, 430 (5th Cir. 2011); Jackson v. Johnson, 194 F.3d 641,
656 (5th Cir. 1999).
The test to determine whether a trial error renders a trial
“fundamentally unfair” is whether there is a reasonable probability that
the verdict might have been different had the trial been properly
conducted. Brown v. Dretke, 419 F.3d 365, 377 (5th Cir. 2005); Guidroz
v. Lynaugh, 852 F.2d 832, 835 (5th Cir. 1988). Due process is
-48-

implicated only for rulings of such a magnitude or so egregious that
they render the trial fundamentally unfair; it offers no authority to
federal habeas courts to review common evidentiary rulings of state
trial courts. Gonzales, 643 F.3d at 430. A “fundamentally unfair” trial
is one largely robbed of dignity due a rational process. Menzies v.
Procunier, 743 F.2d 281, 288 (5th Cir. 1984). Petitioner has failed to
make such a showing here.
To the extent Petitioner argues that the exclusion of
Dr. Natalicio’s testimony prevented the defense from presenting
evidence of Petitioner’s low intellectual functioning, that argument is
factually inaccurate. As explained above, Dr. Cunningham testified
extensively that he believed Petitioner’s history, school records, and
standardized test results showed that, as a result of alcohol and
inhalant abuse and a host of other developmental disadvantages,
Petitioner functioned in the lower range of intellectual functioning and
was intellectually deficient. 74 Rep. R. 113–15, 122, 136, 160–62, 168–
70, 367. Furthermore, the pretrial IQ testing conducted for Petitioner’s
defense team showed that Petitioner’s full scale IQ test scores were in
-49-

the mid-to-upper eighties—well above the range of mental retardation
or even borderline mental retardation. Under such circumstances, the
exclusion of Dr. Natalicio’s testimony about Petitioner’s low intellectual
functioning did not render Petitioner’s entire trial fundamentally
unfair.
Petitioner also asserts that Dr. Natalicio did little more than
merely administer standardized intelligence and academic achievement
tests and, therefore, the state trial court should have permitted his
testimony or should have limited any subsequent evaluation by
Dr. Coons to similar standardized testing. Am. Pet. 60–63. However,
these arguments are based upon a factually inaccurate premise. To be
sure, Dr. Natalicio testified at both the pretrial hearing on Petitioner’s
motion to suppress, as well as during his bill of review testimony, that
he did far more than simply administer standardized tests.
Dr. Natalicio conducted a mental status examination of Petitioner and
also conducted an extensive clinical interview of Petitioner, discussing,
inter alia, the details of Petitioner’s prior manslaughter offense and the
reasons that Petitioner chose to enter a guilty plea to that charge.
-50-

31 Rep. R. 118–35; 72 Rep. R. 178–95. Dr. Natalicio candidly admitted
that his mental status examination and “political interview” of
Petitioner extended to a wide range of subjects, including Petitioner’s
background and the details of Petitioner’s prior criminal history.
31 Rep. R. 120–24. The state trial court reasonably concluded that the
type of expert mental health testimony that Dr. Natalicio might have
furnished at trial warranted Petitioner’s submission to a similar clinical
interview by a prosecution mental health expert.
Consequently, the Texas Court of Criminal Appeals’ rejection on
the merits of Petitioner’s claims regarding the state trial court’s pretrial
Lagrone rulings was neither contrary to, nor involved an unreasonable
application of, clearly established federal law as determined by the
Supreme Court. Moreover, the decision was not based upon an
unreasonable determination of the facts in light of the evidence
presented in Petitioner’s trial, direct appeal, and state habeas corpus
proceedings. Hence, the Court concludes that Petitioner’s third and
fourth grounds for relief in his Amended Petition do not warrant federal
habeas corpus relief.
-51-

B.

Grounds 5 and 6 - The State Trial Court Erred in
Refusing to Allow Certain Mitigation Questions
During Voir Dire.

In his fifth and sixth grounds for relief, Petitioner argues that the
state trial court erred by preventing his trial counsel from asking the
jury venire whether they would consider specific kinds of mitigating
evidence in answering the mitigation special issue. Am. Pet. 67–76. He
argues that the state trial court’s decision interfered with his ability to
make valid challenges for cause and, consequently, with his ability to
utilize his peremptory strikes.
1.

State Court Disposition

At a status conference prior to trial in July of 2008, the parties
discussed with the state trial court the need for an extensive juror
questionnaire. 14 Rep. R. 7–9. At a subsequent status conference held
in March 2009, the prosecution expressed concern that the
questionnaire had become too lengthy for most jurors to complete in a
reasonable amount of time, but the parties pledged to continue efforts to
finalize the document. 22 Rep. R. 4–12. At yet another status
conference held in July of 2009, the parties announced that they had
-52-

reached an agreement on a questionnaire, which approached forty
pages in length. 32 Rep. R. 4–5. The juror questionnaire included, inter
alia, a series of questions asking the venire members to express
agreement or disagreement, with a range of answers from “strongly
agree” to “strongly disagree,” with a series of statements about whether
a person was “less responsible” for their actions if they had suffered
from a variety of problems, such as child abuse, “emotional problems,”
“psychiatric problems,” mental handicaps, and a disadvantaged
background. E.g., 42 Rep. R. 87–89; 43 Rep. R. 37–41.
On the third day of individual voir dire, Petitioner’s trial counsel
asked a prospective juror the following question:
So if you do not agree that a person who has been
abused as a child is less responsible for his or her
actions, okay, you cannot take that, if you hear it,
. . . you cannot take that into consideration to
determine whether it reduces the person’s moral
culpability, right?
42 Rep. R. 93. The prosecution objected to the question as
“contracting,” or asking the venire member to “say what she would do
with or without that specific type of evidence in answering that
-53-

question.” 42 Rep. R. 93–94. Ultimately, the state trial court sustained
the objection, but clarified that defense counsel could continue to
inquire about the jurors’ views on the potentially mitigating factors; he
simply could not ask the question phrased in the aforementioned
manner. Id. at 98.
The following day, Petitioner’s trial counsel advised the state trial
court that he intended to ask each venire member regarding whether
they would refuse to consider evidence of the following in determining
whether a sentence of life imprisonment without parole, rather than the
death penalty, would be warranted: turbulent family history, emotional
problems, upbringing, character, mental impairment, child abuse,
psychiatric problems, dysfunctional family history, and alcohol abuse.
43 Rep. R. 133–34.
The prosecution objected to the structure of the questions as the
equivalent of asking the venire members whether they considered
specific types of potentially mitigating evidence “to be mitigating or
not,” and argued that the jurors were not required to commit to consider
specific types of evidence as “mitigating.” Id. at 134–37. Petitioner’s
-54-

trial counsel argued that he was only seeking to learn whether the
venire members could consider certain types of mitigating evidence
within the context of the Texas capital sentencing scheme’s mitigation
special issue. Id. at 139–43. Ultimately, the state trial judge sustained
the prosecution’s objection, concluding that the proposed questions were
an effort to “commit the prospective juror to resolve or to refrain from
resolving an issue a certain way after learning a particular fact.” Id. at
137.
In his first two points of error on direct appeal, Petitioner
maintained that the state trial court erred when it refused to permit his
trial counsel to ask questions of venire members during individual voir
dire regarding their views on specific types of potentially mitigating
evidence. Appellant’s Br. 10–22, AP 76,275; Hernandez, 390 S.W.3d at
314. Petitioner argued that the state trial court’s restrictions on his
counsel’s voir dire examination of the jury venire prevented the defense
from challenging for cause venire members who were biased and
precluded his intelligent use of peremptory challenges.

-55-

The Texas Court of Criminal Appeals rejected these arguments on
the merits:
We review a trial court’s ruling regarding
the limitation of voir dire questioning for an
abuse of discretion. Barajas v. State, 93 S.W.3d
36, 38 (Tex. Crim. App. 2002). In this review, our
focus is whether appellant proffered a proper
question regarding a proper area of inquiry. Id.
A trial court retains discretion to restrict voir dire
questions that are confusing, misleading, vague
and broad, or are improper commitment
questions. Id. at 38–39. Where the trial court
does not place an absolute limitation on the
substance of an appellant’s voir dire question, but
merely limits a question due to its form, the
appellant must attempt to rephrase the question
or risk waiver of the alleged voir dire restriction.
Howard v. State, 941 S.W.2d 102, 108–11 (Tex.
Crim. App.1996).
A commitment question is one that commits
a prospective juror to resolve, or refrain from
resolving, an issue a certain way after learning a
particular fact. See Standefer v. State, 59 S.W.3d
177, 179 (Tex. Crim. App. 2001). Often a
commitment question requires a “yes” or “no”
answer, and the answer commits a juror to
resolve an issue in a particular way. Id. Not all
such questions are improper, however. Id. at 181.
Where the law requires a certain type of
commitment from jurors, such as considering the
full range of punishment, an attorney may ask
prospective jurors to commit to following the law
in that regard. Id.
-56-

The law does not require that a juror
consider any particular piece of evidence to be
mitigating. Raby v. State, 970 S.W.2d 1, 3 (Tex.
Crim. App. 1998). The law requires only that
defendants be allowed to present relevant,
mitigating evidence and that the jury be provided
a vehicle to give mitigating effect to that evidence
if the jury finds it to be mitigating. Id. Whether
a juror considers a particular type of evidence to
be mitigating is not a proper area of inquiry.
Standefer, 59 S.W.3d at 181.
The question at issue here was an improper
commitment question; it sought a “yes” or “no”
answer and committed the prospective juror to a
determination of whether the stated circumstance
was mitigating, i.e. being abused as a child.
Further, the record reflects that the trial court
did not place an absolute limitation on the
underlying substance of the excluded question.
Appellant was allowed to ask prospective jurors
to expound on their questionnaire answers and
was therefore able to delve into that substance.
Rather, the trial court merely sustained the
State’s objection to the form of the question. See
Howard, 941 S.W.2d at 108–12 (finding that
where appellant was allowed to question jurors
regarding the substance of the restricted
questions, albeit in a different form, there was no
abuse of discretion). We do not find an abuse of
discretion.
Hernandez v. State, 390 S.W.3d at 314–16.

-57-

2.

Clearly Established Federal Law

The Supreme Court held in Mu’Min v. Virginia, 500 U.S. 415, 424
(1991), that trial judges exercise great latitude in determining what
questions should be asked during voir dire. Trial judges, exercising
their sound discretion, supervise the inquiry into whether a potential
juror has any bias, opinion, or prejudice which could affect a juror on
the issues to be tried. Id. at 422. To be constitutionally compelled, it is
not enough that a proposed question might be helpful in ferreting out
potential disqualifying bias; rather, the state trial court’s failure to ask
or permit the question must render the defendant’s trial fundamentally
unfair. Id. at 425.
While a defendant must be afforded an opportunity to present
mitigating evidence at the punishment phase of a capital trial, the fact
that a juror might view evidence presented by the defense as
aggravating, as opposed to mitigating, does not implicate an Eighth
Amendment violation. See Johnson v. Texas, 509 U.S. 350, 368 (1993)
(“As long as the mitigating evidence is within ‘the effective reach of the
sentencer,’ the requirements of the Eighth Amendment are satisfied.”).
-58-

Furthermore, a defendant does not have a constitutional right to
peremptory challenges: “[The Supreme] Court repeatedly has stated
that the right to a peremptory challenge may be withheld altogether
without impairing the constitutional guarantee of an impartial jury and
a fair trial.” Georgia v. McCollum, 505 U.S. 42, 57 (1992).
3.

Analysis

Petitioner argues that the state trial court’s limitations on his
efforts to voir dire the jury venire prevented his trial counsel from
intelligently asserting challenges for cause against potentially biased
jurors and exercising the defense’s peremptory challenges.
The Fifth Circuit has expressly rejected both of Petitioner’s
contentions: “[T]he law is clear that a defendant in a capital case is not
entitled to challenge prospective jurors for cause simply because they
might view the evidence the defendant offers in mitigation of a death
sentence as an aggravating rather than a mitigating factor.” Dorsey v.
Quarterman, 494 F.3d 527, 533 (5th Cir. 2007). Thus, Petitioner’s claim
that he was deprived of the ability to discover information that might
have furnished the basis for a challenge for cause is without merit.
-59-

Similar to the petitioner in Dorsey, Petitioner identifies no member of
his actual petit jury whom he claims was biased or otherwise
unqualified to serve as a juror in Petitioner’s capital murder trial.
“[E]ven if the court erred in denying his challenges for cause, there was
no constitutional violation because the jurors were removed from the
jury by his use of peremptory challenges and he has not alleged that the
jury that sat in his capital murder trial was not impartial.” Id.
In Soria v. Johnson, 207 F.3d 232 (5th Cir. 2000), the Fifth Circuit
confronted a similar challenge to a Texas trial court’s refusal to permit
voir dire questions that attempted to bind prospective jurors regarding
their position on the evidence. The Fifth Circuit found no constitutional
error in the state trial court’s ruling, given the extent of other voir dire
questioning into potentially mitigating evidence that the trial judge did
allow. Soria, 207 F.3d at 244. The Fifth Circuit noted that while “the
trial judge did not allow the particular phrasing [the petitioner]
sought,” “the form of questioning permitted by the state trial court was
sufficient to allow an intelligent exercise of his peremptory challenges.”
Id. Ultimately, the Soria court found that “the voir dire questioning
-60-

was sufficient to allow the petitioner to determine whether a
prospective juror would consider the evidence proffered in mitigation by
the defense” and that he was “entitled to no more” than this. Id.
Consequently, he “failed to make a substantial showing of the denial of
a federal right.” Id.
In the case at bar, the Court reaches the same conclusion. As
explained above, the state trial court permitted the use of a lengthy
questionnaire, which included a number of questions inquiring into
whether the venire members viewed specific types of potentially
mitigating evidence as diminishing the defendant’s moral culpability.
See, e.g., 42 Rep. R. 87–89; 43 Rep. R. 37–41.
During individual voir dire, Petitioner’s trial counsel were
permitted to further question venire members regarding their answers
to those very questions. While the state trial court refused to permit
Petitioner’s trial counsel to commit the venire members to whether they
could consider the mitigating aspects of much of the double-edged
evidence, the Court’s independent review of the entirety of defense
counsel’s voir dire examination convinces the Court that it was
-61-

sufficient to permit Petitioner’s trial counsel to determine whether a
prospective juror would consider the mitigation evidence they proffered.
Petitioner was entitled to nothing more. See Soria, 207 F.3d at 244.
In light of the extensive juror questionnaire utilized during jury
selection, which included numerous questions asking whether venire
members believed particular types of evidence made a person “less
responsible” for their criminal behavior, the relatively minor
restrictions that the state trial court imposed on the scope of
Petitioner’s trial attorneys’ individual voir dire of the jury venire did not
render Petitioner’s trial fundamentally unfair.
Finally, insofar as Petitioner argues that his trial attorneys were
prevented from making fully informed use of peremptory challenges,
Petitioner’s argument does not invoke a federal constitutional right.
See McCollum, 505 U.S. at 57 (holding peremptory challenges are not
constitutionally protected rights but, rather, one means to achieve a
constitutionally required impartial jury and a prohibition on the use of
peremptory challenges does not impair the constitutional guarantee or
an impartial jury and fair trial).
-62-

Consequently, the Texas Court of Criminal Appeals’ rejection of
the aforementioned arguments on the merits during the course of
Petitioner’s direct appeal was neither contrary to, nor involved an
unreasonable application of, clearly established federal law as
determined by the Supreme Court. It also was not based on an
unreasonable determination of the facts in light of the evidence
presented in Petitioner’s trial and direct appeal. The Court concludes
that Petitioner’s fifth and sixth claims in his Amended Petition are
foreclosed by the Fifth Circuit’s holdings in Dorsey and Soria and do not
warrant federal habeas corpus relief.
C.

