United States v. Christopher Vialva , 762 F.3d 467 ( 2014 )

Case: 13-70013 Document: 00512729105 Page: 1 Date Filed: 08/11/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-70013 United States Court of Appeals
Fifth Circuit
FILED
UNITED STATES OF AMERICA August 11, 2014
Lyle W. Cayce
Plaintiff-Appellee Clerk
v.
BRANDON BERNARD
Defendant-Appellant
Consolidated With
No. 13-70016
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
CHRISTOPHER ANDRE VIALVA
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
Before JOLLY, HIGGINBOTHAM and JONES, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Brandon Bernard and Christopher Andre Vialva were convicted of
capital murder under federal law and sentenced to death. Both defendants
have filed federal habeas petitions pursuant to 28 U.S.C. § 2255, asserting,
inter alia, ineffective assistance of counsel claims, Brady violations and
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cumulative error. After careful review, the district court denied an evidentiary
hearing, denied the petitions, and did not certify any questions for appellate
review. Both defendants now seek certificates of appealability (“COAs”)
pursuant to 28 U.S.C. § 2253(c)(2). For the following reasons, we DENY the
COA applications.
BACKGROUND
As this court summarized in United States v. Bernard, 299 F.3d 467
(5th Cir. 2002), in June 1999, Bernard, Vialva, and other gang members
planned a robbery and carjacking in Killeen, Texas. They selected Todd and
Stacie Bagley (the Bagleys) as their victims and carried out their plan, which
ended in the murder of the Bagleys on federal government property. Vialva
shot both victims in the head, and Bernard set fire to their car to destroy the
evidence. Todd Bagley died as a result of the gunshot wound and Stacie Bagley
died of smoke inhalation. Vialva was convicted on three capital murder counts,
and Bernard on a single count for Stacie’s death. The jury found that
aggravating factors out-weighed mitigating factors for each defendant and
sentenced them to death pursuant to 18 U.S.C. § 3591 et seq. Their convictions
and sentences were affirmed on appeal. Id., cert. denied, 539 U.S. 928, 123 S.
Ct. 2572 (2003).
Bernard and Vialva each filed federal habeas petitions under Section
2255, and raised a myriad of issues, which the district court rejected. The
petitioners-appellants now seek COAs pursuant to 28 U.S.C. § 2253, on many
of the same issues.
STANDARD OF REVIEW
“This court may not consider an appeal from the denial of a
28 U.S.C. § 2255 motion for relief unless either the district court or this court
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issues a COA.” United States v. Hall, 455 F.3d 508, 513 (5th Cir. 2006) (citing
28 U.S.C. § 2253(c)(1)(B)). To obtain a COA, a defendant must make “a
substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating
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 v. Cockrell,
537 U.S. 322, 327, 123 S. Ct. 1029, 1034 (2003) (citing Slack v. McDaniel,
529 U.S. 473, 484, 120 S. Ct. 1595, 1603 (2000)). “[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.”
Miller-El, 537 U.S. at 338, 123 S. Ct. at 1040. In making the decision whether
to grant a COA, this Court's examination is limited to a “threshold inquiry,”
which consists of “an overview of the claims in the habeas petition and a
general assessment of their merits.” 537 U.S. at 336, 123 S. Ct. at 1039. This
court cannot deny a COA merely because it believes that the petitioners
ultimately will not prevail on the merits of their claims. Id. On the other hand,
“issuance of a COA must not be pro forma or a matter of course.”
537 U.S. at 337, 123 S. Ct. at 1040. “While the nature of a capital case is not
of itself sufficient to warrant the issuance of a COA, in a death penalty case
any doubts as to whether a COA should issue must be resolved in the
petitioner's favor.” Ramirez v. Dretke, 398 F.3d 691, 694 (5th Cir. 2005)
(alterations omitted) (internal quotation marks omitted).
DISCUSSION
I. Ineffective Assistance of Counsel
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An ineffective assistance of counsel claim requires a showing that
(1) counsel’s performance was legally deficient, and (2) the deficiency
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 2064 (1984). As to the first prong, the proper standard for
evaluating counsel’s performance is that of reasonably effective assistance,
considering all of the circumstances existing as of the time of counsel’s conduct.
Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366 (1985). Counsel’s performance is
strongly presumed to fall within the wide range of reasonable professional
assistance. Strickland, 466 U.S. at 690, 104 S. Ct. at 2066. To establish
prejudice under the second prong of the Strickland test, the defendant must
show that his attorney’s errors were so serious that they rendered “the result
of the trial unreliable or the proceeding fundamentally unfair.” Lockhart v.
