Diaz v. Quarterman ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
for the Fifth Circuit April 11, 2007
Charles R. Fulbruge III
Clerk
No. 05-70057
ARTURO DIAZ,
Petitioner-Appellant,
VERSUS
NATHANIEL QUARTERMAN, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
(7:04-CV-00225)
Before JONES, Chief Judge, and WIENER and DeMOSS, Circuit Judges.
PER CURIAM:*
Petitioner Arturo Diaz was convicted in Texas state court of
capital murder and sentenced to death. He comes before this Court
to request a Certificate of Appealability (“COA”) to appeal the
district court’s denial of federal habeas relief. For the reasons
stated below, we grant Diaz’s request in part and deny it in part.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
I. Background
In February 2000, Diaz was convicted in Texas state court of
the capital murder of Michael Ryan Nichols. He was sentenced to
death. The facts stated below are taken from the opinion of the
Texas Court of Criminal Appeals (“TCCA”) on direct appeal and the
report and recommendation of the magistrate judge as adopted by the
district court on federal habeas review.
On April 1, 1999, Nichols was in McAllen, Texas on business.
That night, the night before he was murdered, Nichols went out with
an exotic dancer named Danielle Thomas who performed exotic dances
at parties and private dances. While they were out, a teller
machine destroyed Nichols’ bank card and Thomas loaned him $100.
When the nightclubs closed at 2:00 a.m., Nichols and Thomas
returned to Thomas’ trailer, where they met up with Diaz and a
woman named Arcelia Reyes. The four watched movies until 4:00 or
5:00 a.m., when Thomas and Reyes, who provided security for Thomas,
borrowed Nichols’ truck to go to a motel so Thomas could dance.
Reyes returned the truck to Nichols before the dance ended. Thomas
called the trailer several times during the day, speaking sometimes
to Diaz and sometimes to Nichols. When Thomas and Reyes returned to
the trailer at 8:00 p.m. on April 2, the two men had left.
John Shepherd, a coworker of Nichols who shared a
company-owned apartment in McAllen with him, later testified that
Nichols, Diaz, and a man named Joe Cordova arrived at the McAllen
apartment between 6:00 and 7:00 p.m. on April 2. Shepherd felt
2
uncomfortable around Nichols’ companions. He noticed that Diaz had
tattoos on his forearms. Shepherd left to buy beer and cigarettes.
When he returned, he noticed that Nichols’ truck was in the center
of the parking lot, a fact that would become important later.
Nichols, Diaz, and Cordova were watching television in the living
room. Shepherd went to bed.
While Shepherd was in bed, Thomas and Reyes stopped by the
apartment. Thomas testified that she had come to recover the $100
she had lent to Nichols on April 1. She saw that Nichols had two
fifty dollar bills in his wallet. He gave her one and kept the
other. After the murder, the second fifty dollar bill was not found
in Nichols’ wallet, or anywhere else for that matter. Instead, a
piece of paper with Diaz’s telephone number and first name were
found in Nichols’ wallet.
Later that night, Shepherd was awakened by a loud noise. He
went to the living room and found Nichols bleeding from a wound in
his arm. Diaz was holding a large butcher knife. After Shepherd
asked three times “What’s going on?,” Nichols said, “Do what he
says, get the money and they’ll leave.” Cordova said some things in
Spanish and in English about Shepherd getting money; and Diaz spoke
angrily in Spanish. Diaz then grabbed Shepherd’s shirt and pushed
him down the hall to his room. Shepherd got some cash from his
pants pocket and gave it to Diaz. Diaz checked the pants for more
money, then grabbed Shepherd’s shirt and led him back to the living
room. Cordova told Shepherd to sit on the couch and do what he was
3
told. Diaz and Cordova subsequently put Nichols on the floor and
bound and gagged him with shoelaces and strips of bedding.
The phone rang, and Cordova answered it. Shepherd later
testified that Cordova told the caller to “‘come to get us, or come
over here,’ something like that . . . . Pretty quick there was a
knock on the door.” Thomas testified that Reyes had received a
phone call around midnight and that she had borrowed Thomas’ car
and left for about forty-five minutes. Consistent with Thomas’
testimony, Shepherd testified that a large Hispanic woman arrived
at the apartment shortly after the phone call. The woman asked
Cordova and Diaz what was going on, and Cordova told her something
in Spanish. Shepherd testified that the woman did not look happy
with Cordova’s response. Cordova told the woman to face the door,
and he told Shepherd not to look at her.