Ground 1 – Trial Counsel Provided Ineffective
Assistance During the Punishment Phase of Trial.

In his first ground for relief, petitioner maintains that his death
sentence violates the Sixth and Fourteenth Amendments of the United
States Constitution because he was deprived of the effective assistance
of counsel at the punishment phase of his trial in that his attorneys
failed to:
a.

object on the ground that his rights under the
Fifth, Eighth, and Fourteenth Amendments to
the United States Constitution were violated
-63-

when he was not allowed to introduce before
the jury evidence of his scores on standardized
intelligence tests unless he first waived his
constitutional privilege not to be a witness
against himself and submitted to a
comprehensive examination by Dr. Coons, a
psychiatrist from whom the prosecution
intended to elicit testimony on the question of
Petitioner’s future dangerousness;
b.

permit an examination of Petitioner by the
state’s psychiatrist on the condition that the
psychiatrist not express any opinion on the
question of future dangerousness absent an
expression of opinion on that issue by
[Dr. Natalicio];

c.

object to the prosecuting attorney’s erroneous
argument to the jury that the word
“probability” in the future dangerousness
special punishment issue means “more than a
mere possibility”;

d.

object to the trial court’s omission from the
jury charge of an instruction requiring proof
beyond reasonable doubt that no mitigating
circumstances existed to warrant a sentence of
life imprisonment rather than death; and

e.

adequately investigate Petitioner’s mental
health, in particular evidence suggesting that
he suffers from organic brain damage, in
violation of the Sixth, Eighth, and Fourteenth
Amendments to the United States
Constitution.
-64-

Am. Pet. 35–41. Petitioner also argues that the cumulative effect of all
of the foregoing instances of ineffective assistance by his trial counsel
prejudiced him. Id. at 41–43.
1.

Grounds 1a and 1b – Trial Counsel Provided
Ineffective Assistance When They Elected to Forego IQ
Evidence to Avoid Dr. Coons’s Evaluation of Petitioner.

In his first and second assertions of ineffective assistance by his
trial counsel, Petitioner argues that trial counsel failed to raise federal
constitutional challenges to the state trial court’s pretrial rulings
refusing to permit the admission of Dr. Natalicio’s testimony on
Petitioner’s low intellectual functioning unless Petitioner first
submitted to a clinical interview by Dr. Coons. Am. Pet. 19–23.
Petitioner also claims that his trial counsel failed to permit him to
submit to a clinical interview by Dr. Coons, which would have allowed
Dr. Natalicio to testify at trial.
a.

State Court Disposition

Petitioner presented the same ineffective-assistance-of-counsel
claims in his state writ application. 1 State Habeas R. 13, 50–67. After
extensive testimony from Petitioner’s trial counsel during an
-65-

evidentiary hearing, the state trial court recommended that the Texas
Court of Criminal Appeals deny him habeas relief, finding that his trial
counsel made each of the objections that Petitioner claimed they had
failed to make. 2 Clerk’s R. 582 (¶ 20). The state trial court further
found that Petitioner failed to demonstrate that his proposed objections
were well founded in law. Id. at ¶ 21. Accordingly, in considering
Petitioner’s state habeas application, the state trial court concluded
that Petitioner failed to demonstrate that trial counsel’s performance
was deficient under the first prong of Strickland. Id. at 583 (¶ 22). The
Texas Court of Criminal Appeals expressly adopted these findings and
conclusions when it rejected Petitioner’s state habeas corpus application
on the merits. Ex parte Hernandez, 2015 WL 376357, at *1.
b.

Clearly Established Federal Law

Since the state court adjudicated this issue on the merits,
§ 2254(d)(1) applies. See Cullen, 563 U.S. at 181. To succeed on his
claim, Petitioner must demonstrate that the state court’s application of
Strickland’s prejudice prong was unreasonable. In other words,
Petitioner must show that the state court’s determination is “so lacking
-66-

in justification” that it is “beyond any possibility for fairminded
disagreement.” Harrington, 562 U.S. at 103; see also Wood v. Allen, 558
U.S. 290, 301 (2010) (“[A] state–court factual determination is not
unreasonable merely because the federal habeas court would have
reached a different conclusion in the first instance.”).
c.

Analysis

Petitioner has failed to present the Court with any evidence
demonstrating that the state habeas trial court’s factual findings and
its rejection on the merits of Petitioner’s ineffective-assistance claims
were in any manner objectively unreasonable. See Williams, 529 U.S.
at 410 (“[A]n unreasonable application of federal law is different from
an incorrect application of federal law.”). Even if reasonable minds
reviewing the record might disagree about the factual findings in
question or the implicit credibility determination underlying the factual
findings, this does not furnish a sufficient basis for the federal habeas
court to supersede the state trial court’s factual determinations. See
Wood, 558 U.S. at 301; Rice v. Collins, 546 U.S. 333, 341–42 (2006).
Trial counsel argued to the state trial court that presenting
-67-

Dr. Natalicio’s examination did not waive his Fifth Amendment right
and that extending Soria and Lagrone to such examinations violated
the Fifth Amendment. See 30 Rep. R. 27–28 (“It is crucial for the trial
court to protect the defendant’s Fifth Amendment right. That’s the
Lagrone court advising trial courts . . . . So since he hasn’t waived those
rights, and until he puts his expert on, whatever you do pretrial has to
be strict and close and protect[ive] of his Fifth Amendment right.”); id.
at 30 (“In other words, Lagrone says that the [c]ourt is there to protect
the Fifth Amendment rights of the defendant. And in that regard, there
are procedural things that the trial courts do and one of them is to limit
the parameters of the State’s expert’s examination to those exercised by
[d]efense experts.”); 2 Clerk’s R. 765 (“[Petitioner’s] mental health
expert has not conducted an examination or interrogation that consists
of [an] invasion of the [Petitioner’s] Fifth Amendment rights . . . .
[Petitioner] has not waived his Fifth Amendment rights with respect to
his interviews with his mental health expert.”). Trial counsel also
argued that extending Lagrone to the types of IQ tests performed by
Dr. Natalicio violated the Eighth Amendment. 53 Rep. R. 45–50, 58–61.
-68-

During his pretrial testimony, Dr. Coons asserted that, based
upon the documentary evidence he had reviewed, he had formed a
preliminary opinion that Petitioner posed a risk of future
dangerousness even if sentenced to life without parole. 34 Rep. R. 21–
25, 30–33, 38. Petitioner’s trial counsel filed multiple motions seeking
to preclude or limit any examination of Petitioner by Dr. Coons, argued
in support of those motions at multiple pretrial hearings, opposed the
prosecution’s motions seeking to have Petitioner evaluated by
Dr. Coons, and did everything necessary to preserve for state appellate
review all of the federal constitutional claims urged during Petitioner’s
state habeas corpus proceeding. 1 State Habeas R. 401–90.
Petitioner’s lead trial counsel testified during Petitioner’s state
habeas proceeding that the defense was fully aware of the consequences
of having Dr. Natalicio conduct a clinical interview of Petitioner under
the Lagrone /Soria line of cases and instructed Dr. Natalicio not to
conduct a general clinical interview or explore Petitioner’s criminal
background or life history. 1 Clerk’s R. 408–11. Moreover, after
hearing Dr. Coons’s testimony at the pretrial hearing, the defense was
-69-

adamantly opposed to permitting Dr. Coons to testify on the subject of
future dangerousness at Petitioner’s trial. Finally, once the state trial
court ruled that Dr. Coons could examine Petitioner, the defense made
an intentional decision to invoke Petitioner’s Fifth Amendment right
and refuse to permit Petitioner’s interview by Dr. Coons. 1 State
Habeas R. 401–39.
Petitioner failed to present the state habeas trial court with
evidence suggesting that his trial counsel’s strategic decision to forego
Dr. Natalicio’s testimony at trial was objectively unreasonable in light
of the state trial court’s pretrial rulings. Dr. Natalicio’s clinical
interview of Petitioner went considerably beyond the scope of the
examination Petitioner’s trial counsel believed they had requested.
Thus, pursuant to Estelle and Buchanan, that interview necessarily
opened the door to a clinical interview and possible rebuttal testimony
by a prosecution expert if the defense chose to introduce Dr. Natalicio’s
testimony at trial. Furthermore, for the reasons explained above,
Petitioner’s federal constitutional objections to the state trial court’s
pretrial Lagrone/Soria rulings lacked legal merit. The Court finds
-70-

nothing objectively unreasonable regarding the state habeas trial
court’s determination that Petitioner’s trial counsel was not deficient in
making a strategic decision to prevent Dr. Coons from testifying during
the punishment phase of Petitioner’s capital murder trial.
Additionally, the state habeas trial court’s factual findings and
legal conclusions regarding the conduct of Petitioner’s trial counsel in
challenging the state trial court’s pretrial Lagrone/Soria rulings were
reasonable in view of the state pretrial, trial, and habeas records.
Because the state habeas trial court did not specifically address
the prejudice prong of the Strickland analysis when it rejected
Petitioner’s analogous ineffective-assistance claim, the Court will
conduct an independent analysis of the prejudice prong de novo. See
Porter, 558 U.S. at 39 (holding that de novo review of the allegedly
deficient performance of the petitioner’s trial counsel was necessary
because the state court had failed to address this prong of the
Strickland analysis); Rompilla, 545 U.S. at 390 (holding de novo review
of the prejudice prong of Strickland is required where the state courts
rested their rejection of an ineffective-assistance claim on the deficient-71-

performance prong and never addressed the issue of prejudice);
Wiggins, 539 U.S. at 534 (holding the same).
In evaluating prejudice in the context of the punishment phase of
a capital trial, a federal habeas court must re-weigh all the evidence in
aggravation against the totality of available mitigating evidence (had
the petitioner’s trial counsel chosen a different course). Wong v.
Belmontes, 558 U.S. 15, 20 (2009); Wiggins, 539 U.S. at 534. Strickland
does not require the State to “rule out” or negate a sentence of life in
prison to prevail; rather, it places the burden on the defendant to show
a “reasonable probability” that the result of the punishment phase of a
trial would have been different. Wong, 558 U.S. at 27. Within the
context of the Strickland analysis, “prejudice” means a reasonable
probability that the result of the proceeding would have been different
but for counsel’s errors. Hinton v. Alabama, 134 S. Ct. 1081, 1089
(2014); Ayestas v. Stephens, 817 F.3d 888, 898 (5th Cir. 2016).
Having conducted a de novo review of the entirety of the state
court record from Petitioner’s trial, direct appeal, and state habeas
proceeding, the Court independently concludes that Petitioner was not
-72-

“prejudiced” within the meaning of Strickland by his trial counsel’s
conduct vis-à-vis the state trial court’s pretrial Lagrone/Soria rulings.
For the reasons discussed at length above, the Court concludes that
Petitioner’s federal constitutional challenges to the state trial court’s
pretrial Lagrone/Soria rulings lacked legal merit. See Segundo v.
Davis, 831 F.3d 345, 350–51 (5th Cir. 2016) (“[H]abeas counsel was not
ineffective in failing to raise a meritless claim.”); United States v.
Kimler, 167 F.3d 889, 893 (5th Cir. 1999) (“An attorney’s failure to raise
a meritless argument . . . cannot form the basis of a successful
ineffective assistance of counsel claim because the result of the
proceeding would not have been different had the attorney raised the
issue.”).
Moreover, Petitioner was not prejudiced by his trial counsel’s
alleged deficient performance because, regardless of the evidence that
Petitioner did present or could have presented via Dr. Natalicio, the
prosecution presented strong, robust evidence in favor of an affirmative
answer to the future dangerousness special issue and a negative answer
to the mitigation special issue.
-73-

The prosecution’s evidence during Petitioner’s trial focused on
furnishing victim impact testimony and establishing Petitioner’s
connection to a letter intercepted within the El Paso County Jail
soliciting the murders of two prosecution witnesses. During closing
argument, the prosecution asserted that Petitioner had not reformed
his behavior following his New Mexico manslaughter conviction and
prison sentence; Petitioner’s murder of Fonseca–someone Petitioner
hardly knew–showed a lack of morality; there was an absence of
evidence that Petitioner’s double murder of his wife and Fonseca was a
crime of passion; the evidence establishing that Petitioner plotted the
murders of two prosecution witnesses demonstrated that Petitioner had
not learned from his prior criminal behavior; Petitioner’s gang
membership strongly supported a finding that Petitioner would remain
a continuing threat to society; and the jury should answer the future
dangerousness special issue affirmatively and the mitigation special
issue negatively. 75 Rep. R. 67–87.
After the defense made its closing argument during the
punishment phase of the trial, the prosecution argued that the letter
-74-

soliciting the murders of two prosecution witnesses, linked to Petitioner
via forensic evidence and his gang nickname, proved that Petitioner
was, and would remain, a continuing threat to society; the evidence of
Petitioner’s membership in the Barrio Azteca gang also supported a
finding of future dangerousness; other letters Petitioner wrote to his
family while awaiting trial contained thinly veiled threats against other
individuals; Petitioner’s threatening letters were a better indication of
his personality than the glowing testimony of his family and friends;
and Petitioner was a thirty-one-year-old adult, not an adolescent, when
he murdered his wife and Fonseca. 75 Rep. R. 132–60.
Accordingly, the Court independently concludes, after de novo
review, that there is no reasonable probability that the outcome of the
punishment phase of Petitioner’s capital murder trial would have been
any different had Petitioner’s trial counsel either called Dr. Natalicio to
testify about Petitioner’s low intellectual functioning or permitted
Petitioner to be interviewed by Dr. Coons, both of which Petitioner now
argues should have occurred. Dr. Natalicio’s opinion regarding
Petitioner’s low intellectual functioning likely would have been
-75-

undermined on cross-examination by the fact that Petitioner scored well
above the range of mental retardation, and even borderline mental
retardation, on the standardized IQ test instrument. Furthermore,
such testimony would have been largely repetitive of Dr. Cunningham’s
testimony concerning Petitioner’s low intellectual functioning.
Petitioner’s jury was well aware, through Dr. Cunningham’s testimony,
of the defense’s contention that Petitioner suffers from significant
intellectual deficits. Finally, opening the door to the potentially
devastating testimony of Dr. Coons on the subject of future
dangerousness similar to his testimony during the pretrial hearing
would likely have still resulted in an affirmative answer to the future
dangerousness special issue.
By the time the punishment phase of Petitioner’s trial
commenced, the jury had already convicted Petitioner, having found
beyond a reasonable doubt that Petitioner fatally shot two individuals
at close range. By the time the punishment phase of Petitioner’s capital
murder trial concluded, there was no evidence that Petitioner had ever
expressed genuine remorse or sincere contrition for his capital offense.
-76-