Fretwell, 506 U.S. 364, 372, 113 S. Ct. 838, 844 (1993). “The defendant must
show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
Although courts may not indulge “post hoc rationalization” for
counsel's decisionmaking that contradicts the available evidence
of counsel's actions, . . . neither may they insist counsel confirm
every aspect of the strategic basis for his or her actions. There is a
“strong presumption” that counsel's attention to certain issues to
the exclusion of others reflects trial tactics rather than “sheer
neglect.” . . . After an adverse verdict at trial even the most
experienced counsel may find it difficult to resist asking whether
a different strategy might have been better, and, in the course of
that reflection, to magnify their own responsibility for an
unfavorable outcome. Strickland, however, calls for an inquiry into
the objective reasonableness of counsel's performance, not
counsel's subjective state of mind.
Harrington v. Richter, 562 U.S. ___, ____, 131 S. Ct. 770, 790 (2011).
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Both petitioners’ ineffectiveness claims cover nearly every aspect of
counsels’ representation before and during the guilt and penalty phases of
trial. Yet the experience level of all four attorneys, two for each defendant, is
noteworthy. This was far from the first rodeo for any of them. Vialva’s
attorney B. Dwight Goains had extensive relevant death penalty case
experience and was Board Certified in criminal law, and his co-counsel was an
experienced criminal defense attorney. Russell David Hunt, Sr., Bernard’s
principal attorney, had chaired three prior death penalty cases for the defense
and one as a prosecutor; his son Russell D. Hunt, Jr., had tried over two dozen
state felony cases and assisted his father in defending two capital cases. 1
A. Bernard’s Claims
1. Failure to Persuade DOJ
Bernard asserts that reasonable counsel would have pursued an early
and thorough investigation aimed at developing information to convince the
Government not to seek Bernard’s execution. Instead, Bernard’s counsel sent
a two-page letter to the Government that was nearly silent about Bernard’s
allegedly diminished culpability or why a death sentence was inappropriate.
Rejecting this contention, the district court listed the reasons that counsel did
advance to DOJ in opposition to a death penalty, and it found them clear and
to the point. Under Strickland, an attorney has a duty to make reasonable
investigation, but a petitioner “who alleges a failure to investigate on the part
of his counsel must allege with specificity what the investigation would have
revealed and how it would have altered the outcome of the trial.” Gregory v.
1In light of these attorneys’ cumulative relevant experience, it is odd, at best, that
Mr. Richard Burr, a “resource attorney” on contract to the Administrative Office of the United
States Courts, furnished a post-conviction affidavit challenging their competence.
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Thaler, 601 F.3d 347, 352 (5th Cir. 2010) (emphasis added) (quoting United
States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989)). The district court held
that Bernard’s claim fails to meet the Strickland standard because Bernard
does not identify what an additional investigation would have revealed that
would have convinced the Government not to seek the death penalty.
Reasonable jurists could not debate the district court’s disposition of this
argument.
2. Cross-Examination of Brown and Lewis
Bernard argues that constitutionally effective counsel would have more
effectively attacked Brown and Lewis, accomplices in the crime who struck
plea bargains and became the Government’s primary witnesses. Because
decisions regarding cross-examination are strategic, they usually “will not
support an ineffective assistance claim.” Dunham v. Travis, 313 F.3d 724, 732
(2d Cir. 2002). Referring to the record, the district court explained in detail
how counsel for both Bernard and Vialva vigorously cross-examined Brown
and established that he had made many inconsistent statements, including
several concerning the events on the night of the murders, and that Brown did
not actually see Bernard set the Bagleys’ car on fire. Counsel for each
petitioner also vigorously cross-examined Lewis and established his numerous
inconsistent statements, including about where he was and what he was doing
on the day of the murders and that Lewis did not see Bernard set fire to the
Bagleys’ car. The additional details that Bernard identifies – Brown’s alleged
drug use, the precise location of Bernard during the murders – are
unsubstantiated or cumulative of other inconsistencies brought out at trial.
Bernard’s ineffective assistance of counsel claim is insufficient on this point to
suggest that reasonable jurists could disagree with the district court’s decision.