Diaz and Cordova beat Nichols. They put Shepherd on the floor
and bound and gagged him, then returned their attention to Nichols.
Cordova lifted Nichols up and held him while Diaz stabbed Nichols
in the torso numerous times. An autopsy revealed perforations of
Nichols’ liver, kidney, lungs, and heart. A knife thrust had
fractured a rib and broken off the tip of the knife, which remained
in the rib. The autopsy also revealed lacerations to Nichols’
scalp, neck, and flanks.
When Cordova noticed that Shepherd had freed one of his hands,
he and Diaz beat Shepherd and stabbed him. Shepherd pretended to be
dead and lost consciousness.
4
Diaz and a man known to Thomas as “Danny” arrived at Thomas’
trailer at 3:00 a.m. on April 3. They were very nervous and in a
hurry to leave. When Reyes returned, Thomas noted that she was very
upset.
When Shepherd awoke, the apartment was dark. The evidence
indicates that it was between 3:00 and 4:00 a.m. Shepherd freed
himself from his bindings and left the apartment. He noticed
Nichols’ truck at the apartment gate with the driver's door open.
At Shepherd’s request, a neighbor called the police.
When the police arrived at the apartment complex, they found
the gate locked and Nichols’ truck parked next to the keypad box
inside the gate. There was blood in the truck, bedding material on
the ground, and a footprint on top of the keypad box that was later
found to match Diaz’s shoe. Nichols was found dead in the
apartment; a beer bottle with Diaz’s DNA on it was found on the
floor next to him.
A man named Manuel Montes later testified that Cordova phoned
him at about 4:00 a.m. on April 3 and asked Montes to pick him up
from another neighborhood. Cordova was Montes’ neighbor and the
older brother of Montes’ best friend. Montes picked up Cordova,
Diaz, and a large woman and took them over to his house. Cordova
had a bloody shirt wrapped around his arm, and when he was
arrested, wounds were discovered on his arms and thigh.
After daylight, Cordova borrowed a pair of Montes’ pants so
that he could go home and get pants for himself and Diaz. After
5
Cordova and Diaz changed clothes, Cordova told Montes he would take
care of the trash bag, which presumably contained the dirty
clothes. Police later found a trash bag of clothing in Montes’
home; the clothing was stained with Cordova’s and Nichols’ blood.
Montes also testified that he overheard Diaz telling some
other men, in Cordova’s presence, about a murder. According to this
testimony, Cordova held the man, and Diaz stabbed him.
The defense presented no witnesses during the guilt-innocence
phase of trial. Instead, counsel argued that Diaz was not guilty of
capital murder because the State had failed to prove that the
murder occurred during the commission or attempted commission of a
robbery. The jury found Diaz guilty of the capital murder of
Nichols. They also found him guilty of the attempted capital murder
of Shepherd and of aggravated robbery.
During the penalty phase of trial, the State presented
evidence that Diaz had engaged in misconduct while in the county
jail; that his misconduct included fighting and refusing to go to
court; that deputies had caught Diaz trying to dig a hole through
the wall of his cell; that Diaz was housed in a unit used to hold
members of the Pistoleros gang; and that Diaz had committed other
assaults and homicides. Dr. John Edward Pinkerman, a psychologist,
testified for Diaz. Prior to testifying, Dr. Pinkerman met with
Diaz twice to conduct a psychological evaluation. He documented his
findings in a written report. According to Dr. Pinkerman, Diaz’s
past medical history included head trauma from being knocked
6
unconscious during fights and a head injury suffered in a car
accident. Dr. Pinkerman indicated that Diaz’s history of head
trauma could impair his ability to control and regulate his
judgment and perceive reality; that Diaz has low-average
intelligence and the verbal ability of an eleven-year old; that
Diaz is prone to feeling guilty and might act out to incur
punishment; and that Diaz has a history of antisocial behavior as
a child that correlates with a high probability of adult criminal
behavior.