By the conclusion of the punishment phase of Petitioner’s capital
murder trial, there was evidence before the jury demonstrating that
Petitioner had been a member of a street gang as an adolescent, had
fatally shot another adolescent, and was, at the time of the offense, an
active member in a notorious gang.
Most significantly, Petitioner plotted the murders of two of his
acquaintances and enlisted the assistance of his fellow gang members
in the plot at a time when it would rationally be expected that, as a
criminal defendant, he would not comport himself in this manner. Even
considering all of the mitigating aspects of the testimony furnished by
Petitioner’s friends, relatives, and Dr. Cunningham, the Court
concludes there is no reasonable probability that the outcome of the
punishment phase of Petitioner’s capital murder trial would have been
different if Petitioner’s trial counsel had chosen to permit Petitioner’s
examination by Dr. Coons and then called Dr. Natalicio to testify. The
questionable additional mitigating value of Dr. Natalicio’s testimony
regarding Petitioner’s low intellectual level would likely have been
dwarfed by Dr. Coon’s assessment of Petitioner’s future
-77-

dangerousness—an analysis that would have perhaps been more
comprehensible to the jury, and less counter-intuitive, than
Dr. Cunningham’s suggestion that Petitioner, a violent criminal, would
not be a violent prisoner.
d.

Conclusion

The Texas Court of Criminal Appeals’ rejection of Petitioner’s
ineffective-assistance claims was neither contrary to, nor involved an
unreasonable application of, clearly established federal law, as
determined by the Supreme Court. It also did not result in a decision
that was based on an unreasonable determination of the facts in light of
the evidence presented in Petitioner’s state habeas corpus proceeding.
The state habeas trial court reasonably concluded that these ineffectiveassistance claims both failed to satisfy the deficient-performance prong
of the Strickland analysis. Furthermore, the Court independently
concludes, after de novo review, that both of these claims fail to satisfy
the prejudice prong of Strickland analysis. Hence, Petitioner’s first and
second assertions of ineffective assistance by trial counsel do not
warrant federal habeas corpus relief.
-78-

2.

Ground 1c – Trial Counsel Provided Ineffective
Assistance by Failing to Object to the Prosecution’s
Definition of “Probability” as “More than a Mere
Possibility.”

In his third ineffective-assistance claim, Petitioner argues that his
trial counsel failed to timely object when the prosecution suggested
during voir dire and closing argument of the punishment phase that the
term “probability,” as used in the Texas future dangerousness capital
sentencing special issue, meant “more than a mere possibility.” Am.
Pet. 23–30.
a.

State Court Disposition

Trial counsel filed several pretrial motions requesting that the
state trial court hold Texas’s death–penalty statutes unconstitutional
“for failure to define terms,” including “probability.” 1 Clerk’s R. 119–
21; 2 Clerk’s R. 478–85, 668–71, 720–27; 36 Rep. R. 42–46, 86–98. The
state trial court denied the motions. 36 Rep. R. 46, 98. During
individual voir dire, the prosecution expressly instructed the first nine
jurors that “probability” meant “more likely than not.” 40 Rep. R. 107–
08; 42 Rep. R. 124; 45 Rep. R. 62–63; 46 Rep. R. 19–21; 47 Rep. R. 31; 52
Rep. R. 127; 56 Rep. R. 153–54; 57 Rep. R. 187–88. In some cases,
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defense counsel reaffirmed the “more likely than not” definition. 40
Rep. R. 117; 42 Rep. R. 161–62. After the ninth juror’s voir dire, a
dispute arose between the parties as to the proper inquiry into
prospective jurors’ definitions of the term. 57 Rep. R. 216–33. The
state trial court subsequently allowed defense counsel to instruct one of
the jurors that probability meant that the defendant would “probably”
commit violent acts in the future. 57 Rep. R. 295–96. The state trial
court’s jury charge did not define probability. 75 Rep. R. 59–67.
Accordingly, with neither a statutory nor a court-issued definition, the
parties constructed their arguments utilizing their preferred
definitions. During argument at the punishment phase of trial, the
prosecution, without objection, argued that “probability” in the context
of the future dangerousness special issue meant “more than a mere
possibility.” 75 Rep. R. 68. Rather than objecting, defense counsel
addressed the State’s proposed definition of probability head on:
Now let’s look at the word “probability.” We don’t
know what that means. As you look in your
charge, there is no single definition. And if you
remember the first charge of guilt, there were
some terms that were defined for you. But not
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here. So that’s why we—that’s why we can just
throw out there all kinds of possibilities.
You are being asked to sentence [Petitioner] to
death based on the phrase that no one can tell
you what it means. All we know is “probability,”
again, is beyond a reasonable doubt. What does
that mean?
Throughout the course of the trial, throughout
the questioning, the State would throw out all
these questions. Isn’t is [sic] possible that? Isn’t
it possible that? All these horrible things that
are possible. You know, none of that—none of
that has anything to do with probable beyond a
reasonable doubt.
Possibilities, random possibilities do not answer
that question, especially when you don’t know
what that means. You know, really, you know
more about your odds in Vegas when you walk up
to the roulette wheel than you know about this.
You know when you walk up to that table and
bet, that red; that’s going to be 50–50 chance,
when they spin that wheel, that it will come up
red. And are you ever going to bet your entire life
savings on that? Would you bet your life on those
kinds of odds? Would you bet somebody else’s life
on those kinds of odds? No, you can’t. But you
are being asked by the State to bet my client’s life
on odds that are less than that that we don’t even
know about.
75 Rep. R. 91–93. The prosecution maintained that it had proven that
Petitioner would “probably” commit future acts of violence: “He killed
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before; he killed this time . . . . And he is trying to kill again.” Id. at
158.
In his state habeas application, Petitioner claimed that his
counsel provided ineffective assistance when they failed to object to the
prosecutor’s definition of “probability.” 1 State Habeas R. 14, 71–78.
During testimony in Petitioner’s state habeas corpus proceeding,
Petitioner’s lead trial counsel acknowledged that the proper definition
of “probability,” as used in the future dangerousness special issue, was
unsettled and that some opinions of the Texas Court of Criminal
Appeals suggested the term can be defined as “more than a mere
possibility.” 2 State Habeas R. 579–80. The state habeas trial court
agreed and concluded that defense counsel’s performance was not
deficient:
• The term “probability” in the context of
capital murder punishment issue is not
statutorily defined.
• The Court of Criminal Appeals has varying
definitions in its opinions, to include “more
than a mere possibility,” “more likely than
not,” “something more than a possibility,”
and “more than a bare chance.”
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• The law in this regard is not well-settled
nor clearly defined.
• The definitions used by both the [Petitioner]
and the [S]tate are definitions approved and
utilized by the Court of Criminal Appeals.
These terms are not improper nor an
incorrect statement of the law.
• The [S]tate’s use of the definition “more
likely than not,” and the defense attorneys
failure to object during the punishment
phase does not fall below the reasonable
standards for legal representation in a
death penalty case not [sic] does it
constitute deficient performance or
ineffective assistance of counsel.
2 State Habeas R. 584. The Texas Court of Criminal Appeals adopted
the foregoing findings and conclusions when it rejected this assertion of
ineffective assistance on the merits in the course of Petitioner’s state
habeas corpus proceeding. Ex parte Fabian Hernandez, 2015 WL
376357, at *1.
b.

Analysis

In evaluating a Texas petitioner’s claim regarding the
performance of his trial counsel that a state court rejects on the merits,
the issue before the federal habeas court is whether the Texas Court of
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Criminal Appeals reasonably concluded the petitioner’s claim failed to
satisfy either prong of the Strickland analysis. Schaetzle v. Cockrell,
343 F.3d 440, 444 (5th Cir. 2003).
As Respondent correctly highlights, the Texas Court of Criminal
Appeals employs a variety of phrases to flesh out the term “probability”
as that term is used in the Texas future dangerousness capital
sentencing special issue. Answer 47. At the time of Petitioner’s trial,
the Court of Criminal Appeals had defined “probability” in this context
in the following ways: “more than a mere possibility,” Murphy v. State,
112 S.W.3d 592, 600 (Tex. Crim. App. 2003); “proof of more than a bare
chance of future violence,” Ellason v. State, 815 S.W.2d 656, 659 (Tex.
Crim. App. 1991); “more than a ‘possibility,’” Hughes v. State, 878
S.W.2d 142, 148 (Tex. Crim. App. 1992); “more than a bare chance of
future violence,” Smith v. State, 779 S.W.2d 417, 421 (Tex. Crim. App.
1989); “something between potential and more likely than not,” Cuevas
v. State, 742 S.W.2d 331, 346–47 (Tex. Crim. App. 1987), overruled on
other grounds in Hughes v. State, 878 S.W.2d at 142; and “more likely
than not,” Robison v. State, 888 S.W.2d 473, 481 (Tex. Crim. App. 1994).
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Thus, there was no legitimate legal basis for an objection to the
prosecution’s use of the phrase “more than a mere possibility” to explain
the term “probability” to potential jurors during individual voir dire or
during the prosecution’s arguments at the punishment phase of trial.
Hence, Petitioner’s trial counsel cannot reasonably be faulted for failing
to make a futile objection. See Miller v. Thaler, 714 F.3d 897, 904 n.6
(5th Cir. 2013) (“[C]ounsel is not required to make futile motions or
objections[.]”) (quoting Koch v. Puckett, 907 F.2d 524, 527 (5th Cir.
1990); Roberts v. Thaler, 681 F.3d 597, 612 (5th Cir. 2012) (“[T]he
failure to lodge futile objections does not qualify as ineffective
assistance . . . .”) (citing Koch, 907 F.2d at 527); Ward v. Dretke, 420
F.3d 479, 498 (5th Cir. 2005) (explaining that counsel is not ineffective
for failing to lodge what would likely have been a futile objection).
Moreover, Petitioner has presented the Court with no evidence, much
less clear and convincing evidence, showing that any of the state habeas
trial court’s factual findings made in connection with this claim of
ineffective assistance were unreasonable or in any manner inaccurate
or erroneous.
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Therefore, the Court concludes that there was nothing objectively
unreasonable about the failure of Petitioner’s trial counsel to object to
the prosecution’s use of a definition of “probability,” which the highest
state appellate court had expressly endorsed in the context of the Texas
future dangerousness special issue. See Clark v. Thaler, 673 F.3d 410,
429 (5th Cir. 2012) (“[F]ailure to assert a meritless objection cannot be
grounds for a finding of deficient performance.”); Paredes v.
Quarterman, 574 F.3d 281, 291 (5th Cir. 2009).
Given that the state habeas trial court did not specifically address
the prejudice prong of the Strickland analysis when it rejected
Petitioner’s claim, the Court will conduct a de novo analysis of the
second prong. See Porter, 558 U.S. at 39; Rompilla, 545 U.S. at 390;
Wiggins, 539 U.S. at 534. As explained in great detail above, the Texas
Court of Criminal Appeals had endorsed the phrase “more than a mere
possibility” as an acceptable definition or explanation of the term
“probability” as used in the future dangerousness special issue many
years before Petitioner’s trial. See Murphy, 112 S.W.3d at 600. Thus,
the failure of Petitioner’s trial counsel to make a futile objection did not
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“prejudice” Petitioner within the meaning of Strickland analysis. See
Segundo, 831 F.3d at 350–51; Paredes, 574 F.3d at 291. Consequently,
after completing a de novo review, the Court independently concludes
there is no reasonable probability that, but for the failure of Petitioner’s
trial counsel to object to the prosecution’s use of the phrase “more than
a mere possibility” to explain or define the term “probability,” the
outcome of the punishment phase of Petitioner’s capital murder trial
would have been any different.
c.

Conclusion

The Texas Court of Criminal Appeals’ rejection on the merits of
Petitioner’s claim that his trial counsel did not timely object to the
prosecution’s use of the phrase “more than a mere possibility” to define
the term “probability” during voir dire and closing argument at the
punishment phase of trial, was neither contrary to, nor involved an
unreasonable application of, clearly established federal law, as
determined by the Supreme Court. Moreover, it did not result in a
decision that was based on an unreasonable determination of the facts
in light of the evidence presented in Petitioner’s state habeas corpus
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proceeding. The Court’s independent and de novo review establishes
that this claim satisfies neither prong of Strickland analysis.
Accordingly, the Court concludes that Petitioner’s third assertion of
ineffective assistance in his Amended Petition does not warrant federal
habeas corpus relief.
3.

Ground 1d – Trial Counsel Provided Ineffective
Assistance by Failing to Object to the Absence of a
“Beyond a Reasonable Doubt” Burden of Proof on the
Prosecution for the Mitigation Special Issue.

In his fourth claim of alleged ineffective assistance by his trial
counsel during the punishment phase, Petitioner argues that his trial
counsel should have objected to the state trial court’s failure to instruct
the jury that the prosecution bears the burden of proving a negative
answer to the mitigation special issue “beyond a reasonable doubt.”
Am. Petition 30–39.
a.