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3. Expert Witnesses
Bernard alleges counsel performed deficiently in failing to consult
independent experts regarding two areas of forensic evidence: how and where
the fire in the Bagleys’ car was started, and the nature and extent of Stacie
Bagley’s injuries and how she died. As with Bernard’s other ineffective
assistance of counsel claims, he must allege with specificity what such an
investigation would have revealed and how it could have altered the outcome
of the trial. Gregory, 601 F.3d at 352. When the petitioner questions counsel’s
failure to call a witness, counsel’s decision is considered to be essentially
strategic, and “speculations as to what [uncalled] witnesses would have
testified is too uncertain.” Alexander v. McCotter, 775 F.2d 595, 602
(5th Cir. 1985). The district court noted:
[t]he record in this case reflects that there was little scientific
evidence linking the Defendants to the scene of the murder. Gun
shot residue was collected but not tested due to the passage of time.
No fingerprints or trace evidence were obtained linking the
Defendants to the Bagley’s vehicle. The only DNA evidence
obtained was from the ski mask Vialva wore when he shot the
Bagleys. . . . Under a wors[t] case scenario, these [proposed]
experts could find evidence which did provide a physical link
between the Defendants and the murder scene.
The court also pointed out the equivocal nature of both the forensic testimony
admitted at trial on these issues and the expert testimony described by
Bernard. In other words, since no expert could state with certainty where the
fire started or how long Stacie survived the gunshot before being burned, the
court concluded the newly proffered testimony would not have helped Bernard
Trial counsel highlighted to jurors in closing argument how little
physical evidence connected Bernard and Vialva to the murders. “To support
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a defense argument that the prosecution has not proved its case is sometimes
better to try to cast a pervasive suspicion of doubt than to strive to prove a
certainty that exonerates.” Richter, 562 U.S. at ____, 131 S. Ct. at 790. The
district court concluded that defense counsels’ treatment of forensic evidence
was reasonable, and there was no Strickland prejudice. Reasonable jurists
could not disagree with the court’s resolution of this issue.
4. Ineffective Assistance During Penalty Phase
First, Bernard argues that his trial counsel impermissibly delegated the
mitigation investigation to persons who did not conduct a thorough inquiry,
failed to uncover meaningful information about Bernard, and did not make
adequate use of important facts disclosed by sources. “[C]ounsel has a duty to
make reasonable investigations or to make a reasonable decision that makes
particular investigations unnecessary. In any ineffectiveness case, a
particular decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy measure of
deference to counsel’s judgments.” Wiggins v. Smith, 539 U.S. 510, 523,
123 S. Ct. 2527, 2535 (2003). “[C]ounsel is entitled to formulate a strategy that
was reasonable at the time and to balance limited resources in accord with
effective trial tactics and strategies.” Garza v. Stephens, 738 F.3d 669, 680
(5th Cir. 2013).
Bernard’s trial counsel hired Criterion Investigations (private
investigators) and gave them a list of names provided by Bernard’s mother.
During the punishment phase, Bernard’s counsel presented several witnesses
who testified that Bernard was a nice young man, had attended church, was
respectful and kind, and was not a leader. Bernard’s mother, a lieutenant
colonel in the U.S. Army Reserve, provided information to defense counsel and
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testified powerfully for a non-capital sentence. This testimony is outlined in
the district court’s opinion. For purposes of his Section 2255 motion, Bernard
retained the services of Jill Miller, a mitigation specialist. Miller identified
several other witnesses who would testify concerning Bernard’s good nature,
his non-violent tendencies, his drug and alcohol use, his tendency to follow the
lead of stronger personalities, and Bernard’s upbringing and background. The
district court held, however, that the testimony of these witnesses, identified
by Miller and touted by Bernard, is cumulative of testimony offered at trial.
The decision not to present additional testimony does not constitute ineffective
assistance of counsel. Coble v. Quarterman, 496 F.3d 430, 436 (5th Cir. 2007).
This court recently issued a decision in which a COA was deemed
warranted where defense counsel conducted an arguably ineffective
investigation of a petitioner’s mitigating circumstances. Escamilla v.
Stephens, 749 F.3d 380 (5th Cir. 2014). Counsel there “unreasonably relied”
on friends and family members and “declined to hire a mitigation specialist”.
Post-conviction research, however, uncovered family violence and Escamilla’s
substance abuse. Escamilla is based on a fact-driven application of Wiggins,
supra, and does not support an equally fact-driven conclusion that under the
circumstances of this case, a COA is not warranted. Reasonable jurists could
not debate the district court’s holding that defense counsel’s mitigation
investigation was reasonable and sufficiently thorough.
