Renteria v. Stephens

Filing 122

MEMORANDUM OPINION AND ORDER. IT IS ORDERED that Petitioner David Santiago Renteria's request for an evidentiary hearing is DENIED. IT IS FURTHER ORDERED that Petitioner David Santiago Renteria's "Petition for a Writ of Habeas Corpus" (ECF No. 53) is DENTED, and his cause is DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that Petitioner David Santiago Renteria is DENIED a certificate of appealability. Signed by Judge Frank Montalvo. (scf)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
DAVID SANTIAGO RENTERIA,
TDCJ # 999460,

Petitioner,

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213 FIR 11

PH 5:Q

4.)1C

§
§
§
§

§

v.

EP-15-CV-62-FM

§

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

§
§
§
§
§

MEMORANDUM OPINION AND ORDER
corpus under 28
David Santiago Renteria petitions the Court for a writ of habeas

U.S.C.

§

a state trial
224 1(d), 2254. Renteria challenges the death sentence imposed by

the record and for the
court after a jury found him guilty of capital murder. After reviewing
federal habeas relief.
reasons discussed below, the Court finds Renteria is not entitled to
deny him a certificate of
Accordingly, the Court will deny his petition. The Court will also
appealability.

I.

BACKGROUND AND PROCEDURAL HISTORY
A. Renteria's Offense and Guilt Phase Trial

disappeared
On November 18, 2001, a five-year-old girl named Alexandra Flores

I), 206 S.W.3d 689
from a Walmart store in El Paso, Texas. See Renteria v. State (Renteria
The next day, her nude,
(Tex. Crim. App. 2006) (providing a detailed summary of the facts).
Walmart. Her
partially burned body was discovered in an alley sixteen miles from the

A latent print lifted
autopsy revealed she was manually strangled before she was set on fire.
from the plastic bag found over her head matched Renteria's palm print.
day Flores
Several people observed Renteria and his van at the Walmart on the

Renteria because he
disappeared. A Walmart security guard recalled briefly speaking with

a manwearing
left his van running outside the store. Walmart surveillance videos showed

clothing like the attire worn by Renteria earlier that daywalking

out of the store with

with Flores's DNA.
Flores. A search of Renteria's van disclosed blood stains

a written custodial
Police arrested Renteria on December 3, 2001. They obtained
of Accused), pp. 11-15, ECF No.
statement. See Reporter's R., vol. 69 (Voluntary Statement
78-4.'

membernicknamed
In his statement, Renteria blamed a Barrio Azteca gang

"Flaco"and several other people for Flores's murder.

He explained he met Flaco while

people. Renteria maintained he
serving time in prison, but claimed he did not know the other
would harm his family. He
participated in the offense out of fear the other participants
claimed he was "scared and.

.

.

didn't know how to react.

. .

because they were threatening

Flores out of the Walmart and helped
[his] family." Id. at 13. Renteria asserted he only lured

Flaco and the others burn and dispose of her body.
for

on probation
At the time of his arrest, Renteria was a registered sex offender
Renteria v. State (Renteria
an indecency offense against a seven-year-old girl.

committing
11),

May 4, 2011). He also had three
AP-74,829, 2011 WL 1734067, at *2 (Tex. Crim. App.

prior convictions for driving while intoxicated.
the State disclosed the
Shortly before trial, Renteria moved for a continuance after
leader. Clerk's R., vol. 2 (part
victim's mother was the former wife of a Barrio Azteca gang

Renteria I, 206 S.W.3d at 6982 of 3), pp. 14-16 (Mot. for Continuance), ECF No. 73-7;
prevented him from adequately
702. Renteria claimed the late disclosure of this relationship
he suggested in his December 3,
investigating whether Flores's murder was gang-related, as
2001, statement to the police.

between the victim's
The State explained it had just discovered the relationship
2 of 3), p. 10 (District
mother and the Barrio Azteca gang leader. Clerk's R., vol. 2 (part
docketed in this case. Where a
"ECF No." refers to the Electronic Case Filing number for documents
and page numbers assigned by the ECF system,
discrepancy exists between page numbers on filed documents
the Court will use the latter page numbers.

-2.

698-702. The State added the
Attorney Letter), ECF No. 73-7; Renteria I, 206 S.W.3d at
and the ex-husband of the victim's
marriage ended over ten years before Flores' s kidnapping,
The State also asserted the
mother became a gang member sometime after their divorce.
or problems arising out of the
victim's family members maintained there were no ill feelings

failed marriage.

Criminal Appeals later
The trial court denied the continuance. The Texas Court of
noted "[t]he record.

. .

reflects that defense counsel knew that appellant.

.

claimed in his

offense and long before trial,
December 3rd statement, approximately two weeks after the
S.W.3d at 702.
that the victim's murder was gang-related." Renteria I, 206
statement into
The trial court also did not admit Renteria' s December 3, 2001,
I, 206 S.W.3d at 694. According to
evidence at trial because it was self-serving. Renteria

Texas law:
inadmissible in his
"self-serving declarations of the accused are ordinarily
being part of the res
behalf, unless they come under some exception, such as:
or conversation
gestae of the offense or arrest, or part of the statement
or contradict acts
previously proved by the State, or being necessary to explain
or declarations first offered by the State."
Aliridge

v.

Sing!etary v. State,
State, 762 S.W.2d 146, 152 (Tex. Crim. App. 1988) (quoting

none of the evidence admitted at
509 S.W.2d 572, 576 (Tex. Crim. App.1974)). Furthermore,

trialincluding the Walmart surveillance videossupported Renteria's

claim that others

I, 206 S.W.3d at 694 n.2.
were involved in kidnapping and murdering Flores. Renteria
stranger to the victim,
"The State's trial theory was that Renteria, who was a complete

Renteria did not raise a
committed the offense alone." Renteria I, 206 S.W.3d at 694 n.2.
duress defense. The jury found Renteria guilty of capital murder.

B. Renteria's First Penalty Phase Trial
must: (1)
According to the Supreme Court, "a state capital sentencing system
(2) permit a jury to render a
rationally narrow the class of death-eligible defendants; and

-3-

death-eligible defendant's
reasoned, individualized sentencing determination based on a
crime." Kansas
record, personal characteristics, and the circumstances of his

v.

Marsh, 548

U.s. 163, 173-74 (2006).
Renteria' s offense set forth
The Texas capital sentencing statute in force at the time of
the first special issuethe
two "special issues" for a jury to decide before sentencing. Under
is a probability that the
future dangerousness issuethe jury must decide "whether there
defendant would commit criminal acts of violence that would constitute
society." Tex. Crim. Proc. Code art. 37.07 1

§

2(b)(1) (Vernon 2001).

a continuing threat to

If the jury

a second special
unanimously answered this question in the affirmative, it must then consider
must determine
issue. Under the second special issuethe mitigation issuethe jury
the circumstances of the
"[wjhether, taking into consideration all of the evidence, including
moral culpability of the
offense, the defendant's character and background, and the personal
to warrant that a
defendant, there is a sufficient mitigating circumstance or circumstances
imposed." Id. § 2(e)(1).
sentence of life imprisonment. . . rather than a death sentence be
must return an answer of
Texas law required the trial court to instruct the jurors (1) they

"no" if they unanimously
"yes" or "no" on the mitigation issue, and (2) they may only answer
agreed. Id.
agree, and they may not answer "yes" unless ten or more jurors

§

2(f).

Renteria's
Based upon the jury's answers to the special issues, the trial court set
punishment at death.
C. Post-Conviction Proceedings
On direct appeal, the Texas Court of Criminal Appeals affirmed Renteria's
conviction, but vacated his sentence.

Renteria

I,

206 S .W.3d at 710. It held the trial court

the defense from
denied Renteria his federal constitutional rights when it prohibited
in his statement to
introducing evidence of Renteria's remorse. Renteria expressed remorse
because he lacked
the police. But a state expert claimed Renteria would be a future danger

statement of remorse.
remorse. And the State argued during closing that Renteria made no

case for a new
Id. at 694-99. The Court of Criminal Appeals remanded Renteria's

punishment trial. Id. at 710.
D. Renteria's Second Penalty Phase Trial
1.

Voir Dire

questionnaire before
Renteria filed a motion to submit a comprehensive, 44-page jury

jury selection for his punishment retrial. Clerk's R., vol.

3

(Mem. of Law in Supp.

of

18-67,
Def's' Right to Submit a Comprehensive Capital Murder Juror Questionnaire), pp.

87-130, ECF
ECF No. 78-20; Reporter's R., vol. 77 ([Proposed] Juror Questionnaire), pp.
Id. at 68. The court instead
No. 82-9. The trial court heard argument and denied the request.
areas of inquiry like
used its own, 42-page jury questionnaire, which included substantive
6-14, ECF No. 79-14;
those in Renteria's proposed questionnaire. Reporter's R., vol. 2, pp.

Reporter's R., vol. 77 (Juror Questionnaire), pp. 2 1-62, ECF No. 82-9.
During individual voir dire, the trial court limited Renteria' s questions

about juror

for New Trial), pp. 68-79,
views on specific mitigating evidence. Clerk's R., vol. 9 (Mot.

to 22 prospective
ECF No. 79-12. The trial court denied Renteria's for-cause challenges
jurors.

Id at pp. 89-135. But the trial court also granted Renteria seven additional

R., vol. 28 (voir dire
peremptory challenges, giving him a total of 22 challenges.2 Reporter's

of Robert Crosby),

R., vol. 29 (voir dire
p. 63, ECF No. 80-20; Reporter's

of Robert L.

(voir dire of Margaret A.
Martinez), p. 233, not scanned into ECF; Reporter's R., vol. 30
dire of Daniel Gurany), p.
Jackson), p. 69, not scanned into ECF; Reporter's R., vol. 34 (voir
66, not scanned into ECF.

See Tex. Code Crim. Pro, art
Texas state law entitles the defense to fifteen peremptory challenges.
peremptory challenges when the defense
35.15(a). Texas case law allows a trial court to allocate additional
717 (Tex.Crim.App.1992) ("It is clearly
expends their original allotment. See Cooks v. State, 844 S.W.2d 697,
upon exhaustion of the statutory
within the discretion of the trial court to grant additional peremptory challenges
number of strikes.").
2

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The State's Evidence

2.

trial.

s second punishment
The State presented evidence of Flores' s murder at Renteria'
WL 1734067, at * 1-3 (providing a more complete summary of

See Renteria II, 2011

of Renteria' s troubles with the law
the State's evidence). The State also presented evidence
in the years leading up to Flores's murder.

of

by a seven-year-old girl
The State showed that in 1992, Renteria was accused
indecency with a child in 1994, and
molesting her in her home. Renteria pleaded guilty to

was placed on deferred-adjudication probation for ten years.
committed driving while
The State further showed that while on probation, Renteria
He pleaded guilty to the first two DWI
intoxicated (DWI) offenses in 1995, 1997, and 2000.
pleaded guilty to the third DWI
offenses and was placed on probation for two years. He

offensea felonyin September of 2000, and was placed on shock

probation for ten years.

and released to community supervision
He was incarcerated for approximately three months
in December 2000.

terms of probation at various times
The State also showed that Renteria violated the
without a valid driver's license,
by drinking alcohol, staying out past curfew, driving
He also failed at times to report to his
traveling to Mexico, and spending time with children.
in sex-offender counseling as
probation officer. The State described his participation
"inconsistent," "sporadic," and "enough just to get by."
Renteria was dishonest with his sex-offender-treatment

Moreover, the State claimed
counselor, his probation officers, and

his employers.
3.

Renteria's Evidence

Renteria presented evidence through the testimony of his

family, his childhood dance

and a mental health expert. They
instructor, a high school classmate, the staff at his school,
studious, popular, altar boy,
described him as a good kidquiet, friendly, respectful,

1$!

activity
National Honors Society member, scholarship recipient, and extracurricular

with a child.
participantwhose life came apart after his arrest and conviction for indecency
R., vol.
Renteria's mother, Eva Renteria, testified she grew up in Mexico. Reporter's
sons and a daughter with her
67 (Testimony of Eva Renteria), p. 6, ECF 8 1-19. She had two

twenty, and five years later
first husband. Id. She moved to the United States when she was

Renteria's father was fortyshe married Renteria's father. Id. at pp. 7, 10-11. She explained
at home while
two years old when they married. Id. at p. 7. She claimed she stayed

family as "not
Renteria's father worked threejobs. Id. at pp. 9-11. She described her
Paso. Id. at p. 17-20.
wealthy," but able to pay for Renteria to attend private schools in El
student,
Renteria's mother and sister, Cecelia Esparza, described him as a smart

(Testimony of Cecelia
achieving honors while in school. Id at 30; Reporter's R., vol. 67
from high school and
Esparza), p. 100-01, ECF 81-19. His mother explained he graduated
attended the University of Texas at El Paso.

Id 30. His sister described him as studious,

popular, but also passive and "wimpy." Id pp. 100-02, 118.

Renteria's mother testified Renteria engaged in extracurricular activities

while in

various community and
school. She said he participated in a dance group, and performed at
and Police Explorer
senior citizen functions. He also took part in the Border Patrol Explorer
in their duties. Id. at p.
programs, which allowed him to assist customs and police officials

28.

served as an
Renteria's mother explained Renteria was also active in the church and

school to travel to
altar boy. Id. at pp. 2 1-22, 106. She noted he was once chosen by his
Rome, Italy, to visit the Pope.

id

at p. 28.

Renteria' s sister testified that her parents rarely allowed Renteria to go

out with

with her brother. Id
friends. Id. at p.11 0. She described the domestic abuse she witnessed
their mother, hitting her with
She described their father as occasionally physically abusive to

-7-

and
his fists or a belt. She explained Renteria tried to protect her from witnessing the abuse,
111.
recalled he once tried to intervene and stop his father from hitting their mother. Id. at p.

after
Renteria's mother and sister also described how Renteria's personality changed

Renteria as
his conviction for indecency with a child. Prior to that offense, they depicted
Following
always happy and frequently socializing with his friends. Id. at pp. 32, 119-21.

30-36,
the conviction, they described Renteria as often sad and abusing alcohol. Id. at pp.
Id. at
119-21, 142-45. They claimed the conviction made it difficult for him to find work.

helped his parents pay their bills when his
pp. 35-36, 143. Nonetheless, they noted Renteria

father became unemployed. Id. at p. 35.
tribal
Renteria's mother testified the family lived on the Tigua reservation as enrolled
families.
members. Id. at p. 13. They were "evicted" when the tribal council forced out 600

and tribal
Id. at pp. 37-40. She explained the tribal council shut off their water supply

in the
members threatened them. Id. at p. 124. She claimed she saw some people walking

Id at p.
neighborhood carrying guns and other people dragging residents from their homes.
124.

Renteria' s mother explained Renteria and his father left the Tigua reservation

to find

herself in the
work. Id. at p. 124. Unable to return, they lived in a van while she bafficaded
tribal
family's home for a month in her unsuccessful effort to save it. Id. at p. 39. After the
which
council forced the family off the Tigua reservation, they lived in a small apartment,
she described as "the worst." Id. at p. 38.

The defense also presented testimony of individuals who knew Renteria as a child.
in
Roberto Parra testified he led a dance group which performed at various locations

81-18.
the community. Reporter's R., vol. 66 (Testimony of Roberto Parra), p. 19, ECF

at
Parra claimed he met Renteria in 1983 when he and his sister joined the dance group. Id.

close relationship with his parents,
pp. 19-20. Parra said he was impressed with Renteria's
with the
although he noted that Renteria' s parents did not allow Renteria to travel out of town

I;!

and respectful. Id. at
dance group. Id. at pp. 22-23. Parra described Renteria as very polite
p. 25.

vol. 66
Jorge Cortez identified himself as a high school classmate. Reporter's R.,

Renteria as quiet,
(Testimony of Jorge Cortez), pp. 34-35, ECF 8 1-18. Cortez labeled
did not often see
friendly, respectful, and nonviolent. Id. at p. 37. Cortez claimed he
with friends, lost his
Renteria out of school. But recalled an incident when Renteria was out

Renteria's father
class ring, and got his car stuck in the desert. Cortez described how
unexpectedly arrived and argued with Renteria. Id. at pp. 38-39.
R., vol.
Lenore Armstrong identified herself as elementary school teacher. Reporter's
66 (Testimony

of Lenore Armstrong), p. 46, ECF 81-18. Armstrong claimed she knew

described Renteria
Renteria from kindergarten through eighth grade. id. at p. 47. Armstrong
as a good student with above average grades. Id. at p. 49.

Maria Schuerman declared she also taught at Renteria' s elementary school.
81-18. Schuerman
Reporter's R., vol. 66 (Testimony of Maria Schuerman), p. 54, ECF
they always
believed Renteria's parents cared very much for his welfare and educationand

described how Renteria's
attended parent-teacher conferences. Id. at pp. 57-58. Schuerman

where the
parents took him to the school's playground to play because the neighborhood
and
family livedthe Tigua reservation suffered from high rates of alcoholism

crime. Id.

but added they had good
at p. 58. Schuerman depicted Renteria' s parents as over-protective,
described Renteria
reason because their neighborhood was unsafe. Id. at p. 58. Schuerman
at 59. Schuerman
as respectful, an excellent student, artistic, and non-aggressive. id. p.

for his
testified that Renteria served in the school's safety patrol, collected certificates

the Knights of
participation in academic tournaments, and received a scholarship from
Columbus. Id. at 67.

Oscar Santaella explained he served as the principal of Renteria's high school.
Santaella noted
Reporter's R., vol. 66 (Testimony of Oscar Santaella), p. 132, ECF 81-18.

teachers for admission into the
Renteria was highly recommended by his elementary school
studenta member of the
school. Id. at p. 123. Santaella added Renteria was a good
and in community service
National Honor Societyand he participated in student council

an award from the Daughters
activities. Id. at p. 134. Santaella also noted Renteria received

at 147.
of the American Revolution to recognize his community service. Id. p.
participated in a
Enrique Vaca claimed he met Renteria in 1986 when Renteria
to work with law enforcement
program called Police Explorers, which allowed young people
Vaca), p. 123, ECF 81-18. Vaca
personnel. Reporter's R., vol. 66 (Testimony of Enrique
124. Vaca testified Renteria was
said he supervised Renteria for at least six months. Id. at p.
by the other participants.
the most active program participant, very responsible, and admired
Id. at pp. 124-25.

Paso Police Department.
Severo Jimenez explained he was a retired officer of the El

Reporter's R., vol. 67 (Testimony of Severo Jimenez), p. 58,

ECF 81-19. Jimenez claimed

Id. at p. 59. Jimenez
he met Renteria when Renteria worked as a housing project aid.
polite. Id. at p. 60.
described Renteria as dependable, punctual, trustworthy, and

prior incarcerations.
The defense also presented testimony regarding Renteria's
Robert

Kaminskia correctional officer with the El Paso Sheriffs Department

testified Renteria was held in the county jail where he worked for

two years. Reporter's R.,

Kaminski explained Renteria
vol. 67 (Testimony of Robert Kaminski), p. 64, ECF 81-19.
was not aggressive and was not a threat to the staff or other inmates.

Id. at pp. 72-73.

Renteria had
James Nancealso with the El Paso Sheriff's Departmentconfirmed
the county jail. Reporter's R.,
not posed a threat of violence to the staff or other inmates in
vol. 67 (Testimony of Robert Kaminski), p. 89, ECF 8 1-19.

Frank

AuBuchona classification expert with the Texas Department of Criminal

in prison or
Justicenoted Renteria had no disciplinary records from his prior incarcerations
80, ECF 8 1-20.
on death row. Reporter's R., vol. 68 (Testimony of Frank AuBuchon), p.

-10-

in prison showed he
AuBuchon also noted the mental health evaluations Renteria underwent

did not pose a risk to himself or others. Id at p. 84. He testified

thatif sentenced to life

Renteria would reside in a maximum-security facility. Id. at pp. 39-40.
Dr. Mark
The defense also presented the testimony of a forensic psychologist,

Cunningham.
determinations, risk
Dr. Cunningham testified he was an expert in capital sentencing

of Dr. Mark
assessment, and forensic psychology. Reporter's R., vol. 69 (Testimony
preparation for his testimony,
Cunningham), p. 41, ECF 82-1. Dr. Cunningham explained in
individuals who knew
he interviewed Renteria, Renteria's family members, and other
jail, and prison records.
Renteria throughout his life. He also reviewed Renteria's education,

would

on his analysisRenteria
Id. at pp. 46-49, 80. Dr. Cunningham testified thatbased
prison adjustment" and would likely not commit acts of serious

likely have a "positive

(Testimony of Dr. Mark
violence while in prison. Id. at p. 92; Reporter's R., vol. 70
no violence in jail or
Cunningham), pp. 84, 90, ECF 82-2. He noted Renteria exhibited
vol. 70, pp. 23-24. Dr.
prison during his prior six years of incarceration. Reporter's R.,

at 88.
Cunningham opined Renteria would likely die in prison. Id. p.

Renteria' s good
Like Renteria' s mother and sister, Dr. Cunningham testified about
Dr. Cunningham noted
character and "pro-social" activities as a child. Id. at pp. 33-36.
(1) Renteria's "community
several factors indicated Renteria would not pose a future danger:
to his family. Id. at pp.
stability," (2) employment history, (3) education, and (4) close ties

behavior pattern that
33-36. Dr. Cunningham professed he had "never observed a childhood
and community activities." Id. at
[was} this positive in its involvement in church and school
p. 60.

He explained
Dr. Cunningham also described Renteria's family background.

that

Id. at pp. 60while the family outwardly appeared "idyllic"it was actually "pathological."
when she first became
62. He explained Renteria's mother was only fifteen years old

-11-

pregnant with an older man's child. Id. at pp. 62-63. She married that man and later had two
more children with him. Id. at pp. 62-63. Her husband was murdered while she was
pregnant with their third child. Id. at pp. 62-63. Renteria's father was also previously

married. He married a sixteen-year-old woman with whom he had a child in 1942. Id. at pp.

63-64. He started dating Renteria's motherwho was seventeen years youngersoon after
his first wife died. Id. at pp. 63-64. He proposed to Renteria's mother only three days after

he met her. Id. at pp. 6 3-64. He never allowed Renteria' s mother to see her children from
her first marriage. Id. at p. 64. He also verbally and physically abused of Renteria's mother.
Id. at pp. 64, 65. According to Dr. Cunningham, Renteria's father routinely beat his wife. Id.

at p. 66. And Renteria and his sister witnessed the abuse, although Renteria was never
beaten. Id. at pp. 67, 70.
4.

The Sentence

Based upon the jury's answers to the first special issuethe future dangerousness

issueand the second special issuethe mitigation issueat the second punishment trial,
the trial court re-sentenced Renteria to death. The Court of Criminal Appeals affirmed the
sentence. Renteria II, 2011 WL 1734067, at *48. The Supreme Court denied certiorari.

Renteria v. Texas, 132 S. Ct. 1743 (March 19, 2012).
E. State Habeas Applications
The Court of Criminal Appeals denied Renteria' s three pending state applications for

writs of habeas corpus. Exparte Renteria, WR-65,627-01 (filed August 28, 2006), -02 (filed

August 1, 2012), -03 (filed August 7, 2014); ECF No. 83-14.
F. Claims for Relief

Renteria alleges the following grounds for federal habeas relief in his petition:
Claim I - Renteria was tried while incompetent in violation of the Due Process
Clause of the Fourteenth Amendment. Renteria' s trial counsel ineffectively
failed to bring clear-cut indicia of incompetence to the attention of the trial
court and request a hearing and/or independent determination of competency.
Pet'r's Pet. 13-16, ECF No. 53; Br. in Supp. 13-17, ECF No. 58.

-12-

Claim II - Renteria's trial counsel ineffectively failed to present mitigating
evidence to the second penalty juror in violation of the Sixth, Eighth and
Fourteenth Amendments to the United States Constitution. Pet'r's Pet. 16-20;
Br. in Supp. 17-21.
Claim III - Renteria's rights under the Sixth, Eighth and Fourteenth
Amendments were violated when (1) the trial court refused to permit him to
offer accurate evidence of his lack of parole eligibility; (2) instructed the jury in
a misleading and confusing manner and (3) permitted the State to offer false and
misleading closing argument that Renteria could be released from prison.
Pet'r's Pet. 21-28; Br. in Supp. 21-32.
Claim IV - Renteria's federal constitutional guarantees of effective assistance of
counsel, trial by an impartial jury, an individualized sentencing determination,
and due process of law were violated when the trial court prohibited questioning
during voir dire regarding the jurors' ability to consider and give effect to
mitigating circumstances and to consider the full range of punishment, and
otherwise follow the law. Pet'r's Pet. 28-90; Br. in Supp. 32-46.

Claim V - Renteria' s constitutional rights were violated in multiple respects by
the trial court's jury charge at the second penalty trial. Pet'r's Pet. 9 1-99; Br. in
Supp. 46-54.
Claim VI - Renteria's rights under the Fifth, Sixth and Fourteenth Amendments
were violated when the State was permitted to question Dr. Cunningham
regarding counsels' decision to not permit this expert to discuss the offense with
Renteria. Pet'r's Pet. 99-10 1; Br. in Supp. 55-56.

-13-

II. STANDARD OF REVIEW
In the federal judicial system, "collateral review is different from direct review."

Brecht v. Abrahamson, 507 U.S. 619, 633 (1993). The writ of habeas corpus is "an
extraordinary remedy," reserved for those petitioners whom "society has grievously
state
wronged." Id. at 633-34. It "is designed to guard against extreme malfunctions in the
criminal justice systems." Jackson

v.

Virginia, 443 U.S. 307, 332, n.5 (1979) (Stevens, J.,

concurring)). It provides an important, but limited, examination of an inmate's conviction
are the
and sentence. See Harrington v. Richter, 562 U.S. 86, 103 (2011) ("{S]tate courts

result, the
principal forum for asserting constitutional challenges to state convictions."). As a
narrow.
federal habeas courts' role in reviewing state prisoner petitions is exceedingly
"The federal courts' statutory authority to issue habeas corpus relief for persons in
state custody is provided by 28 U.S.C.

§

2254, as amended by the Antiterrorism and Effective

The
Death Penalty Act (AEDPA)." Wilson v. Cain, 641 F.3d 96, 99-100 (5th Cir. 2011).

rulings
AEDPA "imposes a highly deferential standard of review for evaluating state-court
and demands that state-court decisions be given the benefit of the doubt." Hardy
565 U.S.

v.

Cross,

65,66(2011) (per curiam) (quoting Fel/cnerv. 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
adjudicated claims under 28 U.S.C.

v.

§

Williams, 568 U.s. 289, 298 (2013). It reviews

2254(d). Harrington, 562 U.S. at 98-99. Under this

subsection, a federal habeas court's review "is limited to the record that was before the state

-14-

not grant habeas relief unless
court." Cullen v. Pinholster, 536 U.S. 170, 181 (2011). It may
the state-court adjudication of a claim

involved an
(1) resulted in a decision that was contrary to, or
Federal law, as
unreasonable application of, clearly established

determined by the Supreme Court of the United States; or

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

28 U.S.C.

§

v. Taylor, 529
2254(d); Brown v. Payton, 544 U.S. 133, 141 (2005); Williams

U.S. 362, 404-05 (2000).

U.S.C. § 2254(d)(1)
The "contrary to" and "unreasonable application" clauses of 28
(2002). Pursuant to the
have independent meanings. Bell v. Cone, 535 U.S. 685, 694

"contrary to" clause, a federal habeas court may grant relief

if (1) the state court arrives at a

a question of law or (2) the state
conclusion opposite to that reached by the Supreme Court on

on a set
court decides a case differently than the Supreme Court

of materially

v. Esparza, 540 U.S. 12, 15-16
indistinguishable facts. Brown, 544 U.S. at 141; Mitchell

(2003) ("A state court's decision is 'contrary to'

.. . clearly established law if it 'applies a

Court] cases' or it 'confronts a
rule that contradicts the governing law set forth in [Supreme

of [the Supreme Court] and
set of facts that are materially indistinguishable from a decision
precedent."). A state court's
nevertheless arrives at a result different from [Supreme Court]
se, establish that the state
failure to cite governing Supreme Court authority does not, per

"the state court need not even
court's decision is "contrary to" clearly established federal law;
the reasoning nor the result of the
be aware of [Supreme Court] precedents, so long as neither
16 (citation omitted).
state-court decisions contradicts them." Mitchell, 540 U.S. at

court may grant
Pursuant to the "unreasonable application" clause, a federal habeas
from the Supreme
relief if the state court identifies the correct governing legal principle

-15-

the petitioner's case.
Court's decisions, but unreasonably applies that principle to the facts of
(2003). A federal habeas court
Brown, 544 U.S. at 141; Wiggins v. Smith, 539 U.S. 510, 520

state court's
making the "unreasonable application" inquiry should ask whether the

McDaniel v.
application of clearly established federal law was "objectively unreasonable."
520-21. An
Brown, 558 U.S. 120, 132-33 (2010); see also Wiggins, 539 U.S. at
Schriro
"unreasonable" application is different from a merely "incorrect" one.

v.

Landrigan,

whether a federal court
550 U.S. 465, 473 (2007) ("The question under the AEDPA is not

determination was
believes the state court's determination was incorrect but whether that

unreasonablea substantially higher threshold."); Price v.

Vincent, 538 U.S. 634, 641 (2003)

("[It is the habeas applicant's burden to show that the state court applied that

case to the

Court has
facts of his case in an objectively unreasonable manner."). As the Supreme

claim.
explained, the petitioner "must show that the state court's ruling on the

. .

was so

in existing
lacking in justification that there was an error well understood and comprehended
Dixon, 565 U.S. 23, 24
law beyond any possibility for fairminded disagreement." Bobby v.
(2011) (quoting Harrington, 562 U.S. at 103).

when the
Legal principles are "clearly established" for purposes of AEDPA review

holdingsas opposed to the dictaof Supreme Court decisions established those principles
541 U.S. 652, 660at the time of the relevant state-court dçcisions. Yarborough v. Alvarado,

"clearly
61(2004); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). What constitutes
the Supreme
established federal law" is determined through review of the decisions of

Courtnot the precedent of other federal courts.

See Lopez v. Smith, 135 S. Ct. 1, 2 (2014)

relying on their own
(holding that the AEDPA prohibits the federal courts of appeals from
precedent to conclude that a constitutional principle is "clearly established").

-16-

When the state court rejects a claim pursuant to a state procedural rule which provides
an adequate basis for the decisionindependent of the merits of the

default bars a federal habeas claim. Hughes

v.

claimthe procedural

Quarterman, 530 F.3d 336, 341 (5th Cir.

2008) (citing Coleman v. Thompson, 501 U.S. 722, 729-32 (1991)). To be "adequate" to

support the judgment, the state law ground must be both "firmly established and regularly
followed" by the state courts. Fordv. Georgia, 498 U.S. 411, 423-24 (1991).
The 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 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 considering 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"on habeas review

that does not suffice to supersede the trial court's.

. .

determination." Rice

v.

Collins, 546

U.S. 333, 342 (2006); Wood, 558 U.S. at 301.
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).
However, the deference to which state-court factual findings are entitled under the

AEDPA does not imply an abandonment or abdication of federal judicial review. See Miller-

El, 545 U.S. at 240 (explaining that the standard is "demanding but not insatiable"); Miller-El

-17-

v.

Cockrell, 537 U.S. 322, 340 (2003) ("Even in the context of federal habeas, deference does

not imply abandonment or abdication ofjudicial review. Deference does not by definition
preclude relief.").
Finally, 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

qualityor lack thereofof

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

The AEDPA requires that a petitioner exhaust his available State remedies before
raising a claim in a federal habeas petition. See 28 U.S.C.
corpus relief may not be granted "unless it appears that.

. .

§

2254(b)(1) (stating that habeas

the applicant has exhausted the

remedies available in the courts of the State"). A petitioner satisfies the exhaustion
requirement if he presents the substance of his federal habeas claim to the highest state court
in a procedurally proper manner. Baldwin

v.

Reese, 541 U.S. 27, 29-32 (2004); Moore v.

Cain, 298 F.3d 361, 364 (5th Cir. 2002).

In Texas, the highest state court for criminal matters is the Texas Court of Criminal
Appeals. Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1998). A petitioner must

"present the state courts with the same claim he urges upon the federal courts" to properly
exhaust a claim. Picardv. O'Connor, 404 U.S. 270, 276 (1971).
In Coleman

v.

Thompson, 501 U.S. 722 (1991), the Supreme Court barred federal

habeas relief on unexhausted or procedurally defaulted claims unless the petitioner
demonstrated cause for the default and actual prejudice arising from the defaultor showed

the failure to consider the claim would result in a fundamental miscarriage ofjustice.
Coleman, 501 U.S. at 749-50; Barrientes v. Johnson, 221 F.3d 741, 758 (5th Cir. 2000). The

Supreme Court addedbecause a petitioner "had no right to counsel to pursue his appeal in
state habeas"an attorney's negligence in a posteonviction proceeding could not serve as

"cause." Coleman, 501 U.S. at 755, 757. In Martinez v. Ryan, 566 U.S. 1(2012), and

Renteria v. Thaler, 569 U.S. 413 (2013), however, the Supreme Court revised its position and
opined a petitioner could meet the cause element by showing "(1) that his claim of ineffective
assistance of counsel at trial is substantiali.e., has some

meritand (2) that habeas counsel

was ineffective in failing to present those claims in his first state habeas proceeding." Garza
v.

Stephens, 738 F.3d 669, 676 (5th Cir. 2013).

A petitioner may not escape 28 U.S.C.

§

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. Pinhoister, 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. 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. But a district court

-19-

make an informed
may deny a hearing if the federal record is sufficiently developed to
decision. McDonaldv. Johnson, 139 F.3d 1056, 1060 (5th Cir. 1998).

C. Ineffective Assistance of Counsel Claims
governs
The standard set forth in Strickland v. Washington, 466 U.S. 668 (1984),
a petitioner must satisfy
ineffective assistance of trial counsel claims. To prove such a claim,

performance by
both prongs ofthe Strickland test by showing (1) constitutionally deficient
Motley v. Collins, 18
counsel, and (2) actual prejudice to his legal position. Id. at 689-94;

if the petitioner
F.3d 1223, 1226 (5th Cir. 1994). A court need not address both components
makes an insufficient showing on one. Strickland, 466 U.S. at 697.

made errors so
To demonstrate deficiency, a petitioner must show that "counsel
the defendant by the
serious that counsel was not functioning as the 'counsel' guaranteed

claim "must indulge a strong
Sixth Amendment." Id. at 687. A court considering such a

of reasonable
presumption that counsel's representation was within the wide range
professional assistance." Id. at 689.

is a reasonable
To demonstrate prejudice, a petitioner must show "that there

of the proceeding would
probability that, but for counsel's unprofessional errors, the result
(citation omitted). A
have been different." Porter v. McCollum, 558 U.S. 30, 38-39 (2009)

prong of Strickland.
mere allegation of prejudice is not enough to satisfy the prejudice
a different result
Armsteadv. Scott, 37 F.3d 202, 206 (5th Cir. 1994). The probability "of

Thus, counsel's
must be substantial, not just conceivable." Harrington, 562 U. S. at 112.
court. Cullen, 563
performance is entitled to "a heavy measure of deference" by a reviewing

U.S. at 197 (citation omitted).

assistance of
Moreover, where a state court has adjudicated a petitioner's ineffective
deferential lens of §
counsel claims, the federal court must review those claims "through the

-20-

state court's determination was
2254(d)," id. at 190, and must consider not only whether the

Knowles
incorrect, but also "whether that determination was unreasonable."

v.

Mirzayance,

Pursuant to 28 U.S.C. § 2254(d),
556 U.S. 111, 123 (2009) (citing Schriro, 550 U.S. at 473).
has even more latitude to
"because the Strickland standard is a general standard, a state court
Id. As such,
reasonably determine that a defendant has not satisfied that standard."

"[ejstablishing that a state court's application of Strickland was unreasonable.

. .

is all the

applies, the question is not
more difficult." Harrington, 562 U.S. at 105. "When § 2254(d)

there is any reasonable
whether counsel's actions were reasonable. The question is whether
Id.
argument that counsel satisfied Strickland's deferential standard."

the Strickland
In those instances where a state court failed to adjudicate a claim under

testsuch as when the state court summarily dismissed the claim under the Texas writ-abuse

courta federal habeas
statute or the petitioner failed to fairly present the claim to the state
558 U.S. at 39 (holding de
court's review of the un-adjudicated claim is de novo. See Porter,
novo review

of the allegedly deficient performance of petitioner's trial counsel was necessary

analysis); Rompilla v.
because the state courts failed to address this prong of the Strickland
Beard, 545 U.S. 374, 390 (2005); Wiggins, 539 U.S. at 534.