State Court Disposition

Prior to trial, Petitioner’s trial counsel filed a comprehensive
motion asking the state trial court to declare the Texas capital
sentencing scheme unconstitutional on its face. 1 Clerk’s R. 122–52.
Petitioner also filed a separate motion specifically challenging the
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failure of the Texas capital sentencing special issues to impose a
“beyond a reasonable doubt” burden of proof on the prosecution in
connection with the mitigation special issue. 1 Clerk’s R. 161–64. On
September 1, 2009, the state trial court denied both motions. 36 Rep. R.
42–57, 67–69, 77–86.
During the charge conference at the punishment phase of trial,
Petitioner’s trial counsel formally objected to the proposed charge and
made a written request for a jury instruction imposing a “beyond a
reasonable doubt” burden of proof on the prosecution in connection with
the mitigation special issue; the state trial court overruled defense
counsel’s objection and denied their request. 3 Clerk’s R. 1112–14; 75
Rep. R. 41–56.
Petitioner presented the same claims concerning the performance
of his trial counsel in his state habeas corpus application. 1 State
Habeas R. 14, 85–95. The state habeas trial court expressly found that
Petitioner’s trial counsel requested, both in writing and orally, that the
state trial court instruct the jury at the punishment phase of trial that
the prosecution was required to negate, beyond a reasonable doubt, the
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existence of a fact or circumstance that would justify a life sentence
rather than death, and the state trial court denied those requests and
refused to submit the instruction. 2 State Habeas R. 580.14 The state
habeas trial court concluded that the instruction on the burden of proof
applicable to the mitigation special issue requested by Petitioner’s state
habeas counsel was substantially similar to the instruction requested
by Petitioner’s trial counsel, and that Petitioner was not entitled to an
instruction imposing a beyond a reasonable doubt burden of proof on
the prosecution in connection with the mitigation special issue. 2 State
Habeas R. 585. The Texas Court of Criminal Appeals adopted the
foregoing findings and conclusions when it rejected this assertion of
ineffective assistance on the merits in the course of Petitioner’s state
habeas corpus proceeding. Ex parte Fabian Hernandez, 2015 WL
376357, at *1.

For unknown reasons, the state habeas trial court listed these
findings under Petitioner’s eighth ground for state habeas relief. These
findings, however, clearly relate to Petitioner’s ninth ground for state
habeas relief.
14

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b.

Analysis

Petitioner has presented no evidence, much less clear and
convincing evidence, demonstrating that any of the state habeas trial
court’s factual findings listed above were inaccurate or erroneous. On
the contrary, the Court’s independent review of the record shows that
Petitioner’s trial counsel did everything reasonably possible to raise and
preserve for state appellate review Petitioner’s argument that the
punishment-phase jury instructions failed to impose a beyond a
reasonable doubt burden of proof on the prosecution to prove a negative
answer to the mitigation special issue.
To the extent that Petitioner argues that his trial counsel failed to
object to the absence of a burden of proof instruction on the mitigation
special issue, Petitioner’s ineffective-assistance claim is factually
inaccurate. As detailed above, Petitioner’s trial counsel submitted a
formal written request for a jury instruction imposing a beyond a
reasonable doubt burden of proof on the prosecution in connection with
the mitigation special issue, argued in favor of such a requirement, and
obtained a state trial court ruling on the issue during the punishment-91-

phase charge conference. Petitioner’s trial counsel undertook the
appropriate and required legal steps to preserve the very legal issue
Petitioner now claims his trial counsel failed to properly raise for state
appellate review. The Court concludes after an independent and
de novo review that this ineffective-assistance-of-counsel claim fails to
satisfy the deficient-performance prong of the Strickland analysis.
Insofar as Petitioner argues that he was constitutionally entitled
to have the state trial court instruct the jury that the prosecution had
the burden of proving a negative answer to the mitigation special issue
beyond a reasonable doubt, Petitioner’s argument is flawed. As the
Fifth Circuit and other sister district courts have explained on many
occasions, there is not now, nor has there ever been, a constitutional
duty on the prosecution, in a Texas capital murder trial, to disprove the
existence of mitigating evidence warranting a sentence of life
imprisonment. See, e.g., Blue, 665 F.3d at 668 (“No Supreme Court or
Circuit precedent constitutionally requires that Texas’ mitigation
special issue be assigned a burden of proof.”); Druery v. Thaler, 647 F.3d
535, 546 (5th Cir. 2011) (noting that the Fifth Circuit has rejected a
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petitioner’s arguments “that allowing a sentence of death without a jury
finding beyond a reasonable doubt that there were no mitigating
circumstances sufficient to warrant a sentence of life imprisonment
violated his Sixth and Fourteenth Amendment right to due process and
a fair trial” and that failure to instruct the jury that the State has the
burden of proof beyond a reasonable doubt on the mitigation issue is
unconstitutional) (citations omitted); Coleman v. Quarterman, 456 F.3d
537, 542 (5th Cir. 2006); Rowell v. Dretke, 398 F.3d 370, 378 (5th Cir.
2005); Garza v. Thaler, 909 F.Supp.2d 578, 674–79 (W.D. Tex. 2012)
(explaining why the Supreme Court’s opinions in 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), do not mandate imposing a
burden of proof on the prosecution in connection with the Texas capital
sentencing scheme’s mitigation special issue).
A jury’s answer to the Texas capital sentencing scheme’s
mitigation special issue does not render the defendant “eligible” for a
death sentence. Garza, 909 F.Supp.2d at 674–79. Instead, that
constitutionally required determination is accomplished at the guilt-93-

innocence phase of trial when the jury finds a Texas capital murder
defendant guilty beyond a reasonable doubt. See Johnson v. Texas, 509
U.S. 350, 362 (1993) (holding that the Texas capital sentencing scheme
accomplishes the eligibility determination, the constitutionally required
“narrowing function,” at the guilt-innocence phase of trial). As a federal
district court in San Antonio has explained, “[t]he Texas capital
sentencing scheme’s ‘mitigation’ Special Issue serves not to render the
defendant eligible for the death penalty or to ‘select’ the defendant for
execution; rather, it allows the capital sentencing jury unfettered
discretion to dispense an act of grace to the otherwise condemned
defendant.” Hernandez v. Thaler, 2011 WL 4437091, at *54 (W.D. Tex.
Sept. 23, 2011), modified on reh’g, 2012 WL 394597 (W.D. Tex. Feb. 6,
2012), aff’d sub nom., 537 F. App’x 531 (5th Cir. Aug. 2, 2013).
The constitutional argument underlying Petitioner’s fourth
ineffective-assistance claim is without legal merit. Even if his trial
counsel had failed to raise such a claim, Petitioner would not have been
prejudiced. See Segundo, 831 F.3d at 350–51; Paredes, 574 F.3d at 291.

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c.

Conclusion

The Texas Court of Criminal Appeals’ rejection on the merits of
Petitioner’s claim that his trial counsel did not timely object to the
absence of a burden of proof instruction in connection with the
mitigation special issue, was neither contrary to, nor involved an
unreasonable application of, clearly established federal law, as
determined by the Supreme Court. The Texas Court of Criminal
Appeals’ ruling also did not result in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in Petitioner’s state habeas proceeding. Furthermore, the
Court’s independent and de novo review establishes that this claim
satisfies neither prong of the Strickland analysis. Hence, the Court
concludes that Petitioner’s fourth assertion of ineffective assistance
does not warrant federal habeas corpus relief.
4.

Ground 1e – Trial Counsel Provided Ineffective
Assistance by Failing to Adequately Investigate
Petitioner’s Mental Health and Present Available
Mitigating Evidence of Organic Brain Damage.

In his fifth claim of ineffective assistance by his trial counsel,
Petitioner argues that his trial counsel failed to adequately investigate
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Petitioner’s mental health and present available evidence showing
Petitioner suffers from organic brain damage. Am. Pet. 39–45.
a.

Procedural Default on Unexhausted Claim

Respondent correctly asserts that because Petitioner has not
raised this claim in any state court proceeding—on direct appeal or in
state habeas—it is unexhausted. Answer 53.
Before seeking federal habeas corpus relief, a state prisoner must
exhaust available state remedies, thereby giving the State the
opportunity to pass upon and correct alleged violations of its prisoners’
federal rights. 28 U.S.C. § 2254(b)(1); Baldwin v. Reese, 541 U.S. 27, 29
(2004); O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Duncan v.
Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 275
(1971). To provide the State with this necessary “opportunity,” the
prisoner must “fairly present” his claim to the appropriate state court in
a manner that alerts that court to the federal nature of the claim. See
Baldwin, 541 U.S. at 29–32 (rejecting the argument that a petitioner
“fairly presents” a federal claim, despite failing to give any indication in
his appellate brief of the federal nature of the claim through reference
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to any federal source of law, when the state appellate court could have
discerned the federal nature of the claim through review of the lower
state court opinion); O’Sullivan, 526 U.S. at 844–45 (holding comity
requires that a state prisoner present the state courts with the first
opportunity to review a federal claim by invoking one complete round of
that State’s established appellate review process); Gray v. Netherland,
518 U.S. 152, 162–63 (1996) (holding that, for purposes of exhausting
state remedies, a claim for federal relief must include reference to a
specific constitutional guarantee, as well as a statement of facts that
entitle the petitioner to relief and rejecting the contention that the
exhaustion requirement is satisfied by presenting the state courts only
with the facts necessary to state a claim for relief). The exhaustion
doctrine is designed to give the state courts a full and fair opportunity
to resolve federal constitutional claims before those claims are
presented to the federal courts and, thereby, to protect the state courts’
role in the enforcement of federal law and prevent the disruption of
state judicial proceedings. Carey v. Saffold, 536 U.S. 214, 220 (2002);

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Duncan v. Walker, 533 U.S. 167, 179 (2001); O’Sullivan, 526 U.S. at
845; Rose v. Lundy, 455 U.S. 509, 518–19 (1982).
Pursuant to AEDPA, federal courts lack the power to grant habeas
corpus relief on unexhausted claims. Kunkle v. Dretke, 352 F.3d 980,
988 (5th Cir. 2003) (explaining that “28 U.S.C. § 2254(b)(1) requires
that federal habeas petitioners fully exhaust remedies available in state
court before proceeding in federal court”); Riley v. Cockrell, 339 F.3d
308, 318 (5th Cir. 2003); Anderson v. Johnson, 338 F.3d 382, 386 (5th
Cir. 2003); Henry v. Cockrell, 327 F.3d 429, 432 (5th Cir. 2003) (“Absent
special circumstances, a federal habeas petitioner must exhaust his
state remedies by pressing his claims in state court before he may seek
federal habeas relief.”); Mercadel v. Johnson, 179 F.3d 271, 276–77 (5th
Cir. 1999); Alexander v. Johnson, 163 F.3d 906, 908 (5th Cir. 1998);
Jones v. Jones, 163 F.3d 285, 299 (5th Cir. 1998). The exhaustion of all
federal claims in state court is a fundamental prerequisite to requesting
federal collateral relief pursuant to § 2254. 28 U.S.C. § 2254(b)(1)(A);
Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001); Sterling v. Scott,
57 F.3d 451, 453 (5th Cir. 1995). However, 28 U.S.C. § 2254(b)(2)
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empowers a federal habeas court to deny an unexhausted claim on the
merits. Pondexter v. Quarterman, 537 F.3d 511, 527 (5th Cir. 2008);
Moreno v. Dretke, 450 F.3d 158, 166 (5th Cir. 2006); Daniel v. Cockrell,
283 F.3d 697, 701–02 (5th Cir. 2002).
The exhaustion requirement is satisfied when the substance of the
federal habeas claim has been “fairly presented” to the highest state
court—that is, when the petitioner presents his claims before the state
courts in a procedurally proper manner according to the rules of the
state courts. Baldwin, 541 U.S. at 29–32 (holding that a petitioner
failed to “fairly present” a claim of ineffective assistance by his state
appellate counsel merely by labeling the performance of counsel
“ineffective,” without accompanying that label with either a reference to
federal law or a citation to an opinion applying federal law to such a
claim); Moore v. Cain, 298 F.3d 361, 364 (5th Cir. 2002); Mercadel, 179
F.3d at 275. However, the petitioner need not spell out each syllable of
the claim before the state court for the claim to have been “fairly
presented,” thereby fulfilling the exhaustion requirement. Riley, 339
F.3d at 318; Fisher v. Texas, 169 F.3d 295, 303 (5th Cir. 1999).
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If a petitioner presents new legal theories or factual claims in his
federal habeas petition, he has not met the exhaustion requirement.
Anderson v. Harless, 459 U.S. 4, 6–7 (1982); Scott v. Hubert, 635 F.3d
659, 667 (5th Cir. 2011); Riley, 339 F.3d at 318 (“It is not enough that
the facts applicable to the federal claims were all before the state court,
or that the petitioner made a similar state-law based claim. The federal
claim must be the ‘substantial equivalent’ of the claim brought before
the [s]tate court.”); Wilder, 274 F.3d at 259 (“[W]here [a] petitioner
advances in federal court an argument based on a legal theory distinct
from that relied upon in the state court, he fails to satisfy the
exhaustion requirement . . . .”); Finley v. Johnson, 243 F.3d 215, 219
(5th Cir. 2001). Likewise, to have “fairly presented” his federal claim,
the petitioner must have reasonably alerted the state courts to the
federal nature of his claim. Baldwin, 541 U.S. at 29–32; Wilder, 274
F.3d at 260 (“A fleeting reference to the federal constitution, tacked
onto the end of a lengthy, purely state-law evidentiary argument, does
not sufficiently alert and afford a state court the opportunity to address
an alleged violation of federal rights.”).
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In Texas, the highest state court with jurisdiction to review the
validity of a state criminal conviction is the Texas Court of Criminal
Appeals. Richardson v. Procunier, 762 F.2d 429, 431–32 (5th Cir.
1985). The Fifth Circuit has consistently held that federal habeas
review on unexhausted claims presented by a convicted Texas criminal
defendant is barred pursuant to the procedural default doctrine. See,
e.g., Beatty v. Stephens, 759 F.3d 455, 465 (5th Cir. 2014) (explaining
that a Texas petitioner who failed to raise an ineffective-assistance
claim during his first state habeas corpus proceeding would be
precluded, pursuant to Texas Code of Criminal Procedure Article
11.071, § 5, from returning to state court to litigate the same claim and
procedurally defaulted on claim in federal habeas corpus proceeding);
Trottie v. Stephens, 720 F.3d 231, 248 (5th Cir. 2013) (holding that the
petitioner’s failure to fairly present factual basis underlying an
ineffective-assistance claim in his state habeas corpus action rendered
it unexhausted and procedurally defaulted); Bagwell v. Dretke, 372 F.3d
748, 755–56 (5th Cir. 2004).

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The Texas Code of Criminal Procedure prohibits a successive state
habeas corpus application except in limited circumstances where
(1)

the current claims and issues have not been
and could not have been presented
previously in a timely initial application or
in a previously considered application filed
. . . because the factual or legal basis for the
claim was unavailable on the date the
applicant filed the previous application;

(2)

by a preponderance of the evidence, but for
a violation of the United States Constitution
no rational juror could have found the
applicant guilty beyond a reasonable doubt;
or

(3)

by clear and convincing evidence, but for a
violation of the United States Constitution
no rational juror would have answered in
the state’s favor one or more of the special
issues that were submitted to the jury in
the applicant’s trial . . . .