Over defense’s objection, the State introduced Dr. Pinkerman’s
written report into evidence. The report included Dr. Pinkerman’s
conclusion that Diaz “approached the assessment in somewhat of an
exaggerated manner which may reflect an inability to cooperate with
the testing or malingering in an attempt to present himself with
the false claim of mental illness”; that Diaz was not mentally ill;
and that Diaz’s profile matches that of Type C offenders, which Dr.
Pinkerman described as the most difficult criminal offenders --
those who are distrustful, cold, irresponsible, and unstable. Also,
on cross, Dr. Pinkerman testified that Diaz had refused to discuss
the facts of the offense with him on the advice of Diaz’s attorney.
After Dr. Pinkerman testified, the defense called no other
witnesses.
During closing arguments, the defense reiterated its earlier
argument, advanced during the guilt-innocence phase of trial, that
Diaz was not guilty of capital murder because the evidence did not
7
show that the murder occurred during the commission or attempted
commission of a robbery. The prosecutor, in turn, urged the jury
that Diaz was not like them and that they had “a duty to protect
the people of [the] county.” The jury found that there was a
probability that Diaz would commit criminal acts of violence that
would constitute a continuing threat to society; that Diaz actually
killed or intended to kill Nichols, or anticipated that human life
would be taken; and that there was not sufficient mitigating
evidence to justify the imposition of a life sentence instead of
death. The trial court accordingly sentenced Diaz to death on the
capital murder charge. It sentenced Diaz to life in prison on the
attempted capital murder and aggravated robbery charges.
The Texas Court of Criminal Appeals affirmed Diaz’s conviction
and sentence and later denied Diaz’s application for state habeas
relief. On June 16, 2004, Diaz filed a federal habeas petition in
the U.S. District Court for the Southern District of Texas. He made
four claims:
(1) that trial counsel rendered ineffective assistance
with respect to the guilt-innocence phase of trial by
failing to adequately investigate the State’s case and
fully discuss it with Diaz to ensure his plea of not
guilty was knowing and voluntary;
(2) that trial counsel rendered ineffective assistance
with respect to the punishment phase of trial by (a)
failing to adequately investigate and present readily
available mitigating evidence, (b) failing to prepare the
only witness offered, and (c) devoting almost their
entire closing argument to a defensive theory that the
jury had rejected during the guilt-innocence phase of
trial;
8
(3) that the trial court deprived Diaz of a fair trial by
admitting evidence of gang membership; and
(4) that the prosecutor infringed on Diaz’s right to
remain silent by eliciting testimony that Diaz had
refused to discuss the offense with his own mental health
expert.
On December 10, 2004, Diaz amended his petition with the State’s
permission. He added two new claims:
(5) that trial counsel rendered ineffective assistance
during voir dire by failing to object to the exclusion of
venire member Gerald Albrecht, and
(6) that appellate counsel rendered ineffective
assistance by not appealing the prosecutor’s closing
statements that alluded to community expectations.
The State moved for summary judgment. The magistrate judge filed a
report and recommendation recommending that the court grant the
State’s motion for summary judgment, dismiss Diaz’s habeas petition
with prejudice, and deny Diaz a COA. Specifically, the magistrate
found that Diaz’s first claim and the last two parts of his second
claim were unexhausted and therefore procedurally barred. Further,
the magistrate found that Diaz’s fifth and sixth claims were added
to his habeas petition after the limitations period had expired;
however, she ultimately recommended denial on the merits after
determining that both claims were subject to equitable tolling.
Finally, the magistrate concluded that Diaz was not entitled to
relief on the exhausted portion of his second claim or on his third
or fourth claims. The court adopted the magistrate judge’s report
and recommendation, dismissed Diaz’s petition with prejudice, and
stated that a COA would not issue. Diaz requests a COA from this
9
Court.
II. Discussion
Diaz filed his federal habeas petition after the effective
date of the Antiterrorism and Effective Death Penalty Act (AEDPA).
Accordingly, his petition is subject to AEDPA’s requirements. Lindh
v. Murphy, 521 U.S. 320, 336 (1997). Under AEDPA, a petitioner must
apply for and obtain a COA before appealing a district court’s
denial of habeas relief. 28 U.S.C. § 2253(c); see also Miller-El v.