-21-

Ill.

ANALYSIS
A. Claim I - Renteria was tried while incompetent in violation of the Due
Process Clause of the Fourteenth Amendment. Renteria's trial counsel
ineffectively failed to bring clear-cut indicia of incompetence to the attention of
the trial court and request a hearing and/or independent determination of
competency. Pet'r's Pet. 13-16, ECF No. 53; Br. in Supp. 13-17, ECF No. 58.
1.

Background

The trial court appointed the El Paso Public Defender's Office to represent Renteria
on December 3, 2001. Clerk's R., vol.

1, p.

47 (Order Appointing Attorney), ECF No. 73-4.

At an ex parte hearing on March 4, 2002, Renteria's trial counsel asked the trial court to
appoint Dr. James Schutte, a licensed psychologist, to test and evaluate Renteria:

We need to have Mr. Renteria tested and evaluated.
Judge, I'm not raising an insanity defense nor am I suggesting that he
is incompetent to testif' or incompetent to stand trial.
Quite the contrary. I believe -- I'm most assured that he is competent.

Reporter's R., vol.

5

(Ex Parte Hearing), p. 6, ECF No. 74-18. The trial court granted the

request, as well as trial counsels' request on April 15, 2002, for additional funding to pay Dr.
Schutte. Id. at 9; Reporter's R., vol. 7 (Ex Parte Hearing), pp. 4-5, ECF No. 74-20.
Dr. Schutte reported Renteria's psychological testing indicated he had obtained a full-

scale IQ score of 102 and "exhibited twelfth-grade skills in reading, spelling, and math."

Schutte Report

1,

ECF No. 95-3. Dr. Schutte explained Renteria's performance on measures

of neuropsychological functioning was normal, with oniy a deficit in "divided attention" and
mild-to-moderate impairment on "the single most sensitive measure of brain impairment."

Id He added Renteria did not exhibit any indication of psychopathology.

Id.

Dr. Schutte noted, however, Renteria did not respond to test questions on three

personality inventories "in an open and honest manner. [Renteria] tried to present an overly
favorable self-image, and denied even minor problems and flaws most people are willing to

acknowledge." Id. He pointed out yet another test showed Renteria exhibited "a strong

-22-

tendency towards deceptive self-presentation, characterized both by a tendency to claim
unrealistic virtue and a denial of even common problems and flaws most people are willing to
acknowledge. [His] responses suggest[ed] he both want[ed] to impress others and lack[ed]
insight into his own behavior. As such he appear[ed] to be deceiving both himself and those
around him." Id. at 2.
Dr. Elizabeth Doyle evaluated Renteria beginning on January 30, 2003, to determine
his competence to proceed to trial. Doyle Report

1,

ECF No. 9 5-4. She reviewed the

summary of prior psychological testing administered by Dr. Schutte; a social narrative

written by Renteria' s mitigation specialist, Amelia Castillo, LMSW-ACP; and prior records
from Renteria's school, employment, and sexual offender treatment. Id. She interviewed

Renteria for twelve hours over a two-day period. id.
Dr. Doyle noted "Renteria did understand that he had been charged with capital

murder." Id. She observed "Renteria understands the role of the judge, a jury, prosecutor
and defense attorney. He was oriented appropriately, he appeared to be able to relate to his
attorneys, and generally was able to manage.

.

.

think logically." Id. She added "{h]e was

able to describe some, but not all, of the events during the period of time in question." Id. at
2. Consequently, she diagnosed Renteria with dissociative amnesia:
[HJe has episodes of amnesia in which he is unable to account for certain
periods of time. He has no memory of certain actions he performed, unrelated
to the crime, that have been described by others and which are likely to have

other means of being corroborated. For instance, he has no-memory of
making 2 out of 3 phone calls that he made to his wife during the period of
time in question. The extent of this memory lapse is beyond that which would
be explained by ordinary forgetfulness and is best characterized by the
diagnosis of dissociative amnesia.
Id. (emphasis in original). Based on Renteria's diagnosis and his claimed inability to recall

important events related to his case, Dr. Doyle found that he was not able to properly consult
with his counsel and, she believed, he was therefore not competent to proceed to trial:

-23-

In my professional opinion, Mr. Renteria is not currently competent to stand
trial; that is, he does not have sufficient ability to consult with defense
counsel. The symptoms of dissociative amnesia prevent the defendant from
consulting with counsel regarding important factual elements of his actions
during the evening the crime was committed. While the defendant does have a
factual and rational understanding of the charges against him, the possible
penalties arising from these charges and understands the relevant legal
proceedings, he cannot provide a coherent and complete version of his actions
that would allow his attorneys to formulate a competent defense.
Id.

On April 29, 2003, the trial court granted trial counsels' request to have Renteria

undergo an additional psychiatric examination by Dr. Ann Salo. Clerk's R., vol.

1

(part 2 of

2), p. 40 (Order), ECF No. 73-5. The trial court ordered the "examination and confidential

report to be made to the ATTORNEY for the Defendant ONLY." Id.

Renteria now claims he was tried while incompetent. He notes Dr. Doyle evaluated
and diagnosed him with dissociative amnesia before his trial.

See

Pet'r's Pet. 13-16, ECF

No. 53. Renteria observes Dr. Doyle determinedbased on this diagnosis and his claimed
inability to recall some of the events on the day of Flores 's

proceed to trial. He commentsdespite this

murderhe was incompetent to

findinghis trial counsel failed to obtain

another opinion from a mental health professional or bring this finding to the attention of the
trial court. Renteria argues, "[i]n short, trial counsel ineffectively failed to act on this
important finding with regard to competency." Id. at 15.
Renteria concedes "[tihis ground for relief was not presented on direct appeal or in
state post conviction proceedings." Id. 15-16. He attributes this failure "to the
ineffectiveness of direct appeal counsel, and initial post-conviction counsel."

Id at

16.

Renteria explains "[t]his claim presents three procedural defaults." Pet'r's Reply 3, ECF No.
94. First, trial counsel did not raise the substantive competency claim during trial. Second,

appellate counsel did not raise the competency claim on direct appeal. Finally, state habeas

-24.-

counsel did not raise an ineffective assistance of trial and appellate counsel claim for failing
to raise the competency issue in his state writ application. He argues "any default of the

claim is overcome by prior counsels' ineffective failure to present it." Pet'r's Pet. 16, ECF
No. 53.
2. Applicable Law

The Due Process Clause of the Fourteenth Amendment requires that a criminal

defendant must have "sufficient present ability to consult with his lawyer with a reasonable
degree of rational understandingand.

. .

a rational as well as factual understanding

of the

proceedings against him." Dusky v. United States, 362 U.S. 402, 402 (1960). "[TJhe failure
to observe procedures adequate to protect a defendant's right not to be tried or convicted

while incompetent to stand trial deprives him of his due process right to a fair trial." Drope

v.

Missouri, 420 U.S. 162, 172 (1975).
In Texas, "[a] person is incompetent to stand trial if the person does not have: (1)

sufficient present ability to consult with the person's lawyer with a reasonable degree of
rational understanding; or (2) a rational as well as factual understanding of the proceedings
against the person." Tex. Code Crim. Proc. Ann. art. 46B.003(a) (West).
While due process requires competency for the trial of an accused person, a habeas

court should only consider a claim alleging a defendant was incompetent to stand trial where
the facts are "sufficient to positively, unequivocally and clearly generate a real, substantial
and legitimate doubt as to the mental capacity of the petitioner" at the time of trial. Bruce

v.

Estelle, 536 F.2d 1051, 1058-59 (5th Cir. 1976). Indeed, "the [habeas] petitioner's initial
burden is substantial" and "extremely heavy." Enriquez v. Procunier, 752 F.2d 111, 114 (5th
Cir. 1984).

-25-

3. Discussion

Renteria concedes his claim is unexhausted in the state courts. Pet'r's Pet. 15-16,
ECF No. 53. He contends he can overcome the procedural default because of his "trial

counsel's ineffective failure to pursue it," and "by the ineffective assistance of initial state
post-conviction counsel." Pet'r's Reply 6, ECF No 94.
In Coleman v. Thompson, 501 U.S. 722 (1991), the Supreme Court barred federal

habeas relief on procedurally defaulted claims unless the petitioner demonstrates cause for

the default and actual prejudice arising from the defaultor shows the failure to consider the
claim would result in a fundamental miscarriage ofjustice. Coleman, 501 U.S. at 749-50. th

Martinez v. Ryan, 566 U.S.

1

(2012), and Renteria

v.

Thaler, 569 U.S. 413 (2013), the

Supreme Court opined a petitioner could meet the cause element by showing "(1) that his
claim of ineffective assistance of counsel at trial is

substantiali.e., has some meritand (2)

that habeas counsel was ineffective in failing to present those claims in his first state habeas
proceeding." Garza, 738 F.3d at 676.
The results of Renteria's psychological testing by Dr. Schutte were well within the
normal range. Schutte Report at 1, ECF No. 95-3. More telling, Renteria's personality scales
all indicated that Renteria "did not respond to the test questions in an open hand honest

manner" and he was attempting "to be deceiving both himself and those around him." Id. at
2. Dr. Schutte subsequentlyexplained his testing would not have shown dissociative

amnesia:
Dissociative amnesia, if it existed, would not necessarily appear on any of the
memory testing that I administered. This is because my testing evaluated
gross memory functioning, while a dissociative amnesia is due to the
psychological impact of a past trauma and would manifest itself in eventspecific amnesia.

Pet'r's Reply, Ex. (Declaration of James Schutte, Ph.D.), ECF No. 94-1.

-26-

Dr. Doyle diagnosed Renteria with dissociative amnesia because "[h]e was able to

describe some, but not all, of the events during the period of time in question." Id. at 2.
Importantly, Dr. Doyle based the dissociative amnesia diagnosis solely on Renteria's claim

that he could not remember some details of Flores's kidnapping and murder.
But Dr. Doyle also found Renteria understood the charge against him and the role of
the judge, jury, prosecutor and defense attorney. Doyle Report

1,

ECF No. 95-4. She further

found he was oriented appropriately, could relate to his attorneys, "and generally was able to

manage.

. .

think logically." Id. In other words, she found Renteria had sufficient present

ability to consult with his lawyer with a reasonable degree of rational understanding and a
rational as well as factual understanding of the proceedings against him. Thus, Renteria did
not meet the requirements for mental incapacity to stand trial established by Texas Code of

Criminal Procedure article 46B.003(a).
Other evidence readily contradicted Dr. Doyle's dissociative amnesia diagnosis.

At the time of his arrest on December 3, 2001, Renteria gave a five-page, singlespaced, typewritten custodial statement to the police. Reporter's R., vol. 69 (Voluntary

Statement of Accused), pp. 11-15, ECF No. 78-4. In his statement, Renteria provided

meticulous details about his trip to the Walmart on November 18,

2001the day of Flores's

murderincluding where he parked his van, the entrance he used to enter the store, a detailed
description of the clothing he was wearing, a list of items he purchased, a description of the
cashier, and a summary of the conversation he had with a security guard in the parking lot:

About two to three weeks ago on a Sunday I had gone shopping at Sam's on
the east side with my family. I was with my mom my dad my wife my niece
and maybe my 10 year old nephew Hector Chavez. We had gone to Sam's in
my dad's Suburban. We got back home at about 4:OOP and we unloaded the
groceries. We waited a little while at the house and were watching television.
My wife wanted to make a special dish to eat but she needed some chiles [sic]
and we didn't have any. So I told her that I would go and get them while shegot-the rest of the stuff ready. So I went alone in my 1984 Chevrolet G-20

-27-

conversion van. I went to the Wal-Mart on Alameda and Americas. This was
at about 5:OOP it was still light outside. I parked the van close to the gas
station. The reason I parked there is because I had to leave it on. I was having
problems with the starter. I went inside the Wal-Mart and entered through the
west doors where the McDonalds is. I got a shopping cart from the parking
lot. At the time I was wearing a white adjustable baseball cap that had "Taz"
the Tasmanian devil on the front and he is like running, a plain green T-shirt,
underneath the green T-shirt I was wearing a plain white T-shirt a pair black
nylon swim trunks that are just above my knee, a pair of white socks at come
up to the middle of my calf and a pair of white generic tennis shoes that are
real old like about two years old. As soon as I walked into the Wal-Mart I
headed to the produce section. I grabbed some red chiles [sic], some jalapeno
peppers, chile [sic] serranos, some chile [sic] "guero" and I think I grabbed
some limes. I also got some Campbell soups and that was it. I went through
the check-outs and the cashier was a girl Hispanic. I left the store and went to
the van. When I got to the van I saw that there was a security guard there.
She asked me if it was my van and I told her yes. She said that she was there
because she had seen it running and she wanted to check it out to make sure
everything was ok. She wanted to make sure that no one would steal it. I told
her the reason I had left it on was because I was having trouble with it. She
said ok and that she didn't want nobody to rip it off. I put my groceries in the
middle of the front two seats. Then I wanted to get some sweet bread so I
went back inside the Wal-Mart.

Reporter's R., vol. 69 (Voluntary Statement of Accused), pp. 11-12, ECF No. 78-4.
Renteria explained how he encountered

Flacoa person he described as an "Azteca"

prison gang member he previously met while in jailand several of Flaco's companions

when he went back inside the Walmart:
I was looking over some sweet breads and that's when I was approached. I

had made eye contact with two individuals. I recognized one of the guys and
he goes by the nickname of "Flaco." He looked at me and he made this
gesture like he knew me and then he walked over to where I was at. I know
who this guy is from jail. I had met him while I was, at the annex. I was at the
annex when I got arrested in August of last year on a bench warrant for
violation of probation. I know that "Flaco" is a lieutenant in the Azteca prison
gang. While I was in jail the Aztecas provided me with protection from other
people that were in jail.
Id. at 12. Renteria claimed Flaco asked him to lure a little girl outside the store:

"Flaco". . . motioned with his head and I looked in that direction and I saw
some people. . . . He told me the one with the "pelo largo."3 I did not see the
Long

hair.

girl's face, I just saw her side and she had long black hair. He then told me
that was the girl he was referring to. I then asked him what he wanted. He
then told me to tell her that Raul or Ruben was waiting for her outside.
Id. at 12-13. Renteria described how he escorted Flores to a waiting van and was told to

follow the vehicle in his own van:
I told her in English "Hey Raul is waiting for you outside." She looked like
she knew the name and I then turned around and went outside and she
followed me. . . . I exited through the east door and I paused to see if I could
see them outside . . . . [A] 1988 or 1989 dark navy blue Grand Marquis with
tinted windows and an early to mid-90s red or maroon mm-van pulled up.
"Flaco" was driving the Marquis and the other guy was with him. I saw that
there was [sic] two guys in the mm-van, but I did .not get a good look at them.

The stocky guy opened the front passenger door of the Marquis and came out.
He came around to my side and got the little girl by the hand. He also told her
"Vamos con Raul." I figured that they knew her or she knew them because
she didn't say nothing and she went with them in the van. I saw that the guy
walked the girl to the mini-van. This guy got into the mini-van with the girl
through the sliding door. .. . Flaco . . . told me to follow them.
Id. at 13. Renteria explained how the men later transferred Flores's naked and lifeless body

to his van, and directed him drive to an alley off Mesa Street in El Paso. He added when they
arrived, they told him to take Flores's body from his van and place it on the ground. Then
they covered her body with gasoline and set her on fire:

went into the van and got her. I saw that the girl was laying [sic] face up on
the seat and she had a plastic bag over her head. .. . I knew that she was dead.
I put my arms underneath her and picked her up from her back and her legs.
As best as I could I took her out of the van and I just stood there holding her
and waiting for this guy to tell me what to do. He then told me to put her
down and pointed down to the ground. . . . He then went over to the Grand
Marquis and I saw that he took out a container like a gas can from the trunk.
I saw that he was pouring something a liquid over the little girl all over
her body. The liquid smelled like gas. . . . That's when he ignited the little
I

girl.
Id. at 14-15. Renteria maintained he helped Flaco and his companions out of fear they would

harm his family. He also claimed he limited his involvement to persuading Flores to walk
out of the Walmart and helping the others dispose of her body.

-29-

Based on Renteria's statement, trial counsel attempted to determine whether Flores's
family was involved with a gang.

See, e.g.,

Clerk's R., vol. 2 (part 2 of 3), p. 14 (Second

Mot. for Continuance), ECF 73-7 ("The victim's family has close connections with the

Azteca gang that the Defendant said in his statement ordered the hit on the child.");

Reporter's R., vol. 16 (Hearing on Defs Mot. for Continuance), p. 5, ECF 75-9 ("[WIe
received information yesterday from a private source and official notification less than four
hours ago that the mother of the victim in this particular case had a ten-year relationship with
an Azteca Gang member. The Court I'm sure has read the confession of the defendant in

which he says that this was an Azteca Gang hit rather than a sexual assault."); Reporter's R.,
vol. 64 (Jury Trial

Trial on the Merits), pp. 24-31, ECF 77-19 (questioning Officer Jeffrey

Gibson regarding intercepted jail correspondence between Azteca gang members, which

included threatening statement directed at Renteria based on "an incident involving the
daughter of Mrs. Rubio"). Indeed, trial counsel proffered questions to the victim's mother
outside the presence of the juryto elicit testimony regarding whether her family had been
threatened and to show that her daughter's murder was a gang related:
Your Honor this was a gang hit. And were [sic] going to show that the family
received a death threat prior to this -- this incident that this incident is gang
related that -- prison gang related that she has a relative who has been in and
out of prison on drug charges that there are a large number of tips that the
police received that this was a gang activity involving the uncle. This is our
entire defense.

Reporter's R., vol. 53 (Jury Trial Trial on the Merits), p. 32, ECF 77-8. After hearing the
testimony, the trial court concluded the victim's mother had "no personal knowledge of any
gang affiliations of anyone." Reporter's R., vol. 53 (Jury Trial

Trial on the Merits), pp. 46-

47, ECF 77-8.

A defendant's dissociative amnesia diagnosisstanding alonedoes not establish a
mental incapacity to stand trial. The Texas Court of Criminal Appeals observed in

-30-

Gonzalez

v.

State, 313 S.W.3d 840 (Tex. Crim. App. 2010), "that 'no case yet reported.

. .

has held that

the inability to recall the event charged because of amnesia constitutes mental incapacity to
stand trial." Id. at 842 (quoting Morris v. State, 301 S.W.3d 281, 292 (Tex. Crim. App.
2009)). The Court or Criminal Appeals reasoned amnesia does not per se render a defendant

incompetent to stand trial because:
(1) amnesia is akin to "missing" evidence, (2) a contrary rule "would unduly
hamper the State's interest in the prosecution of violators of its criminal laws
and jeopardize the safety and security of other citizens," and (3) amnesia can
be easily feigned.

Id. (quoting Morris, 301 S.W.3d at 292-93). See also United States v. Doke, 171 F.3d 240,
248 (5th Cir. 1999) ("This court has previously held that amnesia by itself does not render a

defendant incompetent; rather, the 'circumstances of each individual case' must be
considered.") (citing Swanson, 572 F.2d at 526).; United States

v.

Mota, 598 F.2d 995, 998

(5th Cir. 1979) ("In this circuit amnesia does not constitute incompetency

trial."); Davis

v.

per se to stand

Wyrick, 766 F.2d 1197, 1202 (8th Cir. 1985) ("Amnesia alone is not a bar to

the prosecution of an otherwise competent defendant."); United States v. Borum, 464 F.2d
896, 900 (10th Cir. 1972) ("[W]e must reject the argument that the amnesia is

aper se

deprivation of due process. Prejudice must be shown to existthat there are, for example,
facts available which could not be obtained from the file of the prosecution or from

investigation by the defense. There is no suggestion as to the existence of a tenable defense

which has been locked in by the amnesia."); United States v. Stevens, 461 F.2d 317, 320 (7th
Cir. 1972) ("[W]e do not believe that due process requires an amnesiac defendant who claims
loss of memory go free without trial."). Rather, the competency determination in a trial of a

purportedly amnesiac defendant "is a question to be determined according to the
circumstances of each individual case." Swanson, 572 F.2d at 526 (recognizing the potential
for "amnesia to become an unjustified haven for a defendant").

-31-

Renteria's counsel were in the best position to determine their client's competence to
stand trial. Medina v. Cal fornia, 505 U.S. 437, 450 (1992) ("[T]he defendant's inability to
assist counsel can, in and of itself, constitute probative evidence of incompetence, and

defense counsel will often have the best-informed view of the defendant's ability to
participate in his defense."). The totality of the facts andcircumstances surrounding this case
show Renteria consulted with his lawyers with a reasonable degree of rational understanding

and exhibited a factual understanding of the proceedings against him. Based on Renteria's

multiple mental health examinations, detailed post-arrest statement, and the applicable law,
his counsel made a well-reasoned, reasonable, strategic decision not to pursue a competency

determination from the trial court.

Against this background, Renteria's
him incompetentsimply fails. Johnson

v.

claimthat his dissociative amnesia rendered
Estelle, 704 F.2d 232, 238 (5th Cir. 1983) ("Even

assuming that Johnson was in fact suffering from a mental illness or disability at the time of
trial, on the present facts we are unable to conclude that this mental deficiency precluded

petitioner's meaningful participation in his defense."). The facts were not "sufficient to
positively, unequivocally and clearly generate a real, substantial and legitimate doubt as to
the mental capacity of the petitioner" at the time of trial. Bruce, 536 F.2d at 1058-59. Any

attempt by counsel to convince the trial court that Renteria was incompetent under Texas law
to stand trial based on his dissociative amnesia would have been unavailing.

Renteria has not shown that his trial "counsel made errors so serious that counsel was
not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment."

Strickland, 466 U.S. at 687. He has not overcome the presumption that his trial counsel made
reasonable strategic decisions concerning his case. See Richter, 562 U.S. at 109 ("Although
courts may not indulge post hoc rationalization for counsel's decisionmaking that contradicts

-32-

the available evidence of counsel's actions, neither may they insist counsel confirm every

aspect of the strategic basis for his or her actions."). He has not overcome the "strong
presumption that counsel's representation was within the wide range of reasonable

professional assistance." Strickland, 466 U.S. at 689. As a result, Renteria's ineffective
assistance of counsel at trial claim is not substantial. Garza, 738 F.3d at 676. Therefore,

Renteria also fails to show good cause for his state habeas counsel's failure to exhaust his
claim.
Consequently, Renteria has not demonstrated cause for his procedural default, actual

prejudice arising from the default, or the failure to consider his claim would result in a
fundamental miscarriage ofjustice. Coleman, 501 U.S. at 749-50; Barrientes, 221 F.3d at
758. His procedurally defaulted claim is barred.

-33-

II - Renteria's trial counsel ineffectively failed to present mitigating
evidence [of his impaired mental health] to the second penally juror in violation
of the Sixth, Eighth and Fourteenth Amendments to the United States
Constitution. Pet'r's Pet. 16-20, ECF No. 53; Br. in Supp. 17-21, ECF No. 58.
B. Claim

1.

Background

As discussed at length above, Renteria's counsel performed an extensive mentalhealth investigation. They obtained appointment of, and funding for, Dr. Schutte to evaluate
Renteria. Dr. Schutte's report indicated Renteria was of average intelligence, only exhibited
deficits in divided attention, and was mildly-to-moderately impaired on "the single most
sensitive measure of brain impairment." Schutte Report

1,

ECF No.

95-3.

Renteria's

responses on four personality scales indicated he responded deceptively. Id. at 1-2

("[R]enteria appears to be deceiving both himself and those around him.").
Trial counsel then obtained Dr. Doyle's assistance. Dr. Doyle diagnosed Renteria

with dissociative amnesia based on his self-reported inability to recall some of his actions on
the night of the Flores's murder, and concluded that he was incompetent to stand trial due to
his inability to adequately consult with his counsel. Doyle Report at 1-2, ECF

95-4.

Renteria' s counsel also had Dr. Steven Glusman' s report recounting Renteria' s
history of closed head injuries, loss of consciousness, and childhood trauma. Dr. Glusman

Report, ECF No.

95-5.

And they had Renteria evaluated by psychiatrist Dr. Salo.

But Renteria's counsel did not present this evidence concerning his mental health to
the jury.

Renteria claimed his counsel failed to present "readily available" mitigating evidence
in allegation

9

of his second state writ application:

Applicants death sentence violates the Sixth Amendment to the United States
Constitution because Applicant was deprived the effective assistance of
counsel at the punishment phase of his trial in that his trial counsel failed to
investigate and present any substantial readily available evidence in mitigation
of the death penalty.

-34-

State Habeas R, WR 65,627-02 (Am. Pet., Nov. 19, 2010), P. 80, ECF No. 83-21.

In response to this claim, the State offered the following proposed findings of fact and

conclusions of law:
FINDINGS OF FACT

93. During the punishment retrial defense counsel presented two full days of
testimony from witnesses describing Renteria's character specifically that he
was respectful and non-aggressive as a child and teenager. Defense counsel
also presented testimony from Renteria's mother and sister describing his
upbringing and family life including the fact that he was an altar boy and an
honor student. Renteria's sister described for the jury some physical abuse of
Renteria's mother by his father during Renteria's childhood years. And both
Renteria' s sister and mother testified that Renteria' s personality changed after
he was first placed on probation for indecency with a child in 1994 and he
started making bad decisions.
94. Defense counsel also presented evidence that Renteria had no disciplinary
problems while incarcerated. And counsel also presented the testimony of Dr.
Cunningham who likewise described the extent of Renteria's pro-social
activities, and who concluded that he Dr. Cunningham had "never observed a
childhood behavior pattern that is this positive in its involvement in church
and school and community activities. I've never observed th-at [sic] degree of
extra curricular pro-social adjustment in a capital offender.
95. In his writ application Renteria does not allege what additional mitigating
evidence was available or what additional mitigating evidence could and
should have been presented to the jury at the punishment retrial.

CONCLUSIONS OF LAW

45. Because Renteria' s trial counsel presented extensive mitigation evidence
which in essence presented to the jury a complete picture of Renteria's entire
life, Renteria's claim of ineffective assistance of counsel for failing to
investigate and present mitigating evidence is not firmly founded in the record.
See Exparte Woods, 176 S.W.3d 224 226 (Tex. Crim. App. 2005); Boggess v.
State, 855 S.W.2d 645, 647 (Tex. Crim. App. 1991), cert. denied 509 U.S.
921, 113 5. Ct. 3034 125 L.Ed.2d 721 (1993). Renteria has thus failed in his

-35-

burden of demonstrating ineffective assistance of counsel in this regard. See
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
46. Because Renteria has failed to even allege what additional mitigating
evidence could and should have been presented he has failed to plead any facts
that would show his entitlement to relief See Ex parte Dutchover, 779
S.W.2d 76, 78 (Tex. Crim. App. 1989); Exparte Maldonado, 688 S.W.2d 114,
116 (Tex. Crim. App. 1985).

47. It was a reasonable trial strategy for defense counsel to focus primarily on
the positive aspects of Renteria's childhood and upbringing to support the
defensive theory that Renteria was not a future danger as opposed to
emphasizing any alleged negative aspects of Renteria's childhood and
upbringing in support of the mitigation issue such that Renteria has not shown
and cannot show that defense counsel was ineffective for failing to further
investigate and present evidence of alleged mitigation. See Strickland v.
Washington, 466 U.s. 668, 104 S. Ct. 2052-2066, 80 L.Ed.2d 674 (1984); Ex
parte Martinez, 195 S.W.3d 713 728 Tex. Crim. App. (2006); Ex parte
Woods, 176 S.W.3d at 228; Butler v. State, No. 01-94-00756-CR, 1995 WL
416892, at 3 (Tex. App.-Houston [1st Dist.], July 13,1995 pet. ref d) (not
designated for publication).

48. Renteria has failed to show and cannot show a reasonable probability that
the presentation of any additional mitigation evidence, whatever that might be,
would have resulted in a different answer by the jury to the mitigation special
issue. See Ex parte Gonzalez, 204 S.W.3d 391, 393-94 (Tex. Crim. App.
2006); Exparte Martinez, 195 S.W.3d at 731; Exparte Woods, 176 S.W.3d at
228.
49. Based on Conclusions of Law 45-48, above Renteria has failed in his
burden of showing and cannot show that his trial counsel was ineffective for
failing to investigate and present mitigating evidence at the punishment retrial.

State Habeas R, WR 65,627-02 (State' Proposed Findings of Fact & Conclusions of Law), pp

157-58, 189-90, ECF No. 83-24 (citations to the record omitted).
The Court of Criminal Appeals adopted the trial court's findings and conclusions

regarding allegation 9 and denied Renteria' s state application for writs of habeas corpus:
The convicting court entered findings of fact and conclusions of law and
recommended that relief be denied as to all of the claims. We agree with the
convicting courts recommendations and adopt its findings and conclusions as
to allegations 1 through 9 . . . Accordingly we deny relief on allegations 1
through

9...

Exparte Renteria, WR-65,627-02 (filed August

1,

-36-

2012), p. 5, ECF No. 83-14.

Renteria claims in his federal petition that his trial counsel failed to
present mitigating
facts related to his impaired mental health at his second penalty trial.
Pet'r's Pet. 16, ECF
No. 53. Renteria argues "[t]hese failures constituted ineffective assistance
of counsel that

undermines confidence in the resulting death penalty verdict." id. Renteria
explains "[t]he
only witness who.

. .

touched upon issues related to his mental health was Dr. Mark

Cunningham." Id. And Dr. Cunningham "primarily addressed his view that Mr. Renteria
would not pose a future danger while in the custody of the Texas Department of Corrections."
Id. (citing Reporter's R., vol. 69 (Testimony of Dr. Mark Cunningham), pp. 42--44 (regarding
Dr. Cunningham's expertise in assessing future dangerousness), ECF No. 82-1). "[W]hen

asked what mental health related materials he reviewed, [Dr. Cunningham} indicated that he

reviewed only the information from Norma Reed (a sexual offender therapist) and Mr.

Renteria's Texas Correctional files." Id. at 17 (citing Reporter's R., vol. 69, p. 49). Notably,
Dr. Cunningham did not claim he reviewed copies of Dr. Doyle's report diagnosing Renteria
with dissociative amnesia; Dr. Steven Glusman's report recounting Renteria's history of

closed head injuries, loss of consciousness, and childhood trauma; or Dr. Schutte's report
finding Renteria had a moderate impairment; "and multiple references in the mental health

materials showing that Petitioner had unspecified trauma during his young life." Id. at 1720. Lastly, Renteria asserts that trial counsel were ineffective for failing to present evidence

that Renteria might have been sexually abused as a child, possibly at the hands of the local
clergy. Id. at 15.

Renteria acknowledges these claims remain unexhausted. Id. at 20. He argues "[tjhe
failure to present these claims was the result of the ineffectiveness of direct appeal counsel, as
well as initial post-conviction counsel. Accordingly, any arguable procedural default of this

claim can be overcome." Id.

-37-

2. Applicable Law

"The fundamental respect for humanity underlying the Eighth Amendment...
requires consideration of the character and record of the individual offender and the
circumstances of the particular offense as a constitutionally indispensable part of the process

of inflicting the penalty of death." Woodson v. North Carolina, 428 U.S. 280, 304 (1976).
"Justice. . . requires. . . that there be taken into account the circumstances of the offense
together with the character and propensities of the offender." Pennsylvania

v.

Ashe, 302 U.S.

51, 55(1937).

Under Texas's capital sentencing statute, the jury must answer two "special issues"
before a sentence of death may be assessed. Tex. Code. Crim. Proc. art. 37.07 1
(Vernon 2001). Under the first special issuethe future dangerousness

§

2(b)

issuethe jury must

decide "whether there is a probability that the defendant would commit criminal acts of

violence that would constitute a continuing threat to society." Id. Only after the State
proves the defendant constitutes a continuing threat "beyond a reasonable doubt" will the jury

consider the second special
the sentence. Id.

§

issuethe mitigation issuethe effect of mitigating evidence on

2(c), (e)(1) (emphasis added).

"[T]he Eighth and Fourteenth Amendments require that the sentencer.. . not be
precluded from considering, as a mitigating factor, any aspect of a defendant's character or
record and any of the circumstances of the offense that the defendant proffers as a basis for a
sentence less than death." Lockett

v.

Ohio, 438 U.S. 586, 604 (1978). "Highly relevantif

not essentialto [the] selection of an appropriate sentence is the possession of the fullest
information possible concerning the defendant's life and characteristics." Williams v. People

ofState ofN.Y., 337 U.S. 241, 247 (1949). Consequently, "counsel has a duty to make

reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary." Strickland, 466 U.s. at 691.
Likewise, counsel must evaluate the information available to them before trial and
determine what "conceivable line[s] of mitigating evidence" may exist to meet their

professional obligation to their client. Wiggins, 539 U.S. at 533. Counsel must decide

whether following any of those lines would likely lead to evidence which "would.. . assist
the defendant at sentencing." Id.
"[A] tactical choice not to pursue one course or another 'should not be confused with

the duty to investigate." Bouchillon v. Collins, 907 F.2d 589, 597 (5th Cir. 1990) (quoting

Beavers v. Balkcom, 636 F.2d 114, 116 (5th Cir.1981)). In some circumstances, limited
investigations into mitigating evidence may be reasonable. See, e.g., Strickland, 466 U.S. at
699 ("[T]he decision not to seek more character or psychological evidence than was already
in hand was likewise reasonable."); Burger v. Kemp, 483 U.S. 776, 794-75 (1987)

("[C]ounsel's decision not to mount an all-out investigation into petitioner's background in
search of mitigating circumstances was supported by reasonable professional judgment.

Having made this judgment, he reasonably determined that he need not undertake further

investigation to locate witnesses who would make statements about Burger's past."); Darden
v.

Wainwright, 477 U.S. 168, 186 (1986) ("[T]he State could have responded with a

psychiatric report.

. . .

For that reason, after consultation with petitioner, defense counsel

rejected use of the psychiatric testimony."). But "counsel's failure to uncover and present

voluminous mitigating evidence at sentencing" may not be justified as a tactical decision if
counsel has not "fulfill[ed] their obligation to conduct a thorough investigation of the

defendant's background." Wiggins, 539 U.S. at 522.

-39-

A reviewing court must decide whether the attorney's decision either to forego
investigation, or to stop investigating at some later point, was reasonable "'under prevailing
professional norms." Wiggins, 539 U.S. at 522-23 (quoting Strickland, 466 U.S. at 688). In

evaluating whether counsel's decisions were reasonable under the norms of the profession,
the reviewing court must defer to trial counsel's decisions required by Strickland, taking into
consideration "not only the quantum of evidence already known to counsel, but also whether

the known evidence would lead a reasonable attorney to investigate further." Id. at 527.

Counsel's performance must be viewed objectively and "from counsel's perspective at the

time." Id. at 533 (quoting Strickland, 466 U.S. at 689). Stated simply, the court must decide
whether a reasonable attorney would consider the information available to defense counsel
worthy of further investigation, and if so, how much additional investigation a reasonable
attorney would perform.

After completing the investigation, counsel must then make a strategic decision as to
whether there is a "reasonable basis" to believe the evidence will minimize "the risk of the
death penalty." Burger v. Kemp, 483 U.S. 776, 795 (1987). This decision must be

"supported by reasonable professional judgment" and based on the "investigation into

petitioner's background in search of mitigating circumstances." Id. "Strategic choices made
after thorough investigation of law and facts relevant to plausible options are virtually

unchallengeable." Wiggins, 539 U.S. at 521-22 (quoting Strickland, 466 U.S. at 690).
3. Discussion

Importantly, Renteria's claim does not allege his trial counsel failed to adequately
investigate, but rather he focuses on his trial counsels' decisions about which evidence to

present to the jury. Renteria argues that "[t]rial counsel failed to present a number of extant
mitigating facts to the second penalty jury. These facts related primarily to Mr. Renteria' s

impaired mental health." Pet'r's Pet. 11, ECF No. 53. He alleges Dr. Cunningham could

haveand should havepresented such testimony.

Id. at 11-12. Specifically, Renteria

claims his trial counsel failed to elicit through Dr. Cunningham information from Dr. Doyle's

competency report, neuropsychologist Dr. Steven Glusman's report, and Dr. Schutte's report,
as well as an unsubstantiated allegation that Renteria suffered sexual abuse as a child. Id. at

12-15.
Dr. Doyle evaluated Renteria prior to trial and concluded that he was incompetent to
stand trial due to his self-reported dissociative amnesia. Doyle Report 1-2, ECF No. 95-4.

