Aranda v. Lumpkin ( 2021 )

Case: 20-70008 Document: 00516111570 Page: 1 Date Filed: 11/30/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 30, 2021
No. 20-70008 Lyle W. Cayce
Clerk
Arturo Daniel Aranda,
Petitioner—Appellant,
versus
Bobby Lumpkin, Director, Texas Department of
Criminal Justice, Correctional Institutions Division,
Respondent—Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 6:89-CV-13
Before Haynes, Graves, and Engelhardt, Circuit Judges.
Per Curiam:*
Having failed to obtain federal habeas relief, Petitioner Arturo Aranda
seeks a certificate of appealability and challenges the denial of evidentiary
hearings on some of his claims. We issue a certificate of appealability as to
some of his claims but deny it as to others.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 20-70008
I.
Early in the morning hours of July 31, 1976, Officers Pablo Albidrez
and Candelario Viera of the Laredo Police Department stopped a suspicious
vehicle. It would be Officer Albidrez’s last traffic stop. Gunfire erupted and
the officers returned fire, engaging in a shootout with two men fleeing the
vehicle. Officer Albidrez was hit. Shot through the service badge on his
chest, he died from his injury.
The fleeing occupants of the vehicle were brothers: Arturo and Juan
Aranda. They had been transporting a large quantity of marijuana when
stopped by the officers. Shortly after the shooting, they were apprehended
and arrested about a block from the scene.
Arturo Aranda did not escape unscathed. Hit in the shoulder and
hand, he was transported to a hospital, where a .38 caliber handgun was found
hidden in his pants. Ballistic testing later showed that this weapon could have
fired the bullet that killed Officer Albidrez, and no other recovered weapon
could have. After interrogation, Aranda confessed to killing Officer Albidrez.
He later challenged that confession.
Both brothers were charged for the murder of Officer Albidrez. Juan
Aranda was tried first; he was found guilty and sentenced to life in prison.
Arturo Aranda was tried next. His trial began in Webb County, though the
judge later moved the trial to Victoria County over Aranda’s objection. At
the conclusion of the trial, a jury found Aranda guilty. In the punishment
phase of the trial, the jury sentenced Aranda to death under the Texas death
penalty scheme as it existed then.
Arturo Aranda appealed, and his conviction was affirmed. Aranda v.
State, 736 S.W.2d 702 (Tex. Crim. App. 1987) (en banc). He filed a state
post-conviction application, which was denied. He then turned his sights to
federal court. On April 20, 1989, Aranda filed a federal habeas petition. The
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State moved for summary judgment, and the district court granted the
State’s motion. Two weeks later, on January 15, 1992, Aranda moved to alter
and amend the judgment. The State filed a timely response.
That remained the posture of the case for nearly three decades. It was
not until 2018 that this case was jolted out of its inertia. The matter was
reassigned, and the newly assigned district judge denied Aranda’s motion.
The district court declined to grant a certificate of appealability (“COA”) as
to any claims. Aranda appeals the district court’s order, seeking a COA as to
only four of his claims.
II.
Because Aranda filed his initial federal habeas petition before the
enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA),
his claims are governed by the law as it existed before AEDPA. Slack v.
McDaniel, 529 U.S. 473, 481 (2000). However, 28 U.S.C. § 2253(c) governs
Aranda’s entitlement to appellate review. Id. That statute provides that an
appeal may not be taken “unless a circuit justice or judge issues a certificate
of appealability.” 28 U.S.C. § 2253(c)(1). To determine whether to issue a
petitioner a certificate of appealability, a “court of appeals should limit its
examination to a threshold inquiry into the underlying merit of his claims.”
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). A certificate of appealability
shall be granted “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order to make
such a showing, an applicant must show that “jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that jurists
could conclude the issues presented are adequate to deserve encouragement
to proceed further.” Miller-El, 537 U.S. at 327. “[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
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prevail.” Id. at 338. Nonetheless, the issuance of a certificate of appealability
“must not be pro forma or a matter of course.” Id. at 337. “Because the
present case involves the death penalty, any doubts as to whether a COA
should issue must be resolved in [Petitioner’s] favor.” Hernandez v. Johnson,
213 F.3d 243, 248 (5th Cir. 2000). Finally, as in any federal habeas case, we
review “the district court’s findings of fact for clear error and its conclusions
of law de novo.” Sanchez v. Davis, 936 F.3d 300, 304 (5th Cir. 2019).