Cockrell, 537 U.S. 322, 335-36 (2003). The district court denied
Diaz’s request for a COA; therefore, his only alternative is to
obtain a COA from this Court. 28 U.S.C. § 2253(c); see also Coleman
v. Quarterman, 456 F.3d 537, 541 (5th Cir. 2006).
To obtain a COA, an applicant must make “a substantial showing
of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2);
Miller-El, 537 U.S. at 336, and to meet this standard, the
applicant 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
were “adequate to deserve encouragement to proceed further,”’”
Miller-El, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S.
473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 894 n.4
(1983))). We recognize that the inquiry in which this Court must
engage “is a threshold inquiry only, and does not require full
consideration of the factual and legal bases of [the petitioner’s]
10
claim[s].” Neville v. Dretke, 423 F.3d 474, 482 (5th Cir. 2005)
(citing Miller-El, 537 U.S. at 336). We will issue a COA if Diaz
can demonstrate that “the [d]istrict [c]ourt’s application of AEDPA
to [his] constitutional claims . . . was debatable among jurists of
reason.” Miller-El, 537 U.S. at 336. A claim can be debatable “even
though every jurist of reason might agree, after the COA has been
granted and the case has received full consideration, that
petitioner will not prevail.” Id. at 338. Because Diaz was
sentenced to death, “we must resolve any doubts as to whether a COA
should issue in his favor.” Martinez v. Dretke, 404 F.3d 878, 884
(5th Cir. 2005).
In evaluating the district court’s application of AEDPA to
Diaz’s claims, we keep in mind the standard of review imposed by
AEDPA on the district court. First,
A district court may grant habeas relief only if it
determines that the state court’s adjudication “resulted
in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal
law, as determined by the Supreme Court” or “in a
decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the
State court proceeding.”
Leal v. Dretke, 428 F.3d 543, 548 (5th Cir. 2005) (quoting 28
U.S.C. § 2254(d)(1), (2)). Second, “a determination of a factual
issue made by [the] State court shall be presumed to be correct”
unless the petitioner rebuts the presumption by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1).
Diaz requests a COA on seven issues: (1) whether the
11
ineffective assistance of state habeas counsel is sufficient cause
to warrant review of a procedurally barred claim; (2) whether trial
counsel rendered ineffective assistance with respect to the guilt-
innocence phase of trial by failing to adequately investigate the
State’s case and fully discuss it with Diaz to ensure his plea of
not guilty was knowing and voluntary; (3) whether trial counsel
rendered ineffective assistance with respect to the punishment
phase of trial by (a) failing to adequately investigate and present
readily available mitigating evidence, (b) failing to prepare the
only witness offered, and (c) devoting almost their entire closing
argument to a defensive theory that the jury had rejected during
the guilt-innocence phase of trial; (4) whether the trial court
deprived Diaz of a fair trial by admitting evidence of gang
membership; (5) whether the prosecutor infringed on Diaz’s right to
remain silent by eliciting testimony that Diaz had refused to
discuss the offense with his own mental health expert; (6) whether
trial counsel rendered ineffective assistance during voir dire by
failing to object to the exclusion of venire member Gerald
Albrecht; and (7) whether appellate counsel rendered ineffective
assistance by not appealing the prosecutor’s closing statements
that alluded to community expectations.
As an initial housekeeping matter, we note that Issue 1 --
whether the ineffective assistance of state habeas counsel is
sufficient cause to warrant review of a procedurally barred claim
-- does not embody a separate ground for relief, that is, “it is
12
not an issue that raises ‘a substantial showing of the denial of a
constitutional right.’” Busby v. Dretke, 359 F.3d 708, 713 n.3 (5th
Cir. 2004) (quoting 28 U.S.C. § 2253(c)(2)). Rather, it is an issue
that Diaz raises only to promote review of his procedurally barred
claims. Accordingly, we will address it only to the extent that it
impacts those claims.1
Further, based on our limited, threshold inquiry and general
assessment of the merits of the remaining issues, we conclude that
Issue 3(a) presents an issue that is adequate to deserve
encouragement to proceed further, that is, whether trial counsel
rendered ineffective assistance with respect to the punishment
phase of trial by failing to adequately investigate and present
readily available mitigating evidence. Accordingly, we grant a COA
as to this issue. If Diaz wishes to file a supplemental brief with
respect to the merits of this issue, he may do so within thirty
days of the date of this order. The supplemental brief should only
address matters that have not already been covered in the brief in
support of the COA application. The State may file a response
fifteen days thereafter.