But Dr. Doyle also noted Renteria recalled some of the events which led to Flores's murder,

which suggested Renteria' s culpability:
As part of the competence evaluation the defendant was asked to describe
what he remembered about the events leading to his current charges. He was
able to describe some, but not all, of the events during the period of time in
question. His descriptions of some of his actions are incredible and appear
confabulated; that is, made up to cover an inability to remember.
Id. at 2 (emphasis added).
Renteria next argues that trial counsel should have presented the evidence obtained

through Dr. Glusman's neurologic evaluation. Pet'r's Pet. 13-14. He explains the evaluation

revealed his "history of closed head injury, loss of consciousness, and childhood trauma." Id.
at 13.

But Dr. Glusman's evaluation was unremarkable. It concluded Renteria had an

"essentially. . . normal bedside neurologic examination." Glusman Report at 5. Dr.
Glusman Evaluation, ECF No. 95-5. It noted Renteria had "an old history of closed head
trauma." Id. at

1.

It also noted Renteria claimed, "he drank beer occasionally." Id. at 3

(emphasis added).

-41-

This last comment would have brought Renteria's credibility in to question, because

Renteria drank so heavily that he "committed three driving while intoxicated (DWI) offenses
in 1995, 1997, and 2000."

Renteria II,

2011 WL 1734067, at *2. And Renteria's mother,

Eva Renteria, and sister, Cecelia Esparza, described at trial how Renteria's personality
changed following his 1994 conviction for indecency with a child and how he started
drinking to intoxication. They claimed that prior to the indecency with a child offense,

Renteria was always happy and frequently socialized with his friends. Reporter's R., vol. 67
(Testimony of Eva Renteria), p. 31 ("He was always happy. He was a happy young man. He
was studious. He would come home and greet us all. He would come home in a good mood
and be very nice."); (Testimony of Cecelia Esparza) p. 119 ("Oh my brother was a real light

spirited very well liked. He -- you know he still -- he liked going out. Like I said he was a
Dallas dancer. He liked being with his friends."), ECF 8 1-19. They added after the

conviction, Renteria became "morose" and started drinking alcohol excessively. Id.
(Testimony of Eva Renteria) pp. 32-34 ("He started drinking.

. . .

He was sad he would cry.

It affected all of us a great deal."); (Testimony of Cecelia Esparza) p. 122 ("{Before that
I didn't see him intoxicated. Maybe I saw him having a good time but then it got to a point

where I would actually see him that I could tell that he was drunk.").

Renteria' s probation officer, Rebecca Gonzales, testified Renteria was detained at the
border under the influence of alcohol, picked up two arrests for DWI while on probation, and

concluded he had a drinking problem. Reporter's R., vol. 63 (Testimony of Rebecca
Gonzales), pp. 14, 25, 33, ECF No. 81-15. Another probation officer, Martha Cortez, gave
evidence Renteria received 90 days' in prison on shock probation after his arrest for a third
DWI. Id. (Testimony of Martha Cortez), p. 53, 80. Dr. Cunningham identified Renteria as

-42-

"alcohol abusing and then alcohol dependent." Reporter's R., vol. 70 (Testimony of Dr.
Cunningham), p. 72, ECF No. 78-5. He described Renteria's downward spiral:
We started out with this approval oriented sensitive kid and this is the
downward spiral as I would view it. You know as he is in his late teens he has
these aspirations of going to college and having a criminal justice career. And
episodic alcohol abuse begins.

And then at age 23 he is charged with his sexual indecency with a minor
potentially alcohol related in the aftermath of drinking. That results in a
profound loss of career aspirations. You're not going into criminal justice
after that conviction nor many other occupations. And that results in some
instability of employment some jobs he got and lost because of that. There's
escalating alcohol and drug alcohol abuse and dependence.
At age 25 he gets a DWI. That contributes to even greater employment
instability exclusion from employment. Age 26 he gets another DWI. His
probation is revoked and that's when he does the 90 days of shock probation
in TDCJ. He goes into prison for three months. Age 31 there is another D\VI
and then this tragic offense.
Id. at pp. 75-76.
The results of neuropsycho logical testing administered by Dr. Schutte were also
within the normal range. Schutte Report, ECF No. 95-3. But Renteria's personality testing

indicated that he did not respond honestly and was attempting to deceive himself and others.
Id.

at2.
On the Personality Assessment Inventory (PAL), the validity scales indicate
David did not respond to the test questions in an open and honest manner. He
tried to present an overly favorable self-image, and denied even minor
problems and flaws most people are willing to acknowledge. There was no
indication of psychopathology in his profile, but this finding must be viewed
with caution due to his test-taking defensiveness.
On the Paulhus Deception Scales, David's responses indicate a strong
tendency towards deceptive self-presentation, characterized both by a
tendency to claim unrealistic virtue and a denial of even common problems
and flaws most people are willing to acknowledge. David's responses suggest
he both wants to impress others and lacks insight into his own behavior. As
such, he appears to be deceiving both himself and those around him.

Id.

-43-

Consequently, the facts related to Renteria's impaired mental health in Dr. Doyle's
competency report, Dr. Glusman's neurologic evaluation, and Dr. Schutte's

neuropsychological testing present "double-edged mitigating evidence." Johnson v. Cockrell,
306 F.3d 249, 253 (5th Cir. 2002). "Strickland requires.. . [courts to] defer to counsel's

decision.

. .

not to present a certain line of mitigating evidence when that decision is both

fully informed and strategic, in the sense that it is expected, on the basis of sound legal
reasoning, to yield some benefit or avoid some harm to the defense." Moore

v.

Johnson, 194

F.3d 586, 615 (5th Cir.1999). In other words, "a tactical decision not to pursue and present
potentially mitigating evidence on the grounds that it is double-edged in nature is objectively
reasonable, and therefore does not amount to deficient performance." Rector v. Johnson, 120

F.3d 551, 564 (5th Cir.1997)
Lastly, Renteria asserts that his trial counsel were ineffective for failing to present
evidence that he "was sexually abused as a child, possibly at the hands of the local clergy."

Pet'r's Pet.

15. He maintains "trial counsel's file is replete with evidence that [Renteria] was

the victim of childhood sexual abuse." Id. (emphasis added). This evidence consists of

lawsuits against the local clergy, "the fact that the victim's body was found outside a doctor's
office that used to be the Church rectory," and references in Renteria' s mental health records

showing he had "unspecified trauma during his young life." Id.

Renteria does not identify a single witness willing and able to testify that he was the
victim of childhood sexual abuse. For a movant "to demonstrate the requisite Strickland
prejudice, [he] must show not only that this testimony would have been favorable, but also

that the witness would have testified at trial." Alexander v. McCotter, 775 F.2d 595, 602 (5th
Cir.1985). Consequently, Renteria's claim cannot form the basis of habeas relief. Day v.

Quarterman, 566 F.3d 527, 53 8-39 (5th Cir. 2009).

Dr. Cunningham indicated during the State's voir dire examination that he

investigated Renteria's "disturbed sexuality." Reporter's R. vol. 69 (Testimony of Dr.

Cunningham), p. 53, ECF 82-1. Dr. Cunningham claimed he discovered that "Father Pete"
from Mount Carmel School was seen having sex with a young boy and was transferred the

following day. Id. at pp. 53-54. Dr. Cunningham said he learned of these incidents through

affidavits that had been filed in a lawsuitnot involving

Renteriaand during his interview

of Renteria's high school principal, Oscar Santaella. Id. at 56-57. Dr. Cunningham
acknowledged that Renteria did not inform him of the incident. Id. at 54. Indeed, Dr.
Cunningham did not know whether Renteria knew of this incident or another purported

incident of child sexual abuse at Renteria's high school. Id. at 54-55.

Renteria' s counsel elicited Dr. Cunningham's testimony that Renteria, as a child,
witnessed physical abuse against his mother, but did not report physical abuse against him.

Reporter's R., vol. 70 (Testimony of Dr. Cunningham), pp. 67-70, ECF No. 82-2. Dr.
Cunningham added that observing physical abuse of a mother may cause more harm to a
child than physical abuse directed toward him:
[W]hen you see your momma being demeaned and battered it doesn't wound
your skin. It wounds your heart. And the wounds on your heart are so much
harder to heal than the cuts on your skin or your butt or your legs. And that's
a finding that has been confirmed again in our research data. This is a study
by the American Psychological Association.

Id

at 70. The jury was aware, therefore, of trauma Renteria reported he sustained as a child.

Renteria piles inference upon speculation to assert that he was the victim of childhood
sexual abuse. But he provides no evidence that he was the victim of childhood sexual abuse.

"Absent evidence in the record, a court cannot consider a habeas petitioner's bald assertions
on a critical issue in his.

. .

petition (in state and federal court), unsupported and

unsupportable by anything else contained in the record, to be of probative evidentiary value."

-45-

Rossv. Estelle,

694 F.2d 1008, 1011-12 (5th Cir. 1983) (citing Woodardv.

Beto,

447 F.2d

103, 104 (5th Cir. 1971)).

For these reasons, Renteria's claimthat his trial counsel provided constitutionally
ineffective assistance by failing to adequately present mitigating evidence of his purportedly

impaired mental health
mental health

is

meritless. Counsel made a strategic decision that the available

informationif presented to the jurywould not minimize Renteria's risk of

receiving the death penalty. Assessing all the aggravation and mitigation evidence available
to trial counsel, Renteria cannot show there is a reasonable probability thatwith the
additional evidence of his rather unremarkable mental health records and his lack of

truthfulnessthe results of the proceeding would have been different. Renteria has not
overcome the strong presumption that his counsels' representation was within the wide range

of reasonable professional assistance.
Consequently, the Texas Court of Criminal Appeals' rejection on the merits of

Renteria's broad ineffective assistance of trial counsel claims regarding mitigating evidence
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 considering the evidence presented in Renteria's
trial, direct appeal, and state habeas corpus proceedings.

For the same reasons, any attempt to establish cause and prejudice for any procedural
default on this specific ineffective assistance of trial counsel claim also fails. Therefore, to
the extent that Renteria did not present his claim to the state court, the claim is procedurally

defaulted.
Hence, the Court concludes that Renteria's second ground for relief does not warrant

federal habeas corpus relief.

C. Claim III - Renteria's rights under the Sixth, Eighth and Fourteenth
Amendments were violated when the trial court (1) refused to permit him to
offer accurate evidence of his lack of parole eligibility; (2) instructed the jury in a
misleading and confusing manner; and (3) permitted the State to offer false and
misleading closing argument that Renteria could be released from prison.
Pet'r's Pet. 2 1-28, ECF No. 53; Pet'r's Br. in Supp. 2 1-32, ECF No. 58.
1.

Background

Renteria proffered the testimony of William Habernan attorney-expert on parole
eligibility and sentencingoutside the presence of the jury. Reporter's R., vol. 68

(Testimony of William Habern), pp. 5-32, ECF No. 8 1-20. Renteria wanted Habern to
explain to the jury that he "would never parole." Id. at p. 11. Renteria sought Habern's

testimony to rebut the State's argument that the jury should make a finding under the first
special

issuethe future dangerousness issuethere was a probability he would commit

criminal acts of violence which would constitute a continuing threat to society. Pet'r' s Pet.

21,ECFNo. 53.
The State objected to the proposed testimony as neither "relevant nor permitted under

Texas law." Reporter's R., vol. 68, p. 4, ECF No. 8 1-20.

Habern conceded his testimony regarding parole was "speculative." Id. at pp. 18-19,
26. He suggested Renteria would, at a minimum, serve "47 and a-half years" in prison before

he would be eligible for parole. Id. at 31.

After a hearing the arguments of counsel, the trial court explained it would "follow
the law as it stands today," sustained the State's objection, and did not permit Habern to
testify before the jury. Id. at 36.
The trial court instructed the jury on the issue of Renteria's parole eligibility if the

jury recommended a life sentence in accordance with the Texas Code of Criminal Procedure

art. 37.071 § 2(e)(2)(B). Reporter's R., vol. 72 (Courts Charge to the Jury), p. 44, ECF No.

82-4.

The prosecutor argued during closing argument there was "no evidence" Renteria
would be incarcerated "his whole life" if the trial court imposed a life sentence. Pet'r's Pet.
26, ECF No. 53.

Renteria maintains the prosecution's suggestion he "could be released from prison"
was both "false and misleading." Id. at 21.

Renteria raised a claim challenging the trial court's exclusion of Habern's testimony
on direct appeal.
In point of error one, Renteria challenges the trial judge's exclusion of
"evidence of the minimum amount of time [that he] would spend in prison."
Renteria complains that the excluded evidence was "highly relevant" to the
future dangerousness special issue. He further asserts that the exclusion of
this evidence violated due process, destroyed his mitigation argument, and
"pushed the jury towards death."

Renteriall, 2011 WL 1734067, at *42.
The Texas Court of Criminal Appeals rejected the claim, holding the trial court

property excluded Habem's testimonybecause it was "speculative" and "parole [was] not a
proper issue for jury consideration except to the extent explicitly provided for in Article
37.071, Section 2(e)(2)(B)" of the Texas Code of Criminal Procedure." Id. at *45 The
Court of Criminal Appeals explained:

Before 1999, parole was not a proper matter for the jury's consideration in any
form. Hanldns v. State, 132 S.W.3d 380, 384 (Tex. Crim. App. 2004).
Effective September 1, 1999, the Legislature amended Article 37.071 of the
Texas Code of Criminal Procedure to provide that a jury could be instructed
on a capital defendant's eligibility for parole. The applicable law in the instant
case authorized a trial judge, on written request of defense counsel, to instruct
a jury on a capital defendant's parole eligibility as follows:

Under the law applicable in this case, if the defendant is
sentenced to imprisonment in the institutional division of the
Texas Department of Criminal Justice for life, the defendant

-48-

will become eligible for release on parole, but not until the
actual time served by the defendant equals 40 years, without
consideration of any good conduct time. It cannot accurately
be predicted how the parole laws might be applied to this
defendant if the defendant is sentenced to a term of
imprisonment for life because the application of those laws will
depend on decisions made by prison and parole authorities, but
eligibility for parole does not guarantee that parole will be
granted. Tex. Code Crim. Proc. art. 37.07 1 § 2(e)(2)(B).
This amended statute was narrowly drawn and did not render every aspect of
parole law an issue for jury consideration. Hankins, 132 S.W,3d at 385. It
expressly discouraged speculation on the parole process. Id. The Legislature
could have written it more broadly to impart more information but chose not
to. Id. Thus, parole is not a proper issue for jury consideration except to the
extent explicitly provided for in Article 37.071, Section 2(e)(2)(B). Id.
The jury was instructed in accordance with Article 37.07 1, Section 2(e)(2)(B).
Habern's speculative testimony was outside the scope of what was permitted
by that statute. Thus, the trial judge did not abuse her discretion in excluding
it. See Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006).
Further, no harm is shown by the exclusion of Habern's. . . testimony. Tex.
R. App. P. 44.2. Defense witness Cunningham testified that he believed
Renteria would "die in prison" and would "never be at large in the
community." Further, defense counsel argued at closing that it was
undisputed that Renteria would spend the rest of his life in prison and would
die in prison.

Renteria II, 2011 WL 1734067, at *45_46. Additionally, the Texas Court of Criminal
Appeals noted the trial court admitted the indecency and the felony DWI judgments into
evidence. "Both judgments showed that the 20-year indecency sentence and the 10-year
felony DWI sentence were to run consecutively." Id. at *45

Renteria' s claims in his petition that he rights under the Sixth, Eighth and Fourteenth
Amendments were violated when the trial court (1) refused to permit him to offer accurate
evidence of his lack of parole eligibility; (2) instructed the jury in a misleading and confusing

manner; and (3) permitted the State to offer false and misleading closing argument that
Renteria could be released from prison. Pet'r's Pet. 2 1-28, ECF No. 53; Pet'r's Br. in Supp.
2 1-32, ECF No. 58.

2. Applicable Law

The Sixth Amendment provides "[i]n all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an impartial jury." U.S. Const. amend. VI. It
"requires a jury.

. .

to find each fact necessary to impose a sentence of death." Hurst v. Fla.,

136 S. Ct. 616, 619 (2016). "The Eighth Amendment entitles a defendant to

ajury capable of

a reasoned moral judgment about whether death, rather than some lesser sentence, ought to be
imposed." Simmons v. South Carolina, 512 U.S. 154, 172 (1994). It requires "accurate

sentencing information [as] an indispensable prerequisite to a reasoned determination of

whether a defendant shall live or die." Gregg v. Georgia, 428 U.S. 153, 190 (1976) (joint
opinion of Stewart, Powell, and Stevens, JJ.). It also invalidates "procedural rules that ten[d]
to diminish the reliability of the sentencing determination." Beck v. Alabama, 447 U.S. 625,

638 (1980). Finally, a sentencer's consideration of false information material to the

sentencing decision "renders the entire sentencing procedure invalid as a violation of due

process." Townsendv. Burke, 334 U.S. 736, 740-741 (1948); United States v. Tucker, 404
U.S. 443, 447 (1972) (finding a due process violation when "a sentence [was] founded at

least in part upon misinformation of constitutional magnitude." Roberts

v.

United States, 445

U.S. 552, 556 (1980) (reaffirming that due process precludes "sentences imposed on the basis

of 'misinformation of constitutional magnitude").
3. Discussion

a. Parole Eligibility

Renteria complains the trial court refused to permit him to offer accurate evidence of
his lack of parole eligibility. He argues "[h]ere, Petitioner's parole eligibility was highly

relevant to the Texas future dangerousness question. When the jury was considering whether
Petitioner would be a danger in the future, that decision would reasonably be guided by

-50-

whether Petitioner would ever be at liberty, and if so, when." Pet'r's Br. in Supp. 23-24,
ECF No. 58 (citing Simmons, 512 U.S. at 169 (1994); id. at 177-78 (O'Connor, J.,

concurring) ("[c]ommon sense tells us that many jurors might not know whether a life
sentence carries with it the possibility of parole")).
(1). Simmons v. South Carolina

In Simmons

v.

South Carolina, 512 U.S. 154 (1994), the Supreme Court held "where

the defendant's future dangerousness is at issue, and state law prohibits the defendant's

release on parole, due process requires that the sentencing jury be informed that the
defendant is parole ineligible." Id. at 156 (emphasis added). The Simmons Court explained

the critical importance of informing the jury about a defendant's possibility of a lifelong
prison sentence without the possibility ofparole:
Indeed, there may be no greater assurance of a defendant's future
nondangerousness to the public than the fact that he never will be released on
parole. The trial court's refusal to apprise the jury of information so crucial to
the
its sentencing determination, particularly when the prosecution alluded to
defendant's future dangerousness in its argument to the jury, cannot be
reconciled with our well-established precedents interpreting the Due Process
Clause.

Id. at 163-64.

But the Simmons Court specifically cautioned that, "[i]n a State in which parole is

of
available," it would "not lightly second-guess a decision whether or not to inform a jury
information regarding parole." Id. at 168. And the Fifth Circuit noted that the Supreme
a
Court "expressly held that its ruling did not apply to Texas because [Texas did} not have
525
life-without-parole alternative to capital punishment." Tigner v. Cockrell, 264 F.3d 521,

(5thCir. 2001) (citing Simmons, 512 U.S. at 168 n.8) (emphasis added).
In Ramdass v. Angelone, 530 U.S. 156, 169 (2000), a Supreme Court majority
clarified that "Simmons applies only to instances where, as a legal matter, there is no

-51-

possibility ofparole if the jury decides the appropriate sentence is life in prison. Id. at 169
(emphasis added). In Shafer v. South Carolina, 532 U.S. 36 (2001), the Supreme Court

implicitly acknowledged the continued vitality of the distinction first noted in Simmons by

holding South Carolina's new capital sentencing scheme contained the same constitutional
defect identified in Simmons

becauseat least under some circumstancesthe sentencing

jury faced a choice between a sentence of death and a sentence of life without the possibility

of parole. Id. at 51. In Kelly v. South Carolina, 534 U.S. 246 (2002), the Supreme Court
reiterated its holding in Shafer, emphasizing once again that South Carolina capital
sentencing juries unanimously finding the presence of an aggravating circumstances were left
to select between one of only two possible sentences: death or life imprisonment without the

possibility of parole. Id. at 252 & n. 2. Finally, in Lynch v. Arizona, 136 S. Ct. 1818 (2016),

the Supreme Court reaffirmed its holding in Simmons that "due process entitled the defendant
to rebut the prosecution's argument that he posed a future danger by informing his sentencing

jury that he [was] parole ineligible." Id. at 1819. The Lynch Court also observed the
possibility of executive clemency or changes in the law which might permit parole in the
future for capital murderers were not proper grounds for declining to instruct the jury that the
only alternative to a death sentence in a capital case was life without parole. Id. at 1819-20.
Hence, "where a capital defendant's future dangerousness is at issue, and the only
sentencing alternative to death available to the jury is life imprisonment without possibility of

parole,' the Due Process Clause 'entitles the defendant to inform the jury of [his] parole
ineligibility, either by ajury instruction or in arguments by counsel." Id. at 1818 (quoting
Shafer, 532 U.S. at 39).

-52-

Consequently, before the Texas Legislature amended Article 37.07 1 in 20O5, the

Fifth Circuit consistently ruled that Texas had no constitutional obligation to inform a jury of
a defendant's parole eligibility. See Cantu v. Quarterman, 341 F. App'x 55, 59 (5th Cir.

2009) ("[T]his circuit has repeatedly refused to apply Simmons so as to require that Texas

juries be informed of a defendant's future parole eligibility"); Thacker v. Dretke, 396 F.3d
607, 617 (5th Cir. 2005) ("Since Simmons was decided, we have repeatedly held that neither

the Due Process clause nor the Eighth Amendment requires Texas to allow presentation of

parole eligibility issues, because Texas does not offer, as an alternative to capital punishment,
life imprisonment without possibility of parole."); Elizade

v.

Dretke, 362 F.3d 323, 332-33

(5th dr. 2004) ("We have repeatedly held that Simmons does not require a Texas trial court
to instruct a jury as to the meaning of life in prison, because the defendant would not, if

sentenced to life imprisonment, be ineligible for parole."); Woods v. Cockrell, 307 F.3d 353,
361 (5th Cir. 2002) (" We interpret Simmons to require that a jury be informed about the

defendant's parole eligibility only when (1) the state argues that a defendant represents a
future danger to society, and (2) the defendant is legally ineligible for parole."); Johnson

v.

Cockrell, 306 F.3d 249, 257 (5th Cir. 2002) ("[T]he Simmons Court specifically

acknowledged that its holding did not apply to Texas, where life without any possibility of

parole is not a sentencing option."); Collier v. Cockrell, 300 F.3d 577, 583 (5th Cir. 2002)

("[O]ur circuit has consistently emphasized that Simmons applies only when there is a lifewithout-possibility-of-parole alternative to capital punishment, an alternative not available
under Texas law."); Rudd v. Johnson, 256 F.3d 317, 321 (5th Cir. 2001) ("Here, the jury did

not confront a false choice that needed to be denied or explained. Under Texas law, Rudd

"See Curry v. State, AP-77,033, 2017 WL 781740, at *16 (Tex. Crim. App. Mar. 1, 2017) ("the Texas
Legislature amended Article 37.07 1 in 2005, creating life without parole as the only alternative to the death
penalty for defendants convicted of capital murder").

-53-

would have been eligible for parole after serving fifteen years in prison. Contrary to
Simmons, the jury would not have been mistaken if it believed that it could only sentence

Rudd to death or to a limited period of incarceration. And a jury instruction on Rudd's parole
eligibility would not have denied or explained the State's argument that Rudd was a future

danger to free society."); Wheat v. Johnson, 238 F.3d 357, 361 (5th Cir. 2001) ("We have
repeatedly recognized that the Simmons rule applies only where there is a life-withoutpossibility-of-parole alternative to the death penalty, an alternative that does not exist in

Texas."); Miller v. Johnson, 200 F.3d 274, 290-91 (5th Cir. 2000) ("[B]ecause Miller would
have been eligible for parole under Texas law if sentenced to life, we find his reliance on
Simmons 'unavailing."); Hughes

v.

Johnson, 191 F.3d 607, 617 (5th Cir. 1999) ("We have

repeatedly rejected identical claims based on Simmons."); Montoya

v.

Scott, 65 F.3d 405, 416

(5th Cir. 1995) ("Montoya's Simmons claims are foreclosed by recent circuit authority

rejecting an extension of Simmons beyond situations in which a defendant is statutorily
ineligible for parole.").
In Aliridge

v.

Scott, 41 F.3d 213 (5th Cir. 1994), the Fifth Circuit read "Simmons to

mean that due process requires the state to inform a sentencing jury about a defendant's

parole ineligibility when, and only when, (1) the state argues that a defendant represents a
future danger to society, and (2) the defendant is legally ineligible for parole. Because Texas
did not statutorily provide for parole ineligibility at the time of Aliridge's conviction, we find

Allridge's reliance on Simmons to be unavailing." Id. at 222 (emphasis in original). The
Fifth Circuit reasoned "if a defendant's [parole] ineligibility is a matter of fact, i.e., the
defendant probably will not be eligible for parole, then the evidence is purely speculative
(maybe even inherently 'untruthful') and therefore cannot positively deny future
dangerousness. The jury is left only to speculate about what a parole board may, or may not,

-54-

do twenty or thirty years hence." Id. (emphasis in original). It explained for that reason, the

Supreme Court "reaffirmed that states can properly choose to prevent a jury from engaging in
such speculation." Id.

As the Court noted above, Renteria argues his "parole eligibility was highly relevant
to the Texas future dangerousness question." Pet'r's Br. in Supp. 23-24, ECF No. 58 (citing
Simmons, 512 U.S. at 169). But clearly established federal law, as determined by the

Supreme Court, rejects Renteria's argument that Simmons and its progeny require that he
should be permitted to raise parole eligibility with the jury.
(2). Inaccurate Information

Renteria avers in his reply that his claim is not based on Simmons. Pet'r's Reply Brief
26, ECF No. 94. He contends that his due process rights were violated because the

sentencing jury relied on inaccurate information:

This claim at its core is about providing a sentencing jury with accurate
information. Because of then-existing Texas law, Petitioner's sentencing jury
was instructed that if Petitioner were sentenced to life imprisonment, he would
become parole eligible in forty-years. Vol. 72, 44. This was false. Through
the proffer of an expert witness in Texas sentencing and parole practices,
Petitioner let the Court know that telling the jury that Petitioner would be
parole eligible in forty-years was false. In reality, and as a matter of state law,
Petitioner would have not been parole eligible for 47.5 years. Thus viewed,
this portion of the claim is not grounded in Simmons v. South Carolina a
straw man that the State has erected. This claim is predicated on cases
predating Simmons requiring that a sentencer not be provided with inaccurate
information.
Id. So, Renteria now argues he has a constitutional due process right to be sentenced based
on accurate information. He is correct.

The Supreme Court has held convicted defendants have a right to a sentence based on

accurate information. Tucker, 404 U.S. at 447; Townsend, 334 U.S. at 741. The foundation

of that right is the due process protection against arbitrary government decisions. Indeed, a
convicted offender has a right to a fair sentencing process where the court goes through a

-55-

rational procedure of selecting a sentence based on relevant considerations and accurate

information. As the Supreme Court explained in Townsend:
It is not the duration or severity of this sentence that renders it constitutionally
invalid; it is the careless or designed pronouncement of sentence on a
foundation so extensively and materially false, which the prisoner had no
opportunity to correct by the services which counsel would provide, that
renders the proceedings lacking in due process.
Townsend, 334 U.S. at 741. In Tucker, the Supreme Court reinforced this right to accuracy.
There the defendant was sentenced in part because of a prior conviction which was

the
unconstitutional because he was not represented by counsel. The Supreme Court affirmed
court of appeals decision vacating the sentence:

For we deal here, not with a sentence imposed in the informed discretion of a
trial judge, but with a sentence founded at least in part upon misinformation of
constitutional magnitude. As in Townsend v. Burke, 334 U.S. 736, "this
prisoner was sentenced on the basis of assumptions concerning his criminal
record which were materially untrue."
Townsend, 334 U.S. at 741.

can
Under Townsend and Tucker, a sentence must be set aside where the defendant

for the sentence.
show that extensively and materially false information was part of the basis
was
The two elements of that showing are (1) the information before the sentencer

But the
inaccurate, and (2) the sentencer relied on the misinformation in passing sentence.
549
inaccurate information must be "critical" to the sentencing decision. Simonson v. Hepp,

F.3d 1101, 1107 (7th Cir. 2008). And the sentencer "demonstrates actual reliance on
least in
misinformation when [iti gives 'explicit attention" to it, "found[s]' its sentence 'at

part' on it, or gives 'specific consideration' to the information before imposing sentence."
Lechner v. Frank, 341 F.3d 635, 639 (7th Cir. 2003) (quoting Tucker, 404 U.S. at 447).
In Renteria' s case, the information before the sentencer was accurate. The trial court

correctly explained to the jury that under Texas Code of Criminal Procedure Article 37.071

-56-

§

2(e)(2)(B), a defendantconvicted of capital murder and sentenced to life in

prisonwould

be eligible for parole after serving 40 years in prison:

if the defendant is sentenced to imprisonment in the institutional division of
the Texas Department of Criminal Justice for life, the defendant will become
eligible for release on parole, but not until the actual time served by the
defendant equals 40 years, without consideration of any good conduct time. It
cannot accurately be predicted how the parole laws might be applied to this
defendant if the defendant is sentenced to a term of imprisonment for life
because the application of those laws will depend on decisions made by prison
and parole authorities, but eligibility for parole does not guarantee that parole
will be granted. Tex. Code Crim. Proc. art. 37.071 § 2(e)(2)(B).

Renteriall, 2011 WL 1734067, at *45
Expert witness "Habern's speculative testimony [about parole eligibility] was outside
the scope of what was permitted by that statute." Id. at *46. And even Habern conceded his

testimony regarding parole was "speculative." Reporter's R., vol. 68, pp. 18-19, 26, ECF
No. 8 1-20. See Aliridge, 41 F.3d at 222 ("[I]f a defendant's [parole] ineligibility is a matter

of fact, i.e., the defendantprobably will not be eligible for parole, then the evidence is purely
speculative (maybe even inherently 'untruthful') and therefore cannot positively deny future
dangerousness. The jury is left only to speculate about what a parole board may, or may not,
do twenty or thirty years hence.").

Besides, the indecency and felony DWI judgments were admitted into evidence.

Renteria II, 2011 WL 1734067, at *45 Both judgments showed Renteria's twenty-year
indecency sentence and ten-year felony DWI sentence would run consecutively. Id.
Finally, Renteria's expert "witness Cunningham testified that he believed Renteria
*46.
would 'die in prison' and would 'never be at large in the community." Id. at

In sum, the jury had before it evidence that Renteria would serve at least 40 calendar

years on a life sentence for capital murder of Flores, Renteria faced additional sentences of

-57-

twenty years for indecency with a child and ten years for felony DWI, and Renteria's expert
witness opined the State would never release him from prison.

Renteria has not met his burden of showing his due process rights were violated
because he was, in fact, sentenced based on accurate information. He is not entitled to habeas

relief on his due process claim.
(3). Mitigating Evidence

Renteria also argues the "ruling also prevented [him] from presenting mitigating
evidence, in violation of the Eighth Amendment, and.

. .

a defense, such right secured by the

Sixth and Fourteenth Amendments." Pet'r's Pet. 21-22, ECF No. 53.

Texas defines "mitigating evidence to be evidence that a juror might regard as
reducing the defendant's moral blameworthiness." Tex. Crim. Proc. Code art.

§

37.07 1

§2(0(4) (Vernon 2001). The statute adds, if even one juror decides that, "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," the court must impose
a life sentence. Id.

§

2(e)(1), (0(2), (g). Notably, the definition does not include evidence

regarding parole eligibility.
Renteria "has not cited and this Court has not found any Supreme Court opinion

mandating a definition of mitigating evidence broader than the one provided by the Texas
statute." Runnels

v.

Stephens, 2:12-C V-0074-J-BB, 2016 WL 1274132, at *26 (N.D. Tex.

Mar. 15, 2016), report and recommendation adopted, 2:12-CV-0074-J, 2016 WL 1275654
(N.D. Tex. Mar. 31, 2016), certflcate of appealability denied sub nom. Runnels v. Davis,

664 F. App'x 371 (5th Cir. 2016), cert. denied, 138 S. Ct. 2653 (2018); accordBartee

v.

Quarterman, 574 F.Supp.2d 624, 710 (W.D. Tex. 2008). Indeed, the Supreme Court recently
cited with approval a portion of the definition in the Texas statute. See, e.g., Trevino

v.

Davis, 138 S. Ct. 1793, 1795 (2018) ("If even one juror decides that, "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," the court must impose
a life sentence.") (quoting Tex. Code Crim. Proc. Ann., Art. 37.071

The Supreme Court has

§

2(e)(1), (0(2), (g)).

heldin the context of the Eighth Amendmentcapital

sentencing juries must be permitted to consider and give effect to "constitutionally relevant
mitigating evidence." Buchanan v. Angelone, 522 U.S. 269, 276 (1998); see also Johnson v.
Texas, 509 U.S. 350, 367 (1993), ("a reviewing court must determine whether there is a

reasonable likelihood that the jury has applied the challenged instruction in a way that
prevents the consideration of constitutionally relevant evidence") (quotation marks and
citation omitted); Boyde v. California, 494 U.S. 370, 380 (1990) ("We think the proper
inquiry in such a case is whether there is a reasonable likelihood that the jury has applied the

challenged instruction in a way that prevents the consideration of constitutionally relevant
evidence."). Nevertheless, "there is no.

. .

constitutional requirement of unfettered

sentencing discretion in the jury, and States are free to structure and shape consideration of

mitigating evidence 'in an effort to achieve a more rational and equitable administration of
the death penalty." Johnson, 509 U.S. at 362 (quoting Boyde v. California, 494 U.S. 370,
377 (1990) (quoting Franklin

v.

Lynaugh, 487 U.S. 164, 181 (1988) (plurality opinion))). In

other words, "[t]he State must not cut off full and fair consideration of mitigating evidence;

-59-

but it need not grant the jury the choice to make the sentencing decision according to its own
whims or caprice." Saffle v. Parks, 494 U.S. 484, 493 (1990).
The Supreme Court has consistently employed the phrase "constitutionally relevant

mitigating evidence" to describe evidence which tends to diminish a convicted capital

murderer's moral blameworthiness or lessen the reprehensible nature of the offense
evidence which relates to the defendant's background or character or to the circumstances of

the offense. See, e.g., Trevino, 138 S. Ct. at 1795 (noting that mitigating evidence included
testimony that Trevino's father was largely absent, his mother had problems with alcohol, he
was a loner and dropped out of school, and he was good with children"); Tennard v. Dretke,
542 U.S. 274, 288 (2004) ("Reasonable jurists could conclude that the low IQ evidence

Tennard presented was relevant mitigating evidence."); Penry v. Johnson (Penry II), 532 U.S.
782, 796-97 (2001) (holding that jury instructions in a Texas capital sentencing proceeding
did not adequately afford the jury a means of giving effect to mitigating evidence of the

defendant's "mental retardation and childhood abuse"); Buchanan v. Angelone, 522 U.S. 269,

278-79 (1998) (holding that jury instructions in a Virginia capital sentencing proceeding
adequately permitted consideration of mitigating evidence of the defendant's difficult family
background and mental and emotional problems); Johnson, 509 U.S. at 368 (holding the
Texas capital sentencing special issues given at the defendant's trial permitted adequate jury

consideration of the defendant's youth at the time of his offense); Penry v. Lynaugh (Penry
1), 492 U.S. 302, 309 (1989) (holding an earlier Texas capital sentencing scheme did not

permit the sentencing jury to give effect to the defendant's history of childhood abuse and
mental retardation); Lockett v. Ohio, 438 U.S. 586, 604 (1978) ("[WJe conclude that the

Eighth and Fourteenth Amendments require that the sentencer.

. .

not be precluded from

considering, as a mitigating factor, any aspect of a defendant's character or record and any of

the circumstances of the offense that the defendant proffers as a basis for a sentence less than

death.") (emphasis in original); Woodson v. North Carolina, 428 U.S. 280, 304 (1976)
("{W]e believe in capital cases the fundamental respect for humanity underlying the Eighth

Amendment requires consideration of the character and record of the individual offender and
the circumstances of the particular offense as a constitutionally indispensable part of the
process of inflicting the penalty of death.").