III.
Aranda seeks a certificate of appealability for four claims: (1) a
Miranda claim; (2) a fair cross-section claim; (3) a Strickland claim; and (4) a
Penry claim. We examine each claim in turn.
A. The Miranda Claim
1. Waiver
We first address Aranda’s Miranda claim. Before turning to our COA
analysis, we confront the threshold issue of whether Aranda waived this claim
by failing to properly raise it before the district court. Because failure to raise
a claim before the district court deprives us of jurisdiction to grant a COA on
the issue, see Brewer v. Quarterman, 475 F.3d 253, 255 (5th Cir. 2006) (per
curiam), we must consider whether Aranda properly raised a claim that his
waiver was not knowing and intelligent below. As both parties acknowledge,
an inquiry into whether a defendant has validly waived his or her Miranda
rights has two components. First, we ask whether the waiver was voluntary;
second, we ask whether the waiver was knowing and intelligent. See United
States v. Cardenas, 410 F.3d 287, 293 (5th Cir. 2005) (citing United States v.
Andrews, 22 F.3d 1328, 1337 (5th Cir. 1994)). Although Aranda undoubtedly
raised a claim that his confession was involuntary to the district court, it is
undisputed that he raises no such claim here. Rather, in seeking a COA from
this court, Aranda argues that his confession was not knowing and intelligent.
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The district court did not understand Aranda to raise such a claim before it.
It found that “Petitioner makes no claim that his confession was not
intelligently made, or that he did not understand the Miranda warnings when
given.” We find the district court erred, and Aranda’s knowing-and-
intelligent Miranda claim has not been waived.
The second claim listed in Aranda’s petition stated that his
“uncounseled, custodial ‘confession’ was improperly admitted.” In
paragraph forty of his petition, Aranda alleged: “The [Texas] trial court
made no inquiry into, nor findings on, whether Petitioner knowingly and
intelligently waived his Fifth Amendment rights. The State has the heavy
burden of proving both voluntariness and a knowing and intelligent waiver of
Fifth Amendment rights before an alleged confession may be admitted.” In
the next paragraph, Aranda noted that the state court “left unassessed”
evidence that “he did not understand the waiver form printed in English; that
he was not aware that he was being interrogated in connection with a capital
murder charge; and that he was not sufficiently recovered from the surgery
of earlier that day to assess intelligently the consequences of a waiver
presented him late that night.” Aranda concluded the claim by arguing that
he “did not voluntarily give the statement touted as a ‘confession’ nor did he
make an independent and informed decision to waive his right to counsel and
his right not to provide testimony against himself.”
Aranda’s other briefing emphasized a Miranda claim based on a lack
of knowing-and-intelligent waiver. In his opposition to the State’s motion for
summary judgment he stated, “Most notably, Respondent’s motion . . . does
not address the issue of whether Petitioner made a knowing and intelligent
waiver of his Fifth Amendment rights upon making his alleged ‘confession’
while in custody.” And in his motion to alter or amend the judgment, Aranda
again stressed that he had raised this claim.
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In short, Aranda made the basis of his Miranda claim adequately clear
in his petition and in his subsequent briefing. The State quarrels that
Aranda’s petition was insufficiently lucid on this point, or that Aranda’s
allegations are only conclusory, or that this claim was addressed only briefly
compared to Aranda’s involuntary waiver claim. But as described above,
Aranda’s petition (and subsequent briefing) adequately stated a claim that he
did not waive his Miranda rights knowingly and voluntarily. And this case is
unlike other cases where we have found waiver, which often include stark
examples of conclusory or altogether nonexistent briefing on claims. See, e.g.,
Ross v. Estelle, 694 F.2d 1008, 1011–12 (5th Cir. 1983) (per curiam) (holding
that “mere conclusory allegations” which were unsupported by any record
evidence in a pro se defendant’s petition did not raise a constitutional issue);
Ortiz v. Quarterman, 509 F.3d 214, 215 (5th Cir. 2007) (per curiam) (holding
that a petitioner waived an ineffective assistance of counsel claim when he
failed to raise the claim in his brief in support of a COA).