Tex. Code Crim. Proc. Ann. art. 11.071, § 5(a) (West 2017). These
limited circumstances do not apply to Petitioner’s claim that his trial
counsel failed to adequately investigate Petitioner’s mental health.
Nothing prevented Petitioner from fairly presenting his fifth assertion
of ineffective assistance in his federal habeas petition in his state
habeas corpus application. Texas law precludes Petitioner from
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returning to state court at this juncture and exhausting state habeas
remedies. See id. Therefore, Petitioner has procedurally defaulted on
his unexhausted, fifth assertion of ineffective assistance by his trial
counsel.
The Supreme Court has recognized exceptions to the doctrine of
procedural default where a federal habeas corpus petitioner can show
either (1) “cause and actual prejudice” for his default or (2) that failure
to address the merits of his procedurally defaulted claim will work a
“fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S.
722, 750 (1991); Harris v. Reed, 489 U.S. 255, 262 (1989).
To establish “cause,” a petitioner must show either that some
objective external factor impeded the defense counsel’s ability to comply
with the state’s procedural rules or that petitioner’s trial or appellate
counsel rendered ineffective assistance. Coleman v. Thompson, 501
U.S. at 753; Murray v. Carrier, 477 U.S. 478, 488 (1986) (holding that
proof of ineffective assistance by counsel satisfies the “cause” prong of
the exception to the procedural default doctrine).

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In order to satisfy the “miscarriage of justice” test, the petitioner
must supplement his constitutional claim with a colorable showing of
factual innocence. Sawyer v. Whitley, 505 U.S. 333, 335–36 (1992). In
the context of the punishment phase of a capital trial, the Supreme
Court has held that a showing of “actual innocence” is made when a
petitioner shows by clear and convincing evidence that, but for
constitutional error, no reasonable juror would have found petitioner
eligible for the death penalty under applicable state law. Sawyer, 505
U.S. at 346–48. The Supreme Court has explained that this “actual
innocence” requirement focuses on those elements that render a
defendant eligible for the death penalty and not on additional
mitigating evidence that was prevented from being introduced as a
result of a claimed constitutional error. Id. at 347.
In Martinez v. Ryan, the Supreme Court held that “a procedural
default will not bar a federal habeas court from hearing a substantial
claim of ineffective assistance at trial if, in the [State’s] initial-review
collateral proceeding, there was no counsel or counsel in that
proceeding was ineffective.” 566 U.S. 1, 17 (2012) (emphasis added). In
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Trevino v. Thaler, 133 S. Ct. 1911, 1921 (2013), the Supreme Court
added, “where, as here, state procedural framework, by reason of its
design and operation, makes it highly unlikely in a typical case that a
defendant will have a meaningful opportunity to raise a claim of
ineffective assistance of trial counsel on direct appeal, our holding in
Martinez applies.”
Petitioner’s unexhausted fifth ineffective-assistance claim is not
entitled to merits review from the Court pursuant to the rules
announced in Martinez v. Ryan and Trevino v. Thaler because, as
explained below, Petitioner’s claim is insubstantial and lacks merit. See
Beatty, 759 F.3d at 465–66 (“To succeed in establishing cause under
Trevino and Martinez, the petitioner must show: (1) that his claim of
ineffective assistance of counsel at trial is ‘substantial’ (i.e., ‘has some
merit’); and (2) that his habeas counsel was ineffective for failing to
present those claims in his first state habeas application.”).
Because no state court has addressed Petitioner’s unexhausted
fifth ineffective-assistance claim, the Court’s review is de novo. See
Porter, 558 U.S. at 39; Rompilla, 545 U.S. at 390; Wiggins, 539 U.S. at
-105-

534. Petitioner’s fifth assertion of ineffective assistance by his trial
counsel currently remains unexhausted and is therefore procedurally
defaulted. Moreover, Petitioner has alleged no facts demonstrating that
either of the longstanding exceptions to the procedural default doctrine
discussed above excuse his failure to exhaust state habeas remedies on
this particular assertion of ineffective assistance by his trial counsel.
b.

Alternatively Petitioner’s Argument fails on the
Merits

Alternatively, even if the Court were to find that Petitioner’s
ineffective-assistance claim is not procedurally defaulted, the Court
nevertheless finds that Plaintiff’s claim similarly fails on the merits for
the reasons set forth below.
In evaluating the performance of Petitioner’s trial counsel during
the punishment phase of trial, the Court must necessarily evaluate that
performance within the context of the information reasonably available
to counsel at that time. See Neal v. Puckett, 286 F.3d 230, 237 (5th Cir.
2002) (recognizing that, in evaluating the performance of trial counsel
against a claim that counsel failed to investigate and present mitigating
evidence, the relevant inquiry focuses on what counsel did to prepare
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for sentencing, what mitigating evidence counsel accumulated, what
additional leads counsel had, and the results said counsel might
reasonably have expected from those leads).
As previously noted, Petitioner’s trial counsel presented a
thorough case in mitigation at the punishment phase of trial, presented
numerous members of Petitioner’s family, a former co-worker, childhood
and adult friends (including one of the two people targeted in the “hit
letter” intercepted inside the El Paso County Jail while Petitioner was
awaiting trial), a prison classification expert, and a forensic
psychologist. Petitioner’s family and friends testified extensively
regarding the difficult childhood that Petitioner endured. Petitioner’s
family and friends portrayed him as a devoted father who diligently
worked to support his children and endured verbal abuse from his
unfaithful, alcoholic wife. In sum, Petitioner’s trial counsel undertook
every effort to humanize Petitioner.
Petitioner’s trial counsel also presented expert testimony from a
retired prison classification officer who opined that because of
Petitioner’s documented gang membership, if sentenced to a term of life
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imprisonment without the possibility of parole, Petitioner would spend
the rest of his life in administrative segregation in a maximum-security
prison facility, where state prison officials would be able to control any
risk of violent behavior. 73 Rep. R. 5–161.
Regarding Petitioner’s mental health, the uncontroverted
testimony of Petitioner’s lead trial counsel during Petitioner’s state
habeas corpus proceeding and the documents accompanying Petitioner’s
state and federal habeas corpus pleadings establish that Petitioner’s
trial counsel conducted an extensive and thorough investigation into
Petitioner’s mental health. More specifically, the evidence currently
before the Court establishes that Petitioner’s trial counsel had
Petitioner evaluated by neuropsychologist Dr. Ann Salo, who concluded
in her report that Petitioner displays narcissistic and antisocial
personality traits, has an IQ of 87, is likely to over-respond to minor
stress with temper outbursts, is impulsive, is unlikely to admit
responsibility for his personal failures, and shows no evidence of
significant cognitive dysfunction and only mild impairment of executive
function. Am. Pet. Ex. A.
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Further, Petitioner’s trial counsel also had Petitioner examined by
Dr. Steven P. Glusman, who administered an EEG and reported a
borderline abnormal result, which suggested that (1) Petitioner’s
mother used excessive amounts of alcohol during her pregnancy,
(2) Petitioner had a history of intranasal cocaine abuse, (3) Petitioner
had a history of polysubstance abuse and (4) Petitioner was diagnosed
with antisocial personality disorder. Am. Pet. Ex. B.
Additionally, Petitioner’s trial counsel had Petitioner evaluated by
Dr. Natalicio, who reported that Petitioner
• scored a full scale 84 on a standardized IQ test instrument;
• displayed symptoms consistent with left frontal-left temporal lobe
organic brain damage of unknown etiology;
• suffered a close head injury in a fall from a moving vehicle but
received no medical attention;
• was diagnosed with scarlet fever and meningitis and spent an
extended period in the hospital as a child;
• was likely to experience difficulty with planning and assessing
even relatively uncomplicated undertakings; and
• was likely to experience repeated episodes of alcohol abuse as a
means of self-medication.
Am. Pet. Ex. C.
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Finally, Petitioner’s trial counsel retained the services of forensic
psychologist Dr. Cunningham, who testified at great length at trial
regarding Petitioner’s
• low level of intellectual functioning;
• exposure during childhood to alcoholic, violent parents;
• history of childhood head injuries, scarlet fever, and meningitis;
• history of inhalant abuse;
• genetic predisposition toward alcohol and drug abuse;
• exposure to the rejection of his mother by his father’s relatives;
• history of emotional and physical abuse, emotional and
supervisory neglect, and exposure to violence, drugs, and gangs;
• disturbed trajectory typified by school failure, dropping out school,
teen alcohol and drug abuse, youth gang recruitment,
delinquency, criminality, incarceration in early adulthood,
disturbed marital relationship, and alcohol abuse proximate to a
capital offense;
• youth gang membership;
• abuse of alcohol to self-medicate;
• diminished thought processes;
• impulsivity and poor judgment;
• antisocial personality disorder;
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• lack of motivation to harm others once convicted of capital
murder;
• history of non-violence during a prior period of incarceration;
• relatively non-violent record while awaiting trial;
• likely placement in administrative segregation where he would be
under constant supervision;
• lack of personality characteristics suggestive of a likelihood of
engaging in violence when in prison; and
• relatively mature age upon admission to prison.
74 Rep. R. 92–226, 274–387.
In sum, Petitioner’s unexhausted argument that his trial counsel
failed to adequately investigate his mental health is refuted by the
objective evidence of the broad scope of the investigation into
Petitioner’s mental health undertaken by Petitioner’s trial counsel.
“The defense of a criminal case is not an undertaking in which
everything not prohibited is required. Nor does it contemplate the
employment of wholly unlimited time and resources.” Smith v. Collins,
977 F.2d 951, 960 (5th Cir. 1992).

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Given the extensive case in mitigation that Petitioner’s trial
counsel presented, including the lengthy expert testimony of
Dr. Cunningham summarized above, the Court independently concludes
that it was objectively reasonable for Petitioner’s trial counsel not to
pursue further mental health evidence regarding Petitioner’s alleged
organic brain damage. Objective testing, such as a brain scan revealing
Petitioner’s brain impairment, if any, would have added little to Dr.
Cunningham’s lengthy testimony about Petitioner’s many
developmental disadvantages and opinions that Petitioner showed
significant deficits in intellectual functioning and social maturity.
Moreover, such objective testing would have left unanswered the
ultimate question of how Petitioner’s brain became physically
impaired—whether as a result of a childhood illness or head injury or as
a result of Petitioner’s own abuse of inhalants, cocaine, and alcohol.
Petitioner does not allege any specific facts, much less furnish any
evidence, showing it was possible to determine the etiology of
Petitioner’s organic brain damage, if any, at the time of Petitioner’s
capital murder trial.
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Furthermore, the prosecution offered no rebuttal testimony after
the defense rested at the punishment phase of Petitioner’s capital
murder trial. This left uncontroverted Dr. Cunningham’s punishmentphase testimony that Petitioner suffered from diminished intellectual
functioning and reduced thought processes; had a severely turbulent
and disadvantaged childhood; had a history of childhood head trauma
and illness, as well as childhood inhalant and alcohol abuse; had a
genetic predisposition toward alcohol and drug abuse; and displayed
impulsivity.
Petitioner’s trial counsel had available to them all of the
information summarized above in the pretrial reports of Drs. Salo,
Natalicio, and Glusman; the pretrial testimony of Dr. Natalicio; and the
trial testimony of Dr. Cunningham. Petitioner has alleged no facts
demonstrating that it was objectively unreasonable for his trial counsel
to have relied upon those reports in determining how best to proceed
with their trial preparations, including deciding not to pursue a brain
scan, as suggested by Dr. Glusman.

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Moreover, Petitioner’s attorneys had to consider the potential
pitfalls posed by the Lagrone/Soria line of cases and the possibility that
the presentation of some forms of mental health evidence might permit
the admission of potentially harmful testimony on future
dangerousness, such as Dr. Coons’s testimony during the August 2009
pretrial hearing. During Petitioner’s state habeas corpus proceeding,
Petitioner’s former lead trial counsel testified extensively that the
defense team’s strategic decision-making was circumscribed by its
awareness of the impact of the Lagrone/Soria line of cases and its
strong desire to avoid having Dr. Coons express at trial the opinions he
had expressed during the pretrial hearing. 1 State Habeas R. 405–06,
409–15, 418, 422–24, 431–34, 436–38, 446, 448, 451, 453, 455–60, 462,
477, 482–83.
Under such circumstances, the Court concludes, after de novo
review, that it was objectively reasonable for Petitioner’s trial counsel to
limit the scope of the defense team’s investigation into Petitioner’s
background, and specifically Petitioner’s mental health, to the scope of
the investigation that counsel actually undertook. Trial counsel has
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considerable discretion in terms of deciding how best to represent their
client. “[T]he Supreme Court has emphasized that ‘counsel has wide
latitude in deciding how best to represent a client.’” Ward v. Stephens,
777 F.3d 250, 264 (5th Cir. 2011); Clark, 673 F.3d at 427 (citing
Yarbrough v. Gentry, 540 U.S. 1, 5–6 (2003)). This wide latitude
includes the discretion to determine how best to utilize the limited
investigative resources available to defense counsel. See Ward, 777
F.3d at 264 (concluding that counsel made a “reasonable strategic
decision ‘to balance limited resources’ and . . . focus on expensive
clinical psychologists and forensic experts rather than on investigators);
Harrington, 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.”).
Petitioner has failed to allege any specific facts, much less furnish
any evidence, establishing that his defense counsel’s decision not to
pursue an independent mental health evaluation of Petitioner, further
than the extensive investigation which counsel did conduct, was
objectively unreasonable under the circumstances which existed as of
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the time of Petitioner’s 2009 capital murder trial. In short, Petitioner
has failed to allege facts that overcome the strong presumption that his
trial counsel’s representation fell within the wide range of reasonable
professional assistance.
As detailed at length above, Petitioner’s trial counsel presented a
thorough case in mitigation. See supra Section I.B. at 8–12; Section
III.C.4.b. at 110–12. Having considered anew the prosecution’s
evidence presented during the capital murder trial, the mitigating
evidence presented by Petitioner’s trial counsel, as well as the
additional mitigating evidence Petitioner’s federal habeas counsel
argues should also have been presented at trial, the Court concludes
that Petitioner has failed to satisfy the “prejudice” prong of the
Strickland analysis.
Consequently, the Court concludes there is no reasonable
probability that, but for the failure of his trial counsel to more fully
investigate Petitioner’s mental health and present all then-available
mental health evidence, the outcome of the punishment phase of
Petitioner’s capital murder trial would have been any different.
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c.

Conclusion

Petitioner’s unexhausted, procedurally defaulted, ineffectiveassistance claim regarding the failure of his trial counsel to adequately
investigate his mental health and present all available mitigating
mental-health evidence fails to satisfy either prong of the Strickland
analysis and does not warrant federal habeas corpus relief. Petitioner’s
fifth assertion of ineffective assistance also fails to present a
“substantial” claim of ineffective assistance by Petitioner’s trial counsel
under the standard announced in Martinez and Trevino. See Martinez,
566 U.S. at 17–18; Trevino, 133 S. Ct. at 1921.
5.