We now proceed to address the remaining issues in turn,
grouping like issues for readability.
1
The Government contends that we should not address this issue
at all because it was not raised before the district court;
however, the record shows that Diaz argued ineffective assistance
as cause for default in his response to the Government’s motion for
summary judgment.
13
A. Ineffective Assistance of Counsel
Diaz presents five ineffective assistance of counsel claims
(Issues 2, 3(b), 3(c), 6, and 7). The district court, in adopting
the magistrate’s report and recommendation, ruled that Issues 2,
3(b), and 3(c) were unexhausted and therefore procedurally barred.
Finding no cause for the procedural default, the court did not
address their merits. The court then addressed the merits of Issues
6 and 7 and found that neither provided grounds for habeas relief.
Diaz finds error with the district court’s procedural rulings and
with its conclusion that he is not entitled to relief with respect
to Issues 6 or 7.
We review procedural rulings resulting in the denial of habeas
relief under the standard set forth in Slack v. McDaniel, 529 U.S.
473 (2000):
When the district court denies a habeas petition on
procedural grounds without reaching the prisoner’s
underlying constitutional claim, a COA should issue when
the prisoner shows, at least, that jurists of reason
would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and
that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling.
529 U.S. at 484. With respect to Issue 2, we find that reasonable
jurists could not debate the district court’s procedural ruling,
and we decline to issue a COA as to that claim. We do not consider
the district court’s procedural ruling as to Issues 3(b) and (c),
however, because we find that reasonable jurists could not debate
whether they state a valid claim of the denial of a constitutional
14
right. We address Issue 2 first and then address Issues 3(b) and
(c) alongside the remaining ineffective assistance claims.
1.
Under AEDPA, a petitioner must exhaust his claims in state
court before presenting them to a federal court for review. See 28
U.S.C. § 2254(b)(1)(A). To exhaust his claims, a petitioner must
“fairly present” their substance to the state court. Ruiz v.
Quarterman, 460 F.3d 638, 643 (5th Cir. 2006) (citing Picard v.
Connor, 404 U.S. 270, 275 (1971)). If the court to which the
petitioner would be required to present his unexhausted claims
would now find the claims procedurally barred, the petitioner has
procedurally defaulted his claims and we are barred from reviewing
them. Id. (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1
(1991)). The failure to exhaust may be excused if the petitioner
can demonstrate cause for the default and actual prejudice, or that
application of the procedural bar would result in a “fundamental
miscarriage of justice.” Id. (citing Coleman, 501 U.S. at 750).
Diaz concedes that he failed to exhaust Issue 2. However, he
argues that state habeas counsel were responsible for this failure
and that the ineffective assistance of state habeas counsel can
constitute cause for procedural default. The district court did not
address whether the ineffective assistance of state habeas counsel
can constitute cause for procedural default. However, the law is
settled that it cannot. See Elizalde v. Dretke, 362 F.3d 323, 328-
15
30 (5th Cir. 2004). A defendant does not have a constitutional
right to the assistance of counsel in state habeas proceedings, so
he cannot blame state habeas counsel for any procedural default
that occurs therein. See id. Because Diaz has offered no other
cause for his default nor attempted to demonstrate that application
of the procedural bar would result in a fundamental miscarriage of
justice, reasonable jurists could not debate the district court’s
ruling that Issue 2, which was concededly unexhausted, was not
subject to review.2
2.
Moving on to the merits of Issues 3(b), 3(c), 6, and 7,3 we
start by setting out the applicable law: A criminal defendant has
a right to counsel under the Sixth Amendment, and the right to
counsel entails the right to effective assistance of counsel.