Here, the district judge sua sponte denied a COA to Aranda, stating it
“will not certify any issue for review by the Fifth Circuit.” “[W]hen a
district court sua sponte denies a COA without indicating the specific issues,
we have treated each of the issues raised in the habeas petition as included
within the denial.” Black v. Davis, 902 F.3d 541, 546 (5th Cir. 2018).
Accordingly, because we find that Aranda sufficiently raised this claim before
the district court, we find that the district court’s denial of a COA covered
this claim and that we have jurisdiction to address whether we should grant a
COA.
2. Miranda Claim COA
We now address whether we should grant a COA on Petitioner’s
Miranda claim that his waiver was not knowing and intelligent.
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The State first argues that there is no “believable evidence” in the
record that undermines Petitioner’s written waiver and which demonstrates
a Miranda violation. But the record contains evidence to support Aranda’s
claims, including evidence that he did not realize that he was being charged
with capital murder, evidence that he had limited ability to speak and
understand English, and evidence of his injuries from surgery earlier in the
day. In light of this evidence, jurists of reasons could debate whether
Petitioner’s Miranda claim has merit. In this “threshold inquiry,” we cannot
deny Aranda a COA on this ground. Miller-El, 537 U.S. at 327.
The State next argues that the state court’s findings regarding
Petitioner’s Miranda claim are entitled to a presumption of correctness and
should be dispositive here. The version of 28 U.S.C. § 2254 that was in place
at the time Aranda filed his petition stated that in federal habeas cases, “a
determination after a hearing on the merits of a factual issue, made by a State
court of competent jurisdiction in a proceeding [and] evidenced by a written
finding, written opinion, or other reliable and adequate written indicia, shall
be presumed to be correct” subject to certain exceptions. 28 U.S.C.
§ 2254(d) (1988). But the sole written opinion that the State points us to
addresses only whether Aranda’s claim was voluntary. And although the trial
court held a hearing addressing many of Aranda’s arguments here and orally
ruled in favor of the State by allowing the confession into the record,
“reasonable jurists [could] find [that] the district court’s assessment of the
constitutional claims [is] debatable or even wrong.” Miller-El, 537 U.S. at
338 (quotation omitted).
Finally, the State argues that even if there was Miranda error, it was
harmless because the State produced overwhelming evidence of Aranda’s
guilt other than the confession. But assessing whether any Miranda error was
harmless would require us to assume a constitutional error and delve into the
merits of Aranda’s claim, which is beyond the “threshold inquiry” we engage
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in at this stage. Miller-El, 537 U.S. at 327. In any event, jurists of reason
could debate whether any constitutional error was harmless, particularly
because “confessions have a profound impact on the jury.” Bruton v. United
States, 391 U.S. 123, 140 (1968) (White, J., dissenting).
In sum, at this stage Aranda has demonstrated that jurists of reason
could disagree with the district court’s resolution of his Miranda claim. We
therefore grant a COA as to this claim.
B. The Fair Cross-Section Claim
We turn next to Aranda’s fair cross-section claim. Before addressing
this claim, we specifically note what we need not address: any supposed claim
that Aranda made—under the Vicinage Clause or otherwise—that a
defendant has a right to be tried in the jurisdiction where the crime occurred
or a jurisdiction with an identical racial makeup. Aranda renounced seeking
a COA on such a claim in his reply. Rather, we need only consider Aranda’s
claim insomuch as he argues that Victoria County systematically excluded
Hispanics in its jury selection process and at his trial.
As the parties agree, Aranda’s fair cross-section claim arises under
Duren v. Missouri, 439 U.S. 357 (1975). Under the test the Supreme Court
announced in Duren, to establish a fair cross-section claim, a petitioner must
demonstrate: “(1) that the group alleged to be excluded is a ‘distinctive’
group in the community, (2) that the representation of this group in venires
from which juries are selected is not fair and reasonable in relation to the
number of such persons in the community; and (3) that this
underrepresentation is due to systematic exclusion of the group in the jury
selection process.” Id. at 364.