Cumulative Effect

In an unnumbered argument, Petitioner asserts that the
cumulative effect of the foregoing alleged instances of deficient
performance by his trial counsel “prejudiced” him within the meaning of
Strickland. Am. Pet. 41–43. For the reasons discussed at length above,
none of Petitioner’s five assertions of ineffective assistance by his trial
counsel during the punishment phase of trial satisfy either prong of the
Strickland analysis. Thus, as Respondent concisely argues, “there is
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nothing to cumulate.” Answer 60 (citing United States v. Hall, 455 F.3d
508, 520 (5th Cir. 2006) (“Our clear precedent indicates that ineffective
assistance of counsel cannot be created from the accumulation of
acceptable decisions and actions.”); see also Miller v. Johnson, 200 F.3d
274, 286 n.6 (5th Cir. 2000) (explaining that in the absence of specific
demonstrated error, a defendant cannot, by definition, show that
cumulative error of counsel deprived him of a fair trial).
D.

Ground 2 – Appellate Counsel Provided Ineffective
Assistance on Appeal.

In his second claim for federal habeas corpus relief, Petitioner
claims that his state appellate counsel rendered ineffective assistance
when he failed to object to the state trial court’s decisions
a.

to permit the expert testimony of
[Dr. Coons], expressing the opinion that
Petitioner would probably commit criminal
acts of violence that constitute a continuing
threat to society;

b.

not to permit . . . AuBuchon, an expert in
Texas prison classification, security, and
housing of inmates, to express the
professional opinion that Petitioner would
not be a continuing threat to society if
sentenced to a life of confinement, without
parole, in the Texas prison system; and
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c.

to follow the Texas statutory rule in capital
murder prosecutions which requires a jury
instruction that punishment-phase issues
may not be resolved in the defendant’s
favor unless at least ten jurors agree
because of its coercive effect on jury
deliberations.

Am. Pet. 47–63.
1.

Clearly Established Federal Law

The same two-pronged standard for evaluating ineffectiveassistance claims against trial counsel announced in Strickland applies
to claims concerning the performance of counsel on appeal. Smith v.
Robbins, 528 U.S. 259, 285 (2000); Dorsey v. Stephens, 720 F.3d 309,
319 (5th Cir. 2013) (“A criminal defendant has a constitutional right to
receive effective assistance of counsel on his first appeal. In a direct
appeal, ineffective assistance of counsel claims are governed by the
standard established by the Supreme Court in Strickland v.
Washington.”) (footnotes omitted)).
Thus, the standard for evaluating the performance of counsel on
appeal requires inquiry into (1) whether appellate counsel’s conduct was
objectively unreasonable under then-current legal standards, and
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(2) whether there is a reasonable probability that, but for appellate
counsel’s deficient performance, the outcome of Petitioner’s appeal
would have been different. Robbins, 528 U.S. at 285; Higgins v. Cain,
720 F.3d 255, 260–61 (5th Cir. 2015). Appellate counsel who files a
merits brief need not, and should not, raise every non-frivolous claim.
Robbins, 528 U.S. at 288; Jones v. Barnes, 463 U.S. 745, 751 (1983).
Instead, he may select from among them in order to maximize the
likelihood of success on appeal. Id. The process of winnowing out
weaker arguments on appeal and focusing on those more likely to
prevail is the hallmark of effective appellate advocacy. Smith v.
Murray, 477 U.S. 527, 536 (1986); Barnes, 463 U.S. at 751–52.
Nonetheless, appellate counsel is obligated to research relevant
facts and law or to make an informed decision that certain avenues will
not prove fruitful. See Busby v. Dretke, 359 F.3d 708, 714 (5th Cir.
2004); United States v. Reinhart, 357 F.3d 521, 525 (5th Cir. 2004);
Schaetzle v. Cockrell, 343 F.3d 440, 445 (5th Cir. 2003) (explaining that
the failure to raise a discrete, purely legal issue, where the precedent
could not be more pellucid or applicable, denies adequate
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representation). Likewise, solid, meritorious arguments based on
directly controlling precedent should be discovered and brought to the
appellate court’s attention. Reinhart, 357 F.3d at 525; Schaetzle, 343
F.3d at 445.
2.

Ground 2a. – Appellate Counsel Provided Ineffective
Assistance by Failing to Challenge Pretrial Ruling on
the Admissibility of Dr. Coons’s Testimony.

Petitioner argues that his appellate counsel should have asserted
a point of error regarding the state trial court’s pretrial ruling that
Dr. Coons’s opinions regarding Petitioner’s future dangerousness would
be admissible at trial. Am. Pet. 47–53.
a.

State Court Disposition

As outlined above,15 during a pretrial hearing held in August of
2009, the state trial court heard testimony from Dr. Coons regarding
the methodology he employed in evaluating whether a defendant posed
a risk of future dangerousness under the Texas capital sentencing
scheme’s first special issue and his opinion that, based upon his review
of Petitioner’s record, Petitioner would pose such a future danger.

15

See Section III.A.1 supra at 34–35.
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34 Rep. R. 13–82. At the conclusion of the hearing and after
entertaining argument by the parties, the state trial court concluded
that the reliability of Dr. Coons’s testimony had been sufficiently
established under applicable state evidentiary rules. 34 Rep. R 125–47.
Ultimately, however, Dr. Coons’s did not testify at Petitioner’s trial.
Petitioner similarly argued in his state habeas corpus application
that his state appellate counsel rendered ineffective assistance by
failing to object to the state trial court’s allegedly erroneous decision to
permit Dr. Coons’s testimony on future dangerousness.
1 State Habeas R. 13, 45–50. The state habeas trial court expressly
found the following:
• Prior to trial, the [S]tate revealed that, if the
defense produced expert psychiatric or psychological
testimony at trial on any material issue in the case,
it would call [Dr. Coons] as an expert psychiatric
witness on the issue, among other things, whether
[Petitioner] would be a danger to society in the
future, and demanded that [Petitioner] submit to an
unlimited pretrial psychiatric examination,
including a personal interview, by Dr. Coons.
• [Petitioner] refused to be examined by any
psychiatric expert for the State, including [Dr.
Coons], regarding the issue of future dangerousness.
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• On August 6, 2009, [Dr. Coons’s] opinion as to
[Petitioner’s] future dangerousness was conducted
regarding future-dangerousness in a method
similarly considers [sic] in an unrelated case of
Coble v. State, 330 S.W.3d 253 (Tex. Crim. App.
2010), cert. denied, 564 U.S. 1020. 131 S.Ct. 3030,
180 L.Ed.2d 846 (2011).
• At the conclusion of the pretrial hearing, over the
objection of the defense, the court ruled that
Dr. Coons would be permitted to examine
[Petitioner] without limitation prior to trial and to
testify during the punishment phase as an expert
before the jury on the issue of future dangerousness.
• The defense engaged the services of three experts:
[Dr. Natalicio] (Psychologist), Dr. Mark
Cunningham (forensic psychologist) and . . .
Aubuchon [sic] (inmate-classification expert) for the
purpose to demonstrate that [Petitioner] was not a
future danger and that his disadvantaged
background and intellectual deficiencies would be
sufficient mitigating circumstances to warrant life
rather than death.
• During the trial the defense did not call Dr.
Natalicio to testify.
• During the trial, the State did not call Dr. Coons to
testify nor was any other psychiatric evidence as to
[Petitioner’s] future dangerousness presented.
• The defense presented the testimony of forensic
psychologist Dr. Mark Cunningham, who testified
that[,] based on the review of [Petitioner’s] records
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. . . [,] [Petitioner] was not a future danger while in
prison.
• The defense further presented . . . AuBuchon, an
inmate-classification expert to show that TDCJ
could control [Petitioner] if he was sentenced to
prison so as to show that the applicant was not a
future danger while in prison.
• During the trial, the [S]tate presented
overwhelming evidence of [Petitioner’s] future
dangerousness, to include not only the facts of this
case but also that when [Petitioner] was 18 years of
age he armed himself with a gun and engaged
himself in a fight and killed a person; and the State
also showed evidence of [Petitioner], a member of
the Barrio Azteca prison gang that while awaiting
the trial on this case sought to have other Barrio
Azteca gang members kill two of the witnesses
against [Petitioner] and assault others outside the
jail. The [S]tate argued that this continued behavior
and actions demonstrated [Petitioner’s] continued
threat to society.
• After [Petitioner’s] trial in 2009, but before
[Petitioner’s] direct appeal in 2011, the Court of
Criminal Appeals held in Cobble v. State, 330
S.W.3d at 270–80, that the State had failed to
demonstrate the scientific reliability of Dr. Coons[’s]
methodology for predicting future dangerousness.
• Subsequently in the direct appeal of 2011,
[Petitioner] did not assign as a point of error that
[the state trial court] had abused its discretion by
challenging [the state trial court’s] pretrial ruling on
the admissibility of Dr. Coons’[s] testimony.
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2 State Habeas R. 575–76.
The state habeas trial court concluded that because Dr. Coons did
not testify at trial, his opinions on Petitioner’s future dangerousness did
not contribute to the jury’s affirmative answer to the future
dangerousness special issue, and that Petitioner failed to show that an
appellate argument regarding the state trial court’s interlocutory ruling
would have resulted in a reversal of Petitioner’s conviction on direct
appeal. 2 State Habeas R. 581. Accordingly, it recommended that the
Texas Court of Criminal Appeals deny relief. Id. at 585. The Court of
Criminal Appeals adopted the foregoing findings and conclusions when
it similarly rejected this assertion of ineffective assistance on the merits
in the course of Petitioner’s state habeas corpus proceeding. Ex parte
Fabian Hernandez, 2015 WL 376357, at *1.
b.

Analysis

Petitioner has presented the Court with no evidence, much less
clear and convincing evidence, establishing that any of the state habeas
trial court’s factual findings made in connection with this claim of

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ineffective assistance by Petitioner’s appellate counsel were in any
manner inaccurate or erroneous.
The state habeas trial court reasonably concluded that counsel’s
failure to present a point of error on direct appeal regarding an
interlocutory pretrial ruling on the admissibility of opinion testimony
that was never actually presented to the jury at trial was not objectively
unreasonable. As Respondent correctly asserts, under applicable Texas
law, any error in a pretrial ruling on the admissibility of evidence is
rendered moot if the proffered evidence is not actually admitted during
trial. Answer 66 (citing Herron v. State, 86 S.W.3d 621, 628 (Tex. Crim.
App. 2002) (holding that a complaint about a state trial court’s allegedly
erroneous pretrial ruling on the admissibility of a defendant’s
videotaped statement was rendered moot when the statement was not
introduced into evidence at trial)).
Here, Dr. Coons’s opinion on Petitioner’s future dangerousness
was never presented at trial. Thus, Petitioner’s state appellate counsel
could reasonably have concluded that asserting a point of error
addressing the state trial court’s allegedly erroneous pretrial ruling on
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the admissibility of Dr. Coons’s testimony would have been futile.
Petitioner’s state appellate counsel cannot reasonably be faulted for
failing to present a point of error clearly foreclosed by applicable Texas
law. See Clark, 673 F.3d at 429 (“[F]ailure to assert a meritless
objection cannot be grounds for a finding of deficient performance.”); see
also Paredes, 574 F.3d at 291; Wood v. Quarterman, 503 F.3d 408, 413
(5th Cir. 2007); Johnson v. Cockrell, 306 F.3d at 255 (all holding the
same).
The Court likewise concludes, after de novo review, that there was
nothing objectively unreasonable about appellate counsel’s decision not
to raise a point of error disputing a pretrial ruling on the admissibility
of evidence that was never admitted at trial.
The state habeas trial court also reasonably concluded that the
failure of Petitioner’s appellate counsel to raise a point of error
regarding the allegedly erroneous pretrial ruling on the admissibility of
Dr. Coons’s opinion on Petitioner’s future dangerousness did not satisfy
the prejudice prong of the Strickland analysis. Given the state law
authorities discussed above, there is no reasonable probability that a
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point of error disputing an interlocutory ruling on the admissibility of
evidence that was never actually admitted at trial would have resulted
in the reversal of Petitioner’s conviction on direct appeal.
The Court likewise concludes, after do novo review, that there is
no reasonable probability that, but for the failure of Petitioner’s
appellate counsel to include a point of error in Petitioner’s appellate
brief disputing the state trial court’s pretrial ruling on the admissibility
of Dr. Coons’s opinion testimony, the outcome of Petitioner’s direct
appeal would have been different. Given applicable state law, it is
highly unlikely that the Texas Court of Criminal Appeals would have
reversed Petitioner’s conviction or sentence based upon alleged error in
a pretrial ruling on the admissibility of testimony never actually
presented to the jury.
c.

Conclusion

The Texas Court of Criminal Appeals’ rejection on the merits of
this claim of ineffective assistance by Petitioner’s state appellate
counsel was neither contrary to, nor involved an unreasonable
application of, clearly established federal law as determined by the
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Supreme Court. The Texas Court of Criminal Appeals’ decision was
also not based on an unreasonable determination of the facts in light of
the evidence presented in Petitioner’s state habeas corpus proceeding.
The Court also independently concludes that this claim of ineffective
appellate counsel fails to satisfy either prong of Strickland analysis.
Consequently, the Court concludes that Petitioner’s first assertion of
ineffective assistance by his state appellate counsel does not warrant
federal habeas corpus relief.
3.

Ground 2b – Appellate Counsel Provided Ineffective
Assistance by Failing to Raise a Point of Error
Challenging the Exclusion of the Opinion of AuBuchon
Regarding Petitioner’s Future Dangerousness.

Petitioner also argues that his appellate counsel should have
asserted a point or error objecting to the state trial court’s refusal to
admit AuBuchon’s opinion when asked on re-direct examination
whether “the defendant [would] commit criminal acts of violence that
constitute a continuing threat to society[.]” Am. Pet. 53–57.
a.