But the Supreme Court has never declared that "constitutionally relevant mitigating
evidence" included information regarding state parole eligibility laws. Rather, the Supreme
Court has "noted with approval.. . that "[mjany state courts have held it improper for the

jury to consider or to be informedthrough argument or instructionof the possibility of
commutation, pardon, or parole. The decision whether or not to inform the jury of the

possibility of early release is generally left to the States." Simmons, 512 U.S. at 176

(O'Coimor, J., concurring) (citing Calfornia v. Ramos, 463 U.S. 992, 1013 n.30, 1014
(1983)).
Indeed, the Supreme Court has never declared that state statutes and administrative

regulations addressing parole eligibility for defendants convicted of capital murder and
sentenced to life imprisonment lessen a defendant's moral blameworthiness. There simply is
no "clearly established" Supreme Court precedent holding that the Eighth Amendment
mandates either the admission of evidence, submission of punishment-phase jury instructions,
or voir dire examination of potential jurors regarding parole eligibility for life sentences in

jurisdictions that do not furnish capital sentencing juries with the option of life without
parole.
And, as the Court has noted above, if parole ineligibility is a question of fact, then

evidence concerning that fact is purely speculativeand perhaps inherently untruthful.

-61-

Aliridge, 41 F.3d at 222. Therefore, a finder of fact may not consider parole ineligibility on

the first special

issuethe future dangerousness issue.

For that reason, "states can properly

choose to prevent a jury from engaging in such speculation." Id
(4). Conclusions

Having carefully reviewed Supreme Court case law, the Court finds the Texas Court

of Criminal Appeals' rejection of Renteria's claim that the trial court erred when it refused to
permit him to offer evidence of his lack of parole eligibility was neither contrary to, nor
involved an unreasonable application of, "clearly established Federal law, as determined by

the Supreme Court of the United States." 18 U.S.C.

§

2254(d). The Supreme Court has

never held that the Fourteenth Amendment's Equal Protection Clause, the Eighth
Amendment, the Sixth Amendment, or the Fourteenth Amendment's Due Process Clause
require a jurisdiction such as Texaswhich, at the time of Renteria' s sentencing, did not

offer a capital sentencing jury the option of sentencing a convicted capital murderer to a term

of life imprisonment without the possibility of paroleto allow ajury to hear evidence
regarding the intricacies of parole law. In fact, the Supreme Court's Fourteenth Amendment

jurisprudenceincluding Simmons and its progenymakes an express distinction between
the rule applied in Simmons and the due process requirements in jurisdictions such as Texas,
where sentencing choices were not limited to either death or life without parole.
Consequently, the Texas Court of Criminal Appeals' rejection on the merits of

Renteria's claims regarding the trial court's refusal to permit him to offer evidence of his lack

of parole eligibility 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

-62-

presented in Renteria's trial, direct appeal, and state habeas corpus proceedings. Renteria is

not entitled to relief on this claim.
b.

Jury Instruction

Renteria maintains the trial court instructed the jury in a misleading and confusing
manner. Renteria explains his counsel attempted to secure an instruction on parole eligibility

which provided the jury with information concerning his prior sentences. Specifically, his
counsel offered the following alternative instructions:

You are instructed that the Defendant in this case has been previously
to TWENTY years in the Institutional Division of
sentenced in cause No.
the Texas Department of Criminal Justice; and to TEN years in the
Institutional Division of the Texas Department of Criminal. Justice in Cause
No. -. You are further instructed that the TEN year sentence will not begin to
operate until the TWENTY year sentence ceases to operate. You are
instructed that, under the law applicable in this case, if the Defendant is
sentenced to imprisonment in the Institutional Division of the Texas
Department of Criminal Justice for life, the Defendant will become eligible for
release on parole, but not until the actual time served by the Defendant equals
40 years, without consideration of any good conduct time, except that the
Defendant will not begin serving time on the life sentence until the two prior
sentences have each ceased to operate, it cannot accurately be predicted how
the parole laws might be applied to this defendant if the defendant is sentenced
to a term of imprisonment for life because the application of those laws will
depend on decisions made by prison and parole authorities, but eligibility for
parole does not guarantee that parole will be granted. You are not to consider
the manner in which the parole law may be applied to this particular
Defendant.
Or

You are instructed that the Defendant in this case has been previously
to TWENTY years in the Institutional Division of
sentenced in cause No.
the Texas Department of Criminal Justice; and to TEN years in the
Institutional Division of the Texas Department of Criminal Justice in Cause
You are further instructed that the TEN year sentence will not begin
No.
to operate until the TWENTY year sentence ceases to operate. You are
instructed that, under the law applicable in this case, if the Defendant is
sentenced to imprisonment in the Institutional Division of the Texas
Department of Criminal Justice for life, the Defendant will become eligible for
release on parole when he has served a fun total of 40 years, day for day,
without any credit of any kind, without consideration of any good conduct
time, except that the Defendant will not begin serving time on the life sentence

-.

-63-

until the two prior sentences have each ceased to operate. It cannot accurately
be predicted how the parole laws might be applied to this defendant if the
defendant is sentenced to a term of imprisonment for life because the
application of those laws will depend on decisions made by prison and parole
authorities, but eligibility for parole does not guarantee that parole will be
granted. You are not to consider the manner in which the parole law may be
applied to this particular Defendant.

Renteria v. State (Appellant's Brief), 2009 WL 5453014 (Dec. 15, 2009), at *156_*157.
At the time of Renteria' s trial, Texas law provided that, upon written request by
defense counsel, a capital sentencing jury be charged as follows:
Under the law applicable to this case, if the defendant is sentenced to life
imprisonment, the defendant will become eligible for release on parole, but
not until the actual time served by the defendant equals 40 years, without
consideration of any good conduct time. It cannot be accurately predicted
how the parole laws might be applied to this defendant if the defendant is
sentenced to a term of imprisonment for life because the application of those
laws will depend on the decisions made by the prison and parole authorities,
but eligibility for parole does not guarantee that parole will be granted.
Tex. Code. Crim. P. art. 37.07 1

§

2(e)(2)(B) (Vernon 2001).

The trial court accordingly instructed the jury in accordance with the Texas Code of

Criminal Procedure. Reporter's R., vol. 72 (Courts Charge to the Jury), p. 44, ECF No. 82-4.

But the trial court also admitted the indecency and felony DWI judgments into evidence.

Renteria II, 2011 WL 1734067, at *45 Both judgments showed the 20-year indecency
sentence and the 10-year felony DWI sentence would run consecutively. Id. And "[d]efense
witness Cunningham testified that he believed Renteria would 'die in prison' and would

'never be at large in the community." Id. at *46.
Renteria suggests the state trial court violated his due process rights by failing to
instruct the jury thatif the jury elected to impose a life sentencethe trial court would
stack his other sentences on his life sentence and he would not be eligible for parole for at
least 47

V2

years. Yet, "under regimes that allow for parole eligibility, the decision whether to

instruct the jury on that fact is reserved to the states, and the [Supreme] Court 'shall not

-64-

lightly second-guess' the decision."

Thacker,

396 F.3d at 617 (quoting Simmons, 512 U.S. at

169). Simmons provides no support for Renteria's due process challenge. And the Fifth

Circuit has "rejected the argument that the denial of a parole eligibility instruction violates

the Eighth Amendment."

Collier,

300 F.3d at 583.

Renteria' s claim also lacks merit because his proposed jury instruction was, itself;
misleading. It asserted as fact that the trial court would stack his prior two sentences onto a
life sentence in this case. Reporter's R., vol. 72 (Objections to Courts Charge), p. 30, ECF

No. 82-4; Clerk's R., vol. 8, pp. 148-49 (Requested Instruction to the Jury Regarding Parole

Law), ECF No. 79-11. At the time of Renteria' s second punishment trial, the trial court had

not decided whether it would stack a capital-life sentence onto Renteria's prior two sentences.

Habem conceded as much. Reporter's R., vol. 68 (Testimony of William T. Habern), p. 19,
ECF 81-20. Renteria provides no authority for the proposition that he had a constitutional

right to present the jury with his misleading jury instruction.
The Supreme Court has never held that the Fourteenth Amendment's Equal Protection

Clause, the Eighth Amendment, the Sixth Amendment, or the Fourteenth Amendment's Due
Process Clause require a jurisdictionwhich did not offer the option of sentencing a

convicted capital murderer to life imprisonment without paroleto allow a jury to receive
instructions regarding the intricacies of the parole law applicable to life sentences.
As a result, the Texas Court of Criminal Appeals' rejection on the merits of Renteria's

claims regarding the trial court's instructions to the jury on his eligibility for parole 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 considering the evidence presented in Renteria' s trial,

-65-

direct appeal, and state habeas corpus proceedings. Hence, Renteria is not entitled to habeas

relief on this claim.
c. Closing

Argument

Renteria claims the prosecutor made an improper jury argument which misstated the
evidence and misled the jury. At issue is the prosecutor's closing argument that there was
"no evidence" Renteria would be incarcerated "his whole life" if the trial court imposed a life
sentence. Pet'r's Pet. 26, ECF No. 53. Renteria maintains the prosecution's suggestion that
he "could be released from prison" was both "false and misleading." Id. at 21.

Renteria's counsel asked Dr. Cunningham, "based on your expertise and your
research of prison life and prison sentencing, when is [Renteriaj ever going to be at large in
the community?" Reporter's R., vol. 71, p. 88, ECF No. 82-3. Dr. Cunningham answered, "I

believe that he will die in prison, that he will never be at large in the community." Id.
The following exchange then occurred between Dr. Cunningham and Renteria's
counsel:
Q. {Defense Counsel Jaime Gandara] Is David Renteria -- is there a
probability that he's going to commit continuing acts of violence that
constitute a continuing threat -- that he will commit acts of violence that
would constitute a continuing threat to society in the future?

A. That likelihood is very low. It becomes even less likely as the
severity of the criminal act increases. He -- as we compare him to other
capital offenders his likelihood is well below that of the typical capital
offender and well below that of the typical prison inmate. So he is neither
disproportionately likely to commit violence in prison nor is he probable in
terms of that having a meaningful definition of more likely than not or a
substantial or disproportionate.
There is always -- if possibility -- if probability means possibility then
the answer is always yes for every capital defendant for everybody in this
room the answer would be yes there's always some possibility.
Id. at 88-89.

The trial court instructed the jury in accordance with Texas Code of Criminal

Procedure Article 37.071

§

2(e)(2)(B). Reporter's R., vol. 72 (Courts Charge to the Jury), p.

44, ECF No. 82-4; Clerk's R., vol. 8, pp. 174-75, ECF No. 79-11. It explained that if the

jury elected to sentence Renteria to life in prison for murdering Flores, he would be eligiWe
for parole after serving forty years in prison. Id.

During closing argument, Renteria's counsel asserted that Renteria would spend the

rest of his life in prison. Reporter's R., vol. 72 (Argument of Defense Counsel), pp. 80 ("it is
not undisputed [sic] that David Renteria will live the rest of his life and will die in prison"),
112 ("There is unrebutted and unchallenged testimony that David is going to be [in prison]

for the rest of his life. If he gets a life sentence he's going to die in prison. He's not getting

out."), ECF No. 79-11.
The State countered in his closing argument that Renteria remained a continuing

threat, in or out of prison:
And he is a continuing threat. He does not deserve the right to go to general
population. We have no idea what kind of circumstances, crisis, that he might
find possible, and then we'll see this. We'll see this.
And they want to equivocate that continuing threat, the threat -- it doesn't have
to be another homicide. It can be a variety of violent conduct and threat.
Whether you want to give him credit for living in that prison society or in the
free world. But obviously even Dr. Cunningham -- and I don't agree with
much of what he says -- but Dr. Cunningham says that in the free world he is a
continuing --

Reporter's R., vol. 72 (Argument of Prosecutor), p. 132, ECF No. 79-11.

Renteria's counsel objected, asserting that the "unrebutted testimony" was that, if
Renteria received a life sentence, "he's going to be in prison his whole life." Reporter's R.,
vol. 72 (Argument of Defense Counsel), p. 132, ECF No. 79-11. After the trial court

overruled the objection, the prosecution asserted, "[t]here's no evidence in [the record] that

-67-

he'll be in there his whole life. You can read that record all you want. There's no evidence

of that." Id. Renteria's counsel did not object to the prosecution's claim.
(1). Procedural Bar

Renteria's appellate counsel raised this claimthat the trial judge improperly
permitted the State to argue there was no evidence appellant would likely be in prison for the
rest of his

lifein Renteria's direct appeal.

Renteria II, 2011 WL 1734067, at *47 The

claim was dismissed under the Texas contemporaneous objection rule because Renteria's trial
counsel failed to preserve it:

Defense counsel objected when the prosecutor stated that Cunningham
testified Renteria would be a continuing threat in the free world. But that is
not what Renteria is complaining about on appeal. Here, he asserts that the
trial judge improperly "permitted the State [to] argue that there was no
evidence appellant would likely be in prison for the rest of his life." However,
defense counsel did not object when the prosecutor argued that "[t]here's no
evidence that he'll be in there his whole life." Thus, Renteria has failed to
preserve his right to complain about this particular argument on appeal.
Id.
Under the procedural default doctrine, "Federal habeas courts reviewing convictions
from state courts will not consider claims that a state court refused to hear based on an

adequate and independent state procedural ground." Davila v. Davis, 137 S. Ct. 2058, 2062
(2017). "The procedural default doctrine [is] 'grounded in concerns of comity and

federalism.'" Edwards

v.

Carpenter, 529 U.S. 446, 451 (2000) (quoting Coleman, 501 U.S.

at 730). It "ensures that federal courts give proper respect to state procedural rules." Muniz
v.

Johnson, 132 F.3d 214, 220 (5th Cir. 1998) (quoting Glover v. Cain, 128 F.3d 900, 902

(5th Cir. 1997).

Indeed, "federal habeas relief will be unavailable when (1)

'a state court [has]

declined to address a prisoner's federal claims because the prisoner had failed to meet a state
procedural requirement,' and (2) 'the state judgment rests on independent and adequate state

-68-

procedural grounds." Walker v. Martin, 562 U.S. 307 (2011) (quoting Coleman, 501 U.S. at

729-730). To qualify as an "adequate" procedural ground, the state rule must be "firmly
established and regularly followed." Beardv. Kindler, 558 U.S. 53, 60 (2009) (quoting Lee
v.

Kemna, 534 U.S. 362, 376 (2002)).

It is well-settled that the Texas contemporaneous objection rulewhich "ordinarily
precludes the raising on appeal of the unpreserved claim of trial error"constitutes an
adequate and independent state ground for dismissal of a claim. Puckett v. United States, 556
U.S. 129, 134 (2009); Cardenas v. Dretke, 405 F.3d 244, 249 (5th Cir. 2005).

Renteria's claim was expressly dismissed on a state procedural rule because his
objection was not properly preserved by his trial counsel, and the rule provided an
independent and adequate ground for dismissal. Hence, Renteria procedurally defaulted his
claim in the state courts. See Allen v. Stephens, 805 F.3d 617, 635-36 (5th Cir. 2015)

(holding that rejection of claim based on the contemporaneous objection rule is an
independent and adequate state-law procedural ground sufficient to bar federal habeas review

of federal claims); Amos v. Scott, 61 F.3d 333, 45 (5th Cir. 1995) ("We hold, therefore, that
the Texas contemporaneous objection rule.

. .

is an independent and adequate state-law

procedural ground sufficient to bar federal court habeas review of federal claims.").

Renteria maintains the ineffective assistance of his trial, appellate, and state habeas
counsel excuse his procedural default. "That is because if the waiver holding is valid, trial
and appellate counsel were ineffective, and initial post-conviction counsel was also
ineffective for failing to raise this claim." Pet'r's Pet. 27, ECF No. 53.

"Section 2254(i) provides that "the ineffectiveness or incompetence of counsel during
Federal or State collateral post-conviction proceedings shall not be a ground for relief.'

'Cause,' however, is not synonymous with 'a ground for relief." Martinez v. Ryan, 566 U.S.
I.

1, 17

(2012). "Cause is defined as 'something external to the petitioner, something that

cannot fairly be attributed to him' that impedes his efforts to comply with the procedural
rule." Moore v. Roberts, 83 F.3d 699, 704 (5th Cir. 1996) (quoting Coleman, 501 U.S. at
753). A showing of prejudice requires the petitioner to prove "not merely that the errors at
his trial created a possibility of prejudice, but that they worked to his actual and substantial

disadvantage, infecting his entire trial with error of constitutional dimensions." United States
v.

Frady, 456 U.S. 152, 170 (1982). "A finding of cause and prejudice does not entitle a

petitioner to habeas relief. It merely allows a federal court to consider the merits of a claim

that otherwise would have been procedurally defaulted." Martinez, 566 U.S. at 17.
In Martinez v. Ryan, 566 U.S.

1

(2012), and Trevino v. Thaler, 569 U.S. 413 (2013),

the Supreme Court "treats ineffective assistance by a prisoner's state postconviction counsel
as cause to overcome the default of a single claimineffective assistance of trial counselin

a single contextwhere the State effectively requires a defendant to bring that claim in state

postconviction proceedings rather than on direct appeal." Davila, 137 5. Ct. at 2062-63. But
to establish cause to excuse the procedural default, a petitioner must show "(1) that his claim

of ineffective assistance of counsel at trial is substantiali.e., has some meritand (2) that
habeas counsel was ineffective in failing to present those claims in his first state habeas
proceeding." Segundo v. Davis, 831 F.3d 345, 350 (5th Cir. 2016) (quoting Garza, 738 F.3d
at 676). "Thus, a Section 2254 application seeking to excuse procedural default must show
counsel was deficient at two different proceedingsboth the counsel at the time of the state

criminal conviction and then the counsel at the time of state habeas." Soliz

v.

Davis, No. 17-

70019, 2018 WL4501154, at *7(5thCir. Sept. 18, 2018).

While constitutionally ineffective assistance of counsel may provide cause to excuse a

procedural default, it must firstlike all other constitutional

-70-

claimsbe "presented to the

state courts as an independent claim before it may be used to establish cause for a procedural

default." Murray v. Carrier, 477 U.S. 478, 489 (1986). "The principle of comity that
underlies the exhaustion doctrine would be ill served by a rule that allowed a federal district
court 'to upset a state court conviction without an opportunity to the state courts to correct a

constitutional violation,' and that holds true whether an ineffective assistance claim is
asserted as cause for a procedural default or denominated as an independent ground for
habeas relief." Id. (quoting Darr v. Burford, 339 U.S. 200, 2041 (1950)). "In other words,
the claim of ineffective assistance of counsel on direct appeal is an independent constitutional
violation, which must itself be exhausted using state collateral review procedures." Hatten v.

Quarterman, 570 F.3d 595, 605 (5th Cir. 2009) (citing Edwards

v.

Carpenter, 529 U.S. 446,

45 1-53 (2000).

Renteria did not raise his ineffective assistance of counsel claims in state court. His
allegations cannot constitute cause for the default of this claim because his claims are
unexhausted. Carrier, 477 U.S. at 488; Hatten, 570 F.3d at 605 (citing Carpenter, 529 U.S.
at 451-53). Therefore, alleged ineffective assistance of state habeas counsel cannot

constitute cause for Renteria's claim regarding the State's closing argument.
Moreover, even if he had raised the claims in state court, he has not shown that

something external which cannot fairly be attributed to him impeded his efforts to comply
with the procedural rule or that the error infected his entire trial with error of constitutional
dimensions.
Consequently, Renteria has failed to show cause and prejudice for the default of this
claim and it may be dismissed on this ground alone. Nonetheless, as discussed below, the
claim is without merit.

-71-

(2). Merits

"In order to be appropriate, jury argument must fall within the categories of (1)
summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to
argument of opposing counsel; or (4) plea for law enforcement." Darden v. State, 629
S.W.2d 46, 52 (Tex. Crim. App. 1982). For a reviewing court, "[t]he relevant question is

whether the prosecutors' comments 'so infected the trial with unfairness as to make the
resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181
(1986) (quoting Donnelly

v.

DeChristoforo, 416 U.S. 637, 643 (1974)). "Such unfairness

exists 'only if the prosecutor's remarks evince either persistent and pronounced misconduct

or.

. .

the evidence was so insubstantial that (in probability) but for the remarks no conviction

would have occurred." Harris v. Cockrell, 313 F.3d 238, 245 (5th Cir. 2002) (quoting

Kirkpatrickv. Blackburn, 777 F.2d 272, 281 (5th Cir.1985)); see also Menzies v. Procunier,
743 F.2d 281, 288-89 (5th Cir.1984) ("[A] prosecutor's improper argument will, in itself,

exceed constitutional limitations in only the most 'egregious cases.' ") (quoting Houston v.
Estelle, 569 F.2d 372, 382 (5th Cir. 1978)).
To the extent Renteria complains that the State improperly argued that there was no

evidence he would spend the rest of his life in prison, such an argument was both a
reasonable deduction from the evidence and a proper rebuttal to the defense's closing
argument. Indeed, the trial court's jury charge properly instructed the jury that Renteria

would be eligible for parole release after serving 40 years in prison. Reporter's R., vol. 72
(Courts Charge to the Jury), p. 44, ECF No. 82-4; Clerk's R., vol. 8, pp. 174-75, ECF No.
79-11. And although Dr. Cunningham testified that--in his opinion based on his research of

prison life and sentencingRenteria would spend the rest of his life in prison, Reporter's R.,
vol. 71, p. 88, ECF No. 82-3, he did not testify that Renteria could not and would not ever

-72-

attain parole eligibility. The State was therefore entitled to rebut Dr. Cunningham's

testimonyand the defense's closing argument suggesting Renteria would die in prison
and direct the jury's attention to the trial court's instructions. There was no evidence before

the jury that Renteria would never attain eligibility for parole, and the State was entitled to
argue as much. Consequently, Renteria fails to show that the State presented an improper

closing argument.
Moreover, Renteria fails to demonstrate harm. The complained-of argument by the
State was not persistent and pronounced. Further, the argument merely reiterated what the

jury charge properly informed the jurythat Renteria would become eligible for parole
release. Lastly, Renteria cannot showin light of the substantial aggravating evidence

presented at trialthat but for the remarks no conviction would have occurred.

Renteria's claim is both barred and without merit. He is not entitled to relief

-73-

Claim IV - Renteria's federal constitutional guarantees of effective
assistance of counsel, trial by an impartial jury, an individualized sentencing
determination, and due process of law were violated when the trial court
prohibited questioning during voir dire regarding the jurors' ability to consider
and give effect to mitigating circumstances and to consider the full range of
punishment, and otherwise follow the law. Pet'r's Pet. at 28-90, ECF No. 53; Br.
in Supp. 32-46, ECF No. 56.

D.

1.

Background

Renteria presents multiple claims regarding the voir dire process. First, he complains

the venire members were "repeatedly instructed.

. .

that there must be a nexus between

mitigation and the offense." Pet'r's Pet. 28-29, ECF No. 53. Second, he notes "the trial
court prohibited counsel from any discussion regarding mitigation or providing examples of

what the Supreme Court has held are significant [mitigating] factors." Id. at 29. Third, he

protests "[t]he trial court refused to answer jurors' concerns and prohibited counsel from
questioning them about whether they could sentence a defendant convicted of capital murder

of a child to life with the possibility of parole." Id. Fourth, he claims "[cjounsel was also
disallowed to ask jurors if they could consider a sentence of life with the possibility of parole

for a defendant convicted of capital murder who had prior felony convictions." Id. Finally,
he also complains the jury "included members who were substantially impaired in their
ability to follow the law." Id. at 30.

Renteria specifically claims Juror Donnie Malpass was seated without "questioning
her about her ability to consider mitigating evidence and the full range of punishment." Id. at
28. Juror John Harton was seated after the "trial court endorsed an unconstitutional definition

of mitigation" and was "unable to consider and give effect to mitigation." Id. at 43. Norman
Thomas was seated after the trial "court endorsed unconstitutional definition of mitigation"
and was "unable to consider and give effect to mitigation." Id. at 48. Brett Williams was

seated while he was "unable to consider and give effect to mitigation." Id. at 49. Roxanne

-74-

Castricone was seated after the trial "court endorsed unconstitutional definition of mitigation"
and "was unable to consider mitigation." Id. at 49. Washington Watley was seated after

Renteria's challenged him for cause "on the grounds he is biased and cannot be impartial
because he has two young daughters, and because he would automatically believe and lend
more credibility to law enforcement officers." Id. at 86. "{T]he trial court overruled the

challenge for cause, and because the defends had exhausted all peremptory challenges, Mr.
Watley was seated as a juror."

Id.

Jeanette Sanchez was seated after stating "she would

sentence a defendant to death after determining he was a future danger."

Id.

at 87. Renteria

challenged Sanchez "for cause on the basis that she was unable to follow the law regarding
sentencing." Id. at 89. The trial court denied the challenge for cause. Id.

Renteria notes he "requested additional peremptory challenges because the court
denied proper challenges for cause."

Id.

at 76.

Renteria also claims the trial court placed unconstitutional and improper limitations
on his voir dire of the following peremptorily challenged prospective jurors:

Mark Anthony Tapia Peremptory Challenge Preconceived
Regarding Punishment, Unable to Consider Mitigation, Shifts the
Decision
Burden of Proof to the Defendant
2. Mr.

3.

Mr. Joaquin Rivera

Peremptory Challenge

Unable to Consider

Mitigation
Peremptory Challenge Unable to Consider
Effect to Mitigation and Consider the Full Range of Punishment
and Give
4. Ms. Elizabeth Black

Peremptory Challenge
6: Annette Brigham
Renteria Unable to Consider Full Range of Punishment

Biased against Mr.

Mark Williams Peremptory Challenge Unable to Consider the
Full Range of Punishment Unable to Follow the Law Biased by Publicity
9.

-75-

10.

Mark Robert

Peremptory Challenge
Expert Bias

Williams5

Consider Full Range of Punishment

Unable to

Unable to Consider
Peremptory Challenge
Definition of Shifts Burden of
Mitigation Court Endorsed Unconstitutional
Proof to Defendant
11.

Carlos Martinez

Ramirez Biased against Mr. Renteria Unable
to Consider Mitigation Unable to Consider Full Range of Punishment
12. Evangeline Rose

Paul Steven Watt Peremptory Challenge -- Unable to Consider
Shifted
Unable tO Consider Mitigation
the Full Range of Punishment
Burden of Proof to the Defense
13.

Peremptory Challenge
to Consider Mitigation
Unable

Shifts Burden of Proof

Peremptory Challenge
16. Anna Nava
Mitigation Shifts Burden of Proof to Defense

Unable to Consider

15.

Lorena Carreon

to the Defense

Peremptory Challenge Unable to Consider
Unable to Consider Full Range of Punishment

17. Longino Gonzalez

Mitigation

-

Cruz Angel Ochoa, Jr. Peremptory Challenge Court Endorsed
Unconstitutional Definition of Mitigation Unable to Consider Mitigation
Unable to Consider Full Range of Punishment
18.

19.

Mitigation
Bias

Unable to Consider
Peremptory Challenge
Unable to Consider Full Range of Punishment Law Enforcement

Howard Bryan

Peremptory Challenge
20. John Tobias
Mitigation Unable to Consider Full Range of Sentence

Unable to Consider

Unable to Consider
Peremptory Challenge
21. Robert Crosby
Unable to
Unable to Consider Full Range of Punishment
Mitigation

Consider Mitigation
Unable to Consider
Peremptory Challenge
22. Robert Torres6
Mitigation Unable to Consider Full Range of Punishment

6

Mark Williams and Mark Robert Williams are the same person.
The Court believes this person is Robert P. Tomes.

-76-

Trial Court
Peremptory Challenge
23. John David Turner
of Mitigation Unable to Consider the
Endorsed Unconstitutional Definition
Full Range of Punishment Unable to Consider Mitigation
24. Margaret Jackson Peremptory Challenge
Renteria Unable to Consider Mitigation

Biased against Mr.

25. Mr. Daniel Gurany Peremptory Challenge
Mitigation Unable to Follow the Law

Unable to Consider

26. Leslie Potter Peremptory Challenge Unable to Consider Full
Range of Punishment Unable to Consider Mitigation

Unable to
Peremptory Challenge
27. John Deslongchamps
Consider the Full Range of Punishment Unable to Consider Mitigation

Pet'r's Br. in Supp. 41-45, ECF No. 58.
The Court of Criminal Appeals reviewed Renteria's claims concerning purported
errors during voir dire in his direct appeal. See Renteria v. State (Appellant's Brief), 2009
WL 5453014 (Dec. 15, 2009), at *42_* 154. The Court of Criminal Appeals affirmed the

trial court in all respects. Renteriall, 2011 WL 1734067, at *4_*38.
2. Applicable Law

The Sixth and Fourteenth Amendments guarantee a defendant the right to an impartial

jury. Witherspoon v. State ofIii., 391 U.S. 510, 518 (1968). For this reason, a defendant is
"entitled to be tried.

. .

by jurors who had no bias or prejudice that would prevent them from

returning a verdict according to the law and evidence." Connors

v.

United States, 158 U.S.

408, 413 (1895).

"[T]he Constitution presupposes that a jury selected from a fair cross section of the
community is impartial, regardless of the mix of individual viewpoints actually represented
on the jury, so long as the jurors can conscientiously and properly carry out their sworn duty

to apply the law to the facts of the particular case." Lockhart v. McCree, 476 U.S. 162, 184

-77-

(1986). "[T]he proper standard for determining when a prospective juror may be excused for

cause because of his or her views on capital punishment.

. .

is whether the juror's views

would 'prevent or substantially impair the performance of his duties as a juror in accordance

with his instructions and his oath." Wainwright v. Witt, 469 U.S. 412, 424 (1985) (quoting
Adams v. Texas, 448 U.S. 38, 45(1980)). A court should, for example, excuse a prospective

"juror who will automatically vote for the death penalty in every case" because he "will fail
in good faith to consider the evidence of aggravating and mitigating circumstances as the

instructions require him to do." Morgan v. Illinois, 504 U.S. 719, 727, 729 (1992).

As a result, a defendant must have an opportunity to expose bias, prejudice among
prospective jurors. Morfordv. United States, 339 U.S. 258 (1950). Voir dire performs a

"critical function in assuring a criminal defendant that his Sixth Amendment right to an
impartial jury will be honored." Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981).
It enables a defendant to identify biased, prejudiced or unqualified jurors. Morgan, 504 U.S.
at 727, 729; Rosales-Lopez, 451 U. S. at 188. It allows a defendant to challenge prospective

jurors for cause before a judge able to rule on their removal. Morgan, 504 U.S. at 729-73 0;

Mu'Minv. Virginia, 500U.S. 415, 431 (1991).
Still, "the trial court retains great latitude in deciding what questions should be asked

on voir dire." Mu 'Mm, 500 U.S. at 424. "[A] suitable inquiry is permissible in order to

ascertain whether the juror has any bias, opinion, or prejudice that would affect or control the
fair determination by him of the issues to be tried." Id. at 422 (quoting Connors, 158 U.S. at
413). "To be constitutionally compelled.

. .

it is not enough that such questions might be

helpful. Rather, the trial court's failure to ask these questions must render the defendant's

trial fundamentally unfair." Id. at 425-26; Morgan, 504 U.S. at 730 n.5.

"[A]lthough although there are no constitutional provisions directly addressing the use

of hypothetical questions during voir dire, there may be circumstances where a party's
manner of conducting voir dire renders a jury [non-]impartial and thereby triggers a Sixth
Amendment violation." Hobbs v. Lockhart, 791 F.2d 125, 129 (8th Cir. 1986). For
example, asking a potential jurors how they "would weigh evidence [they] had not heard"
would "not be a proper line of inquiry." Sandidge v. Salen Offshore Drilling Co., 764 F.2d
252, 257 (5th Cir. 1985).

Finally, a defendant does not have a constitutional right to peremptory challenges.

"[TJhe 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). "They are a means to achieve the end of an impartial jury. "So long as the

jury that sits is impartial, the fact that [the petitioner] had to use a peremptory challenge to
achieve that result does not mean that the Sixth Amendment was violated." Ross v.
Oklahoma, 487 U.S. 81, 88 (1988); see also Soria, 207 F.3d at 241-42 ("[B]ecause [the

venire member] did not sit on [the petitioner's] jury, [the petitioner] is precluded from

making a substantial showing of the denial of a federal right with respect to this claim.").
And since the Constitution does not require peremptory challenges, "this benefit cannot be a
basis for making 'content' questions.

. .

a constitutional requirement. Mu 'Mm, 500 U.S. at

424-25. So, "[t]he failure properly to grant a challenge for cause rises to the level of a
constitutional violation and warrants reversal only if the defendant exhausts all peremptory
challenges and an incompetent juror is forced upon him. Absent such a showing, the
defendant has not been denied his Sixth Amendment right to an impartial jury." United

States

v.

Webster, 162 F.3d 308, 342 n.36 (5th Cir. 1998).

-79-

3. Discussion

a. Nexus Between Mitigation and the Offense

Renteria asserts his "death sentence is invalid because his second penalty jury was
repeatedly instructed during the voir dire process there must be a nexus between mitigation
and the offense." Pet'r's Pet. 28-29, ECF No. 53. He cites two examples. The first occurred
during the voir dire of seated juror John C. Harton:
THE COURT: I can't go into specific instances of what mitigation is
because mitigation means different things to different people. You know what
is less bad to some folks might be real bad for other folks. It's entirely up to
you. We can only tell you that to be a fair impartial juror you must be able to
consider mitigating evidence in compliance with that question and including
those type of things like his character and background the circumstances of the
offense and the persons moral culpability. My question to you is you limited
to yourself when you said -A. I see. Yes, I do.

THE COURT: And if you feel that way that's fine. And my question
is can you consider those other things, his character and his background?
A. Yes, I can consider that.

A. So what you're saying is his background his character his moral
culpability all that will have a bearing on what happened at -- at the time of the
murder that could have affected the reason why he committed that murder is
that what you're? I -- I could go along with that.

And it
Q. [Defense Counsel Jaime Gandara] It might or might not.
doesn't have to have a bearing on what happened at the time of the murder in
order to be considered by ajuror to be mitigating.
MS. MERAZ: [Prosecutor Diana E: Merazj Objection misstatement. It
has to do -- there has to be a nexus between the two.

MR. GANIDARA: Your Honor Tennard v.

THE COURT: I'm going to overrule the objection.
MR. GANDARA: It doesn't have to be connected to the commission
of the offense. Mitigation has been defmed by -- by the Supreme Court

-80-

another court as being things that -- that in a juror's mind would -- that is of
such a character that it might serve as a basis or a sentence less than death.
MS. MERAZ: Objection misstatement of the law.

THE COURT: As far as quoting any definition out of any cases, I'm
going to sustain the objection. We shouldn't be -- the thing is can you
consider mitigation as -- as required by that question [special issue two] is the
ultimate issue sir?
A. Yes, I can.

Reporter's R., vol.

13

(voir dire of John C. Harton), pp. 83-84, ECF No. 80-5.

The other occurred during the voir dire of peremptorily challenged venire member
Cruz A. Ochoa Jr.:
A. [Cruz A. Ochoa Jr.] And what is mitigating circumstance?

something
Q. [Prosecutor Lori C. Hughes] Mitigating circumstance is
life instead of death. It could be
that makes you think this person deserves
anything. And I can't tell you
A. Oh.

think that is.
Q. -- and I'm not -- I'm not allowed to ask you what you
A. Okay.
Q.

Because the evidence is what the jury is to look at.

A. That's a big question there for me as far as -Q.

Okay.

A. -- what is mitigating. That would be answered through the trial or --

You can
Q. We'll talk -- yeah its -- well we'll talk a little bit about it.
-- I threaten another person to get that
have a robbery where someone threat
property let's say. You can have an aggravated robbery where I threaten them
with a gun.
A. Okay.
Q.

Would you agree the aggravated robbery is worse?

A. Yes because you actually showed a weapon.

-81-

Q. Right. And it -- it's call -- it's a different offense.

A. Uh-huh.
Q. It's actually a higher level of offense. It's aggravating.

MS. PAYAN: [Defense Counsel Edythe M. Payan} Objection, Your
Honor. This is connecting mitigation to the actual crime and there's no
requirement for mitigation that it actually be a nexus and I would state that
this example is a misstatement and is misstating the law.
THE: COURT: Overruled.
Q. By Ms. Hughes -- Okay.