Here, the question is whether jurists of reason could debate that
Aranda is able to demonstrate that the percentage of the community made up
of Hispanics was underrepresented on his jury venire and that this
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underrepresentation was the general practice on other venires. United States
v. Williams, 264 F.3d 561, 568 (5th Cir. 2001). The sole affidavit on which
Aranda bases his cross-section claim focuses on underrepresentation of
Hispanics on his venire, but does not demonstrate that any such
underrepresentation was the general practice on other venires in Victoria
County. See United States v. Brummitt, 665 F.2d 521, 529 (5th Cir. 1981).
But even had Aranda properly called into question whether there was
underrepresentation of Hispanics on Victoria Country venires generally,
jurists of reason could not debate his fair cross-section claim for a separate,
independent reason. This Circuit has repeatedly held that an absolute
disparity of less than ten percent is not sufficient to demonstrate
underrepresentation. See United States v. Maskeny, 609 F.2d 183, 190 (5th
Cir. 1980); see also United States v. Age, No. 16-cr-32, 2021 WL 2227244, at
*10–11 (E.D. La. June 2, 2021) (collecting cases). “Absolute disparity
measures the difference between the proportion of the distinctive groups in
the population from which the jurors are drawn and the proportion of the
groups on the jury list.” United States v. Yanez, 136 F.3d 1329, 1998 WL
4454, at *2 n.4 (5th Cir. 1998). The absolute disparity that Aranda alleges
here is less than ten percent. He resists this conclusion by citing to Berghuis
v. Smith, 559 U.S. 314 (2010), which he argues stands for the proposition that
the absolute disparity test should not be used. But Berghuis said no such
thing; rather, the Court only recognized multiple ways to measure the
representation of distinctive groups in jury pools and acknowledged that
“[e]ach test is imperfect.” Id. at 329.
Jurists of reason could not find that Aranda’s fair cross-section claim
is debatable. We do not issue a COA for this claim.
C. The Strickland Claims
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In his next claim, Aranda argues that he was denied effective
assistance of counsel in violation of the Sixth Amendment under Strickland
v. Washington, 466 U.S. 668 (1984). Ineffective assistance of counsel claims
are reviewed under Strickland’s two-prong test. First, Aranda must
demonstrate that his counsel’s performance was deficient. Id. at 687. To
establish deficient performance, Aranda must show “that counsel’s
representation fell below an objective standard of reasonableness.” Id. at
688. This is an uphill battle, as we apply a “strong presumption that
counsel’s conduct falls within the wide range of reasonable professional
assistance.” Id. at 689. As to the second prong, Aranda must demonstrate
that that the deficient performance prejudiced the defense. Id. at 687. In a
death penalty case, “the question is whether there was a reasonable
probability that, absent the errors, the sentencer . . . would have concluded
that the balance of aggravating and mitigation circumstances did not warrant
death.” Id. at 695. “Prejudice exists when the likelihood of a different result
is ‘substantial, not just conceivable.’” Trottie v. Stephens, 720 F.3d 231, 241
(5th Cir. 2013) (quoting Harrington v. Richter, 526 U.S. 86, 112 (2011)). We
are also mindful that “[s]urmounting Strickland’s high bar is never an easy
task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010). But as Aranda faces the
death penalty, we continue to resolve any doubts as to whether a COA should
issue in his favor. Rhoades v. Davis, 852 F.3d 422, 427 (5th Cir. 2017).
On appeal, Aranda alleges deficient performance of his counsel in
three ways. First, he contends that his counsel failed to adequately
investigate available defenses, primarily by failing to investigate and present
evidence that was admitted at his brother Juan Aranda’s trial. Second, he
argues that his counsel failed to adequately investigate evidence of
mitigation, such as evidence that Aranda had a difficult upbringing or a
possible brain injury. Third, he presses that his counsel failed to investigate
an extraneous offense. We address each argument in turn.