State Court Disposition

During his lengthy direct examination, defense prison
classification expert AuBuchon testified that he believed that Petitioner
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would spend the rest of his life in administrative segregation inside a
maximum-security TDCJ prison facility. 73 Rep. R. 5–84. AuBuchon
further testified that because of the restrictions on Petitioner’s conduct
in administrative segregation, and based upon his review of Petitioner’s
prison records from New Mexico, he believed that the TDCJ would be
able to control Petitioner’s behavior in administrative segregation,
which would stop Petitioner from becoming a continuing threat to the
prison population. Id. On re-direct examination of AuBuchon,
Petitioner’s trial counsel paraphrased the first special issue on future
dangerousness to be answered by the jury. Id. at 135–36. The
prosecution objected—initially on the ground that it was improper to
ask the witness to opine about the ultimate issue before the jury. Id. at
136. After the state trial court excused the jury, the prosecution
additionally objected to AuBuchon’s lack of qualifications to render an
opinion on the issue of future dangerousness. Id. at 138. The parties
then conducted a voir dire examination of AuBuchon concerning his
education, training, background, and the bases for his opinion on
Petitioner’s future dangerousness. Id. at 138–61. At the conclusion of
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the parties’ voir dire examination, the state trial court concluded that it
did not believe AuBuchon had sufficient background or expertise to
testify on the ultimate question raised by the first capital sentencing
special issue. Id. at 162.
Petitioner similarly argued in his state habeas corpus application
that his state appellate counsel rendered ineffective assistance by
failing to assert a point of error based upon the state trial court’s
refusal to admit AuBuchon’s opinion regarding Petitioner’s future
dangerousness. 1 State Habeas R. 14, 67–70. The state habeas trial
court concluded that (1) AuBuchon was not qualified to express an
opinion as to Petitioner’s general future dangerousness or whether
Petitioner would commit criminal acts of violence that would constitute
a continuing threat to society; (2) the state trial court did not abuse its
discretion in refusing to permit AuBuchon to express an opinion on
Petitioner’s general future dangerousness; and (3) Petitioner’s appellate
counsel did not render ineffective assistance in failing to raise such a
claim. 2 State Habeas R. 583–84. The Texas Court of Criminal Appeals
adopted the foregoing findings and conclusions when it rejected this
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assertion of ineffective assistance on the merits in the course of
Petitioner’s state habeas corpus proceeding. Ex parte Fabian
Hernandez, 2015 WL 376357, at *1.
b.

Analysis

Again, Petitioner has failed to present the Court with any
evidence, much less clear and convincing evidence, establishing that
any of the state habeas trial court’s factual findings made in connection
with this claim of ineffective assistance by Petitioner’s appellate counsel
were in any manner inaccurate or erroneous.
The state habeas trial court reasonably concluded that Petitioner’s
state appellate counsel did not render deficient performance by failing
to assert a point of error challenging the exclusion of AuBuchon’s
opinion on the ultimate issue of Petitioner’s general future
dangerousness. Specifically, the state habeas trial court concluded that
AuBuchon was not qualified under applicable state law, i.e., the
Lagrone/Soria line of cases, to render an opinion on the ultimate issue
of Petitioner’s future dangerousness generally. 2 State Habeas R. 583–
84. A state court’s interpretation of state law binds a federal court
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sitting in habeas corpus. Bradshaw v. Richey, 546 U.S. 74, 76 (2005);
Paredes, 574 F.3d at 291; Wood, 503 F.3d at 414.
Moreover, two weeks before Petitioner’s state appellate counsel
filed his state appellate brief, the Texas Court of Criminal Appeals
rejected an almost identical point of error raised by Petitioner’s own
state appellate counsel in an earlier direct appeal in another case. See
Renteria v. State, 2011 WL 1734067, at *38–40 (Tex. Crim. App. May 4,
2011), cert denied 565 U.S. 1263 (2012) (holding that any error in the
exclusion of AuBuchon’s opinion testimony regarding a defendant’s
general future dangerousness was rendered harmless by virtue of the
fact that AuBuchon had been permitted to testify, as he did during
Petitioner’s trial, that the defendant in that case would not be a future
danger in prison and Dr. Cunningham was permitted to testify, as he
did during Petitioner’s trial, that there was no probability the
defendant in that case would commit criminal acts of violence while in
prison).
The Court independently concludes, after de novo review, that
there was nothing objectively unreasonable with Petitioner’s state
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appellate counsel’s decision not to raise an argument concerning the
exclusion of AuBuchon’s opinion on Petitioner’s future dangerousness;
the Texas Court of Criminal Appeals had recently rejected a virtually
identical argument raised by the same attorney in a prior direct appeal
on behalf of another Texas death-row inmate. Upon the Court’s
examination of the two cases, the Court finds that the relevant facts in
both cases are indistinguishable. AuBuchon testified without objection
during Petitioner’s trial that he did not believe Petitioner would commit
criminal acts of violence in prison because TDCJ officials would send
Petitioner to administrative segregation and Petitioner had not
demonstrated violent behavior during a previous incarceration in New
Mexico. 73 Rep. R. 80–84. Dr. Cunningham testified that he opined
Petitioner would not commit future acts of criminal violence in prison.
74 Rep. R. 222–26, 274–306, 308, 310, 318, 328–29, 359, 361, 363–64,
371, 373, 379–81. Under such circumstances, Petitioner’s state
appellate counsel could have reasonably concluded that asserting a
point of error complaining about the exclusion of AuBuchon’s opinion on
Petitioner’s future dangerousness generally would be futile.
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The state habeas trial court also reasonably concluded that this
ineffective appellate assistance claim failed to satisfy the “prejudice”
prong of the Strickland analysis. In view of the Texas Court of
Criminal Appeals’ holding in Renteria, the Court independently
concludes, after de novo review, that there is no reasonable probability
that, but for the failure of Petitioner’s state appellate counsel to raise a
point of error challenging the exclusion of AuBuchon’s opinion on
Petitioner’s future dangerousness generally, the outcome of Petitioner’s
direct appeal would have been any different. No rational basis exists
for believing that the Texas Court of Criminal Appeals’ ultimate
disposition of such a point of error in Petitioner’s direct appeal would
have been different from its holding of “harmless error” in Renteria. See
Renteria, 2011 WL 1734067, at *38–40
Furthermore, the Court is bound on federal habeas review by the
state habeas trial court’s conclusion that AuBuchon was not qualified
pursuant to state evidentiary rules to render an opinion on Petitioner’s
future dangerousness generally. Thus, Petitioner’s second assertion of
ineffective assistance by his appellate counsel amounts to little more
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than a complaint that his appellate counsel failed to raise a point of
error concerning the exclusion of opinion testimony by a witness who
was not qualified to render such an opinion under state evidentiary
rules. Accordingly, Petitioner was not “prejudiced” within the meaning
of Strickland by such failure.
c.

Conclusion

The Texas Court of Criminal Appeals’ rejection on the merits of
this ineffective-assistance claim was neither contrary to, nor involved
an unreasonable application of, clearly established federal law as
determined by the Supreme Court; nor was it based on an unreasonable
determination of the facts in light of the evidence presented in
Petitioner’s state habeas corpus proceeding. The Court independently
concludes that this claim of ineffective appellate counsel fails to satisfy
either prong of the Strickland analysis. Therefore, the Court concludes
that Petitioner’s second assertion of ineffective assistance by his state
appellate counsel does not warrant federal habeas corpus relief.

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4.

Ground 2c – Appellate Counsel Provided Ineffective
Assistance by Failing to Challenge the Texas TwelveTen Rule.

In his final assertion of ineffective assistance by his state
appellate counsel, Petitioner contends that his counsel should have
asserted a point of error on direct appeal challenging the
constitutionality of the Texas twelve-ten rule. Am. Pet. 57–63.
Petitioner’s claim centers on the fact that the jury was not instructed on
Texas’s “one holdout juror rule”—that if it failed to answer either issue
because ten to twelve votes could not be mustered, the judge would
sentence Petitioner to life in prison. Tex. Code Crim. Proc. Ann. art.
37.071, § 2(g) (West 2017). Petitioner argues that the twelve-ten rule
has a coercive effect on jury deliberations and discourages each juror
from expressing an individual judgment, thus violating the Eighth
Amendment.
a.

State Court Disposition

Petitioner’s trial counsel filed multiple motions challenging the
provisions of the Texas capital sentencing statute requiring the jury to
answer each special issue unanimously in favor of the prosecution or to
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have at least ten jurors reach a verdict in favor of the defense on each
special issue. 1 Clerk’s R. 161–64; 2 Clerk’s R. 553–73. The state trial
court denied these motions at a pretrial hearing held on September 1,
2009, and denied Petitioner’s objections to the jury charge raising
similar arguments during the punishment-phase charge conference.
36 Rep. R. 9–154; 75 Rep. R. 41–56.
In his state habeas corpus application, Petitioner argued that his
state appellate counsel should have asserted a point of error on appeal
challenging the constitutionality of the Texas twelve-ten rule. 1 State
Habeas R. 14, 78–85. The state habeas trial court made no express
factual findings regarding this ineffective-assistance claim, but did
conclude that the claim should be denied “in its entirety.” 16

While the state habeas trial court did issue two factual findings
purporting to address this claim, 2 State Habeas R. 580, those factual
findings actually address Petitioner’s final claim for state habeas
relief—his complaint that the mitigation special issue should have
included a burden of proof imposed upon the prosecution. In its
conclusions of law section, the state trial habeas court did conclude,
however, that (1) it submitted the Texas twelve-ten rule and
accompanying jury instructions as required by applicable Texas statute,
(2) Petitioner failed to show the twelve-ten rule and jury instructions, if
challenged on direct appeal, would have resulted in the reversal of
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b.

Analysis

The state habeas trial court reasonably concluded that this
ineffective-assistance claim failed to satisfy the deficient-performance
prong of the Strickland analysis. Petitioner argues that the Texas
twelve-ten rule suffers from a variety of constitutional infirmities,
including (1) the failure of the rule to advise jurors of the impact of their
failure to reach a unanimous verdict in favor of the prosecution on the
Texas capital sentencing special issues or at least to have ten jurors
reach agreement on an answer favorable to the defense, (2) the effect of
the rule, which Petitioner argues forces jurors to agree upon specific
mitigating factors when reaching their verdict, in violation of the rule
announced in Mills v. Maryland, 486 U.S. 367 (1989), 17 and (3) the

Petitioner’s conviction, and (3) this ground for state habeas relief should
be denied in its entirety. Id. at 584–85.
“We conclude that there is a substantial probability that reasonable
jurors, upon receiving the judge’s instructions in this case, and in
attempting to complete the verdict form as instructed, well may have
thought they were precluded from considering any mitigating evidence
unless all 12 jurors agreed on the existence of a particular such
circumstance. Under our cases, the sentencer must be permitted to
consider all mitigating evidence. The possibility that a single juror
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nature of the rule, which Petitioner alleges misleads jurors regarding
the consequences of their votes, in violation of the rule announced in
Caldwell v, Mississippi, 472 U.S. 320 (1985).18
Yet, the Texas Court of Criminal Appeals, the Fifth Circuit, and
other courts within the district, have repeatedly rejected Petitioner’s
constitutional challenges to the Texas twelve-ten rule. See, e.g.,
Gamboa v. State, 296 S.W.3d 574, 585–86 (Tex. Crim. App. 2009)
(rejecting a challenge to the Texas twelve-ten rule’s failure to instruct
jury on the impact of a single holdout juror); Saldana v. State, 232
S.W.3d 77, 104–09 (Tex. Crim. App. 2007) (rejecting a wide array of
constitutional challenges to the Texas capital sentencing statute
including multiple challenges to the twelve-ten rule); Threadgill v.
State, 146 S.W.3d 654, 673 (Tex. Crim. App. 2004) (“We have
consistently held that ‘[t]here is no constitutional prohibition to
concealing from the jurors the consequences of their deliberations, so
could block such consideration, and consequently require the jury to
impose the death penalty, is one we dare not risk.”
“We conclude that it is constitutionally impermissible to rest a death
sentence on a determination made by a sentencer who has been led to
believe that the responsibility for determining the appropriateness of
the defendant’s death rests elsewhere.”
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long as they are not misled into believing that ultimate responsibility
for the verdict rests elsewhere.’”) (quoting Prystash v. State, 3 S.W.3d
522, 532 (Tex. Crim. App. 1999)).
The Supreme Court rejected the Eighth Amendment argument
underlying Petitioner’s final claim of ineffective appellate assistance in
Jones v. United States, 527 U.S. 373, 382 (1999) (holding that the
Eighth Amendment does not require that a capital sentencing jury be
instructed as to the effect of a “breakdown in the deliberative process,”
because the refusal to give such an instruction does not affirmatively
mislead the jury regarding the effect of its verdict and such an
instruction might well undermine the strong governmental interest in
having the jury express the conscience of the community on the
ultimate question of life or death). Petitioner has provided no Supreme
Court case holding that the Constitution mandates a jury instruction of
the type Petitioner now requests in this claim.
On numerous occasions, the Fifth Circuit has similarly rejected
the Eighth Amendment argument underlying Petitioner’s final claim
that a Texas capital murder defendant is constitutionally entitled to
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have his punishment-phase jury instructed regarding the consequences
of a hung jury or a single holdout juror. See, e.g., Hughes v. Dretke, 412
F.3d 582, 593–94 (5th Cir. 2005) (holding that the same arguments
underlying Petitioner’s final appellate ineffective-assistance claim
herein were so legally insubstantial as to be unworthy of a certificate of
appealability); Alexander v. Johnson, 211 F.3d 895, 897–98 (5th Cir.
2000) (holding that the Teague v. Lane non-retroactivity doctrine
precluded applying such a rule in a federal habeas context); Davis v.
Scott, 51 F.3d 457, 466–67 (5th Cir. 1995) (holding the same); Jacobs v.
Scott, 31 F.3d 1319, 1328–29 (5th Cir. 1994) (rejecting application of the
Supreme Court’s holding in Mills v. Maryland to a Texas capital
sentencing proceeding).
Petitioner’s reliance upon the Supreme Court’s holding in
Caldwell v. Mississippi, 472 U.S. 320 (1985), is likewise misplaced. In
Caldwell, the Supreme Court addressed an instance in which a capital
murder prosecutor’s jury argument suggested, in an erroneous and
misleading manner, that the jury was not the final arbiter of the

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defendant’s fate.19 To establish a Caldwell violation, “a defendant
necessarily must show that the remarks to the jury improperly
described the role assigned to the jury by [state] law.” See Dugger v.
Adams, 489 U.S. 401, 407 (1989) (discussing 472 U.S. at 325).
Both the Fifth Circuit and other district courts have repeatedly
rejected efforts, identical to those of Petitioner, to shoe-horn the
Supreme Court’s holding in Caldwell into the wholly dissimilar context
of the failure to inform jurors regarding the consequences of their
inability to reach a unanimous verdict. See, e.g., Turner v. Quarterman,
481 F.3d 292, 300 (5th Cir. 2007) (recognizing that Fifth Circuit
precedent foreclosed arguments that the Eighth Amendment and Due
Process Clause of the Fourteenth Amendment mandated jury
instructions regarding the effect of a capital sentencing jury’s failure to
Namely, in Caldwell, the Supreme Court held that the prosecution’s
following statement, presented during its closing argument,
undermined reliable exercise of jury discretion:
19

Now, [the defense] would have you believe that you’re going
to kill this man and they know—they know that your
decision is not the final decision. My God, how unfair can
they be? Your job is reviewable. They know it.
472 U.S. at 329.
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reach a unanimous verdict); Barrientes v. Johnson, 221 F.3d 741, 776–
78 (5th Cir. 2000) (holding that a state trial court’s voir dire
instructions informing the jury that the court would impose the
sentence, not the jury, but specifically explaining how the jury’s
answers to the capital sentencing special issues would require the court
to impose either a sentence of life or death did not result in a Caldwell
violation); Hughes v. Johnson, 191 F.3d 607, 618 (5th Cir. 1999)
(holding that voir dire explanations to potential jurors of the impact of
affirmative answers to the Texas capital sentencing special issues were
sufficient to avoid any possibility that the jurors misunderstood their
role or the effect of their punishment-phase verdict); Alexander, 211
F.3d at 897 n.5 (holding the same); Bartee v. Quarterman, 574
F.Supp.2d 624, 702–03 (W.D. Tex. 2008) (holding there is no
constitutional right to have a capital sentencing jury informed of the
effect of a hung jury); Moore v. Quarterman, 526 F.Supp.2d 654, 729–30
(W.D. Tex. 2007).