So, we understand what aggravating

means?
A. Yes.
Q. Mitigating is the opposite. Mitigating means it's not so bad. It's
something that makes a crime less whatever that is.

MS. PAYAN: Objection. And again it's not something that makes the
crime less. Under Tennard v. Dretke there is no nexus requiring that
mitigation is anything that the evidence is such character that might serve as a
basis for a sentence less than death.

Reporter's R., vol. 24 (voir dire of Cruz A. Ochoa Jr.), pp. 144-146, ECF No. 80-16.
(1). Procedural Bar

The Court of Criminal Appeals specifically declined to address Renteria' s claim "the
trial judge deprived him of due process and due course of law 'by permitting the State to
inform the veniremen that [the] law required a nexus between the crime and mitigation

evidence." Renteriall, 2011 WL 1734067, at *38. It reasoned "Renteria has provided no
citation to the record or legal authority in support of this claim. Thus, it is inadequately
briefed, and we decline to address it." Id. (citing Tex. R. App. P. 38.1).

When the state court rejects a claim pursuant to a state procedural rule which provides
an adequate basis for the decisionindependent of the merits of the

default bars a federal habeas claim.

Hughes,

claimthe procedural

530 F.3d at 341 (citing Coleman, 501 U.S. at

-82-

ground must be both
729-32). To be "adequate" to support the judgment, the state law

"firmly established and regularly followed" by the state courts.

Ford v. Georgia, 498 U.S.

Appeals'] capital sentencing
411, 423-24 (1991). "A survey of the [Texas Court of Criminal
direct and postconviction
jurisprudence reveals that it regularly rejects claimsboth on

reviewon the basis that these claims are inadequately briefed."

Roberts

v.

Thaler, 681 F.3d

597, 607 (5th Cir. 2012).

requirements of
In this case, the Court of Criminal Appeals invoked the briefing
Its determination
Texas Rule of Appellate Procedure 38.1 to bar Renteria's claim.

of relief which procedurally
constituted an independent and adequate state ground for denial
bars federal habeas review.

Id at 608.

fail to take into
Renteria contends "[t]he State's exhaustion and default arguments

grounds during the voir dire,
account that to the extent trial counsel failed to raise the proper
Trevino." Pet'r' s Reply 37, ECF No.
such failure would constitute cause through Martinez!
94.

The Supreme Court bars federal habeas relief on procedurally

defaulted claims unless

prejudice arising from the
the petitioner demonstrated cause for the default and actual

defaultor showed the failure to consider the claim would result in a

fundamental

Trevino, the Supreme
miscarriage ofjustice. Coleman, 501 U.S. at 749-50. In Martinez!

showing "(1) that his claim of
Court opines a petitioner could meet the cause element by
has some
ineffective assistance of counsel at trial is substantiali.e.,

meritand (2) that

claims in his first state habeas
habeas counsel was ineffective in failing to present those

proceeding." Garza, 738 F.3d 676.
prosecutor improperly
Here, Renteria's counsel made appropriate objections when the
and the circumstances
argued Renteria had to show a nexus between his mitigating evidence

1*I

surrounding the crime before the jury could consider it. Consequently, Renteria has not
shown his trial "counsel made errors so serious that counsel was not functioning as the

'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687.
He has not overcome that "strong presumption that counsel's representation was within the
wide range of reasonable professional assistance." Id. at 689. He has also not shown "that

there is a reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Porter, 558 U.S. 38-39. As a result, Renteria's
ineffective assistance of trial counsel claim has no merit. And Renteria has not shown cause
which would permit him to overcome the procedural bar to his claim. He is not entitled to

relief on this claim. Nonetheless, as discussed below, the claim is without merit.
(2). Merits

Renteria argues his "death sentence is invalid because his second penalty jury was
repeatedly instructed during the voir dire process there must be a nexus between mitigation
and the offense." Pet'r's Pet. 28-29, ECF No. 53. The record does not support his claim.
The prosecution erred when it claimed during voir dire that Renteria must show a

nexus between mitigating evidence and Flores's murder. But the prosecution had an

historical basis for the argument.
In Penry v. Lynaugh (Penry 1), 492 U.S. 302 (l989), Texas Defendant Johnny Paul

Penry presented mitigating evidence of mental retardation and organic brain damage resulting
in poor impulse control and an inability to learn from experience.

Id at 308. Penry offered

further mitigating evidence of his physical and mental abuse as a child. Id. at 309.
The jury decided Penry's sentence by answering the "special issues" in a former

version of Texas Code of Criminal Procedure article 37.071:

by Atkins

v.

Virginia,

536 U.S. 304 (2002).

-84-

"(1) whether the conduct of the defendant that caused the death of the
deceased was committed deliberately and with the reasonable expectation that
the death of the deceased or another would result;
"(2) whether there is a probability that the defendant would commit
criminal acts of violence that would constitute a continuing threat to society;
and

"(3) if raised by the evidence, whether the conduct of the defendant in
killing the deceased was unreasonable in response to the provocation, if any,
by the deceased." Tex. Code Crim. Proc. Ann., Arts. 37.071(b) (Vernon 1981
and Supp.1989).

If the jury unanimously answers "yes" to each issue submitted, the trial court
must sentence the defendant to death. Arts. 37.071(c)(e). Otherwise, the
defendant is sentenced tO life imprisonment. Ibid.
Peniyl,

492 U.S. at 310.

The Supreme Court held the special issues in the Texas sentencing statute did not
provide the jury with a vehicle to consider and give effect to Penry's mitigating evidence.
The Court stated:
[A] juror who believed that Penry's retardation and background

diminished his moral culpability and made imposition of the death penalty
unwarranted would be unable to give effect to that conclusion if the juror also
believed that Penry committed the crime "deliberately."

Penry's mental retardation and history of abuse is thus a two-edged
sword: it may diminish his blameworthiness for his crime even as it indicates
that there is a probability that he will be dangerous in the future. . . . The
second special issue, therefore, did not provide a vehicle for the jury to give
mitigating effect to Penry' s mitigating evidence. .
Id. at 323. The Supreme Court found the appropriateness of a death sentence was not ensured

when the jury could not consider and give effect to mitigating evidence relevant to a

defendant's "background, character, or the circumstances of the crime." Id. at 328. The
Court did not, however, provide a framework to review

"Penry

claims" and assist courts in

determining whether the jury was able to consider and give effect to specific mitigating
evidence under article 37.071.
In response to this ruling, the Texas legislature substantially revised the capital
sentencing statute in 1991 to incorporate the current sentencing provisions which address

mitigating circumstances.

See S.B. 880,

72nd Leg., 1991 Reg. Sess. (Tex. 1991) (showing

that directives regarding the jury's consideration of mitigation evidence and the offender's
moral culpability were added in the 1991 amendment). Under the revised capital sentencing

statuteapplicable at the time of Renteria's offensea jury faced two "special issues"
before sentencing. The first special

issuethe future dangerousness issuewas "whether

there is a probability that the defendant would commit criminal acts of violence that would
constitute a continuing threat to society." Tex. Crim. Proc. Code art. 37.071

§

2(b)(1)

(Vernon 200!). Ifthejuiy unanimously answered this question in the affirmative, it then
considered a second special

issuethe mitigation issue" [wihether, 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 rather than a death sentence be imposed" Id.

§

2(e)(1).8

And to resolve Penry 1 claimsthat the jury was unable to consider and give effect to
mitigating

evidencethe Texas Court of Criminal Appeals adopted a "nexus" relevancy

requirement. It explained that "mitigating evidence is relevant to the jury's individualized

assessment of the propriety of death if there is a nexus between the mitigating evidence and
the circumstances surrounding the crime that might, from the viewpoint of society, reduce the

In 2005, the Texas Legislature amended the statute to allow for life imprisonment without the
possibility of parole. See Tex. Penal Code § 12.3 1(a); Tex. Code Crim. Proc. art. 37.07 1 § 1, 2(a)(1), (g); S.B.
1507, 79th Leg., 2005 Reg. Sess. (Tex. 2005).
8

-86-

defendant's 'deathworthiness." Goss v. State, 826 S.W.2d 162, 165 (Tex. Crim. App. 1992).
"This concept of deathworthiness is best understood as an individualized assessment of the
appropriateness of the death penalty, given the offense and the offender." Mines v. State, 852
S.W.2d 941, 951 (Tex. Crim. App. 1992). Hence, a defendant had to establish a nexus

between the mitigating evidence and the circumstances of the offense which tended to excuse
or explain the commission of the offense, suggesting that the defendant was less deserving of
a death sentence.

Otherwise the "evidence [was] not relevant, beyond the scope of the

special issues, to the jury's individualized assessment of Appellant's moral culpability for the
crime." Nobles v. State, 843 S.W.2d 503, 506 (Tex. Crim. App. 1992) (quoting Goss, 826
S.W.2d at 166) (emphasis in original). Under the Court of Criminal Appeals' "nexus
requirement the mitigating evidence must be directly linked to the defendant's moral

culpability for the capital murder." Earhart v. State, 877 S.W.2d 759, 765 (Tex. Crim. App.
1994).

The Fifth Circuit followed the Texas Court of Criminal Appeals' lead and adopted a

"constitutional relevance" screening test to address Penry I claims. See, e.g., Bigby v.
Cockrell, 340 F.3d 259, 273 (5th Cir. 2003) ("The evidence presented must establish "(1) a

uniquely severe permanent handicap[] with which the defendant was burdened through no
fault of his own, and (2) that the criminal act was attributable to this severe permanent

condition.") (quoting Davis v. Scott, 51 F.3d 457, 460-61 (5th Cir. 1995)), opinion
withdrawn and superseded sub nom. Bigby v. Dretke, 402 F.3d 551 (5th Cir. 2005), and

abrogated by Tennard, 542 U.S. 274.

Only after the court found that the mitigating

evidence was "constitutionally relevant" would it consider whether that evidence was within

"the 'effective reach' of the jurors."

Smith

v.

Cockrell, 311 F.3d 661, 680 (5th Cir. 2002)

(quoting Madden v. Collins, 18 F.3d 304, 308 (5th Cir. 1994), abrogated by Tennard, 542
U.S. 274).

Then in Tennardv. Dretke, 542 U.S. 274 (2004), the Supreme Court held the Fifth

Circuit's test for determining the constitutional relevance of mitigating evidence had "no
foundation in the decisions of this Court." Id. at 284. The Supreme Court noted "[n]either

Fenry I nor its progeny screened mitigating evidence for 'constitutional relevance' before
considering whether the jury instructions comported with the Eighth Amendment." Id.

Rather, the Supreme Court held that the jury must be given an effective vehicle with which to
weigh mitigating evidence so long as the defendant has met a "low threshold for relevance,"
which is satisfied by "evidence which tends logically to prove or disprove some fact or

circumstance which a fact-finder could reasonably deem to have mitigating value." id. 284285 (quoting McKoy v. North Carolina, 494 U.S. 433, 440 (1990)). Consequently, "before a

jury can undertake the grave task of imposing a death sentence, it must be allowed to
consider a defendant's moral culpability and decide whether death is an appropriate
punishment for that individual in light of his personal history and characteristics and the
circumstances of the offense." Abdul-Kabir v. Quarterman, 550 U.S. 233, 263-64 (2007)
(emphasis added).

Renteria's counsel cited Tennard when the prosecution asserted the jury could not
consider mitigating evidence unless Renteria established a nexus between evidence and the

circumstances of the offense. Reporter's R., vol. 13 (voir dire of Joim C. Harton), p. 84, ECF
No. 80-5; Reporter's R., vol. 24 (voir dire of Cruz A. Ochoa Jr.), p. 145, ECF No. 80-16.

Renteria's counsel explained "[u]nder Tennard V. Dretke there is no nexus requiring that
mitigation is anything that the evidence is such character that might serve as a basis for a
sentence less than death." Reporter's R.,vol. 24, p. 145. Indeed, Renteria's counsel raised

proper grounds for rejecting the prosecution's nexus argument during the voir dire. And the
trial court did not accede to the prosecution's claim of a nexus requirement. The trial court
described mitigating evidence as "things like his character and background the circumstances

of the offense and the persons moral culpability." Reporter's R., vol.
described in detail

13, p. 83.

Furtheras

abovethe trial court allowed Renteria's counsel to present substantial

mitigating evidence of his personal history and characteristics unrelated to the circumstances

of the offense.
Renteria's claim is both barred and without merit. He is not entitled to relief on this
claim.
b. Questions About Specific Mitigating Circumstances

Renteria next asserts that "[bjecause the trial court prohibited counsel from any
discussion regarding mitigation or providing examples of what the Supreme Court has held
are significant factors [during voir dire], jurors voted to sentence Mr. Renteria to death

believing that mitigating circumstances were guilt defenses like insanity or self-defense."

Pet'r' s Pet. 29, ECF No. 53. He argues his "federal constitutional guarantees of effective
assistance of counsel, trial by an impartial jury, an individualized sentencing determination,
and due process of law were violated when the trial court prohibited questioning during voir

dire regarding the jurors' ability to consider and give effect to mitigating circumstances.

.

Pet'r's Br. in Supp. 32, ECF No. 58 (citing U.S. Const. amends. VI, VIII, and X[V). He
maintains that his "[c]ounsel was not requesting permission to ask improper commitment
questions; rather counsel was requesting permission to make the constitutionally permitted,
and, indeed, constitutionally-required, inquiry into whether jurors could consider and give

effect to mitigating evidence." Pet'r's Reply 35, ECF No. 94.

Prior to Renteria's second purishment trial, his counsel filed a motion to submit a
"comprehensive" juror questionnaire and objected to the trial court's proposed questionnaire
for venire members. Reporter's R., vol. 2 (Judge's Conference), pp. 6-9, ECF 79-14. The

trial court denied the motion and overruled the objection. Id. at 13.
During voir dire, Renteria's counsel attempted to question prospective juror Joaquin
Rivera about his ability to consider specific factors as mitigating evidence:
Q. [Defense Counsel Edythe Payan] Now again mitigation evidence
can be anything. And you do not have to agree. You -- as jurors one juror may
find one specific piece of information to be mitigating and another person
might find something else to be different mitigation. You're not going to be
asked to agree as to that.

A. Yes.
Q. Mitigating can be -- there are several relevant factors.

MS. HUGHES: Objection, Your Honor, to contracting.
question.
MS. PAYAN: I would just ask to give examples .
intelligently exercise our peremptory which we are entitled.

. .

Improper

so that we can

THE COURT: I'm not going to allow you to go into specifics.

MS. PAYAN: And Your Honor for the record I would like the record
to reflect that at this time we would like to ask this juror if he'd consider
mitigation which the Court has found to be relevant such factors as drugs
MS. HUGHES: Objection, Your Honor.

THE COURT: If you're making a Bill then you need to excuse the

juror.
MR. GANDARA: Can we go ahead and excuse the juror?

THE COURT: Well not right now. At an appropriate time.

Reporter's R., vol. 9 (voir dire of peremptorily challenged venire member Joaquin Rivera),
pp. 173-14, ECF No. 80-1.

Renteria' s counsel subsequently presented a bill of exception, asking that the trial
court allow the defense to propounded questions to prospective jurors about their ability to
consider specific factors:
MS. PAYAN: Your Honor,. . . under the law we are entitled to have
jurors struck for cause who cannot consider and give mitigation. We are
entitled to jurors who can consider and give effect to specific mitigating
evidence, and a juror must be able to consider the individual defendant's
mitigation. . . the questions we would ask the juror would be:

Could you consider the mitigating factor of a person with a drug
problem[?]

Could you consider the mitigating factor of a person with a way
turbulent family history[?]
Could you consider mitigation of a person, a defendant, with emotional
problems[?]

Could you consider mitigation of the defendant's background[?]
Could you consider mitigation of the defendant's upbringing[?]
Could you consider mitigation of the defendant's character[?]
Could you consider mitigation of the defendant's character, good
character[?]
And could you consider mitigation of the circumstances of the
offense[?J

And for the record we would ask that these are the questions we would
ask each and every member of this venire under this subject.

Id, pp. 177-79.
Renteria's counsel re-urged this objection while questioning prospective juror
Elizabeth Black.

See

Reporter's R., vol. 12 (voir dire of peremptorily challenged venire

member Elizabeth Black), p. 130, ECF No. 8 0-4. The trial court responded with its ruling

was "the same. I'll not allow that type of question to be asked regarding specific matters of

-91-

mitigation." Id. at 131. Renteria's counsel subsequently made the same bill of exception on
several other occasions:
MR. VELASQUEZ: We're entitled to do hypothetical questions, Your
Honor. And in those hypothetical questions we're allowed to put facts to
allow us to decide whether were going to use a peremptory challenge for cause
or -- or a challenge for cause, Your Honor. And we would ask the Court to
allow us to do that type of hypothetical questions, Your Honor.

THE COURT: The Court has ruled already. Okay.

THE COURT: Any specific instances of mitigation you cannot go into
including defenses. Okay?

Reporter's R., vol. 14 (voir dire of seated Brett K. Williams), pp. 63-64, ECF No. 80-6.
Id. at 63-64. Renteria's counsel argued the trial court should allow the defense to

conduct a "full, fair, and constitutional voir dire." Id. at p. 58.

Renteria's counsel also filed a motion entitled "Propounded Specific Voir Dire
Questions to Each Member of the Venire." In this motion, his counsel sought permission to

ask the following questions:
1.

If you heard evidence of sexual assault of a child and indecency with a
child, what are your views regarding the death penalty?

of capital murder, of
death of a child under 6, and
intentionally and knowing[ly] causing the
you heard MATTERS of sexual assault of a child and indecency with a
child, what are your views regarding the death penalty?

2. Assume that the defendant has been convicted

3. Assume that the defendant has been convicted

of capital murder, of

intentionally and knowing[ly] causing the death of a child under 6, and the
Defendant has a previous conviction of indecency with a child, what are
your views regarding the death penalty?

of capital murder, of
intentionally and knowing[ly] causing the death of a child under 6, and
you and 11 others have found yes, the defendant is a future danger, and the
Defendant has a previous conviction of indecency with a child and felony
driving while intoxicated, what are your views regarding the death
penalty?

4. Assume that the defendant has been convicted

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of capital murder, of
intentionally and knowing[ly] causing the death of a child under 6, and
you and 11 others have found yes, the defendant is a future danger, if you
hear MATTERS of sexual assault of a child or indecency [with] a child,
what are your views regarding the death penalty?

5. Assume that the defendant has been convicted

6. Assume that the defendant has been convicted of capital murder, of
intentionally and knowing[lyJ causing the death of a child under 6, and
you and 11 others have found yes, the defendant is a future danger, and
assume the most horrible of circumstance of the crime of capital murder,
the worst you can think of for yourself, are you open to consider mitigation
circumstances?
7. Assume that the defendant has been convicted Qf capital murder, of
intentionally and knowing[ly] causing the death of a child under 6, and
you and 11 others have found yes, the defendant is a future danger, if you
hear MATTERS of sexual assault of a child or indecency [with] a child,

are you open to consider mitigating circumstances?

Assume that the defendant has been convicted of capital murder, of
intentionally and knowing[lyj causing the death of a child under 6, and
you and 11 others have found yes, the defendant is a future danger, and the
Defendant has a previous conviction of indecency with a child, are you
open to consider mitigation circumstances?
Renteriall,

2011 WL 1734067, at *67.

The trial court "overrule[d] the motion" and "disallow[ed] Defense counsel being able
to ask those specific questions." Id. at 7. It reasoned the questions implicated the restrictions

imposed byStandeferv. State, 59 S.W.3d 177, 181-83 (Tex. Crim. App. 2001), against
commitment questions, and by Barajas v. State, 93 S.W.3d 36, 39-42 (Tex. Crim. App.
2002), against ambiguous questions.

In his direct appeal, Renteria argued the trial judge "abused her discretion by refusing
to give him permission to ask the propounded questions included in his bill of exception..

and his written motion."

Renteria II,

2011 WL 1734067, at

*7

The Court of Criminal Appeals overruled the objection. It explained "[t]he trial judge
was within her discretion to prohibit defense counsel from asking these improper questions."
Id. at *8 (citing Barajas, 93 S.W.3d at 38).

Renteria claimed on direct appeal that the trial court erred in denying his request to
pose questions to venire members regarding their willingness to consider specific factors as

mitigating evidence. Renteria v. State (Appellant's Brief), 2009 WL 5453014 (Tex. Crim.
App. filed Dec. 15, 2009), at *42_64. The Texas Court of Criminal Appeals opined "these

questions implicate the restrictions imposed by Standefer

v.

State, against commitment

questions." Renteriall, 2011 WL 1734067, at *7
In Standefer v. State, 59 S.W.3d 177 (Tex. Crim. App. 2001), the Court of Criminal

Appeals explained commitment questions "commit a prospective juror to resolve, or to
refrain from resolving, an issue a certain way after learning a particular fact." Id at 179.

Commitment questions often ask for a "yes" or "no" answer, which commit jurors to resolve
issues in a particular way. Id. Commitment questions may be proper or improper, depending
on whether they lead to valid challenges for cause. Id. at 181. Commitment questions are

proper when the law requires a certain type of commitment from jurors and the attorneys ask

prospective jurors whether they can follow the law. Id. Commitment questions are improper
when (1) the law does not require a commitment or (2) when the question adds facts beyond

those necessary to establish a challenge for cause. Id. at 181-1 82
So, the inquiry for improper commitment questions has two steps: (1) Is the
question a commitment question, and (2) Does the question include facts-and
only those facts-that lead to a valid challenge for cause? If the answer to (1) is
"yes" and the answer to (2) is "no", then the question is an improper

commitment question, and the trial court should not allow the question.
Id. at 182-83.

In Barajas v. State, 93 S.W.3d 36 (Tex. Crim. App. 2002), the Court of Criminal

Appeals provided an example of an improper commitment question. In Barajas, defense
counsel attempted to ask whether prospective jurors could be "fair and impartial" in a case
involving a nine-year-old victim. Id. at 37. The Court of Criminal Appeals explained it
could interpret this question as an inquiry about the effect of the victim's age on three

different matters: (1) guilt, (2) witness credibility, or (3) punishment. Id. at 39-40. It
concluded inquiry into the third matter would constitute an attempt to obtain an

impermissible commitment. Id. at 40.
In Raby v. State, 970 S.W.2d

1

(Tex. Crim. App. 1998), the Court of Criminal

Appeals correctly noted "the law does not require a juror to consider any particular piece of
evidence as mitigating; all the law requires is that a defendant 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. at 3 (Tex. Crim. App. 1998). If a trial court

permitted a party to ask prospective jurors to react to specific mitigating evidence, the party
could use peremptory challenges to fashion a favorable jury. While a defendant has a right to
an impartial jury, he does not have a right to a sympathetic jury of his own creation. Hence,
"[a] trial court does not abuse its discretion by refusing to allow a defendant to ask venire

members questions based on facts peculiar to the case on trial (e.g. questions about particular

mitigating evidence)." Id.

Renteria now argues that the state trial court's limitations on his efforts to voir dire
prospective jurors on how they would view his mitigating evidence prevented his trial

counsel from intelligently asserting challenges for cause against potentially biased jurors and
exercising peremptory challenges. Pet'r's Br. in Supp. 35, ECF No. 58.

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Althoughas the Court of Criminal Appeals noted in Rabya court must afford a
defendant an opportunity to present mitigating evidence at the punishment phase of a capital
trial, the fact that a juror might view the evidence as

aggravatingas opposed to

mitigatingdoes not implicate the Eighth Amendment.

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."). So "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, Renteria's claim that the trial court deprived him of the ability to discover

the basis for a challenge for causethrough questions which would help his counsel

determine whether potential jurors viewed specific evidence as mitigating or aggravatingis

without merit.
Furthermore, a defendant does not have a constitutional right to peremptory
challenges. McCollum, 505 U.S. at 57. "So long as the jury that sits is impartial, the fact that

the defendant had to use a peremptory challenge to achieve that result does not mean the
Sixth Amendment was violated." Ross, 487 U.S. at 88. And since the Constitution does not

require peremptory challenges, "this benefit cannot be a basis for making 'content' questions

a constitutional requirement. Mu 'Mm, 500 U.S. at 424-25.
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 which attempted
to bind prospective jurors regarding their positions 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. Id. at 244. The
S.

Fifth Circuit noted that while "the trial judge did not allow the particular phrasing [the
petitioner] sought," it concluded that "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 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,
petitioner "failed to make a substantial showing of the denial of a federal right." Id.
The Court reaches the same conclusion in this case. The state trial court used a
lengthy questionnaire, which advised the prospective jurors:

A person commits the offense of murder if he intentionally or knowingly
causes the death of an individual.
A person commits the offense of capital murder if he murders a child under 6
years of age.
In asking questions about your feelings on the possible punishments (or
sentences), you are not being asked what you would do in this particular case.
You are only being asked about cases in general. Neither the attorneys nor the
Court can ask you what you would do in this particular case because you have
not yet heard evidence regarding the facts and circumstances of this case. And
it is important for you to realize that you will not know about the pafticular
facts and circumstances involved in this case during the jury selection process
except for the limited language contained in this questionnaire. The details of
the case are given to you later in the actual trial itself. The purpose of jury
selection is to quaIif' jurors, to set forth the law applicable to the case, to see
if jurors understand and can apply that law and to determine whether each
prospective juror will consider the full range of punishment.

Under Texas law, an individual found guilty of capital murder shall be
sentenced to either confinement in the Institutional Division of the Texas
Department of Criminal Justice prison for life or to the death penalty. In other
words, a sentence of life imprisonment or death is mandatory upon a
conviction for capital murder.

In this case, the defendant has been convicted of capital murder by a jury of
knowingly and intentionally causing the death of a child under six 6 years of
age. Under the circumstances of this case, the Court will conduct a sentencing
trial with the jury solely to determine the sentence of the defendant. In that
hearing evidence may be presented as to any matter that the Court deems

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relevant to sentencing. The State and the defense will also be permitted to
present arguments to the jury for or against the imposition of the death
penalty.
The death penalty is an option in a capital murder case if the defendant has
been found guilty of capital murder by unanimous verdict of a jury. In this
case the defendant has previously been found guilty of capital murder by
unanimous verdict of a jury. In order to serve on a jury where the defendant
has been convicted of capital murder each juror must be able to consider the
full range of punishment life in prison or the death penalty.
Given the foregoing please check ONE of the following that
most closely describes your views
I am against the death penalty.
I am neither in favor of nor against the death penalty.
I am in favor of the death penalty.

Reporter's R., vol. 77 (Juror Questionnaire), p. 28-29, ECF No. 82-9. The questionnaire
included questions which inquired into how potential jurors viewed potentially mitigating

evidence and the death penalty.
42. A person is a product of his or her environment.
o Disagree
o Agree
43. A person who abuses drugs or alcohol is less responsible for his or her
actions.
o Disagree
o Agree
44. The death penalty is never justified.
o Disagree
o Agree
think the death penalty is necessary for some crimes.
45. I
o Disagree
o Agree
46. Executing a person for capita! murder discourages others from committing
that crime in the future.
o Disagree
o Agree
47. The death penalty is not necessary in modern civilization.
o Disagree
o Agree
The death penalty should be used more often than it is.
48.
o Disagree
o Agree
49. The desire for revenge is a legitimate reason for favoring the death
penalty.
o Disagree
o Agree
50.. It is immoral for society to take a life regardless of the crime the individual
has committed.
o Disagree
o Agree
51. Society has a right to get revenge when murder has been committed.
o Disagree
o Agree
52. Life in prison is a serious punishment.

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o Agree

o Disagree

53. The death penalty is the best crime preventative.

oDisagree
o Agree
54. Regardless of what the law says the accused in a criminal case should
testify.
o Disagree
o Agree
55. It is better to free nine guilty people than to convict one innocent man.
o Disagree
o Agree
56. The criminal justice system favors the accused.
o Disagree
o Agree
57. Please rank in order of importance to you the following purposes for
punishment in a criminal case
o Punishment/retribution o Deterrence/prevention o Rehabilitationlreform
Please explain your answer.

Id at29-30.
During individual voir dire, the trial court gave Renteria's trial counsel the latitude to
ask potential jurors additional questions. The trial court also allowed Renteria twenty-two

peremptory challenges. While the trial court refused to permit Renteria' s trial counsel to
commit the venire members to whether they could consider the mitigating aspects of doubleedged evidence, the Court's independent review of the entirety of defense counsel's voir dire
convinces the Court that it was enough to permit Renteria' s counsel to determine whether a

prospective juror would consider the mitigation evidence they proffered. In other words, the
voir dire permitted Renteria' s trial counsel to determine whether the potential jurors' views

would prevent or substantially impair them in the performance of their duties as jurors in
accordance with the trial court's instructions and their oath. Renteria was entitled to nothing
more.

See Soria,

207 F.3d at 244.

In addition, considering the extensive juror questionnaire utilized during jury
selection, the restrictions imposed by the trial court, and the scope of the questioning by

Renteria's trial counsel, the Court finds the voir dire of the potential jurors did not render
Renteria's trial fundamentally unfair. Mu 'Mm, 500 U.S. at 425-26; Morgan, 504 U.S. at 730
n.5. And again, insofar as Renteria argues the trial court prevented his counsel from making

-99-

fully informed use of peremptory challenges, his argument does not invoke a federal

constitutional right. McCollum, 505 U.S. at 57.
Consequently, the Texas Court of Criminal Appeals' rejection of Renteria's
arguments on the merits in his 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 Renteria' s trial and direct appeal. Renteria is not entitled to relief on

this claim.
c. Questions About Parole Eligibility

Renteria protests "[tjhe trial court refused to answer jurors' concerns and prohibited
counsel from questioning them about whether they could sentence a defendant convicted of

capital murder of a child to life with the possibility of parole." Pet'r's Pet. 29, ECF No. 53.
In a related claim, he complains "[c]ounsel was also disallowed to ask jurors if they could
consider a sentence of life with the possibility of parole for a defendant convicted of capital

murder who had prior felony convictions." Id.

Renteria argued in his direct appeal that parole eligibility was a proper inquiry for voir
dire because, "for offenses committed on or after September 1, 1999,

. . .

the jury is now

*18
instructed on parole, if requested by the defense." Renteria II, 2011 WL 1734067, at

(citing Tex. Code Crim. Proc. art. 37.071

§

2(e)(2)).

The Texas Court of Criminal Appeals noted "{a] similar argument was raised in Sells
v.

State," 121 S.W. 3d 748 (Tex. Crim. App. 2003). Id. In Sells, the defendant wanted to ask

the potential jury members the following questions:
1.

Would the minimum length of time a defendant could serve in prison before
he could be paroled be something you would want to know in answering the
special issues?

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2. On which special issue would this be important? How would this 40 year
minimum sentence be important to you in answering the special issues?
3. Would you be more likely, or less likely, generally, to view a defendant as a
continuing threat to society if you knew he could not be paroled for a
minimum of 40 years?
4. What kind of evidence would you expect, as a juror, to help you in considering

the 40-year parole ineligibility factor when answering the special issue?
Id. at 755. The Court of Criminal Appeals assumed the statutory change rendered

questioning about parole permissible in some situations. Id. at 756. But it held Sells's
questions "implicate[d] the strictures imposed by Standefer against commitment questions
and by Barajas against ambiguous questions," and that "any attempt to commit prospective

jurors to giving mitigating, aggravating, or even no effect to the parole instruction [was
impermissible."

Id at 756-57.

In this case, Renteria wanted to ask venire member Robert Crosby if "the only

acceptable alternative to a death penalty in a capital case would be a life in prison without
any possibility of parole," and if he "agree[d with a law that might provide for parole."

Renteria II, 2011 WL 1734067, at * 18. The Court of Criminal Appeals noted Renteria's
questions for Crosby were impermissible like the questions at issue in Sells. Consequently,
the Court of Criminal Appeals held "the trial judge did not abuse her discretion by
prohibiting the proposed questions. Further, the trial judge ultimately asked Crosby whether
he could follow the instructions with regard to parole." Id.

Renteria wanted to ask venire member Robert P. Tomes whether "a life sentence
without possibility of parole is the only reasonable range of punishment." Id. at * 19. The
Court of Criminal Appeals found this was essentially the same question he asked of Crosby.
Id. It held "this is an improper commitment question, and the trial judge was within her

-101-

discretion to prohibit it. Further, defense counsel was ultimately permitted to ask Tomes if

the possibility of parole would influence his verdict." Id.
In Simmonsthe case discussed at length abovethe Supreme Court held that if a

defendant's future dangerousness is at issue and state law prohibits the defendant's release on
parole, due process requires the trial court to inform the sentencing jury the defendant is
ineligible for parole. Simmons, 512 U.S. at 156. The Simmons Court specifically cautioned,

however, "[i]n a State in which parole is available," it would "not lightly second-guess a

decision whether or not to inform a jury of information regarding parole." Id. at 168.
Renteria would have been eligible for parole under Texas law after 40 years'
imprisonment if sentenced to life by the trial court. Simmons is not applicable to his case.
Consequently, the Texas Court of Criminal Appeals' rejection of Renteria's

arguments on the merits in his 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 considering the

evidence presented in Renteria's trial and direct appeal. Renteria is not entitled to relief on

this claim.
d. Substantially Impaired Members
Renteria complains the jury "included members who were substantially impaired in

their ability to follow the law." Pet'r's Pet. 30, ECF No. 53. Renteria specifically alleges
Donnie Malpass was seated without "questioning her about her ability to consider mitigating
evidence and the full range of punishment." Id. at 28. John Harton was seated after the "trial
court endorsed an unconstitutional definition of mitigation" and was "unable to consider and
give effect to mitigation." Id. at 43. Norman Thomas was seated after the trial "court

endorsed unconstitutional definition of mitigation" and was "unable to consider and give

-102-

effect to mitigation." Id. at 48. Brett Williams was seated while he was "unable to consider
and give effect to mitigation." Id. at 49. Roxanne Castricone was seated after the trial

"court endorsed unconstitutional definition of mitigation" and "was unable to consider
mitigation." Id. at 49. Washington Watley was seated after Renteria' s challenged him for
cause "on the grounds he is biased and cannot be impartial because he has two young
daughters, and because he would automatically believe and lend more credibility to law
enforcement officers." Id. at 86. "[The trial court overruled the challenge for cause, and
because the defendants had exhausted all peremptory challenges, Mr. Watley was seated as a

juror." Id Jeanette Sanchez was seated after stating "she would sentence a defendant to
"for
death after determining he was a future danger." Id. at 87. Renteria challenged Sanchez

at
cause on the basis that she was unable to follow the law regarding sentencing." Id. 89.
The trial court denied the challenge for cause. Id. Renteria notes he "requested additional

peremptory challenges because the court denied proper challenges for cause."
(1)

Id at 76.

Juror Donnie Malpass

Renteria claims Donnie Malpass was seated without "questioning her about her ability
ECF No.
to consider mitigating evidence and the full range of punishment." Pet'r's Pet. 28,
Malpass what
53. Specifically, Renteria complains the trial court did not permit him to ask

her verdict would be if the issue of self-defense was raised or where the defendant

killed the

victim in a "planned" or "cold blooded" manner. Id. at 30.

Renteria did not complain on direct appeal or in his state habeas application about the
trial court's restrictions on Malpass's voir dire examination. Consequently, any claim
alleging error concerning the trial court's ruling is unexhausted and procedurally defaulted.
See Ruiz v.

Quarterman, 460 F.3d 638, 642-43 (5th Cir. 2006) ("[I]n order for a claim to be

exhausted, the state court system must have been presented with the same facts and legal

-103-

theory upon which the have been presented with the same facts and legal theory upon which

the petitioner bases his current assertions."); Nobles, 127 F.3d at 420 ("The exhaustion
requirement is not satisfied if the prisoner presents new legal theories or factual claims in his
federal habeas petition.").
Federal habeas relief is barred on unexhausted or procedurally defaulted claims unless

the petitioner demonstrates cause for the default and actual prejudice arising from the

defaultor shows the failure to consider the claim would result in a fundamental miscarriage
ofjustice. Coleman, 501 U.S. at 749-50. A petitioner may meet the cause element by
showing "(1) that his claim of ineffective assistance of counsel at trial is substantiali.e., has
some meritand (2) that habeas counsel was ineffective in failing to present those claims in
his first state habeas proceeding." Garza, 738 F.3d at 676.