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Aranda’s argument that his counsel failed to adequately investigate
defenses largely turns on the fact that his counsel did not introduce evidence
that was used at Juan Aranda’s trial. “To prevail on an ineffective assistance
of counsel claim based upon uncalled witnesses, an applicant must name the
witness, demonstrate that the witness would have testified, set out the
content of the witness’s proposed testimony, and show that the testimony
would have been favorable.” Gregory v. Thaler, 601 F.3d 347, 352 (5th Cir.
2010). These claims are disfavored. Id.Aranda contends that if his counsel had adequately investigated
possible defenses, he would have called Jorge Martinez, C. D. Toler, and R.
Benavides. But Aranda fails to set out exactly what those witnesses would
have testified to, beyond a vague reference to “Officer Viera’s propensity for
violence.” Although Aranda argues that counsel should have introduced a
series of facts about Viera’s propensity for violence, it is completely unclear
from Defendant’s briefing which of the three witnesses should have testified
about those facts. And Aranda’s sole citation to the record is the witness list
from Juan Aranda’s trial, which is insufficient. See, e.g., Miller v. Johnson,
200 F.3d 274, 282 (5th Cir. 2000). Because Aranda has not demonstrated
that the witnesses would have testified, set out witnesses’ proposed
testimony, or shown that it would have been favorable, reasonable jurists
could not debate that this claim fails. See Gregory, 601 F.3d at 352.
There are other issues with this claim. First, counsel did attempt to
call Martinez, but the trial court would not allow him to testify. Second, in
Juan Aranda’s trial, the judge refused to allow Benavides or Toler to testify,
and Petitioner offers no reason to think there would be a different result in
his trial. Third, and most important, Aranda’s counsel made a strategic
decision not to present this evidence. In his affidavit, Aranda’s counsel states
that he chose not to introduce some available evidence from Juan Aranda’s
trial because he wanted to emphasize the defense of self-defense.
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“Generally, counsel’s strategic decisions are afforded deference so long as
they are based on counsel’s ‘professional judgment.’” Escamilla v. Stephens,
749 F.3d 380, 392 (5th Cir. 2014) (quoting Strickland, 446 U.S. at 680).
Although Aranda argues we should not defer to his attorney’s decision
because his claim involves a failure to investigate, see id., the record illustrates
that his attorney was sufficiently informed of the circumstances of Juan
Aranda’s trial. In light of these serious infirmities in this claim, reasonable
jurists could not debate that it fails.
Next, Aranda argues that his counsel failed to investigate and present
mitigation evidence at the sentencing stage of trial. He presses that had
counsel adequately investigated Aranda’s past, he would have presented
evidence of Aranda’s troubled upbringing and his past violent experience
with law enforcement, which resulted in a head injury. The Supreme Court
has held that failure to adequately investigate available mitigating evidence
may amount to ineffective assistance of counsel. See Wiggins v. Smith, 539
U.S. 510, 524–25, 537–38 (2003) (holding that a defense counsel’s failure to
investigate a capital defendant’s social history and traumatic childhood
constituted ineffective assistance of counsel); see also Williams v. Taylor, 529
US. 362, 395–98 (2000) (holding that defense counsel’s performance fell
below an objective standard of reasonableness where counsel failed to present
mitigating evidence related to a defendant’s troubled upbringing and
intellectual disability). Here, Aranda’s counsel was forthright that he “did
not conduct any extensive investigation of Mr. Aranda’s background for the
purpose of developing specific evidence of disorders caused by his
background.” Because this evidence is like that discussed by the Supreme
Court in Wiggins and Williams, reasonable jurists could debate the district
court’s conclusion that counsel was effective.
Reasonable jurists could also conclude that the district court’s
prejudice assessment was debatable or incorrect. If Aranda’s counsel had
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reasonably investigated Aranda’s background, the jury may have learned of
Aranda’s deeply troubled upbringing, his early, violent experience with law
enforcement, and the life-altering effects of his head injury. A jury presented
with such evidence may not have determined that Aranda was a future danger
to society or that he acted deliberately, two of the factors Texas juries had to
consider at the sentencing stage. Reasonable jurists could therefore debate
whether the district court’s prejudice determination was correct. At a
minimum, this claim “deserves encouragement to proceed further.”