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Likewise, Petitioner’s reliance upon the Supreme Court’s holdings
in McKoy v. North Carolina 20 and Mills is unpersuasive. Petitioner’s
argument that the Texas twelve-ten rule violates the due process
principles set forth in these opinions has repeatedly been rejected by
both the Fifth Circuit and other district courts. See Blue, 665 F.3d at
669–70 (rejecting an Eight Amendment challenge to the Texas twelveten rule); Alexander, 211 F.3d at 897 (specifically rejecting both
Fourteenth and Eighth Amendment challenges to the Texas twelve-ten
rule in the course of affirming the district court’s rejection of claims
virtually identical to those raised by petitioner herein); Miller v.
Johnson, 200 F.3d at 288–89 (holding Mills inapplicable to a Texas
capital sentencing proceeding); Woods v. Johnson, 75 F.3d 1017, 1036
(5th Cir. 1996) (holding the same); Hughes v. Johnson, 191 F.3d 607,
628–29 (5th Cir. 1999) (holding both Mills and McKoy inapplicable to
the Texas capital sentencing scheme); Jacobs, 31 F.3d at 1328–29
(“Under the Texas system, all jurors can take into account any
The Court in McKoy v. North Carolina, 494 U.S. 433, 444 (1990) held
that “North Carolina’s unanimity requirement impermissibly limits
jurors’ consideration of mitigating evidence and hence [was] contrary to
[its] decision in Mills.”
-14520

mitigating circumstance. One juror cannot preclude the entire jury
from considering a mitigating circumstance. Thus, Mills is
inapplicable.”). Because the Texas capital sentencing scheme is vastly
different from that employed in Maryland and North Carolina,
Petitioner’s reliance on the Supreme Court’s opinions in McKoy and
Mills applying the sentencing schemes from those states is misplaced.
See Alexander, 211 F.3d at 897; Miller v. Johnson, 200 F.3d at 288–89;
Woods, 75 F.3d at 1036; Jacobs, 31 F.3d at 1328–29.
The Court independently concludes, after de novo review, that
there was nothing objectively unreasonable about the failure of
Petitioner’s state appellate counsel to assert the constitutional claims
underlying Petitioner’s third assertion of ineffective assistance by his
appellate counsel. Prior to the date that Petitioner’s state appellate
brief was filed, all of Petitioner’s federal constitutional challenges to the
Texas twelve-ten rule had repeatedly been rejected by the Texas Court
of Criminal Appeals, the Fifth Circuit, district courts, and even once by
the Supreme Court.

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Because all of the constitutional claims underlying this particular
assertion of ineffective assistance by Petitioner’s state appellate counsel
have repeatedly been rejected on the merits by both the state and
federal appellate courts, the state habeas trial court’s decision that this
ineffective-assistance claim failed to satisfy the prejudice prong of the
Strickland analysis was objectively reasonable.
Consequently, the Court concludes that there is no reasonable
probability that, but for the failure of Petitioner’s state appellate
counsel to assert the constitutional challenges to the Texas twelve-ten
rule, the outcome of Petitioner’s direct appeal would have been any
different.
c.

Conclusion

The Texas Court of Criminal Appeals’ rejection on the merits of
this claim of ineffective assistance by Petitioner’s state appellate
counsel was neither contrary to, nor involved an unreasonable
application of, clearly established federal law as determined by the
Supreme Court; nor was it based on an unreasonable determination of
the facts in light of the evidence presented in Petitioner’s state habeas
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corpus proceeding. The Court independently concludes that this claim
of ineffective appellate counsel fails to satisfy either prong of the
Strickland analysis. Thus, Petitioner’s final assertion of ineffective
assistance by his state appellate counsel does not warrant federal
habeas corpus relief.
Consequently, after reviewing all of Petitioner’s federal habeas
claims, the Court concludes that Petitioner is not entitled to federal
habeas corpus relief.
VII. REQUEST FOR A FEDERAL EVIDENTIARY HEARING
Petitioner has requested an evidentiary hearing to permit more
factual development of his claims. Petitioner had a full and fair
opportunity during the evidentiary hearing held in his state habeas
corpus proceeding to present the state habeas trial court with any and
all available evidence supporting his claims for state habeas corpus
relief. Pursuant to AEDPA, the proper place for development of the
facts supporting a claim is in the state court. See Hernandez v.
Johnson, 108 F.3d 554, 558 n.4 (5th Cir. 1997) (explaining that AEDPA
clearly places the burden on a petitioner to raise and litigate as fully as
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possible his federal claims in state court). Furthermore, where a
petitioner’s claims have been rejected on the merits, further factual
development in federal court is effectively precluded by virtue of the
Supreme Court’s holding in Cullen v. Pinholster, 563 U.S. 170, 181–82
(2011):
We now hold that review under § 2254(d)(1) is
limited to the record that was before the state
court that adjudicated the claim on the merits.
Section 2254(d)(1) refers, in the past tense, to a
state-court adjudication that “resulted in” a
decision that was contrary to, or “involved” an
unreasonable application of, established law.
This backward-looking language requires an
examination of the state-court decision at the
time it was made. It follows that the record
under review is limited to the record in existence
at that same time i.e., the record before the state
court.
Thus, Petitioner is not entitled to a federal evidentiary hearing on any
of his claims that were rejected on the merits by the state courts, either
on direct appeal or during Petitioner’s state habeas corpus proceeding.
See Woodfox v. Cain, 772 F.3d 358, 368 (5th Cir. 2014).
Likewise, where a federal habeas corpus petitioner’s claims lack
merit on their face, further factual development is not necessary. See
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Register v. Thaler, 681 F.3d 623, 627–30 (5th Cir. 2012) (recognizing
that district courts possess discretion regarding whether to allow
factual development, especially when confronted with claims foreclosed
by applicable legal authority). The Court has conducted a de novo
review of all of Petitioner’s unexhausted ineffective-assistance claims
and concludes that all of those claims lack merit.
“In cases where an applicant for federal habeas relief is not barred
from obtaining an evidentiary hearing by 28 U.S.C. § 2254(e)(2), the
decision to grant such a hearing rests in the discretion of the district
court.” Richards v. Quarterman, 566 F.3d 553, 562 (5th Cir. 2009)
(quoting Schriro v. Landrigan, 550 U.S. at 468). “In determining
whether to grant a hearing, under Rule 8(a) of the habeas Court Rules
‘the judge must review the answer [and] any transcripts and records of
state-court proceedings . . . to determine whether an evidentiary
hearing is warranted.’” Richards, 566 F.3d at 562–63 (quoting Hall v.
Quarterman, 534 F.3d 365, 368 (5th Cir. 2008). In making this
determination, courts must consider whether an evidentiary hearing
could “enable an applicant to prove the petition’s factual allegations,
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which, if true, would entitle the applicant to federal habeas relief.”
Richards, 566 F.3d at 563 (quoting Schriro, 550 U.S. at 474).
Here, all but one of Petitioner’s assertions of ineffective assistance
by his state trial counsel and all of Petitioner’s other claims were
rejected on the merits during either Petitioner’s direct appeal or state
habeas corpus proceedings. Pursuant to Pinholster, he is not entitled to
further evidentiary or factual development of those claims.
Additionally, Petitioner’s unexhausted Wiggins claim21 is without legal
merit and does not require factual or evidentiary development. In
addition to being meritless, Petitioner’s unexhausted Wiggins claim is
procedurally defaulted and is not “substantial” for purposes of the Ryan
v. Martinez 22 exception to the procedural default doctrine.

See Wiggins, 539 U.S. at 534 (“In assessing prejudice, we reweigh the
evidence in aggravation against the totality of available mitigating
evidence.”).
21

See Martinez, 566 U.S. at 17 (“[A] procedural default will not bar a
federal habeas court from hearing a substantial claim of ineffective
assistance at trial if, in the [State’s] initial-review collateral proceeding,
there was no counsel or counsel in that proceeding was ineffective.”)
(emphasis added).
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Therefore, Petitioner is not entitled to an evidentiary hearing for
the purpose of developing any of his claims herein. See Segundo, 831
F.3d at 350–51 (“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.”). Petitioner fully developed all of his nonfrivolous claims during his direct appeal or state habeas corpus
proceeding, in which those claims were denied on the merits.
Accordingly, he is not entitled to an evidentiary hearing before the
Court.
VIII. CERTIFICATE OF APPEALABILITY
Pursuant to AEDPA, before a petitioner may appeal the denial of
a Section 2254 habeas corpus petition, the petitioner must obtain a
certificate of appealability. 28 U.S.C. § 2253(c)(2); Miller-El v. Johnson,
537 U.S. 322, 335–36 (2003). Likewise, pursuant to AEDPA, appellate
review of a habeas petition is limited to the issues on which a certificate
of appealability is granted. See Crutcher v. Cockrell, 301 F.3d 656, 658
n.10 (5th Cir. 2002) (holding that a certificate of appealability is
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granted on an issue-by-issue basis, thereby limiting appellate review to
those issues); Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997)
(holding that the scope of appellate review of denial of a habeas petition
is limited to the issues on which certificate of appealability has been
granted). In other words, a certificate of appealability is granted or
denied on an issue-by-issue basis, thereby limiting appellate review to
those issues on which a certificate of appealability is granted.
28 U.S.C. § 2253(c)(3); Crutcher, 301 F.3d at 658 n.10.
A certificate of appealability will not be granted unless the
petitioner makes a substantial showing of the denial of a constitutional
right. Tennard v. Dretke, 542 U.S. 274, 282 (2004); Miller-El v.
Cockrell, 537 U.S. at 336; Slack v. McDaniel, 529 U.S. 473, 483 (2000).
To make such a showing, the petitioner need not show that he will
prevail on the merits but, rather, must demonstrate that reasonable
jurists could debate whether (or, for that matter, agree) that the
petition should have been resolved in a different manner or that the
issues presented are adequate to deserve encouragement to proceed
further. Tennard, 542 U.S. at 282; Miller-El v. Cockrell, 537 U.S. at
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336. The Court is required to issue or deny a certificate of appealability
when it enters a final order, such as this one, adverse to a federal
habeas petitioner. Rule 11(a), Rules Governing Section 2254 Cases in
the United States District Courts.
The showing necessary to obtain a certificate of appealability on a
particular claim is dependent upon the manner in which a district court
has disposed of a claim. “[W]here a district court has rejected the
constitutional claims on the merits, the showing required to satisfy
§ 2253(c) is straightforward: The petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537
U.S. at 338 (quoting Slack, 529 U.S. at 484). In a case in which the
petitioner wishes to challenge on appeal a court’s dismissal of a claim
for a reason not of constitutional dimension, such as procedural default,
limitations, or lack of exhaustion, the petitioner must show jurists of
reason would find it debatable whether the petition states a valid claim
of the denial of a constitutional right and whether the federal habeas
court was correct in its procedural ruling. See Slack, 529 U.S. at 484.
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In death penalty cases, any doubt as to whether a certificate of
appealability should issue must be resolved in the petitioner’s favor.
Avila v. Quarterman, 560 F.3d 299, 304 (5th Cir. 2009); Bridgers v.
Dretke, 431 F.3d 853, 861 (5th Cir. 2005). Nonetheless, a certificate of
appealability is not automatically granted in every death penalty
habeas case. See Miller-El v. Cockrell, 537 U.S. at 337 (“It follows that
issuance of a COA must not be pro forma or a matter of course.”).
The deferential standard of review applied to claims of ineffective
assistance adjudicated on the merits in the state courts has particular
force in evaluating the appealability of ineffective-assistance claims—
the Supreme Court requires that federal courts “use a ‘doubly
deferential’ standard of review that gives both the state court and the
defense attorney the benefit of the doubt.” Burt v. Titlow, 134 S. Ct. 10,
13 (2013); Ward, 777 F.3d at 259.
Reasonable minds could not disagree with the Court’s conclusions
that (1) all of Petitioner’s claims concerning the performance of his trial
counsel and state appellate counsel fail to satisfy the prejudice prong of
Strickland, (2) the state habeas trial court reasonably concluded that all
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of Petitioner’s exhausted claims of ineffective assistance by his state
trial counsel or state appellate counsel fail to satisfy the deficientperformance prong of the Strickland analysis, (3) Petitioner’s
unexhausted Wiggins claim fails to satisfy the prejudice prong of the
Strickland analysis and is insubstantial under the standard announced
in Martinez v. Ryan, (4) the Texas Court of Criminal Appeals
reasonably rejected Petitioner’s third through sixth claims herein on the
merits during Petitioner’s direct appeal, and (5) Petitioner is not
entitled to a federal evidentiary hearing.
IX.

CONCLUSION AND ORDERS
For the reasons discussed above, the Court concludes that

Petitioner is not entitled to an evidentiary hearing, federal habeas
corpus relief, or a certificate of appealability. Accordingly, the Court
enters the following orders:
IT IS ORDERED that Petitioner Fabian Hernandez’s request for
an evidentiary hearing is DENIED.
IT IS FURTHER ORDERED that Petitioner Fabian
Hernandez=s “First Amended Petition for a Writ of Habeas Corpus”

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(ECF No. 34) is DENIED, and his cause is DISMISSED WITH
PREJUDICE.
IT IS FURTHER ORDERED that Petitioner Fabian Hernandez
is DENIED a certificate of appealability.
IT IS FURTHER ORDERED that all pending motions are
DENIED AS MOOT.
IT IS FINALLY ORDERED that the Clerk shall CLOSE this
case.
SIGNED this 23rd day of May, 2017.

______________________________________
PHILIP R. MARTINEZ
UNITED STATES DISTRICT JUDGE

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