2
Diaz attempts for the first time here to make a new argument
that incompetent, as opposed to ineffective, state habeas counsel
can be held responsible for procedural default because Texas
promises a defendant competent counsel. He did not make this
argument before the district court, and we will not consider it
here. See Roberts v. Cockrell, 319 F.3d 690, 695 (5th Cir. 2003).
3
The State contends that a COA should not issue as to either
Issue 6 or Issue 7 because both were added to Diaz’s habeas
petition after the statute of limitations had run. The district
court, in adopting the magistrate’s report and recommendation,
ruled that Diaz was entitled to equitable tolling as to both claims
because at the time Diaz’s original petition was filed, the State
consented to Diaz filing an amended petition outside the
limitations period. We find no fault with the court’s decision not
to apply the limitations bar to Issues 6 and 7; however, we note
that waiver is the more appropriate justification for the court’s
decision in this situation.
16
Strickland v. Washington, 466 U.S. 668, 684-86 (1984). To prove
ineffective assistance of counsel under Strickland, a defendant
must show (1) “that counsel’s performance was deficient,” and (2)
“that the deficient performance prejudiced the defense.” Id. at
687. A finding of deficient performance requires a showing that
“‘counsel made errors so serious that counsel was not functioning
as the “counsel” guaranteed the defendant by the Sixth Amendment,’”
Leal, 428 F.3d at 548 (quoting Strickland, 466 U.S. at 687), that
is, petitioner must show that counsel’s performance fell below an
objective standard of reasonableness, as measured by prevailing
professional norms, Strickland, 466 U.S. at 688. Deficient
performance is prejudicial “only if, but for counsel’s errors,
there is a reasonable probability that the final result would have
been different and confidence in the reliability of the verdict has
been undermined.” Leal, 428 F.3d at 548 (citing Little v. Johnson,
162 F.3d 855, 860-61 (5th Cir. 1998)). Failure to prove either
deficient performance or prejudice will defeat an ineffective
assistance of counsel claim. Id.
Diaz claims that his trial counsel rendered ineffective
assistance with respect to the punishment phase of trial by failing
to prepare the only witness offered and by devoting almost their
entire closing argument to a defensive theory that the jury had
rejected during the guilt-innocence phase of trial. The trial court
did not reach the merits of these claims because it determined they
17
were procedurally barred; however, it is clear to us that
reasonable jurists could not debate whether Diaz stated a valid
claim of the denial of a constitutional right as to either. As
Diaz’s brief establishes, his complaints about counsel’s witness
preparation and closing arguments are based on his underlying
complaint that counsel did not adequately investigate or present
available mitigating evidence. He contends that if counsel had
properly prepared defense witness Dr. Pinkerman, they would have
realized that they needed to investigate and present other
mitigating evidence. Diaz also contends that counsel failed by
relying solely on a rejected defensive theory during closing
instead of presenting mitigating evidence. Assuming, arguendo, that
counsel’s decision not to further investigate or present available
mitigating evidence was reasonable,4 then failing to prepare Dr.
Pinkerman and failing to address any mitigating evidence in closing
cannot have been constitutionally flawed. Diaz has provided no
additional ground for finding the witness preparation or closing
argument to be constitutionally deficient, and therefore the
district court’s ruling is not debatable among reasonable jurists.
Diaz also claims that his trial counsel rendered ineffective
assistance during voir dire by failing to object to the exclusion
of venire member Gerald Albrecht. Albrecht was excluded from the
4
We make this assumption because the reasonableness of counsel’s
decision not to further investigate or present mitigating evidence
is the subject of another claim, with respect to which we have
granted Diaz a COA.
18
jury panel after he stated that his religious beliefs would cause
him to “lean against the death penalty” and that he could not “set
[his] religious beliefs aside” to decide a case solely on the
evidence without regard to his beliefs. The State moved for his
exclusion for cause, and defense counsel joined its motion.
Reasonable jurists could not debate the district court’s
conclusion that trial counsel’s performance during voir dire was
not ineffective. While a juror generally may not be challenged for
cause based on his views about capital punishment, a juror whose
views would prevent or substantially impair the performance of his
duties as a juror may be. Adams v. Texas, 448 U.S. 38, 45 (1980).