Escamilla, 749 F.3d 393–94. Accordingly, we will grant a COA as to this
Strickland claim.
Finally, we turn to Aranda’s argument that his counsel failed to
research infirmities in his aggravated rape conviction, which was an
aggravating offense at his murder trial. Aranda’s briefing on this topic is
perfunctory, and he cites solely to the affidavit of his trial counsel, which
states that he knew about the conviction but was unaware of purported legal
infirmities with the conviction. Even assuming that counsel’s performance
was deficient for not investigating any legal infirmities in Aranda’s
aggravated rape conviction, Aranda is unable to establish that jurists of reason
would debate this issue, given the lack of any indication in the briefing that
the more fulsome objection would have been any more valid than the one
raised. Texas law permits broad introduction of extraneous prior convictions
at the sentencing phase, and our court has sustained even consideration of
non-final convictions and “extraneous offenses.” See Tex. Code of Crim.
Proc. § 37.07; Hogue v. Johnson, 131 F.3d 466, 478 n.9 (5th Cir. 1997)
(“[n]othing in Article 37.071 . . . requires that there be a final conviction for
an extraneous offense to be admissible at the punishment phase.”); Hammett
v. State, 578 S.W.2d 699, 709 (Tex. Crim. App. 1979) (same), cert. withdrawn,
448 U.S. 725 (1980)); see also Williams v. Lynaugh, 814 F.2d 205, 208 (5th
Cir. 1987), cert denied., 484 U.S. 935 (1987) (holding that “the admission of
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unadjudicated offenses in the sentencing phase of a capital trial does not
violate” the Constitution because “[e]vidence of these unadjudicated crimes
is clearly relevant to the jury’s task of determining whether there is a
probability that [the defendant] would continue to commit acts of violence as
required by” special questions); see also Harris v. Johnson, 81 F.3d 535, 541
(5th Cir. 1996) (“use of evidence of unadjudicated extraneous offenses, at the
sentencing phase of Texas capital murder trials, does not implicate
constitutional concerns”). Accordingly, we deny a COA as to this portion of
the ineffective assistance of counsel claim.
We find that Aranda has carried his burden to demonstrate that
reasonable jurists would debate whether his counsel’s performance was
ineffective in failing to investigate and introduce evidence of mitigating
circumstances and such a failure was prejudicial. We therefore grant a COA
as to this Strickland claim. Because Aranda has failed to demonstrate
reasonable jurists could debate the viability of his other Strickland claims, we
deny a COA on those claims.
D. The Penry Claim
Finally, we address Aranda’s claim under Penry v. Lynaugh, 492 U.S.
302 (1989). At the time of Aranda’s sentencing, the Texas jury was required
to determine a defendant’s capital sentence by answering three special issue
questions:
(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
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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.
Penry, 492 U.S. at 310 (citing Tex. Code Crim. Proc. art. 37.071(b) (Vernon
1981 and Supp. 1989). If the jury answered “yes” to these questions, the trial
court would impose the death penalty.
Although the facial validity of the statute was upheld by the Supreme
Court, see Jurek v. Texas, 428 U.S. 262 (1976), the Court later held that in
certain circumstances a jury may be unable to fully consider and give effect
to mitigating evidence in answering the special issue questions. Penry, 492
U.S. at 328. If the jury was provided “no vehicle for expressing its ‘reasoned
moral response’ to [mitigating] evidence” then the sentencing is
incompatible with the Eighth Amendment. Id. (quoting Franklin v. Lynaugh,
487 U.S. 164, 185 (1988) (O’Connor, J., concurring)).
In Coble v. Quarterman, 496 F.3d 430 (5th Cir. 2007), this circuit
fashioned a useful two-step process for considering Penry claims. First, we
must determine whether the mitigating evidence presented by Petitioner
“satisfied the ‘low threshold for relevance’ articulated by the Supreme
Court.” Id. at 444 (quoting Tennard v. Dretke, 542 U.S. 274 (2004)). “The
Court defined relevant mitigating evidence as ‘evidence which tends logically
to prove or disprove some fact or circumstance which a fact-finder could
reasonably deem to have mitigating value.’” Id. (quoting Tennard, 542 U.S.
at 284). The Court later cautioned that a Penry claim is not applicable “when
mitigating evidence has only a tenuous connection—‘some arguable
relevance’—to defendant’s moral culpability.” Abdul-Kabir v. Quarterman,
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550 U.S. 233, at 252–53 n.14 (quoting Penry, 492 U.S. at 322–23). If the
evidence passes this relevancy threshold, we must next “determine whether
there was a reasonable likelihood that the jury applied the special issues in a
manner that precluded it from giving meaningful consideration and effect to
all of [Petitioner’s] mitigating evidence.” Coble, 496 F.3d at 444.