Renteria does not provide an explanation as to how the trial court's limitations on his

counsel's questions were improper or how he was harmed by the trial court's rulings.
Renteria fails to show the trial court erred in restricting the voir dire examination of Malpass
as. to how she would consider specific types of mitigating evidence before voting. See

Soria,

207 F.3d at 244 ("We are not persuaded that the trial court abused its considerable discretion
in finding that the questions posed by [the petitioner] constituted an attempt to improperly

commit the prospective jurors to a certain view regarding mitigating evidence anticipated to
be presented in his case."). Renteria has not shown his counsel provided constitutionally
ineffective assistance.

Indeedas the extract from the transcript

below showshis counsel

tenaciously pursued his questioning of Malpass despite the prosecutor's multiple objections.
He has not shown cause for his default or actual prejudice arising from the default.
In addition, the claims lack merit. Renteria maintains his counsel could not ask
Malpass "about her ability to consider mitigating evidence and the full range of punishment."

-104-

Pet'r's Pet. 28, ECF No. 53. Specifically, Renteria complains his counsel were not allowed
to ask Malpass how she felt about imposing a death penalty on a defendant convicted of

murdering a child under six years of age.
The prosecutor objected to this line of questioning, asserting it was global, not
relevant, and asked for Malpass to contract. The prosecutor's objections were initially

sustained by the trial court:
Q. [Defense Counsel Jaime Gandara] Now to convict somebody of a
murder or a capital murder, a jury has to listen to all the facts and come to a
conclusion that they believe beyond a reasonable that this person knowingly
and intentionally caused the death of somebody.

And in the case of a child of a child under the age of six years old and
the jury has to believe beyond a reasonable doubt that that happened.
And when you convict somebody of murder of capital murder you -you've gotten past the point where there's any question of insanity or mistake
or accident. And there's no defense of third person no self-defense. Is that -is that clear
A.. That's clear um-hmm.

the
Q. In other words if you had a self-defense issue what would
verdict be?
MS. MERAZ: [Prosecutor Diana Meraz] Your Honor I'm going to
object at this point. It's global not relevant to the case.

THE COURT: Counsel?
MR. GANDARA: Your Honor were -- we're discussing the nature of
conviction of an offense and that it's clear that when somebody is convicted
that all defenses have been set aside and that there's a clear conviction and no
defensive matter applies to the case.
THE COURT: I'm going to sustain the objection.

MR. GANDARA: Okay.
you -Q. (By Mr. Gandara) All right. So, you understand that when
when there's a guilty verdict the person is convicted and no defenses or
anything are -- all that has been set aside. Do you understand that?

-105-

MS. MERAZ: Objection same objection.

THE COURT: Sustained.
MR. GANDARA: Okay. Your Honor, I would like to submit to the
court that I believe these questions are aimed at our procedural situation in this
case. We have a final conviction. And these prospective jurors are entitled to
understand the nature of the fact of the guilty finding and the guilty verdict
and the fact that -- that all those matters of defense and justification are set
aside.

THE COURT: I understand. I'm going to sustain the objection.

Q. (By Mr. Gandara) Okay. Now please assume that a jury has
convicted an individual of knowingly and intentionally killing somebody an
innocent person that -- and not because he's crazy or because he -- he did it
because he wanted to and that it was planned or it was cold blooded or no --

what is your
MS. MERAZ: Again, were going to object to the nature of the
question. It's global and not relevant.
THE COURT: Sustain the objection.
MR. GAINDARA: Your Honor were entitled to ask a hypothetical
question about feelings of a juror about the death penalty given a conviction in
a hypothetical case.

THE COURT: You defined murder as being an intentional act and I
think that you can go along in that vein. There's no problem with that. But
the way you're going about it you are getting into specifics.

I'll sustain the objection.
Reporter's R. vol.

8

(voir dire of Donnie Malpass), pp.52-55, ECF No. 79-20.

The trial court subsequently allowed the questions after Renteria' s counsel explained
he needed to know what the individual jurors felt about the death penalty under the
circumstances of this case:

MR. GANDARA: Your Honor I have not asked the juror what she's
going to decide. I've asked her what her feelings about the death penalty are
on the basis of somebody that's been convicted of capital murder of a child

-106-

under six years of age. And were -- that's the base fundamental inquiry in a
voir dire jurors -- prospective jurors' feelings about the death penalty.

THE COURT: All right. I'm going to allow it.

Q. (By Mr. Gandara) Ms. Malpass what are your feelings about the

death penalty under circumstances where a person who has been convicted of
killing a child under the age of six?
A. I can't say. I'd have to see the facts and evidence and everything. I
can't say.

you -- you are not -- you're open to the full range of punishment
either life in prison or the -Q. So

A. Death penalty, yes.
Q.

Is that the case? You're sure of that?

A. Yes.

All right. Now assume with me that there's a conviction for capital
murder of a child under the age of six and you have heard evidence that
convinces you beyond a reasonable doubt that that person is a future danger.
Okay?
Q.

In other words, you've found that beyond a reasonable doubt you
believe that question number one is yes that the person is a future danger.
What are your feelings about the death penalty under those circumstances?
MS. MERAZ: I'm going to object again. Your Honor to contracting.
He's not asking her if she can be fair. He' asking her for factors to -- to weigh
and how she feels about it in other words are you leaning towards this side or
this side.
MR. GANDARA: Your Honor, fundamentally we need to know what
the individual juror's feelings are about the death penalty under each
circumstance given that the law provides it.

THE COURT: The way you put the question, I'm going to allow it.
Go ahead.
MR. GANDARA: All right.

-107-

Q. (By Mr. Gandara) What are your feelings about the death penalty
when there's been a conviction for killing a child under the age of six years
old knowingly and intentionally and you're a juror on a jury and the jurors
have found unanimously that the person is a future danger?

You've answered that question number one yes. At that point what are
your feelings about the death penalty?
A. I'm open to it.
Q. Okay. And what are your feelings about a life sentence?

A. I'm open to that too.
Q. Now

I'd like to go to your questionnaire now. At page -- between

pages eight and nine there's a long question. There's a great big preamble and
then a three element question. All right?
A. Okay.
the
Q. Okay. The second paragraph on page nine says in this case
defendant has been convicted of capital murder by a jury of knowingly and
intentionally causing the death of a child under six years of age. Under the
circumstances of this case the court will conduct a sentencing trial with the
jury solely to determine the sentence of the defendant. In that hearing
evidence may be presented as to any matter that the court deems relevant to
sentencing. The state and the defense will also be pennitted to present
arguments to the jury for or against the imposition of the death penalty.

Now -- then you're asked the question given the foregoing please
check one of the following that most closely describes your views. You're
asked how you feel about the death penalty.
Now you've indicated that given the foregoing -- that whole paragraph
including the one that I just read word for word -- that you're in favor of the
death penalty. That was your response. Correct?
A. Yes.

Q. And does that tell us that given the fact that there is a conviction of
capital murder of knowingly and intentionally causing the death of a child
under six years of age that you are going into the case in favor of the death
penalty?
A. No. That's not the case.

Tell us what you -- what you meant by marking I'm in favor of the
death penalty given the foregoing?
Q.

A. That I'm just open to the death penalty until I find out what goes on
you know.

Well now that you're looking at the three responses how -- tell me
what you think of the middle response ["I am neither in favor of nor against
the death penalty"]?
Q.

A. I probably would have put that one.

Is there -- can you give us any reason why you did not put that one
down at the time
Q.

A. Probably because I was in a hurry to get home.
Q.

You think so?

A. I was tired.

Now when you're on a jury in a case like this and you get -- okay.
You've got -- if you're on a jury you've got certain rights and certain
obligations and certain work to do. Right now, you've got a right to decide for
yourself based on your own moral judgment whether an individual lives or
dies. There's nothing in the law is that requires a death penalty. Do you
understand that?
Q.

A. Yes, I do.
Q.

Do you agree with that?

A. Yes.
Q.

If there's one vote for a life sentence under any circumstance there

will not be a death penalty. Do you understand that?
A. Yes, I do.
Id. at 55-59. Hence, the record shows Malpass had the ability to consider mitigating

evidence and the full range of punishment.

Renteria is not entitled to relief with respect to his claims concerning Malpass.

'Dlii

(2).

Juror John Harton

Renteria also contends John Harton was seated after the "trial court endorsed an
unconstitutional definition of mitigation" and was "unable to consider and give effect to

mitigation." Pet'r's Pet. 38, ECF No. 53. Renteria claims the trial court's rulings caused
Harton to believe that only the good qualities of a defendant could constitute mitigating
evidence and that there must be a nexus between the offense and mitigating evidence. Id. at

39-40; Pet'r's Br. in Supp. 38 n.7, ECF No. 58. Renteria also claims trial counsel were
ineffective for failing to exercise a peremptory strike as to Harton. Pet'r's Pet. 40.

Renteria did not raise any claim in state court alleging that the trial court erred during

Harton's voir dire examinationor that his counsel were ineffective for failing to exercise a
peremptory strike as to Harton. Consequently, Renteria's claims about juror Harton are
unexhausted and procedurally defaulted. Ruiz, 460 F.3d at 642-43; Nobles,

127

F.3d at 420.

the
He has also not demonstrated cause for the default and actual prejudice arising from

defaultor showed the failure to consider the claim would result in a fundamental
miscarriage ofjustice.

Coleman, 501 U.S.

at 749-50.

In any event, his claims are without merit.
During the State's voir dire examination, Harton stated that he would not be willing to
vote in favor of the death penalty in a case where the defendant committed a murder while

"high on methamphetamines." Reporter's R., vol. 13 (voir dire of John C. Harton), pp. 1920, ECF No. 80-5. Harton also stated he would be willing to (1) vote in favor of a life

sentence even after finding that a defendant was a future danger, (2) consider mitigating
circumstances, and (3) consider the full range of punishment. Id. at pp. 32, 37, 54, 73, 75, 98.

Harton expressed concern over executing innocent people and explained he had served as a

juror in a criminal trial involving a DWI. Id. at 38, 40. Harton discussed his experience in

-110-

that trial, explaining that he reviewed the evidence "several times" and was "cautious"
because he wanted to ensure he reached a proper verdict. Id. at 40.
On voir dire examination by Renteria's counsel, Harton did state he would only
consider mitigating "factors that might affect the situation at the very moment the crime is
being committed." Id. at 71. Later, Renteria' s counsel sought clarification of Barton's
statement. Id. at 82. The trial court intervened and the following exchange took place:
TFIE COURT: In regard to -- in response to the question [by defense

counsel]. You indicated that you could only consider mitigation concerning
the events surrounding the commission of the offense. But if you look at this
question, sir, it -- it -- tells you that you must take into consideration all the
evidence, the circumstances of the offense, the defendant's character and
background and the personal moral culpability of the defendant. So -A. I guess -TI-IE COURT: Like in things it involves things other than events
surrounding the offense. Now, I heard that and I said, well, I wonder if Mr.
Barton can -- can comply with the whole question? Are you going to reject
evidence of defendant's character and background and his personal moral
culpability? [BJecause the only thing that you talked about is you can
consider in response to your question remember is that first one, circumstances
of the events. So, would you look at that and think about it.

A. So, we're taking a look at the man's past, lifestyle, was he an
outstanding member of society, had a good job, went to school, comes from a
good family?

THE COURT: Yeah.
A. Or that sort of thing?

THE COURT: I can't go into specific instances of what mitigation is
because mitigation means different things to different people. You know,
what is less bad to some folks might be real bad for other folks. It's entirely
up to you. We can only tell you that to be a fair and impartial juror, you must
be able to consider mitigating evidence in compliance with that question and
including those type{s] of things like his character and background, the
circumstances of the offense and the person's moral culpability. My question
to you is you limited yourself when you said -A. I see. Yes, I do.

-111-

THE COURT: And if you feel that way, that's fine. And my question
is can you consider those other things, his character and his background?

A. Yes, I can consider that.
THE COURT: Mr. Gandra [sic], follow. Go ahead.
Q. (By Mr. Gandara) All right. So that they have -A. So, what you're saying is his background, his character, his moral
culpability, all that will have a bearing on what happened at -- at the time of
the murder that could have affected the reason why he committed that murder,
is that what you're? I -- I could go along with that.

have a bearing on what
Q. It might or might not. And it doesn't have to
happened at the time of the murder in order to be considered by a juror to be
mitigating.
MS. MERAZ: Objection, misstatement. It has to do -- there has to be a
nexus between the two.

MR. GANDARA: Your honor, Tennardv.
THE COURT: I'm going to overrule the objection.

MR. GANDARA: It doesn't have to be connected to the commission
of the offense. Mitigation has been defined by -- by the Supreme Court,
another court as being things that -- that in a juror's mind would -- that is of
such a character that it might serve as a basis [f]or a sentence less than death.
MS. MERAZ: Objection, misstatement of the law.

THE COURT: As far as quoting any definition out of any cases, I'm
going to sustain the objection. We shouldn't be -- the thing is can you consider
mitigation as -- as required by that question is the ultimate issue, sir?
A. Yes, I can.
Id. at 82-84.

Later, during voir dire examination by the State, Harton offered an example of

mitigating circumstances. He explained, in his experience in the military, he was aware that

"community health nurses," child advocates, social workers, and mental health experts were
assigned to investigate the home environment and background where a child was endangered.

-112-

such children died in the care of their
Id. at 94. Harton said he was aware of cases where
those parents that killed [their] own child
parents. Id. He added "when you take a look at

those parents were abused and
and you take a look at the background of those parents,
they think they should bring up their kids."
battered when they were kids, and that's the way
parents' abusive background in those cases to
Id. Harton concluded he would consider the
be mitigating circumstances. Id. at 94-95.
feel if he were the defendant and a
Renteria's counsel asked Harton how he would
at 99. Harton answered the he would "feel
juror with his state of mind served on his jury. id.
Id.
comfortable because" he was fair and open-minded.

that he could not give full
Renteria' s counsel challenged Harton for cause, stating
denied the challenge for cause. Id. at 101.
effect to mitigation. Id. at 100-01. The trial court
Renteria' s counsel did not exercise a peremptory

strike, and Harton served as a juror. Id.

"provided [Harton] an inaccurate and
The record belies Renteria' s claim the trial court
Pet'r's Pet. 38, ECF No. 53. Indeed, the trial
unconstitutional explanation of mitigation."
evidence, which was consistent with the jury
court gave an accurate definition of mitigating

instructions:

things other than events
THE COURT: Like in things it involves
and I said, well, I wonder if Mr.
surrounding the offense. Now, I heard that
Are you going to reject
Harton can -- can comply with the whole question?
and his personal moral
evidence of defendant's character and background
you talked about is you can
culpability? [B]ecause the only thing that
is that first one, circumstances
consider in response to your question remember
it.
of the events. So, would you look at that and think about

of what mitigation is
THE COURT: I can't go into specific instances
people. You know, what
because mitigation means different things to different
folks. It's entirely up to
other
is less bad to some folks might be real bad for
to be a fair and impartial juror, you must be
you. We can only tell you that
with that question and
able to consider mitigating evidence in compliance

-113-

the
including those type[s] of things like his character and background,
circumstances of the offense and the person's moral culpability.

Reporter's R., vol. 13 (voir dire of John C. Harton), pp.

82-83,

ECF No.

spontaneously offered an example of a case involving mitigating

80-5.

And Harton

circumstances where the

example undercuts
defendant was raised in an abusive home. Id at 94-95. Harton's
that mitigating
Renteria' s assertion the trial court left Harton with the impression

Pet'r's Pet. 39, ECF No.
circumstances only included "positive qualities of the defendant."
53.

court left Harton with the
The record also refutes Renteria's allegation that the trial

"false impression that there must be a nexus between mitigation
40,

ECF No.

53.

and the offense." Pet'r's Pet.

must be a
The trial court overruled the State's objection asserting there

Reporter's R., vol.
"nexus between" mitigating circumstances and the offense.

of John C. Harton), p. 84, ECF No.

80-5.

13

(voir dire

The trial court only sustained the State's objection

circumstances from court
to defense counsels' effort to recite a definition of mitigating
court did not make any comment
opinions. Id. The State did not object toand the trial

regardingRenteria' s counsel stating mitigating circumstances do

not "have to be connected

to the commission of the offense." Id.
with an incorrect
Renteria does not explain how Harton could have been left

impression about his ability to consider mitigating circumstances

after his exchanges with the

a mitigating
trial court. And Harton offered an appropriate example of

circumstance he

mitigating circumstances
would consideran example which indicated he could consider
which did not have a nexus with the offense. Id. at

94-95.

For these reasons, all of

Renteria' s claims alleging that the trial court erred are without

merit.

failing to exercise a
Finally, Renteria claims that trial counsel were ineffective for
peremptory strike as to Harton. Pet'r's Pet. 40, ECF No. 53.

-114-

Trial counsel may provide ineffective assistance by failing to exercise a peremptory
strike where a venire member "clearly demonstrates actual bias, with no reassurance that she

would attempt impartiality." Seigfriedv. Greer, 372 F. App'x 536, 540-41 (5th Cir. 2010)
(citing Virgil v. Dretke, 446 F.3d 598, 610 (5th Cir. 2006)). But, trial counsel are presumed
to exercise peremptory strikes based on a reasonable trial strategy. Morales

v.

Thaler, 714

F.3d 295, 305 (5th Cir. 2013). And that presumption applies even where trial counsel
chooses not to strike a venire member who admitted they would "probably" be biased against

the defendant. Id.
"Informed strategic decisions of counsel are given a heavy measure of deference and
will not be second guessed." Lamb

v.

Johnson, 179 F.3d 352, 358 (5th Cir. 1999). Renteria

in
makes no effort to rebut the presumption that trial counsel exercised a reasonable strategy
deciding not to strike Harton. Indeed, Renteria's counsel no doubt noted Harton's responses
to several questions suggested he would serve as a favorable juror. For example, Harton
stated that he would consider a defendant's abusive background as a mitigating circumstance.

Reporter's R., vol. 13 (voir dire of John C. Harton), pp. 94-95, ECF No. 80-5. Renteria's
counsel knew they would present evidence regarding domestic abuse in Renteria's childhood
home. Harton also indicated he would consider a defendant's substance abuse as a mitigating
circumstance. id. at 19-20. Renteria's counsel knew they would present evidence regarding

Renteria's alcohol abuse. Further, Harton suggested he would be a defense-friendlyjuror
a
because he was "open-minded." Id. at 99. Finally, Harton relayed his prior experience on
criminal jury during which he claimed he carefully reviewed the evidence and was "cautious"
to ensure a proper verdict. Id at 40.

Renteria does not attempt to demonstrate that his counsel were ineffective for
deciding

thatbased on the above responsesHarton would be an acceptable juror.
-115-

For the

same reason, Renteria fails to demonstrate prejudice from trial counsels' decision not to

exercise a peremptory strike as to Harton. Therefore, Renteria' s claim that his counsel were
ineffective for failing to exercise a peremptory strike as to Harton is meritless.

Renteria is not entitled to relief with respect to his claims concerning Harton.
(3).

Juror Norman Thomas

Renteria asserts Norman Thomas was seated after the trial "court endorsed [and
unconstitutional definition of mitigation" and was "unable to consider and give effect to
sustained
mitigation." Pet'r's Pet. 48, ECF No. 53. Renteria claims the trial court improperly
issue is
the State's objection to his counsel's statement to Thomas that the mitigation special
s Pet. 43"based on [his] personal moral judgment on what [he] think[s] is mitigation." Pet'r'

44, ECF No. 53.
is,
Renteria did not raise a claim in state court regarding Thomas. Renteria's claim

F.3d at 642-43;
therefore, unexhausted and procedurally defaulted in this Court. Ruiz, 460
Nobles,

and actual
127 F.3d at 420. He has also not demonstrated cause for the default

prejudice arising from the

defaultor

a fundamental miscarriage ofjustice.

showed the failure to consider the claim would result in
Coleman, 501

U.S. at 749-50.

Furthermore, the record does not support a conclusion the trial court endorsed an

not support a
unconstitutional definition of mitigation during Thomas's voir dire. It also does
regard to the
conclusion that Thomas was unable to give effect to mitigation evidence. With
issue of personal moral judgment, the following exchange occurred:

decision on whether to Q. IlDefense Counsel Jaime Gandara] That the
murder case is
- whether to give a life sentence or a death penalty in a capital
the individual decision of each juror.
A. Correct.

-116-

And -- and it's based on -- on when you get down to questions of
talking about mitigation, it's based on your personal moral judgment on what
you think is mitigation and what you think -Q.

MS. HUGHES: Objection Your Honor. It -- it's based on the evidence
that's presented in the courtroom. It's an improper question.

THE COURT: I'm going to sustain the objection.

tell
Q. (By Mr. Gandara) All right. You -- you know that nobody can
you how to decide a case when you're in the jury room.
A. Correct.

Correct, Okay. And you know that it's likely that you might be
a juror
instructed and might already have been in the case you already sat in as
that you're not supposed to surrender your honest conviction.
Q.

A. Correct.
Q. --

about the case just -- in order to reach a verdict --

A. Correct.

All right. And so -- so when you're in there you're operating on
as an
your own values and your own experiences and you're operating
individual human being, correct?
Q.

A. Disagree with that.
Q. Tell me how.

me if I'm
A. Well, you're saying on my own values. I mean correct
wrong.
Q. Uh-huh.

all the
A. Don't I have to set what I feel is right or wrong and review
evidence versus what I think.

Q.And-A. Do you understand what I'm saying?

you gauge the evidence?
Q. And -- and then how do you -- how do
A. How its presented to me.

-117-

Q.

Yeah, what's your scale but I mean once you're judging it what's

the -MS. HUGHES: Objection, Your Honor.
Q.

Whose scale is it?

MS. HUGHES: Calls for contracting.
THE COURT: Sustained.
to use somebody else's intellect
Q. (By Mr. Gandara) Are you going
-and somebody else's personality and somebody else's brain

MS. HUGHES: Same objection -Q. -- to -- to make decisions

THE COURT: I'm going to sustain the objection.
you this. If
(By Mr. Gandara) All right. All right. Let me ask
and you feel -- and
you're on a jury and you've listened to the evidence okay
convinced you beyond a
you've come to the conclusion that the State has not
danger. And you're
reasonable doubt that the defendant is going to be a future
you feel honestly about
one out of 12 and the other 11 feel differently. And
conviction about it, are
the evidence that you've heard and that's your honest
you going to surrender?
Q..

A. No sir.

Reporter's R., vol.

13

80-5.
(voir dire of Norman Thomas), pp. 253-56, ECF No.

its reasoned moral
While it is true a jury must be provided a vehicle for expressing

response to the defendant's
response, the jury's reasoned moral response must be in

mitigating evidence.

See Abdul-Kabir,

550 U.S. at 252-54. Consequently, Renteria fails to

objection to his counsel's suggestion to
show that the trial court erred in sustaining the State's
and experiences unconnected to
Thomas that his verdict would be based solely on his values

any evidence.

Renteria is not entitled to relief on his claims concerning Thomas.

-118-

(4).

Juror Brett Williams

Renteria claims Brett Williams was seated while he was "unable to consider and give

not
effect to mitigation." Pet'r's Pet. 49, ECF No. 53. Renteria notes the trial court would
factors as
permit Renteria' s counsel to question Williams whether he would consider specific
mitigating evidence. Id. at 45-46.

Renteria did not raise any claim in state court regarding juror Williams. Renteria' s
claim is, therefore, unexhausted and procedurally defaulted. Ruiz, 460 F.3d at 642-43;

and actual
Nobles, 127 F.3d at 420. He has also not demonstrated cause for the default
prejudice arising from the

defaultor showed the failure to consider the claim would result in

a fundamental miscarriage ofjustice. Coleman, 501 U.s. at 749-50.
Nevertheless, Renteria's claim is without merit. Renteria makes the conclusory
Pet. 45, ECF No.
assertion that "federal law permits the questions counsel proposed." Pet'r's

to
53. The Fifth Circuit has held that a trial court may disallow a defendant's "attempt

evidence
improperly commit" a prospective juror "to a certain view regarding mitigating
Renteria fails
anticipated to be presented in his case." Soria, 207 F.3d at 244. Consequently,

Williams
to show that the trial court erred when it would not allow his counsel to question
Renteria
about whether he would consider specific factors as mitigating evidence. Further,
R.,
fails to show that Williams would not, in fact, consider mitigating evidence. Reporter's

consider
vol. 14 (voir dire of Brett Williams), p. 55, ECF No. 80-6 (affirming he would
mitigating evidence in answering the special issues).
Renteria is not entitled to relief based on his claims concerning Williams.
(5).

Juror Roxanne Castricone

Renteria asserts Roxanne Castricone was seated after the trial "court endorsed
s
unconstitutional definition of mitigation" and "was unable to consider mitigation." Pet'r'

-119-

Pet. 50, ECF No. 53. He claims his counsel were ineffective for failing to object to the

State's definition of mitigating evidence as "anything you find that tends to make the crime
less bad or make it not so bad." Pet'r's Pet. 55; Br. in Supp. 39 n.10, ECF No. 58. He also

claims that the trial court erred in disallowing trial counsel from providing Castricone a

definition of mitigating evidence. Pet'r's Pet. 55.

Renteria' s claims about Castricone are unexhausted and procedurally defaulted
because he did not raise any claim in state court as to the voir dire examination of Castricone.
cause for
Ruiz, 460 F.3d at 642-43; Nobles, 127 F.3d at 420. He has also not demonstrated
the default and actual prejudice arising from the

defaultor showed the failure to consider

the claim would result in a fundamental miscarriage ofjustice.

Coleman, 501

U.S. at 749-50.

Additionally, his claims are without merit. During the State's voir dire examination
you
of Castricone, the prosecutor described mitigating evidence as something which makes

think the defendant deserves to live:
[Sufficient mitigating circumstances are] what the jury is looking for.
it
And the question tells the jury, look at all the evidence. Basically, look at
whether you think there is
all again. Okay. Look at everything and decide
you
some reason, some fact, some circumstances, some whatever that makes
this
think this person deserves life instead of death. So, an answer of yes on
question results in life in prison. Okay.
So, go ahead -- and we can look at the question whether taking into
consideration all 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 rather than a death penalty
imposed.. . . Okay. And it can be anything you find that tends to make the
crime less bad or make it not so bad. Okay?

Reporter's R., vol. 19 (voir dire of Roxanne Castricone), p. 47, ECF No. 80-11.
The State accurately told Castricone that mitigating evidence included evidence

the offense.
regarding a defendant's character and background and the circumstances of
also
Renteria does not show that the prosecutor's statements were objectionable. Renteria

-120-

fails to show his counsel were deficient for failing to object to the State's discussion of

mitigating evidence.

Further, Renteria's counsel discussed mitigating evidence with

Castricone using similar terms:
[Defense Counsel Jaime E. Gandara} Okay. Now, are you able to
consider -- let's -- let's look at this here. What -- you say that you got an idea
[oil what mitigation is?
Q.

Second question is whether taking into consideration all the evidence
including the circumstances of the offense, the defendant's character and
background, and the personal moral culpability of the defendant. Is there
of
sufficient mitigating circumstance or circumstances to warrant the sentence
life imprisonment rather than a death sentence be imposed? Okay. Now, does
that tell you that mitigation is just something that makes a crime less bad?
MS. HUGHES: Objection, Your Honor. That's contracting.
MR. GANDARA: Your Honor, if I may respond. Counsel for the
Do you
State asked this juror questions with that definition of mitigation.
I'm
think you see that there's something that makes the crime less bad? And
of mitigation to
just asking this juror if she is limited in her consideration
question
something that makes the crime less bad, because it's obvious from
two that that's not the case.
TFIE COURT: I'm going to sustain the objection.

MR. GANDARA: All right.

Do you -- do you consider -- re you able to consider if you're on
consider all
this jury, you've answered yes to question one. Are you able to
there's
the evidence that -- that you've heard [i]n trial and determine if
it might serve as a basis
something in that, that to you is such a character that
all the
for a sentence less than death? In other words, are you able to examine
I
evidence and see if there's anything there that says to you I think that means
should -- I should not kill -Q.

A. Yes.
Q. --

Renteria? All right. You're able to do that?

A. Yes.
Id. at 63-64.

-12 1-

Because Castricone was asked whether she could consider all of the evidence
presented in determining whether a sufficient reason existed to impose a life sentenceand
she answered that she couldRenteria fails to show that Castricone was an objectionable

juror, that she had a misapprehension regarding the mitigation special issue, that the

trial

alleged error.
court erred in disallowing trial counsel's question, or that he was harmed by the

he was
For the same reason, Renteria fails to show that his counsel were deficient or that

prejudiced by the alleged deficiency.
Therefore, the claims are without merit and he is not entitled to habeas relief.
(6).

Juror Washington Watley Jr.

him
Renteria maintains Washington Watley Jr. was seated after Renteria challenged

has two young
for cause "on the grounds he is biased and cannot be impartial because he
credibility to law
daughters, and because he would automatically believe and lend more
overruled the
enforcement officers." Pet'r' s Pet. 86, ECF No. 53. "[T]he trial court
challenges, Mr.
challenge for cause, and because the defendant had exhausted all peremptory
Watley was seated as a juror." Id.
in his
Watley expressed an opinion regarding the credibility of police officers

response to Question 205 in the juror questionnaire:
205. Would you automatically believe the testimony by a law officer simply
because he/she is a law enforcement officer? [X] YES [ ] NO
present the
Please explain: There [sic] are held to a higher standard and should only
facts as known with no opinion.
Renteria

v.

State

*151.
(Appellant's Brief), 2009 WL 5453014 (Dec. 15, 2009), at

officers,
During questioning by Renteria' s counsel about the credibility of police

Watley stated he could stay open-minded about the testimony of police officers:
are open on the possibility
Q. [Defense Counsel Edythe Payanj So you
of an officer, a policeman in uniform could get up there take the oath and lie
and make things up?

-122-

A. I've known it to happen.

Reporter's R., vol. 37 (voir dire of Washington Watley Jr.), p. 116, not scanned in ECF.
Watley also reported, in his answer to Question 216 of the questionnaire, that he had

to two daughters close in age to the victim:
216. Is there anything not covered in this questionnaire that you feel either of the
attorneys or the judge should know so that your ability to be a fair and impartial
juror can be evaluated Please explain.
"Thought [sici I do have 2 daughters I believe I can be a fair and impartial Juror.
Emotional could run high but I'm more of a 'thinker' than a 'Reactor"
*
Renteria v. State (Appellant's Brief), 2009 WL 5453014 (Dec. 15, 2009), at 152.

During questioning by the State, Watley claimed he could be fair despite having two
Watley
daughters close in age to the victim. Reporter's R., vol. 37 (voir dire of Washington
Jr.), p. 90, ECF No. 80-11.

Renteria moved to challenge Watley for cause because (1) his response to Question
205 suggested he could not be impartial about the credibility

of a law enforcement witnesses,

fairly decide
and (2) his response to Question 216 suggested he could be biased and unable to
Id.
the case due to his concern about his two daughters. The trial court denied the challenge.

already
at pp. 118-119. Renteria could not exercise a peremptory challenge because he had
exhausted his allotted challenges.

Renteria argued on direct appeal that the trial court erred in denying his challenge for
cause. He claimed Watley was biased in favor of the State because he would tend to give
credibility to law enforcement officers and he had two young daughters. Renteria v. State

(Appellant's Brief), 2009 WL 5453014 (Dec. 15, 2009), at *151_*154.
The Texas Court of Criminal Appeals rejected his claim.
A federal habeas corpus court must initially presume a jury is impartial. Smith

v.

Phillzps, 455 U.S. 209, 218 (1982). A state trial court's refusal of a petitioner's challenge for

-123-

causewhich inherently constitutes a finding of impartialityis entitled to the presumption
of correctness found in 28 U.S.C. § 2254(e)(l). Patton

v.

Yount, 467 U.S. 1025, 1038

(1984). "Deference to the trial court is appropriate because it is in a position to assess the

demeanor of the venire, and of the individuals who compose it, a factor of critical importance
in assessing the attitude and qualifications of potentialjurors." Uttecht v. Brown, 551 U.S. 1,
9 (2007) (citation omitted).

The trial court's implicit factual determination that Watley could be fair and impartial
has support in the record. Watley stated he could stay open-minded about police testimony.

Watley also claimed he could be fair despite having two daughters close in age to the victim.
The record is insufficient to show that Watley harbored a disqualifying bias.
Because Renteria has not presented clear and convincing evidence to overcome the
28
trial court's finding that Watley could be impartial, this finding is presumed correct.

U.S.C.

§

2254(e)(1). As such, this Court can grant federal habeas relief only if the state court

evidence
decision "was based on an unreasonable determination of the facts in light of the
presented in the State court proceeding." 28 U.S.C.

§

2254(d)(2). Renteria has not met this

reject his
showing, and he does not otherwise demonstrate that the state court's decision to
with
constitutional claim was erroneous. It follows that Renteria is not entitled to relief
respect to this claim.
such a
To the extent Renteria raises any claim other than that raised on direct appeal,
127 F.3d
claim is unexhausted and procedurally defaulted. Ruiz, 460 F.3d at 642-43; Nobles,

arising
at 420. Further, he does not demonstrate cause for any default or actual prejudice
from the

defaultor show the failure to consider the claim would result in a fundamental

miscarriage ofjustice. Coleman, 501 U.S. at 749-50.

Renteria is not entitled to relief based on his claims concerning Watley.

-124-

(7).

Juror Jeanette Sanchez

Renteria claims Jeanette Sanchez was seated following her statement "she would
s Pet.
sentence a defendant to death after determining he was a future danger." Pet'r'

87,

ECF

to follow
No. 53. Renteria challenged Sanchez "for cause on the basis that she was unable

for cause. Id.
the law regarding sentencing." Id. at 89. The trial court denied the challenge
the law regarding
Renteria argues the trial court erred because Sanchez was unable to follow
sentencing.

his challenge
Renteria also argued on direct appeal that the trial court erred in denying
special issue after
for cause as to Sanchez because she would not consider the mitigation
answering the future dangerousness special issue affirmatively.

(Appellant's Brief),

2009

WL 5453014 (Dec.

Renteria

v.

State

15, 2009), at *98_* 102.

The Court of Criminal Appeals rejected his claim:

the process for
Sanchez ... clarified her understanding as she explained
"if all 12 of us
determining punishment in her own words. She stated that
down to number
agree that he will be [a future danger], we have to then go
if there's anything that anybody
two and revisit all the evidence again ... to see
this may have
objects to ... any little nagging detail that they may have thought
that there are
been a mitigating circumstance." She added, "If we decide there
And she also
no mitigating circumstances, then it's the death penalty."
circumstances and
acknowledged that all twelve jurors must find no mitigating
that "it has to be unanimous" to result in the death penalty.
two ... are
Finally, defense counsel asked Sanchez, "[I]f you get to question
and background
you willing to consider elements of the defendant's character
warrant a life
to see if there's any mitigating circumstance there that would
affirmative.
sentence rather than a death penalty?" Sanchez responded in the
because "[s]he stated
Defense counsel then challenged Sanchez for cause
to the
several times that once she had determined that there was a yes answer
the death
future danger question, that was the end of the inquiry and that was
that the prosecutor failed to
penalty case." Defense counsel further argued
for
sufficiently "rehabilitate" Sanchez. The trial judge denied the challenge
Defense
cause, finding that "from the totality of the inquiry of the State and
and that "she understands what's
that the juror understands the process"
counsel's
required of her under the law." The trial judge denied defense
protested that
request for additional peremptory challenges. Defense counsel
trial court
Sanchez was an objectionable juror that he would have struck if the

-125-

had granted him another peremptory challenge. Sanchez was seated on the
jury.
The trial judge's ruling is supported by the totality of the record. Sanchez
ultimately stated that she understood and could follow the law with regard to
the mitigation special issue. Thus, the trial judge did not abuse her discretion
in denying Renteria's challenge for cause.
Renteria II,

2011 WL 1734067, at *23_*24.

she
Renteria rejects this holding, asserting Sanchez indicated on several occasions

would not consider mitigating evidence:
Ms.
This holding is unreasonable . . . as demonstrated by the record and
contrary. Ms. Sanchez said
Sanchez's own repeated assertions to the
finding the
numerous times that she would vote for the death penalty after
reviewed the
defendant to be a future danger, even after counsel painstakingly
her. She
process of answering Special Issue 1 and then Special Issue 2 with
detail that -- that's just
also inaccurately described mitigation as a "little magic
may be
bugging us about it ... something maybe bothering me or something
bothering somebody else about the case."
ECF).
Pet'r's Reply 69, ECF No. 94 (citing Reporter's R., vol. 41, not scanned into

challenge for
But as the Court noted above, a state trial court's refusal of a petitioner's

causewhich inherently constitutes a finding of impartialityis entitled to the presumption
of correctness found in 28 U.S.C.