The Supreme Court has stated,
The state of this case law leaves trial courts with the
difficult task of distinguishing between prospective
jurors whose opposition to capital punishment will not
allow them to apply the law or view the facts impartially
and jurors who, though opposed to capital punishment,
will nevertheless conscientiously apply the law to the
facts adduced at trial.
Wainwright v. Witt, 469 U.S. 412, 421 (1985). Although Albrecht may
have equivocated about his position on capital punishment, as Diaz
contends, he ultimately said that his religious beliefs would cause
him to lean against the death penalty and that he would not be able
to set aside those beliefs to render a decision based on the
evidence. For all intents and purposes, Albrecht stated that he
would not be able to apply the law or view the facts impartially
because of his religious beliefs. In light of these remarks, it was
19
not error for the trial court to dismiss Albrecht for cause and
considering there was no error to preserve, it was not unreasonable
for Diaz’s counsel not to object to a motion to exclude Albrecht.
Accordingly, reasonable jurists could not debate the district
court’s conclusion that trial counsel’s performance was not
ineffective.
Finally, Diaz claims that his appellate counsel rendered
ineffective assistance by not appealing the prosecutor’s closing
statements that alluded to community expectations. During closing,
the prosecutor told the jury members that they were there “as a
duty to the community. You are acting as public servants to this
community.” The prosecutor argued that Diaz “is not like you. You
have a duty to protect the people of this county.” Defense counsel
objected to the prosecutor’s statements and the trial court
instructed the jury to disregard them; however, the court denied
counsel’s motion for a mistrial. Appellate counsel did not appeal
this decision.
Reasonable jurists could not debate the district court’s
conclusion that appellate counsel’s performance was not
ineffective. The Supreme Court has recognized that one of appellate
counsel’s core duties is to distinguish weak claims from strong
claims and focus the court’s attention only on the strong claims on
appeal. See Jones v. Barnes, 463 U.S. 745, 751-52 (1983)
(“Experienced advocates since time beyond memory have emphasized
20
the importance of winnowing out weaker arguments on appeal and
focusing on one central issue if possible, or at most on a few key
issues.”). In that vein, the Supreme Court has held that “appellate
counsel who files a merits brief need not (and should not) raise
every nonfrivolous claim, but rather may select from among them in
order to maximize the likelihood of success on appeal.” Smith v.
Robbins, 528 U.S. 259, 288 (2000). Further, the Court has indicated
that although “it is still possible to bring a Strickland claim
based on counsel’s failure to raise a particular claim, . . . it is
difficult to demonstrate that counsel was incompetent.” Id.
“Generally, only when ignored issues are clearly stronger than
those presented, will the presumption of effective assistance of
counsel be overcome.” Id. (quoting Gray v. Greer, 800 F.2d 644, 646
(7th Cir. 1986)). In Diaz’s case, appellate counsel argued on
appeal that the evidence was insufficient to support a conviction
for capital murder; that the trial court had erroneously admitted
hearsay evidence; that the trial court had erroneously admitted a
note found in Diaz’s apartment, evidence of Diaz’s tattoos, and
evidence of gang membership; that trial counsel were ineffective;
and that the evidence was insufficient to support a death sentence.
We cannot say that the claim regarding the prosecutor’s closing
arguments was clearly stronger than any of the claims raised by
appellate counsel. In fact, we think it was considerably weaker
considering that the trial court instructed the jury to disregard
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the offending comments. Accordingly, reasonable jurists could not
debate the district court’s conclusion that appellate counsel’s
performance was not ineffective. A COA will not issue as to Issues
3(b), 3(c), 6, or 7.
B. Evidence of Gang Membership
Diaz argues that the trial court deprived him of a fair trial
by admitting evidence of gang membership. The district court, in
adopting the magistrate’s report and recommendation, ruled that
Diaz’s First Amendment rights were violated by the admission of
such evidence. However, it ultimately denied relief after finding
that the trial court’s error was harmless. We must determine
whether reasonable jurists could debate this determination.