Aranda identifies four categories of mitigating evidence which he
contends could not have been given meaningful consideration by the jury:
(1) evidence of Aranda’s intoxication at the time of the shooting, (2) evidence
that Aranda had no foreknowledge about transporting drugs, (3) evidence
that Aranda remained unarmed until he retrieved the drugs, and (4) evidence
that the victim had a hand on his own gun when Aranda shot him. We
address each category in turn.
Jurists of reason could not debate that Aranda’s intoxication does not
pass even the low threshold for relevance. The record is clear that Aranda
had a single beer at the first bar he patronized. That is the only record
evidence Aranda points to that he was drinking on the night in question.
Although Juan Aranda left his brother alone for some period of time, he
testified that when he returned he believed Petitioner “had a glass of water
or Seven-Up.” This evidence of intoxication is so slight that it is “tenuous”
at best. And because jurists of reason would not debate that this evidence
does not “satisf[y] the ‘low threshold for relevance’ articulated by the
Supreme Court,” Coble, 496 F.3d at 444, it cannot be the basis for a Penry
claim.
Likewise, because Aranda relies on inference piled on inference,
jurists of reason could not debate the two categories of evidence proffered by
Aranda, which we consider together. Aranda argues that his lack of
knowledge regarding the drug transaction and the fact he remained unarmed
until picking up the drugs support a Penry claim. But these claims both rely
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No. 20-70008
on a series of inferences that the jury would have to make to reach
considerations other than residual doubt that are not incorporated into the
special issues questions. For example, from the fact Aranda did not know
about the drug transaction before engaging in it, Aranda would have a juror
infer that his brother was the mastermind behind his drug transaction; from
this, Aranda would have the jury infer that his brother was always the
mastermind when the two brothers were together; from this, Aranda would
have the jury infer that he had a docile personality and took orders from this
brother; and from this fact, Aranda would have the jury determine that he
deserved a sentence less than death. Petitioner’s argument regarding the
evidence that he was unarmed until he secured the drugs likewise relies on
an extensive and dubious inferential chain. Even viewed in the light most
favorable to Petitioner, these arguments amount to rank speculation. Jurists
of reason could not debate that these arguments—which are based on layer
upon layer of inferences (many of which include suggested logical leaps)—
do not even have a “tenuous” connection to moral culpability.
Finally, Petitioner argues that evidence that Officer Albidrez’s hand
was placed on his weapon when he approached Aranda’s car could not be
given meaningful consideration by the jury at the punishment phase. But this
evidence is primarily relevant to residual doubt about Aranda’s self-defense
claim, which cannot be the basis of a Penry claim. See Abdul-Kabir, 550 U.S.
at 251. And to the extent this evidence has any relevance beyond residual
doubt, it could be fully considered within the special issue questions
presented to the Texas jury. Indeed, the third special question specifically
required the jury to consider “[w]hether the conduct of the defendant in
killing the deceased was unreasonable in response to the provocation, if any,
by the deceased.” Penry, 492 U.S. at 310. Accordingly, jurists of reason
could not find that this claim succeeds.
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No. 20-70008
In sum, reasonable jurists could not debate that Aranda has failed to
demonstrate a Penry claim. We decline to issue a COA as to this claim.
IV.
For the foregoing reasons, Petitioner’s request for a certificate of
appealability as to his Miranda claim and as to his Strickland claim regarding
his counsel’s failure to investigate and introduce evidence of mitigating
circumstances is GRANTED. Petitioner’s request for a certificate of
appealability is otherwise DENIED.
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