§

2254(e)(1). Patton, 467 U.S. at 1038. Renteria's

not overcome the
disagreement with the holding of the Court of Criminal Appeals does
evidence in the record.
presumption, especially when, as here, the holding is supported by

the merits of Renteria' s
Consequently, the Texas Court of Criminal Appeals' rejection on
claims regarding the trial court denying his challenge for cause against

Sanchez was neither

federal law as
contrary to, nor involved an unreasonable application of, clearly established

upon an
determined by the Supreme Court. Moreover, the decision was not based
in Renteria' s trial,
unreasonable determination of the facts considering the evidence presented

direct appeal, and state habeas corpus proceedings.

-126-

To the extent Renteria raises any other claim about the voir dire examination

of Sanchez, such a claim is unexhausted and procedurally defaulted. Ruiz, 460 F.3d at
642-43;

Nobles,

127 F.3d at 420.

Further, he does not demonstrate cause for any

default or actual prejudice arising from the

defaultor show the failure to consider

the claim would result in a fundamental miscarriage ofjustice. Coleman, 501 U.S. at

749-50.
Renteria is not entitled to relief based on his claims concerning Sanchez.
e. Peremptorily Challenged Venire Members

Renteria also claims the trial court placed unconstitutional and improper limitations
on his voir dire

of the following peremptorily challenged prospective jurors: Annette

Brigham; Elizabeth Black; Anna L. Nava; Howard R. Bryan; John Tobias; Robert Wayne
Crosby; Robert P. Tomes; Evangeline Rose Ramirez; Carlos Martinez; Daniel Gurany; Cruz

Angel Ochoa, Jr.; Longino Gonzalez, Jr.; Mark Robert Williams; Mark Anthony Tapia; Paul
Steven Watt; John David Turner; Leslie D. Potter; John P. Deslongchamps; Joaquin Rivera;

Lorena Carreon; and Margaret Jackson. Pet'r's Br. in Supp. 41-45, ECF No. 58. Renteria
also contends that, because he "exhausted all his peremptory strikes.

. .

and.

. .

two

incompetent jurors were seated [Washington Watley, Jr. and Jeanette Sanchez], the court's
failure to grant this challenge for cause warrants reversal." Pet'r's Reply 43, ECF No. 94
(1). Venire Member Anette Brigham

Renteria claims the trial court erred in sustaining the State's objection to his counsels'
questions regarding prospective juror Brigham's potential bias. Pet'r's Pet. 46-48, ECF No.
53. "Despite Ms. Brigham's admission that she was molested as a child, the trial court erred

in not allowing counsel to question her about the bias she could have in sentencing a

defendant who killed, and perhaps sexually assaulted, a child and had previously been

-127-

convicted of indecency with a child." Pet'r's Reply 48, ECF No. 94. Renteria also claims

the trial court erred in improperly telling Brigham she could not use her own personal moral

judgment in answering the special issues. Pet'r's Pet. 47.
In point of error four in his direct appeal, Renteria argued the trial judge improperly

at *8. He
restricted his voir dire questioning of Brigham. Renteriali, 2011 WL 1734067,
complained the trial judge refused to permit an open-ended question about the hypothetical

of a child. Id. at
parameters for Brigham's decision-making in a case involving sexual abuse
*9 (citing Standefer, 59 S.W.3d at 180). Renteria assertedas a resulthe could not

was denied his
intelligently exercise peremptory challenges and challenges for cause, and he
constitutional rights to due process and effective assistance of counsel.

form of
The Court of Criminal Appeals noted the trial judge limited her ruling to the
102, 111
Renteria's question, not its substance. Id. (citing Howard v. State, 941 S.W.2d

particular form
(Tex. Crim. App. 1996) (explaining a defendant is not entitled to any

of

a particular area of
question; rather, a defendant is authorized to ask "proper" questions in
directly whether
inquiry)). In fact, the trial judge suggested that defense counsel ask Brigham

counsel later asked
she could be fair and impartial in light of her past experience. Defense
[her] ability to
Brigham if, "given [her] experiences," there was "anything that would affect

counsel was able to
sit as ajuror and be impartial." Id. By rephrasing the question, defense
sexual assault.
elicit whether Brigham could be impartial despite experiencing a childhood

when a trial
Id. (citing Howard, 941 S.W.2d at 109) (finding no improper voir dire restriction
The
court limited its ruling only to the form of the questions and not to their substance).
Court of Criminal Appeals overruled Renteria's point of error four.

Renteria now claims the "inquires.

. .

were far too cursory to root out bias." Pet'r's

Reply 49, ECF No. 94.

-128-

During the voir dire examination by the State, Brigham stated she would be willing to

under
consider the full range of punishment in a case involving the capital murder of a child
the age of six years old. Reporter's R., vol.

13

(voir dire of Anette Brigham), p. 132, ECF

No. 80-5. She acknowledged that she was the victim of child molestation when she was in
be
elementary school. Id. at 135. The prosecutor asked whether, considering that, she would
did
able to decide this case fairly based on the evidence. Id. at 137. Brigham stated that she

on
not "see a real correlation between the two" and that she could decide the case fairly based
the evidence. Id.

Renteria's counsel asked Brigham, "based on where you sit, given your experiences,
given who you are, do you feel that there's anything that would affect your ability

to sit as a

she
juror and be impartial?" Id. at 197. Brigham answered, "[n]o." Id. She also stated that

could "listen to both sides," despite her experience as a child. Id. at 198-200.

Renteria's counsel also told Brigham, "this is going to come down to your own
that just as your
personal moral judgment, your own values, what you believe might fall into
stating the
religious beliefs or your own personal values." Id. at 195. The State objected,
objection.
jury's verdict has "to be based on the evidence." Id. The trial court sustained the
Id. Trial counsel later stated, "whatever evidence you hear

thatthat falls into your personal

Id. at
views, that would be evidence that you can apply to [the mitigation special issue]."
196. Brigham agreed. Id.

The record shows the trial court asked the venire members to complete a lengthy
questionnaire and allowed counsel latitude in asking potential jurors questions. The Court's

independent review of the entirety of defense counsel's voir direincluding defense counsel's
voir dire of Brighamleads to a reasonable conclusion it was enough to permit Renteria's

the
counsel to determine whether Brigham's views "would prevent or substantially impair

-129-

and [her] oath."
performance of [her] duties as a juror in accordance with [her] instructions

was entitled to
Wainwright, 469 U.S. at 424 (quoting Adams, 448 U.s. at 45). Renteria
nothing more. See Soria, 207 F.3d at 244.

mitigating
Further, the jury must give a "reasoned moral response" to a defendant's
(2007). Indeed, the Supreme
evidence. Abdul-Kabir v. Quarterman, 550 U.S. 233, 252-54

permissible
Court has held that an "anti-sympathy" jury instruction is constitutionally
is more likely to depend on
because "[w]hether a juror feels sympathy for a capital defendant

the crime and the defendant."
that juror's own emotions than on the actual evidence regarding
Saffle v. Parks, 494 U.S. 484, 492-93 (1990).

Because Renteria has not presented clear and convincing

evidence to overcome the

did not improperly restricted his voir
Court of Criminal Appeals' conclusion the trial judge
correct. 28 U.S.C. § 2254(e)(1). As
dire questioning of Brigham, this finding is presumed
the conclusion was not "based on an
such, the Court cannot grant federal habeas relief, since
evidence presented in the State court
unreasonable determination of the facts in light of the
Renteria is not entitled to relief with
proceeding." 28 U.S.C. § 2254(d)(2). It follows that

respect to this claim.
Further, Renteria' s counsel exercised a peremptory strike

as to Brigham. Reporter's

that sits is impartial, the fact that [the
R., vol. 13, p. 203, ECF No. 80-5. "So long as the jury
that result does not mean that the
petitioner] had to use a peremptory challenge to achieve
Soria, 207 F.3d at 241-42. "The
Sixth Amendment was violated." Ross, 487 U.S. at 88;

of a constitutional violation
failure properly to grant a challenge for cause rises to the level
peremptory challenges and an
and warrants reversal only if the defendant exhausts all
the defendant has not been
incompetent juror is forced upon him. Absent such a showing,

-130-

F.3d
denied his Sixth Amendment right to an impartial jury." United States v. Webster, 162
308, 342 n.36 (5th Cir. 1998).
Finally, to the extent Renteria raises claims other than those raised on direct appeal,
127 F.3d
they are unexhausted and procedurally defaulted. Ruiz, 460 F.3d at 642-43; Nobles,

arising from
at 420. Renteria does not demonstrate cause for any default or actual prejudice
the

defaultor show the failure to consider the claim would result

in a fundamental

miscarriage ofjustice. Coleman, 501 U.S. at 749-50.

Renteria is not entitled to relief based on his claims concerning Brigham.
(2). Venire Members Elizabeth Black; Anna L. Nava;
Howard R. Bryan; and John Tobias

Renteria claims the trial court improperly prohibited his counsel from asking
as a defendant's substance
Elizabeth Black whether she could consider specific factorssuch
character, or the
abuse, family history, emotional problems, background, upbringing,
Pet. 40-42, ECF No. 53. As
circumstances of the offenseas mitigating evidence. Pet'r' s

to Black. Reporter's R., vol.
a result, he says he was forced to exercise a peremptory strike as
12 (voir dire

of Elizabeth Black),

p. 133, ECF No. 80-4.

for cause
Renteria maintains "[t]he trial court erred in denying Petitioner's challenge

either in considering and
against [Anna L.} Nava because she was unable to follow the law,
death penalty for
giving effect to mitigating evidence or by automatically imposing the
94.
anyone convicted of killing a child." Pet'r's Reply 58-59, ECF No.

for cause
Renteria contends "[the trial court erred in denying Petitioner's challenge

favors the
against [Howard R.] Bryan because he has a law enforcement bias and

state." Id.

counsel from conducting
at 60. He further contends "[tihe trial court also erred in prohibiting
for cause and the
a full and constitutional voir dire to permit development of challenges
intelligent use of peremptory challenges. Id.

-131-

Renteria claims "[t]he trial court erred in denying Petitioner's challenge for cause
against [John] Tobias because he would automatically vote for the death penalty for certain
crimes and could not consider and give effect to mitigating evidence." id. at 62.
In points of error five through eight in his direct appeal, Renteria argued the trial

judge improperly restricted his voir dire questioning of prospective jurors Black, Nava,
Bryan, and Tobias. Renteria II, 2011 WL 1734067, at *9

He complained the trial judge

prevented him from asking these prospective jurors if they were "biased against specific
evidence that the defense intend[ed] to introduce in mitigation." Id. He assertedas a

resulthe was unable to "intelligently exercise peremptory challenges and challenges for
cause" and was "effectively deprived.

. .

of effective assistance of counsel." Id. The Court

of Criminal Appeals explained "[a] prospective juror is not challengeable for cause simply
*11
because he or she does not consider a particular type of evidence to be mitigating." Id. at

(citing Standefer, 59 S.W.3d at 181). It further explained "[w]hether a juror considers a

specific evidence mitigating is not a proper area of inquiry." Id. The Court of Criminal
Appeals overruled Renteria's points of error five through eight.

Renteria now asserts he "had a right to an impartial jury and to adequate voir dire in
order to identif' unqualified jurors." Pet'r's Reply 46, ECF No. 94. He argues that without

being able to present Black, Nava, Bryan, and Tobias with any examples of mitigating
evidence, his counsel had no way of discerning whether they were qualified. Id. at 46, 59,
61, 62. He also maintains the Court of Criminal Appeals' "holding as to Mr. Bryan's bias in

favor of law enforcement is also unreasonable." Id. at 61.

The Court discussed using examples of mitigating evidence during voir dire in section
D above. The Court opined, although a court must afford a defendant an opportunity to

present mitigating evidence at the punishment phase of a capital trial, the fact that a juror

-132-

the
might view the evidence as aggravatingas opposed to mitigatingdoes not implicate
Eighth Amendment.

Johnson,

509 U.S. at 368. So "a defendant in a capital case is not

the
entitled to challenge prospective jurors for cause simply because they might view

rather than a
evidence the defendant offers in mitigation of a death sentence as an aggravating
mitigating factor."

Dorsey, 494

F.3d at 533. Thus, Renteria's claim that the trial court

questions
deprived him of the ability to discover the basis for a challenge for causethrough
specific evidence as
which would help his counsel determine whether potential jurors viewed
mitigating or aggravatingis without merit.

the state court
The Court may grant federal habeas relief only if the conclusion of

the evidence presented in
"was based on an unreasonable determination of the facts in light of
has not presented
the State court proceeding." 28 U.S.C. § 2254(d)(2). Because Renteria

Appeals' conclusion the
clear and convincing evidence to overcome the Court of Criminal

of Black, Nava, Bryan, and
trial judge did not improperly restrict his voir dire questioning
Tobias, this finding is presumed correct. 28 U.S.C.

§

2254(e)(1). It follows that Renteria is

iiot entitled to relief with respect to this claim.

Black, Nava, Bryan,
Further, Renteria' s counsel exercised peremptory strikes as to

as to these potential
and Tobias. Therefore, any complaint about the trial court's rulings

jurors is necessarily without merit. Soria, 207 F.3d at 241-42.
on direct appeal,
Finally, to the extent Renteria raises any claim other than that raised

F.3d at 642-43; Nobles,
such a claim is unexhaUsted and procedurally defaulted. Ruiz, 460
or actual prejudice
127 F.3d at 420. Renteria has not demonstrated cause for any default
arising from the

defaultor showed the failure to consider the claim would result in a

fundamental miscarriage ofjustice.

Coleman, 501

-133-

U.S. at 749-50.

Renteria is not entitled to relief based on his claims concerning Black, Nava, Bryan,
and Tobias.
(3). Venire Members Robert Wayne Crosby and Robert P.

Tomes
Renteria claims "the trial court erred in denying Petitioner's challenge for cause

to death after
against Mr. Crosby because he would automatically sentence a defendant
further claims
finding him to be a future danger." Pet'r's Reply 58-59, ECF No. 94. He
"[t]he trial court also unconstitutionally prohibited questioning regarding

matters that would

Mr. Crosby could
have led to a challenge for cause. Here, specifically, it was unclear that

Renteria, "the full
consider the full range of punishment." Id. In this case, according to
range of punishment.

. .

included the possibility of parole." Id. at 63.

for cause
Renteria also claims "[t]he court erred in denying Petitioner's challenge
life with the possibility of
against Mr. Tomes because he could not consider a punishment of

trial court also
parole for someone convicted of killing a child." Id. at 63. He adds "[tihe
voir dire that included
erred in prohibiting counsel from conducting a full and constitutional
s) ability to
the right to explicitly inquire as to Mr. Tomes' (and every other veniremember'

Const. amends. VI, VIII,
consider the full range of punishment in this case. Id (citing U.S.
2004 ("the trial judge's
and XIV); Franklin v. State, 138 S.W.3d 351, 354 (Tex. Crim. App.

denial of a mistrial based on the juror's withholding of material information.

. .

violates the

constitutional right of a trial by an impartial jury")).
trial judge
In points of error nine and ten in his direct appeal, Renteria argued the

Tomes about
improperly restricted him from questioning prospective jurors Crosby and
*16. He claimedas a resulthe was
parole eligibility. Renteria II, 2011 WL 1734067, at

deprived
"denied the ability to intelligently exercise his peremptory strikes" and "effectively

of effective assistance of counsel." Id

-134-

The Court of Criminal Appeals noted "[t]hese proposed questions were similar to the
questions at issue in Sells."

Id.

at *18 (citing Sells, 121 S.W. 3d at 756-57 ("any attempt to

commit prospective jurors to giving mitigating, aggravating, or even no effect to the parole
instruction [was] impermissible.")). It also noted the trial court ultimately asked Crosby
whether he could follow the instructions on parole. Id. Consequently, the Court of Criminal
Appeals concluded the trial judge had not abused her discretion by prohibiting the proposed
questions. Id. The Court of Criminal Appeals overruled points of error nine and ten.

Renteria now argues that while he may not be entitled to question venire members

their
about their views on parole laws, "he is entitled to question venire members regarding

the
ability to consider the full range of punishment, and for Mr. Renteria that included
possibility of parole." Pet'r's Reply 64, ECF No. 94 (emphasis in original).
to
In a criminal trial in Texas, "both the [defendant] and the State ha[veJ the right

542 S.W.2d
have jurors who believe in the full range of punishment." Woodkins v. State,
Code of
855, 862 (Tex. Crim. App. 1976). The right of the defendant arises from Texas

Criminal Procedure article 35.1 6(c)(2), and the right of the State arises from article
35.16(b)(3). Smith

v.

State, 573 S.W.2d 763, 764 (Tex. Crim. App. 1977), overruled by

S.W.2d
Hernandez v. State, 757 S.W.2d 744 (Tex. Crim. App. 1988); Weaver v. State, 476

was forced,
326, 327 (Tex. Crim. App. 1972). "Thus, if it is established that the [defendant]
over objection, to have ajuror sit on his case who could not consider the full range of
764.
punishment, a reversal of the cause would be warranted." Smith, 573 S.W.2d at
In this case, Renteria exercised peremptory challenges against Crosby and Tomes.

They did not "sit on his case." And, as discussed in Section C Claim III above, the trial
court instructed those who did sit on his case about the possibility of parole, in accordance
with Texas Code of Criminal Procedure article 37.07 1

-135-

§

2(e)(2)(B).

The Court may grant federal habeas relief only if the conclusion of the state court
in
"was based on an unreasonable determination of the facts in light of the evidence presented
the State court proceeding." 28 U.S.C.

§

2254(d)(2). Because Renteria has not presented

the
clear and convincing evidence to overcome the Court of Criminal Appeals' conclusion
about
trial judge did not improperly restrict his voir dire questioning of Crosby and Tomes
the possibility of parole, this finding is presumed correct. 28 U.S.C.

§

2254(e)(1). It follows

that Renteria is not entitled to relief with respect to this claim.
Further, Renteria's counsel exercised peremptory strikes as to Crosby and Tomes.

jurors is
Therefore, any complaint about the trial court's rulings as to these potential
necessarily without merit. Soria, 207 F.3d at 241-42.
appeal,
Finally, to the extent Renteria raises any claim other than that raised on direct
460 F.3d at 642-43; Nobles,
such a claim is unexhausted and procedurally defaulted. Ruiz,

or actual prejudice
127 F.3d at 420. Renteria has not demonstrated cause for any default
would result in a
arising from the defaultor showed the failure to consider the claim

fundamental miscarriage ofjustice. Coleman, 501 U.S. at 749-50.
and Tomes.
Renteria is not entitled to relief based on his claims concerning Crosby
(4). Venire Members Evangeline Rose Ramirez; Carlos

Martinez; Daniel Gurany; Cruz Angel Ochoa, Jr.; Longino
Gonzalez, Jr.; Mark Robert Williams; Mark Anthony
Tapia; Paul Steven Watt; John David Turner; Leslie D.
Potter; Margaret Jackson, Lorena Carreon; and John P.
Deslongchamps
asking
Renteria avers the trial court improperly disallowed his counsel from

the defendant
Evangeline Rose Ramirez whether she would consider mitigating evidence if
53. He argues
"had a prior indecency with a child conviction." Pet'r's Pet. 55-57, ECF No.

Ramirez, who
"[tjhe trial court erred in denying Petitioner's challenge for cause against Ms.

-136-

unequivocally stated that she would automatically sentence someone to death without
considering mitigation after answering "yes" to Special Issue 1." Pet'r's Reply 54, ECF No.
94.

Renteria maintains his trial counsel were ineffective for failing to object to the State's

"erroneous and unconstitutional definition of' mitigating evidence during the voir dire of
Carlos Martinez. Pet'r's Pet. 53-54, ECF No. 53. "Moreover, the trial court erred in failing
to grant Petitioner's challenge for cause based on (1) Mr. Martinez's belief that if a defendant
did not testif' about his remorse, Mr. Martinez 'probably wouldn't have any choice' but to

vote for a death sentence; and (2) his belief, based on his religious conviction, that 'an eye for

an eye' justifies the automatic imposition of a death sentence." Pet'r's Reply 54, ECF No.
94.

Renteria alleges "the trial court erred in denying counsel's challenge for cause
because [Daniel] Gurany would impose the death penalty where a defendant's schools and

parents had failed him and the defendant had 'failed himself." Id. at 65. He argues the Court

of Criminal Appeals' rejection of this claim "was unreasonable.. . as they relied on a simple
'yes' given in response to the question of whether Mr. Gurany would be willing to consider
Petitioner's character and background in answering the mitigation special issue.. ." Id at
65-66.
Renteria contends the trial court erred in denying his "challenge for cause against
[Cruz Angel] Ochoa [Jr.] because he was unable to follow the law and consider a life

sentence for someone convicted of killing a child under six or consider and give effect to

mitigating evidence once he found a defendant to be a future danger." Id at 59.

Renteria claims Longino Gonzalez "felt death was the appropriate sentence for
someone convicted of killing a child under six years old." Pet'r's Pet. 65, ECF No. 53. He

-137-

he first
adds Gonzalez "formed an opinion that death was the appropriate punishment" when
learned about the case in the media. Id.

Renteria asserts "{t]he trial court improperly denied the challenge for cause against
appropriate
Mr. [Mark Robert] Williams because (1) Mr. M. Williams felt death was the

he could not
penalty for anyone found guilty of killing a child under the age of six; and (2)

Pet'r's
guarantee that his preconceived notions of the case would not influence his verdict."
Reply 51, ECF No. 94.

Renteria alleges "[t]he trial court erred in denying Petitioner's challenge for cause
penalty for
against [John] Tobias because he would automatically vote for the death

certain

Id. at 62
crimes and could not consider and give effect to mitigating evidence."

attitude
Renteria claims "[Margaret] Jackson expressed that her personal history and

fair and impartial."
toward child abuse and family abuse would prevent her from being
challenge, and
Pet'r's Pet. 79, ECF No. 53. He further claims "[t]he trial court denied [his]
Id. at 80.
[his] counsel was forced to exercise a peremptory challenge."

for cause
Renteria maintains "[t]he trial court erred in denying Petitioner's challenge
to mitigating
against [Lorena] Carreon because she could not consider and give effect

heinous." Pet'r's
evidence as required under Penry I if the circumstance of the crime were
Reply 57, ECF No. 94.

verdict
Renteria complains Mark Anthony Tapia had a predetermined punishment
mitigating
concerning the future dangerousness special issue, was unable to consider
the
evidence, and indicated he would improperly shift the burden of proof regarding
that the trial court
mitigation special issue to Renteria. Pet'r's Pet. 36-38. He also claims
to consider
improperly disallowed his counsels' question to Tapia regarding his willingness

mitigating evidence. Id at 37.

-138-

Renteria maintains his constitutional rights were violated "[b]ecause the [trial] court
prevented [his] counsel from questioning [Paul Steven Watt and other] jurors about how

evidence of a prior conviction for indecency of a child might affect their ability to consider
mitigation and the full range of punishment." Id. at 5 7-60. He also claims that the trial

court's ruling denied him effective assistance of counsel because the ruling prevented trial
counsel from "intelligently exercise[ingj peremptories or develop challenges for cause." Id.
at 60.

Renteria suggests his constitutional rights were violated because the State provided
John David Turner with an unconstitutional definition of mitigating evidence. Id. at 77-7 9.

Renteria also claims his counsel were not permitted to ask, "Turner proper questions that

would have led to a challenge for cause." Id. at 78.
Renteria avers "[t]he trial court erred in denying Petitioner's challenge for cause
against [Leslie] Potter because he could not consider and give effect to mitigating evidence

Reply 66,
and would automatically vote for a death sentence for a heinous crime." Pet'r's

ECFNo. 94.
Finally, Renteria contends the trial court improperly disallowed his counsel from
at 82-85.
explaining the definition of mitigating circumstances to John Deslongchamps. Id.

the
In points of error eleven through thirty-seven in his direct appeal, Renteria alleged
trial judge improperly denied his challenges for cause against eighteen venire members:
Robert Wynn Crosby; Jeanette Sanchez; Evangeline Rose Ramirez; Anna L. Nava; Carlos
Martinez; Howard R. Bryan, Jr.; Daniel Gurany; Cruz Angel Ochoa, Jr.; Longino Gonzalez,
Steven
Jr.; Robert P. Tomes; Mark Robert Williams; Mark Anthony Tapia; John Tobias; Paul
Watt; John David Turner; Leslie D. Potter; John P. Deslongchamps; and Washington Watley,
Jr.

Renteriall, 2011

WL

1734067, at *19.

-139-

The Court of Criminal Appeals explained thatto establish harma defendant must
show he asserted a clear and specific challenge for cause. Id. (citing Green

v.

State, 934

S.W.2d 92, 105 (Tex. Crim. App. 1996)). A defendant must also show "he used all his

peremptory strikes, asked for and was refused additional peremptory strikes, and was then

forced to take an identified objectionable juror whom he would have struck had the trial court
granted his challenge for cause or granted him additional peremptory strikes." Id. (citing
Lewis v. State, 911 S.W.2d 1, 4 (Tex. Crim. App. 1995). The Court of Criminal Appeals

found Renteria had complied with these requirements for eleven venire members: Robert
Wynn Crosby; Jeanette Sanchez; Carlos Martinez; Howard R. Bryan, Jr.; Daniel Gurany;
Cruz Angel Ochoa Jr.; Longino Gonzalez Jr.; Mark Williams; Mark Anthony Tapia; John

Tobias; and Paul Watt. Id. at *19_*36

But it further found the trial judge did not abuse her discretion in denying Renteria' s
challenges for cause to these eleven venire members. "Because Renteria has failed to show

that at least eight of his complained-of challenges for cause were erroneously denied, he
cannot show harm on appeal." Id at *36 (citing Chambers

v.

State, 866 S.W.2d 9, 23 (Tex.

Crim. App. 1993) ("Error is preserved for review by this Court only

if appellant (1) used all

of his peremptory strikes, (2) asked for and was refused additional peremptory strikes, and (3)
was then forced to take an identified objectionable juror whom appellant would not otherwise
have accepted had the trial court granted his challenge for cause (or granted him additional

peremptory strikes so that he might strike the juror)." Chambers, 866 S.W.2d at 23). The
Court of Criminal Appeals accordingly overruled points of error eleven through thirty-seven.

"So long as the jury that sits is impartial, the fact that [the petitioner had to use a
peremptory challenge to achieve that result does not mean that the Sixth Amendment was

violated." Ross, 487 U.S. at 88; Soria, 207 F.3d at 241-42. "The failure properly to grant a

-140-

challenge for cause rises to the level of a constitutional violation and warrants reversal only if
the defendant exhausts all peremptory challenges and an incompetent juror is forced upon
him. Absent such a showing, the defendant has not been denied his Sixth Amendment right

to an impartialjury." Webster, 162 F.3d at 342 n.36.

Renteria contends that, because he "exhausted all his peremptory strikes..

.

and...

two incompetent jurors were seated (Mr. Watley and Ms. Sanchez. . .), the court's failure to
grant this challenge for cause warrants reversal." Pet'r' s Reply 43, ECF No. 94 (citing
Webster, 162 F.3d at 342 n.36.

Renteria claims Watley was incompetent because he "answered 'yes' when asked on
his juror questionnaire if he would automatically believe the testimony of a law enforcement

officer simply because he or she is a law enforcement officer, which is constitutionally
impermissible." Pet'r's Reply 68-69, ECF No. 94 (emphasis in original). He claims Sanchez

was incompetent because she "said numerous times that she would vote for the death penalty
after finding the defendant to be a future danger, even after counsel painstakingly reviewed

the process of answering the first special issuethe future dangerousness

issueand the

second special issuethe mitigation issue. Id. at 69 (citing Reporter's R., vol. 41 (voir dire

of Jeanette Sanchez), pp. 70; 71; 73; 77-78, not scanned in ECF. He notes Sanchez also
inaccurately described mitigation as a "little magic detail that -- that's just bugging us about it
. .

something maybe bothering me or something may be bothering somebody else about the

case." Id. (citing Reporter's R., vol. 41, p. 82).

A state court's factual findings are presumed to be correct, and the petitioner bears the
burden of rebutting that presumption by clear and convincing evidence. 28 U.S.C.

§

2254(e)(l). "This deference extends not only to express findings of fact, but to the implicit
findings of the state court." Garcia v. Quarterman, 454 F.3d 441, 444 (5th Cir. 2006) (citing

-141-

Summers v. Dretke, 431 F.3d 861, 876 (5th Cir. 2005); Youngv. Dretke, 356 F.3d 616, 629

(5th Cir. 2004)). If there is "some indication of the legal basis for the state court's denial of

relief," the district court may infer the state court's factual findings even if they were not
expressly made. Goodwin

v.

Johnson, 132 F.3d 162, 184 (5th Cir. 1997). See also

Thompson v. Linn, 583 F.2d 739, 742 (5th Cir. 1978) (per curiam) (quoting Townsendv.

Sam, 372 U.S. 293, 314 (1963)) (permitting the district court to "reconstruct the findings of

the state court, 'either because (the state trial judge's) view of the facts is plain from his

opinion, or because of other indicia").
The trial court's implicit factual determination that Watley could be fair and impartial

has support in the record. Watley stated he could stay open-minded about police testimony.

Reporter's R., vol. 37 (voir dire of Washington Watley Jr.), p. 116, not scanned in ECF. He
also claimed he could be

fairdespite having two daughters close

in age to the victim. Id. at

90. These views would not prevent or substantially impair Watley's performance of his

duties as a juror in accordance with his instructions and his oath. The record is insufficient to
show that Watley harbored a disqualifying bias.

A court may grant federal habeas relief only if the state court finding "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)(2). Renteria has not done this. He has not demonstrated
the state court's decision to reject his constitutional claim was erroneous. Because Renteria
has not presented clear and convincing evidence to overcome the trial court's finding that

Watley could be impartial, this finding is presumed correct. Id.

§

2254(e)(1).

Renteria argued on direct appeal that the trial court erred in denying his challenge for
cause as to Sanchez because she would. not consider the mitigation special issue after

answering the future dangerousness special issue affirmatively. Renteria v. State

-142-

(Appellant's Brief), 2009 WL 5453014 (Dec. 15, 2009), at *98_* 102. The Court of Criminal
Appeals rejected his argument. It noted Sanchez said she would consider mitigating

evidence:
Sanchez ... clarified her understanding as she explained the process for
determining punishment in her own words. She stated that "if all 12 of us
agree that he will be [a future danger], we have to then go down to number
two and revisit all the evidence again ... to see if there's anything that anybody
objects to ... any little nagging detail that they may have thought this may have
been a mitigating circumstance." She added, "If we decide there that there are
no mitigating circumstances, then it's the death penalty." And she also
acknowledged that all twelve jurors must find no mitigating circumstances and
that "it has to be unanimous" to result in the death penalty.
Finally, defense counsel asked Sanchez, "[I]f you get to question two ... are
you willing to consider elements of the defendant's character and background
to see if there's any mitigating circumstance there that would warrant a life
sentence rather than a death penalty?" Sanchez responded in the affirmative.
Renteria

II, 2011 WL 1734067, at *23. The Court of Criminal Appeals reasoned "[t]he trial

judge's ruling is supported by the totality of the record. Sanchez ultimately stated that she
understood and could follow the law about the mitigation special issue. Thus, the trial judge
*24.
did not abuse her discretion in denying Renteria's challenge for cause." id. at

Again, a state trial court's denial of a petitioner's challenge for cause is entitled to the

presumption of correctness. 28 U.S.C.

§

2254(e)(1); Patton, 467 U.S. at 1038. Renteria's

disagreement with the Court of Criminal Appeals' holding does not overcome the
presumption, especially when, as here, the holding is supported by evidence in the record.
Consequently, the Texas Court of Criminal Appeals' rejection on the merits of Renteria' s

claims regarding the trial court denying his challenge for cause against Sanchez was neither

contrary to, nor involved an unreasonable application of, clearly established federal law as
determined by the Supreme Court. It was also not based upon an unreasonable determination

ofthe facts considering the evidence presented in Renteria's trial, direct appeal, and state
habeas corpus proceedings.

-143-

Sanchez or any venire member
The evidence does not support a conclusion Watley,
complaints concerning the trial court's
who sat on the jury was unqualified. Renteria's
Renteria is not entitled to relief on these
rulings as to the venire members are without merit.
claims.
f.

Cumulative Error

[the alleged errors during voir dire]
Renteria also suggests the "cumulative impact of

rights under the Federal Constitution." Pet'r's
worked to deny [him] the above enumerated
may only grant relief on a cumulative
Pet. 84-85, ECF No. 53. But a federal habeas court
errors of a constitutional magnitude,
error claim when the petitioner identifies individual
defaulted, and shows the errors resulted in
establishes the alleged errors are not procedurally
496 F.3d 430, 440 (5th Cir. 2007); Moore v.
a due process violation. Coble v. Quarterman,
Tex. 2007) (citing Spence v. Johnson, 80 F.3d
Quarterman, 526 F. Supp. 2d 654, 710 (W.D.
above, all of Renteria's purported errors
989, 1000-01 (5th Cir. 1996)). As discussed

procedurally defaulted, or both. Consequently,
concerning the voir dire process are meritless,

he cannot allege any errors to cumulate.
alleging the cumulative effect of the
Further, Renteria raised a claim on direct appeal
him his right to due
trial court's alleged errors during voir dire denied

process. Renteria v.

15, 2009), at *154*156.
State (Appellant's Brief), 2009 WL 5453014 (Dee.

The Court of Criminal Appeals rejected the claim,

holding Renteria failed to allege

at *37
any error to cumulate. Renteria II, 2011 WL 1734067,

rejection of the claim was
Renteria does not attempt to show that the state court's
Coble, 496 F.3d at 440 ("Coble has not
unreasonable. Therefore, he is not entitled to relief.
we cannot say that the state
identified errors of constitutional dimension. Accordingly,

claim was objectively unreasonable).
habeas court's rejection of Coble' s cumulative error

-144-

in multiple respects

K Claim V - Renteria's constitutional rights were violated Pet'r's Pet. 91-99,
trial.
penalty
by the trial court's jury charge at the second
ECF No. 53; Br. in Supp. 43-50, ECF No. 58.
1.

Background.

of extraneous offenses, the
Renteria next complains about the admissibility
the jury charge.
constitutionality of the both special issues, and

Criminal
First, Renteria notes that under Texas Code of

Procedure Articles 30.07 and

evidence of 'extraneous' offenses
37.071, "the State is permitted wide latitude to introduce
53. Indeed, the State may introduce
during the penalty phase." Pet'r's Pet. 92, ECF No.
has previously been charged with or finally
evidence "regardless of whether {the defendantj

Tex. Code Crim. Proc. art 37.07 § 3(a)(l)).
convicted of the crime or act." Id. at 93 (quoting
conduct to support a finding of the first
But, he argues, "[tjhe presentation of extraneous

of innocence, the Sixth
special issue violates the Fifth Amendment's presumption
a risk of arbitrary and unreliable capital
Amendment's jury trial guarantee, and creates
Amendments." Id. He concedes "[t]his
sentencing, in violation of the Eighth and Fourteenth
Id. at 94.
issue was not presented to the state courts."
is unconstitutionally vague, and fails
Second, Renteria asserts "[t]he first special issue

discretion to the sentencing jury" in the
to provide the Constitutionally-required guided
He notes "[n]either the statute nor the
Eighth and Fourteenth Amendments. Id. at 94.

'criminal acts of violence,' and
required jury charge define the terms 'probability,'

with
use the term "probability' in conjunction
'continuing threat to society." Id. And both
to determine beyond a reasonable doubt. Id.
an issue which the trial court instructs the jury
trial and on direct appeal.
Renteria adds his defense raised these issues before

Renteria v.

*188_
(Tex. Crim. App. filed Dec. 15, 2009), at
State (Appellant's Brief), 2009 WL 5453014

-145-

* 195.

Yet the Court of Criminal Appeals affirmed the lower court in all respects. Renteria

II, 2011 WL 1734067, at *47_*43

Third, Renteria protests the "10-12

rule"which "requires capital jurors to be

issue and 'No' to
instructed that they can answer 'Yes' to the future-dangerousness special

that they can give the
the mitigation special issue only if all twelve of them agree to do so and
and the
opposite answers only if ten or more of them agree to do so"9is unconstitutional

jury that, if it is unable
sentencing statute improperly bars the trial court from instructing the
the trial court is required
to reach "a unanimous or at-least-ten verdict on either special issue,
No. 53 (citing Tex. Code
to sentence the defendant to life in prison." Pet'r's Pet. 95, ECF
Crim. Proc. Art 37.07 1

§

2(a) (barring instruction on the effect of a failure to agree)).