To obtain federal habeas relief based on non-structural
constitutional error, a petitioner must show not only that
constitutional error occurred, but also that the error “had
substantial and injurious effect or influence in determining the
jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)
(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). As
the magistrate explained,
the jury had substantial evidence of Diaz’[s] violent
nature and his history of criminal violence, including
violence while in jail, completely apart from any
evidence of gang membership. In view of the particularly
violent nature of the Nichols murder and the evidence of
Diaz’[s] other acts of violence and misconduct, the
evidence of Diaz’[s] gang membership did not have “a
substantial and injurious effect or influence in
determining the jury’s verdict.”
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Diaz v. Dretke, No. M-04-225 (S.D. Tex. 2005) (magistrate judge’s
report and recommendation). Having reviewed the evidence presented
to the jury concerning Diaz’s criminal history and history of
violence, we are persuaded that reasonable jurists could not debate
that the trial court’s admission of evidence of gang membership was
harmless. The jury had ample evidence of a history of crime and
violence such that any mention of gang membership was harmless. A
COA will not issue as to this claim.
C. Right to Remain Silent
Diaz argues that the prosecutor infringed on his right to
remain silent by eliciting testimony that he had refused to discuss
his offense with his own mental health expert. The record shows
that on cross-examination, the prosecutor and Dr. Pinkerman, Diaz’s
mental health expert, had the following exchange:
Q. Did you talk to [Diaz] about the facts of his current
incarceration?
A. No, I did not.
Q. [Diaz] told you that he didn’t want to talk about
that; is that correct?
A. That’s correct.
Q. He told you that he had been advised by his attorneys
not to talk about the facts of his current incarceration;
is that right?
A. That’s correct.
The prosecutor made no other comment about Diaz’s choice not to
discuss his offense with Dr. Pinkerman. The district court, in
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adopting the magistrate’s report and recommendation, ruled that
Diaz’s Fifth Amendment right to remain silent was not violated by
this discourse.
Reasonable jurists could not debate the district court’s
determination. Under the Fifth Amendment, a criminal defendant has
a right to remain silent post-arrest. Miranda v. Arizona, 384 U.S.
436 (1966). At trial, a prosecutor may not comment on the
defendant’s choice to exercise that right. See, e.g., Doyle v.
Ohio, 426 U.S. 610, 617-18 (1976). Here, the prosecutor did not
comment on Diaz’s silence in a way that violated his constitutional
rights. “The test for determining if a constitutional violation has
occurred is whether ‘the language used was manifestly intended or
was of such character that the jury would naturally and necessarily
take it to be a comment on the failure of the accused to testify.’”
United States v. Wharton, 320 F.3d 526, 538 (5th Cir. 2003)
(quoting United States v. Rocha, 916 F.2d 219, 232 (5th Cir.
1990)). A prosecutor’s intent “is not manifestly impermissible if
there is some other, equally plausible explanation for [his]
remark,” and “the question is not whether the jury might or
probably would view the challenged remark [as a comment on
silence], but whether it necessarily would have done so.”
Barrientes v. Johnson, 221 F.3d 741, 780 (5th Cir. 2000). When the
above discourse is viewed in context, as the law requires, see
Wharton, 320 F.3d at 538, it becomes apparent that the prosecutor
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was likely trying to comment on the expert’s lack of familiarity
with Diaz’s mental condition, not on Diaz’s silence. Dr. Pinkerman
had indicated in his written report that Diaz was experiencing
“mild to moderate anxiety, depression and feelings of guilt”
associated with his current incarceration. (Trial Tr. vol. 37, 155-
56, Feb. 15, 2000.) By questioning Dr. Pinkerman about what Diaz
had told him about his current incarceration, the prosecutor was
likely seeking to prove that Dr. Pinkerman did not know if Diaz was
experiencing anxiety and depression because of what he had done or
because he was in jail. (Trial Tr. vol. 37, 155-56.) In light of
this plausible explanation for the prosecutor’s comment, the jury
would not necessarily have viewed the comment as a comment on
silence and the prosecutor’s intent was not “manifestly
impermissible.” Accordingly, reasonable jurists could not debate
that Diaz’s right to remain silent was not violated.
III. Conclusion
For the foregoing reasons, Diaz’s Application for a
Certificate of Appealability is GRANTED IN PART and DENIED IN PART.
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