Renteria raised this issue on direct appeal.

Renteria

v.

State (Appellant's Brief),

*197_*201. The Court of
2009 WL 5453014 (Tex. Crim. App. filed Dec. 15, 2009), at

II, 2011 WL 1734067, at
Criminal Appeals affirmed the lower court in all respects. Renteria
*47_*48

jury that mitigating
Finally, Renteria complains the trial court did not instruct "the

Pet'r's Pet. 97, ECF No. 53.
circumstances need not be proven beyond a reasonable doubt."
mitigating circumstances."
He explains "[t]he statute does not specif' a burden of proof for

that the only burden of proof
Id. at 98. He argues "any reasonable juror would assume
described in the instructions applied to all the issues.

. . .

This violated Petitioner's Eighth

sentencing." Id. at. 97.
and Fourteenth Amendment rights to individualized, reliable capital
State (Appellant's
Renteria raised this issue at trial and on direct appeal. Renteria v.

*208*211. The Court
Brief), 2009 WL 5453014 (Tex. Crim. App. filed Dec. 15, 2009), at

Blue

v.

T/ialer,

665 F.3d 647, 669 (5th

Cir. 2011).

-146-

of Criminal Appeals affirmed the lower court in all respects. Renteria II, 2011 WL 1734067,
at *47_*48.
2. Discussion

a. "Extraneous" Evidence

Renteria claims that the trial court erred by permitting the State wide latitude to
trial
introduce extraneous offenses into evidence during his sentencing trial. He argues the

court's error violated his Fifth, Eighth, and Fourteenth Amendment rights.
Pet.
Renteria concedes this claim is unexhausted and procedurally defaulted. Pet'r' s
state habeas
89, ECF No. 53. He argues his default is excused because his appellate and

counsel were ineffective for failing to raise the claim. Id.
(1). Procedural Bar

"[T]he exhaustion doctrine, which is 'principally designed to protect the state courts'
proceedings,'
role in the enforcement of federal law and prevent disruption of state judicial
courts as an
generally requires that a claim of ineffective assistance be presented to the state

independent claim before it may be used to establish cause for a procedural default."

"In other
Carrier, 477 U.S. at 488-89 (quoting Rose v. Lundy, 455 U.S. 509, 518 (1982)).
words, the claim of ineffective assistance of counsel on direct appeal is an independent

constitutional violation, which must itself be exhausted using state collateral review
procedures." Hatten, 570 F.3d at 605 (citing Edwards

v.

Carpenter, 529 U.S. at 45 1-53).

Furtheras noted abovethe exception to procedural default recognized in Martinez and
Trevino applies only to defaulted ineffective assistance of trial counsel claims.

Herebecause Renteria did not exhaust his ineffective counsel argumenthis claim
federal
is procedurally barred and cannot furnish the basis for cause and prejudice enabling
review of the underlying unexhausted habeas claims.

-147-

(2). Merits

Nonetheless, Renteria's claim fails on the merits for two reasons.
extraneous
First, the jury was instructed it could only consider evidence of Renteria's
offenses if it foundbeyond a reasonable

doubtthat he committed the offenses:

other than
The State has introduced evidence of extraneous crimes or bad acts
admitted
the one charged in the indictment in this case. This evidence was
the proper
only for the purpose of assisting you if it does in determining
the Defendant guilty.
punishment for the offense for which you have found
you find and
You caimot consider the testimony for any purpose unless
such other
believe beyond a reasonable doubt that the Defendant committed
acts if any were committed.

Clerk's R., vol.

8

(Jury Charge), p. 175, ECF No. 79-11.

requires a
Second, "the Supreme Court has never held that the federal constitution

Hughes, 412 F.3d at 593.
state to prove an extraneous offense beyond a reasonable doubt."

punishment phase of
"[There is no constitutional prohibition on the introduction at a trial's
unadjudicated, criminal
evidence showing that the defendant has engaged in extraneous,
conduct.

. . .

phase of a capital
[T]he 'admission of unadjudicated offenses in the sentencing

Brown v. Dretke, 419 F.3d
trial does not violate the eighth and fourteenth amendments."

F.2d 205, 208 (5th Cir. 1987).
365, 376 (5th Cir. 2005) (quoting Williams v. Lynaugh, 814
which the defendant has been
Even "{t]he introduction of evidence of extraneous offenses of
acquitted is consistent with due process." Harris, 313 F.3d at 246.

to relief on this
Consequently, Renteria' s claim is meritless. Renteria is not entitled
claim.
b. Defective Jury Instruction

instruction on
Renteria claims the trial court provided the jury with a defective jury

special issue

onethe future dangerousness issuebecause it did not define the terms

"probability," "criminal acts of violence," and "continuing threat
4;

to society."

The jury verdict form asked the jury:
SPECIAL ISSUE NO. 1
that there is
Do you find from the evidence beyond a reasonable doubt
commit criminal
a probability that the Defendant DAVID RENTERIA would
threat to society?
acts of violence that would constitute a continuing

(emphasis added).
Clerk's R., vol. 8 (Jury Charge), p. 177, ECF No. 79-11
jury
Renteria argues the verdict form was infirm because the

charge did not define the

threat to society." He also
terms "probability," "criminal acts of violence," and "continuing
in conjunction with an issue
notes the verdict form inexplicably used the term '"probability'
beyond a reasonable doubt.
which the trial court instructs the jury it must determine

The Fifth Circuit has held the terms used in the future
permissible because they "have a plain meaning of

dangerousness verdict form are

sufficient content that the discretion left to

system itself." Paredes v. Quarterman,
the jury [is] no more than that inherent in the jury
has specifically rejected challenges to
574 F.3d 281, 294 (5th Cir. 2009). The Fifth Circuit
665 F.3d 647, 667-68 (5th Cir. 2011)
the failure to define these terms. See Blue v. Thaler,

the absence of such a supplemental
("Blue has not identified any authority that holds that
scheme constitutionally
instruction renders Texas's amended special-issues

Scheanette

v.

infirm.");

("The future dangerousness
Quarterman, 482 F.3d 815,827-28 (5th Cir. 2007)

and we have repeatedly held that the
issue has been held constitutional by the Supreme Court

not so vague as to require additional
term 'probability' as used in the Texas special issue is
Jurek v. Texas, 428 U.S. 262 (1976));
instructions (such as definition by the court).") (citing

of a definition for the term "probability" in
Hughes, 191 F.3d at 615-16 (holding that the lack
constitutionally
future dangerousness instruction did not render the instruction

infirm);

1996) (collecting cases). Renteria cites
Woods v. Johnson, 75F.3d 1017, 1033-34 (5th Cir.

-149-

to give any express
no constitutional authority which would have required the trial court
definition to these terms.

direct appeal.
The Court of Criminal Appeals rejected these claims in Renteria's
cite Supreme Court precedent
Renteria II, 2011 WL 1734067, at *47_*48. Renteria fails to
suggesting that the Constitution requires that Texas define the

Court of Criminal Appeals unreasonably rejected the claim.

terms expressly or that the

Renteria's claim amounts to a

retroactivity. Kerr v.
request for a new rule which would be barred by the rules against
(citing Teague
Thaler, 384 F. App'x 400, 404(5th Cir. 2010) (unpublished)

v.

Lane, 489 U.S.

by retroactive application of new
288, 310 (1989) ("The "costs imposed upon the State[s]
rules of constitutional law on habeas corpus.

. .

generally far outweigh the benefits of this

(Powell, J., concurring in
application." Solem v. Stumes, 465 U.S. 638, 654 (1984)
cases on collateral review may be
judgment). In many ways the application of new rules to
more intrusive than the enjoining of criminal prosecutions,

cf

Younger v. Harris, 401 U.S.

to marshal resources in order to keep in
37, 43-54 (1971), for it continually forces the States

prison defendants whose trials and appeals conformed to

then-existing constitutional

456 U.S. 107, 128 n.33 (1982),
standards. Furthermore, as we recognized in Engle v. Isaac,

faithfully apply existing constitutional
"[s]tate courts are understandably frustrated when they
proceeding, new constitutional
law only to have a federal court discover, during a [habeas]
commands.")).
mei its of Renteria's claim was
The Texas Court of Criminal Appeals' rejection on the
of, clearly established federal
neither contrary to, nor involved an unreasonable application

law as determined by the Supreme Court.

Renteria is not entitled to relief on this claim.

-150-

c.

The "12/10" Rule

Renteria asserts the Texas "12/10 Rule" violates the Eighth Amendment by failing to
accurately instruct the jury that the vote of a single juror could result in a life sentence.

Pet'r's Pet. 95-96, ECF No. 53. He explains, instead, the jury is only told that it may answer
"no" to the future dangerousness issue or "yes" to the mitigation issue only if"10 or more

jurors agree." In other words, he complains the jury is instructed that answers in favor of a
life sentence require ten votes and answers in favor of a death sentence require unanimity, but

they are not told that if less than ten jurors vote in favor of a life sentence, the defendant will
still be given a life sentence.
The Court of Criminal Appeals rejected this claim in Renteria's direct appeal.

Renteriall, 2011 WL 1734067, at *47*48.
The Supreme Court has specifically rejected the argument that the Eighth Amendment

requires jurors to be instructed regarding the consequences of their failure to agree or on a
(1999).
breakdown in the deliberative process. Jones v. United States, 527 U.S. 373, 383

"Jones insulates the 10-12 Rule from constitutional attack." Blue, 665 F.3d at 670.
The Fifth Circuit has consistently held the "12/10" Rule does not violate the Eighth

Amendment or the Fourteenth Amendment. See Reedy. Stephens, 739 F.3d 753, 779 (5th
lack of
Cir. 2014) ("Reed's second argument, that the jury should have been informed that a
unanimity during the penalty phase would result in a life sentence, is a challenge to Texas's
so-called '12-10 Rule.' Arguments similar to Reed's repeatedly have been rejected by this
court and Texas courts."); Sprouse v. Stephens,748 F.3d 609,623 (5th Cir. 2014) ("Clear
Supreme Court and Fifth Circuit precedent forecloses granting a COA on this issue.");

Druery v. Thaler, 647 F.3d 535, 544 (5th Cir. 2011) ("To the extent Petitioner's challenge to

-151-

Texas's 12-10 rule rests on.

. .

the Eighth Amendment,

.. . it is foreclosed by Fifth Circuit

precedent.").
Renteria has not shown that the state court's rejection of this issue involved an

unreasonable application of Supreme Court precedent. 28 U.S.C.

§

2254(d). Any attempt to

extend the Supreme Court's precedent to this case is barred by the rules against retroactive
application of a new constitutional rule in habeas proceedings.

See Teague,

489 U.S. at 311.

Consequently, Renteria is not entitled to relief on this claim.
d. Burden of Proof

Renteria claims the trial court erred by failing to instruct his jury he was not required

to prove the existence of mitigating circumstances beyond a reasonable doubt. Pet'r' s Pet.

97-98, ECF No. 53. He notes "the statute does not specifi a burden of proof for mitigating
circumstances." Pet'r's Pet. 98. He contends that "any reasonable juror would assume that

the only burden of proof described in the instructions applied to all the issues to be
determined at the penalty phase." Br. in Supp. 53, ECF No. 58.

The jury verdict form explained the burden of proof for special issue onethe
continuing threat

issuewas beyond a reasonable doubt:

SPECIAL ISSUE NO. 1
Do you find from the evidence beyond a reasonable doubt that there is
a probability that the Defendant DAVID RENTERTA would commit criminal
acts of violence that would constitute a continuing threat to society?

Clerk's R., vol. 8 (Jury Charge), p. 177, ECF No. 79-11 (emphasis added). Notably, the jury
verdict form did not establish a burden of proof for special issue twothe mitigation issue:
SPECIAL ISSUE NO. 2
Taking into consideration all of the evidence including the
circumstances of the offense, the Defendant's background, and the personal
moral culpability of the Defendant, do you find that there is a sufficient
mitigating circumstance or circumstances to warrant that a sentence of life
imprisonment rather than a death sentence be imposed?

-152-

id. atp. 178.

have or could have
Renteria provides no support for his suggestion that his jury would

of proof attended the mitigation
improperly inferredbased on the instructionsa burden
special
special issue. Indeed, the lack of a burden of proof in the mitigation

issue plainly

instructed the jury the State
indicates there is no such burden, especially where the charge

beyond a reasonable doubt.
was required to prove the future dangerousness special issue
mitigation instruction is
Further, the Fifth Circuit has repeatedly held Texas's
constitutional.

Blue,

no Supreme Court
665 F.3d at 668-69. And because Renteria identifies

circumstances need not be proven
precedent requiring that a jury be informed that mitigating
beyond a reasonable doubt, this claim is barred by Teague.

See Rowell

v.

Dretke,

398 F.3d

or Circuit precedent constitutionally
370, 378 (5th Cir. 2005) (stating "{n]o Supreme Court
a burden of proof.").
requires that Texas's mitigation special issue be assigned

Renteria is not entitled to relief on this claim.

-153-

Sixth and Fourteenth
F. Claim VI - Renteria's rights under the Fifth,
to question Dr.
Amendments were violated when the State was permitted
expert to discuss the
Cunningham regarding counsels' decision to not permit this
Pet'r's Br. in Supp. 54offense with Renteria. Pet'r's Pet. 99-101, ECF No. 53;
56, ECF No. 58.
1.

Background

the State to ask his
Lastly, Renteria claims that the trial court erred by allowing
murder with Renteria. Pet'r's Pet.
expert, Dr. Cunningham, whether he discussed Flores's
his Fifth Amendment and Sixth
99-10 1, ECF No. 53. Renteria argues the question violated

Amendment rights.
Dr.

Cunninghama board certified forensic psychologistfirst testified

outside the

of br. Cunningham), pp. 41-62, ECF
presence ofthejury. Reporter's R., vol. 69 (testimony
court that Renteria's counsel engaged him
No. 82-1. Dr. Cunningham explained to the trial
probability that the defendant would
to address two issues. First, "whether there [was] a
a continuing
commit criminal acts of violence that would constitute

threat to society." Id. at

at 50.
61. Second, "how he came to be damaged." Id.
Renteria, his family, and one
As part of his evaluation, Dr. Cunningham interviewed

also reviewed Renteria' s criminal
of his high school teachers. Id. at 46-47. Dr. Cunningham
Dr. Cunningham did not, however, ask
history and sex offender treatment records. Id. at 49.
offenses for two reasons.
Renteria questions about Flores's murder or any unadjudicated

questions about these matters. Id. at 50.
First, Renteria's counsel instructed him not to ask

to his assessment of Renteria' s future
Second, he believed the information was not relevant
dangerousness.

Id

as an expert witness. Id.
The prosecution did not object to Dr. Cunningham appearing
jury.
at 63. Dr. Cunningham continued testifying before the

During the State's cross-examination, the prosecutor probed whether Dr. Cunningham
asked Renteria about Flores' s murder. Reporter's R., vol. 71 (testimony of Dr. Cunningham),
invade[d] the defendant's
p. 12, ECF No. 82-3. Renteria's counsel objected, claiming "[i]t

right to invoke his Fifth Amendment." Id.
The trial court initially overruled the objection, but then held a bench conference. id.
at 12-17. During the bench conference, defense counsel argued Renteria did not waive his
Fifth Amendment rights regarding Flores's murder when Dr. Cunningham interviewed him:

MR. GANDARA: [Defense Counsel Jaime Gandara] Your Honor.
Soria says that you waive your Fifth Amendment right when you talk to your
own mental health expert, that you've effectively waived it for the purposes of
having a state's expert interview him and so forth. Well he did not. And
that's the point. He says I'm not going to answer any questions about the
offense. He invoked his Fifth Amendment right. Bottom line.

Now . . . neither Soria nor Chamberlain'0 nor any of the other cases
that's [sic] construct Soria say that it's proper to let the jury know that a man's
[sic] invoked his Fifth Amendment right. And in all cases, in every case, to
traditionally historically you don't tell the jury, well, he took the Fifth. It's
improper.
THE COURT: I'm going to sustain the objection to that question.
However, I believe based on the law he's entitled to ask your expert witness
why he did not ask about the capital murder offense.
Id. at 13-14.

Renteria's counsel objected to this ruling, maintaining it also related to an "invocation

of the Fifth Amendment right." Id. at 14. At that pointand while not objecting to the trial
court's

rulingthe State proposed a "compromise":
[T]he Fifth Amendment right goes to the defendant, not to his lawyers.
The answers go into that my lawyers told me -- on my lawyer's advice I'm not
answering any questions regarding the offense.

The problem with that is then I have to further inquire that the Fifth
Amendment is his right and belongs to no one but him, and he asserts his
°

Chamberlain

v.

State,

998 S.W.2d 230, 234 (Tex. Crim. App. 1999).

-155-

right. And so we're going to have to go on a and he's a forensic psychologist,
and so he meshes the law with his mental health issues. I prefer just to tell
him that the defendant refused to answer the questions period. And then I
think Soria and Lagrone1' clearly say that I can go into that without ever
having him say he has to assert his Fifth, so that the jury never hears that.
Although I think that's fair game, but as a compromise we don't talk about the
Fifth. I just lead him into it, he says no, and we move on.
Id. at 14-15.

Renteria's counsel objected to the so-called "compromise" and pointing out the
also
proposed questions still invaded Renteria's right to remain silent. Renteria's counsel

noted in Dr. Cunningham's voir direinitially conducted outside the presence of the

jury

on the
Dr. Cunningham testified he did not ask Renteria any questions about the offense
Id. at 15.
direction of counsel, and therefore, Renteria never refused to answer such questions.

The trial court overruled the second objection. id. at 17.

Flores's
The State proceeded to ask Dr. Cunningham whether he asked Renteria about
State then asked
murder. Id. at 17-18. Dr. Cunningham answered he did not. Id. at 18. The

about the capital
Dr. Cunningham why. Id. Dr. Cunningham testified he did not ask Renteria

of the facts
murder because Renteria's counsel instructed him not to ask and a discussion
surrounding the murder would not inform either of the two issues before him:
Well there were two reasons for that. One of them is that I was
instructed by defense counsel not to inquire of the defendant about the capital
that
offense or about any prior unadjudicated conduct which means offenses
of.
he might have committed and never been convicted

Additionally there is nothing about that inquiry that would inform
his
either of the two issues before me. A report from him of his conduct or
tell me what had
thoughts or feelings during the offense itself would not
happened to him developmentally that had damaged him. It would represent
be
an expression of that damage but it wouldn't tell me how he came to
damaged.
Individuals whose bad life decisions and criminal behavior is an
expression of the bad things, things that have happened to them aren't thinking
Lagrone

v.

State,

942 S.W.2d 602 (Tex. Crim. App. 1997).

-156-

at the time that occurs,. gee, I think that I'll beat up this person because I was
beaten up. It's more like you've been exposed to radiation and then later on
you grow tumors from that without any conscious connection of the two
events being connected.
So it wasn't going to tell me how he became to be damaged and it also

of his own
kind of inmate he's likely
personal report doesn't tell me anything about what
to be in the future.
-- beyond defense reports and beyond what he was convicted

Those are the two issues that were before me, how did we get here and
and
where do we go from here. And his self-report of his thoughts, feelings,
actions during the time period of events don't inform either one of those.
Now if there was an issue of what sort of psychological disturbance he
was having at that moment then that kind of inquiry would have been relevant
but under the two issues that I was looking at it was not.
Id. at 18-19.

State
Renteria raised the Fifth Amendment issue on direct appeal. See Renteria v.
* l72_*181. Renteria argued that
(Appellant's Brief), 2009 WL 5453014 (Dec. 15, 2009), at

issues raised by
under Soria, the scope of the State's cross-examination was "limited to the
*42 (citing Soria v. State, 933 S.W.2d
the defense expert." Renteria II, 2011 WL 1734067, at

"did not question
46, 58 (Tex. Crim. App. 1996)). Renteria maintained Dr. Cunningham

about the
[him] about the offense and did not testify to any conversations with [him]
open the door"
offense." Id. Thus, Renteria asserted, he "did not raise any issues that would

Renteria about
for the State to cross-examine Dr. Cunningham as to why he did not question
respects. It
the offense. Id. The Court of Criminal Appeals affirmed the trial court in all
reasoned:
The State did not exceed the scope of proper cross-examination. Defense
counsel called Cunningham to testify that Renteria would not be a future
danger in prison. It was permissible for the State to test Cunningham's
credibility by questioning him as to how he arrived at that conclusion. A
criminal defendant may not testify through a defense expert and then use the
Fifth Amendment as a shield against cross-examination on disputed issues.
Id. (citing Lagrone, 942 S.W.2d at 611).

-157-

2. Applicable Law
silence.
The Fifth Amendment forbids comment by the prosecution on a defendant's
710 F.3d 267, 274 (5th
Griffin v. California, 380 U.S. 609, 615 (1965); Gongora v. Thaler,

of his Fifth
Cir. 2013). The prosecution may not treat the defendant's exercise

Amendment

United States v.
rights as substantive evidence of guilt. Gongora, 710 F.3d at 274 (citing
waive his Fifth Amendment
Robinson, 485 U.S. 25, 34 (1988)). A defendant may, however,

right.
Where a defendant presents psychiatric evidence at trial, the defendant

has no Fifth

testimony by the
Amendment privilege against the introduction of rebuttal psychiatric
v. Kentucky, 483 U.S.
prosecution. Kansas v. Cheever, 571 U.S. 87, 94 (2013); Buchanan

evidence, then.. . the
402, 422-23 (1987) ("if a defendant.. . presents psychiatric
the reports of the examination
prosecution may rebut this presentation with evidence from

Amendment privilege
that the defendant requested. The defendant would have no Fifth
prosecution."); Vanderbilt v.
against the introduction of this psychiatric testimony by the

requests an examination on the
Collins, 994 F.2d 189, 196 (5th Cir. 1993) ("If a defendant

at trial, the defendant may be
issue of future dangerousness or presents psychiatric evidence
v. Lynaugh, 809 F.2d 1063,
deemed to have waived Fifth Amendment privilege."); Williams

psychiatric evidence on a critical issue,
1068 (5th Cir. 1987) ("[W]hen a defendant introduces
the state's psychiatric testimony,
he waives his [Fjifth and [S}ixth [A]mendment objections to

and properly limited to the issue
provided that the state's evidence is used solely in rebuttal
raised by the defense.").
the questions the State
Further, once privilege is waived, the defendant cannot dictate

admission of rebuttal
may ask on cross-examination. See Cheever, 571 U.S. at 94 ("The
to testify in a
testimony harmonizes with the principle that when a defendant chooses

-158-

to refuse to answer related questions
criminal case, the Fifth Amendment does not allow him
fo rnia, 402 U.S. 183, 213 (1971) ("It
on cross-examination."); see also McGautha v. Cal
self-incrimination] that a person's choice
does no violence to the privilege [against compelled

otherwise inadmissible evidence which is
to testify in his own behalf may open the door to
Crampton v. Ohio, 408 U.S. 941 (1972).
damaging to his case."), overruled on other grounds,
issues raised by the defense expert,
And while cross-examination must be limited to the
permitted to test the expert's opinion by
Williams, 809 F.2d at 1068, the State is certainly
Evid. 705(a) ("[Ajn expert may state an
asking how he arrived at that opinion. See Tex. R.
to the underlying facts or data.
opinionand give the reason for itwithout first testifying

But the Expert may be required to disclose those facts

or data on cross-examination.");

claim a fifth amendment privilege in
Chamberlain, 998 S.W.2d at 234 ("Appellant cannot
and then introduce evidence gained
refusing to submit to the State's psychiatric examinations

Milam v. State, 2012 WL
through his participation in his own psychiatric examination.");
may not testify through a defense expert
1868458, at *18 (Tex. Crim. App. 2012) ("Appellant
against cross-examination of that expert on
and then use the Fifth Amendment as a shield

disputed issues.").
3. Discussion
by speaking with his expert, Dr.
Here, Renteria waived his Fifth Amendment rights

testimony at trial. Cheever, 571 U. S.
Cunningham, and then introducing Dr. Cunningham's
future dangerousness. The State's
at 94. Dr. Cunningham's testimony addressed Renteria's
Renteria was not a future
inquiry as to the basis of Dr. Cunningham's conclusionthat
The State did not
dangerfell squarely within this issue. Williams, 809 F.2d at 1068.

exceed the scope of proper cross-examination by asking

whether Dr. Cunningham discussed

conclusion.
the facts of the crime with Renteria before arriving at his

-159-

Tex. R. Evid. 705(a).

on by Dr.
Hence, the State acted permissibly by inquiring into the evidence relied
Cunningham to arrive at his conclusion.

not entitled to dictate
Given that Renteria waived his Fifth Amendment rights, he was
571 U.S. at 94. This was
the questions the State could ask on cross-examination. Cheever,

especially true

whereas the

Court of Criminal Appeals has recognized "the facts of the

affirmative finding to the
crime alone, if severe enough, can be sufficient to support [an]
830 S.W.2d 929, 935 (Tex.
special issue." Miller, 200 F.3d at 286 (citing Vuong v. State,

discussed the facts of the crime
Crim. App. 1992)). Consequently, whether Dr. Cunningham

future dangerousness was an
with Renteria before he reached his conclusion on Renteria's
appropriate subject for inquiry and for the jury to consider.

then use his Fifth
Indeed, a defendant cannot testify through an expert and

of the expert on relevant
Amendment right to silence as a shield against cross-examination
*
testified, the State was
issues. Milam, 2012 WL 1868458, at 18. Once Dr. Cunningham
entitled to askand the jury was entitled to knowthe

basis for his opinion. Cheever, 571

jury all the facts which tend[ed] to his
U.S. at 94. Renteria had "no right to set forth to the

upon those facts." Id. (citing
favor without laying himself open to a cross-examination

rule advocated by Renteria
Fitzpatrick v. United States, 178 U.S. 304, 315 (1900)). The
process, allowing a defendant to provide the jury, through
"would undermine the adversarial

inaccurate view of his
an expert operating as proxy, with a one-sided and potentially
state at the time of the alleged crime" and would undermine

mental

"the core truth-seeking function

of the trial." Id. at 95.
The Court of Criminal Appeals rejected Renteria' s Fifth Amendment

claim on direct

Cunningham's testimony and
appeal, holding that he waived his privilege by presenting Dr.
conclusions by asking
that the State was entitled to probe the credulity of Dr. Cunningham's

whether he discussed the capital murder with Renteria. Renteria II, 2011 WL 1734067, at
*42; see also Cheever, 571 U.S. at 94; Buchanan, 483 U.S. at 408. Renteria fails to show

that the state court's rejection of this claim involved an unreasonable application of
controlling Supreme Court precedent. Richter, 562 U.S. at 99-1 02.

But even if Renteria could show that the State's questioning of Dr. Cunningham
trial is
violated his Fifth Amendment rights, an improper comment on a defendant's silence at

"must
subject to harmless error analysis. See Gongora, 710 F.3d at 274. Therefore, Renteria
still clear the hurdle of [Brecht

v.

Abrahamson, 507 U.S. 619 (1993)]."

Id at 275. Under

on
that analysis, a court must "assess the prejudicial impact of the [prosecutor's comments

set forth in
the defendant's silence] under the 'substantial and injurious effect' standard
it for
Brecht, whether or not the state appellate court recognized the error and reviewed

harmlessness under.

. .

Chapman." Id (citing Fry v. Plier, 551 U,S. 112, 12 1-22 (2007)).

(2) an
Factors a court should consider include whether (1) the comment was extensive,

that could
inference of guilt is stressed as the basis of conviction, and (3) there is evidence
have supported acquittal. Anderson

v.

Nelson, 390 U.S. 523, 524 (1968); Gongora, 710 F.3d

at 278.
The State's questions about Dr. Cunningham's failure to discuss the facts

of the crime

The State
with Renteria were neither extensive nor stressed as a basis for a death sentence.

of Dr.
limited its inquiry into this issue during a rather lengthy direct and cross-examination
into the facts
Cunningham. The State did not reference Dr. Cunningham's failure to inquire

of the crime during closing argument, although the State posed several reasons for the jury

to

discount Dr. Cunningham's opinion on future dangerousness. Reporter's R., vol. 72 (Closing
State
Argument by Prosecutor Lori C. Hughes), pp. 49-74, 115-40, ECF No. 82-4. The

capital
never suggested Dr. Cunningham's failure to question Renteria about the facts of the

-161-

in the
murder provided a basis for the jury to answer the future dangerousness special issue

affirmative or to sentence Renteria to death.
Further, Renteria does not attempt toand cannotshow harm.

crime with
Dr. Cunningham addressed his decision not to inquire into the facts of the
R., vol. 71,
Renteria, and he noted the information was not relevant to his inquiry. Reporter's

Dr. Cunningham posed a separate and independent
p. 18, ECF No. 82-3. In other words,
it is unlikely that the
basis for his decision not to ask those questions of Renteria. Therefore,

with Renteria
State's inquiry regarding Dr. Cunningham's failure to discuss Flores's murder
had any impact on the jury's determination of the future dangerousness issue.

of Dr.
For the same reason, Renteria cannot show harm from the State's questioning
the capital murder
Cunningham. Dr. Cunningham's failure to question Renteria regarding

that Renteria was not a
was used to impeach Dr. Cunningham's credibility and his conclusion
to hide from the jury.
future danger. It was not used to suggest that Renteria had something

discuss the capital murder
Arid, as noted above, the jury was made aware Renteria did not
Cunningham believed
with Dr. Cunningham. Further, the jury was made aware that Dr.
assessment.
Renteria's self-reporting of the facts was irrelevant to his future dangerousness

Renteria elected
Finally, the trial court instructed the jury it could not use the fact that
175, ECF No. 798,
remain silent and not testify against him in any way. Clerk's R., vol. p.
11. The

at 278
court's instruction presumably cured any error. See Gongora, 710 F.3d

instruction given
(explaining a court should consider the effect of any cautionary or curative

jurors are
to jury); see also Zafiro v. United States, 506 U.S. 534, 540-41 (1993) (explaining
doubt, and
presumed to follow instructions). Any error was harmless beyond a reasonable

had a
there is no reasonable likelihood that the State's questions, even if erroneous,
507 U.S. at 637.
"substantial and injurious effect or influence" on the jury's verdict. Drecht,

-162-

crossAs the state court found, "[t]he State did not exceed the scope of proper

credibility by
examination," as it was "permissible for the State to test [Dr.] Cunningham's

not a future danger.
questioning him as to how he arrived at" the conclusion that Renteria was
Renteria fails to
Renteria Ii, 2011 WL 1734067, at *42. For the reasons discussed above,
this claim was
rebut the state court's findings or show that the state court's rejection of
U.S. at 99-1 02.
unreasonable. Consequently, he is not entitled to relief. Richter, 562

the State's
Insofar as Renteria alleges a Sixth Amendment violation arising from
and procedurally defaulted.
cross-examination of Dr. Cunningham, his claim is unexhausted

that his Sixth
Renteria did not argue on direct appeal or in his state habeas application
Amendment rights were violated because the jury learned that he

followed the advice of his

Compare Pet'r's Pet. 96,
counsel and did not discuss Flores's murder with Dr. Cunningham.

Renteria v. State (Appellant's
ECF No. 53, and Pet'r's Br. in Supp. 52, ECF No. 58, with

*171*182. Furthermore, Renteria identifies
Brief), 2009 WL 5453014 (Dec. 15, 2009), at
is conclusory and Renteria is not
no authority supporting the claim. Consequently, the claim

1990).
entitled to relief. Koch v. Puckett, 907 F.2d 524, 530 (5th Cir.

-163-

IV.

REQUEST FOR A FEDERAL EVII)ENTIARY HEARING
Renteria requested an evidentiary hearing to permit more factual development of his

claims. Pursuant to the 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 the AEDPA clearly places the burden on a petitioner to raise and litigate as
fully as possible his federal claims in state court). Renteria had a full and fair opportunity

during in his state habeas corpus proceedings to present the state habeas trial court with all
available evidence supporting his claims.
In addition, where a petitioner's claims have been rejected on the merits, further

factual development in federal court is effectively precluded by the Supreme Court's holding
in Cullen v. Pinhoister, 563 U.S. 170, 181-82 (2011):
We now hold that review under § 2254(d)(l) 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.

Cullen, 563 U.S. at 18 1-82.

Thus, Renteria is not entitled to a federal evidentiary hearing on any of his claims the
corpus
state courts rejected on the merits, either on direct appeal or during his state habeas
proceedings. 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 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

-164-

authority). This Court has conducted a de novo review of all of Renteria' s unexhausted

claims and concludes that all lack merit.
an
"In cases where an applicant for federal habeas relief is not barred from obtaining

hearing rests in
evidentiary hearing by 28 U.S.C. § 2254(e)(2), the decision to grant such a
562 (5th Cir.
the discretion of the district court." Richards v. Quarterman, 566 F.3d 553,

grant a hearing, under
2009) (quoting Schriro, 550 U.S. at 468). "In determining whether to
[and] any transcripts
Rule 8(a) ofthe habeas Court Rules 'the judge must review the answer

evidentiary hearing is
and records of state-court proceedings. . . to determine whether an
534 F.3d 365, 368
warranted." Richards, 566 F.3d at 562-63 (quoting flail v. Quarterman,

whether an evidentiary
(5th Cir. 2008). In making this determination, a court must consider
which, if true,
hearing could "enable an applicant to prove the petition's factual allegations,

F.3d at 563 (quoting
would entitle the applicant to federal habeas relief." Richards, 566
Schriro, 550 U.S. at 474).
on their merits
Here, the state courts properly rejected many of Renteria's claims

Renteria is not entitled to
during either his direct appeal or state habeas corpus proceedings.

Renteria's
further evidentiary or factual development of those claims. Additionally,
and do not require factual
unexhausted claims are procedurally defaulted, without legal merit,

or evidentiary development
any of his
Therefore, Renteria is not entitled to an evidentiary hearing to developing

development
claims. See Segundo, 831 F.3d at 350-5 1 ("Given the extent of the factual
did not abuse
during trial and during the state habeas proceedings, the district court

its

hold a hearing.").
discretion in determining it had sufficient evidence and declining to

-165-

V. CERTIFICATE OF APPEALABILITY

Before a petitioner may appeal the denial of a habeas corpus petition, he must obtain a
certificate of appealability. 28 U.S.C.

§

2253(c)(2); Miller-El, 537 U.S. at 335-36. Further,

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 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, 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, 537 U.S. at 336. A habeas 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.

-166-

§

The showing necessary to obtain a certificate of appealability on a claim depends
the
upon the way a district court has disposed of it. "[Wjhere a district court has rejected
constitutional claims on the merits, the showing required to satisfy
§

jurists would
2253(c) is straightforward: The petitioner must demonstrate that reasonable

or wrong." Millerfmd the district court's assessment of the constitutional claims debatable

the petitioner wishes to
El, 537 U.S. at 338 (quoting Slack, 529 US. at 484). In a case where
challenge on appeal a court's dismissal of a claim for a reason not of a constitutional

the petitioner must
dimension, such as a procedural default, limitations, or lack of exhaustion,
states a valid claim of the
show jurists of reason would find it debatable whether the petition

was correct in its
denial of a constitutional right and whether the federal habeas court
procedural ruling. See Slack, 529 U.S. at 484.
In death penalty cases, any doubt as to whether a certificate

of appealability should

560 F.3d 299, 304 (5th
issue must be resolved in the petitioner's favor. Avila v. Quarterman,

2005). Nonetheless, a certificate
Cir. 2009); Bridgers v. Dretke, 431 F.3d 853, 861 (5th Cir.
case. See Millerof appealability is not automatically granted in every death penalty habeas
of
follows that issuance of a COA must not be pro forma or a matter
El, 537 U.S. at 337 ("It

course.").
reasoned
In this case, reasonable minds could not disagree with the Court's
conclusions. No certificate of appealability will issue.

-167-

VI. CONCLUSION AND ORDERS

For the reasons discussed above, the Court concludes that Renteria 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 David Santiago Renteria's request for an
evidentiary hearing is DENIED.

IT IS FURThER ORDERED that Petitioner David Santiago Renteria's "Petition for
a Writ of Habeas Corpus" (ECF No. 53) is DENTED, and his cause is DISMISSED WITH

PREJUDICE.

IT IS FURTHER ORDERED that Petitioner David Santiago Renteria 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

J

day of February 2019.

FRØK MONTALVO

UNITED STATES DISTRICT JUDGE

,rI