Second, Bernard contends that his trial counsel performed deficiently in
securing mental health expertise. Bernard’s trial counsel retained Dr. James
Shinder to perform an evaluation, which was conducted only two days before
testimony began in the guilt-innocence phase. In the district court, post-
conviction counsel argued that a neuropsychologist should have been retained,
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who would have diagnosed Bernard with a “mild neurocognitive dysfunction,”
which results in difficulty with complicated, detail-oriented tasks. As
discussed above, while counsel has a duty to make reasonable investigations,
counsel is entitled to balance resources with effective trial strategies. Wiggins,
539 U.S. at 523, 123 S. Ct. at 2535; Garza, 738 F.3d at 680. The district court
held that “[t]he presentation of such a witness could have lessened the impact
of the positive approach counsel adopted by taking away the impact of the
attempt to ‘humanize’ Bernard for the jury”. Based on the record, this aspect
of the court’s ruling is not debatable among reasonable jurists.
Next, Bernard argues that his trial counsel failed to adequately prepare
for and challenge the Government’s aggravating evidence in support of the
death penalty. Specifically, Bernard points to the following evidence presented
by the Government: (1) Bernard’s membership in the “Bloods” street gang;
(2) testimony by the Government’s witness, Dr. Richard Coons, that “free
world” gang members always become gang members in prison; (3) testimony
that Bernard would not be a future danger in a structured prison environment;
and (4) victim impact, including testimony from the Bagleys’ families.
Regarding Bernard’s gang membership, counsel has a duty to make only
a reasonable investigation, and we “apply[] a heavy measure of deference to
counsel's judgments.” Wiggins, 539 U.S. at 523, 123 S. Ct. at 2535. Significant
evidence of Bernard’s gang involvement was presented by the Government.
Contrary to Bernard’s assertions, the evidence showed he was not a tentative
or timorous member of the local Bloods gang. Brown testified, for instance,
that he and fellow gang members Bernard and Vialva committed over two
dozen kick-door burglaries in the Killeen, Texas area. Bernard was also
involved in a confrontation with opposing gang members. Bernard’s now-
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proffered alternative strategy, offering statistics about the weak links between
local gangs and their national organizations, would have furnished no material
counterweight to Bernard’s actual record. The district court concluded that
defense counsel’s treatment of this adverse evidence was not ineffective.
Bernard contends that counsel were ineffective because they did not seek
a limiting instruction for the rebuttal testimony of Dr. Coons, who reviewed
Vialva’s records and opined on Vialva’s propensity for future violence even
while incarcerated. Contrary to Bernard’s assertion, the Government’s closing
argument did not conflate Dr. Coons’s testimony with Bernard’s future
dangerousness, although a juror could have drawn inferences. See Bernard,
299 F.3d at 482 n.11. Rather than invite comparisons, however, or highlight
Dr. Coons’s testimony by objecting or requesting a limiting instruction, counsel
turned Coons’s evaluation in favor of Bernard at closing:
Think about what the Government put on when they talked to
Dr. Coons. Dr. Coons is the psychiatrist from Austin [who]
testified about Mr. Vialva. Do you remember what Dr. Coons said
about Brandon Bernard? You’re going to have to think about that
one, because he didn’t say one word about Brandon Bernard. He
didn’t say anything about Brandon Bernard that makes Brandon
Bernard a future threat. And I would suggest to you that means
he did that, because there’s a reason. There is a reason for that.
The district court’s rejection of the argument that this clearly strategic choice
constituted ineffective assistance is not reasonably debatable.
Likewise, the district court rejected Bernard’s claim that counsel should
have put on witnesses to testify to his (relatively) good behavior while
incarcerated before trial and his positive adaptation in structured
environments. Such evidence was “double-edged” and, to the extent it was
helpful, would have been cumulative of the positive character evidence offered
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on Bernard’s behalf; thus, such evidence could not form a basis for ineffective
assistance. See Coble, 496 F.3d at 436.
This court addressed the admissibility of “victim impact” evidence on
direct appeal, see Bernard, 299 F.3d at 479, and determined it did not affect
Bernard’s substantial rights. We need not address it again in this collateral
action. Accordingly, jurists of reason could not debate the district court’s
rejection of Bernard’s ineffective assistance of counsel claim on these points.
Finally, outlining a litany of complaints, Bernard alleges counsel
performed deficiently in the conduct of the sentencing hearing. The district
court, which also oversaw the trial, found neither deficient performance nor
prejudice. Reasonable jurists could not debate this conclusion. Bernard’s
arguments, taken as a whole, amount to a vindication of trial counsel’s strategy
to “humanize” Bernard and portray him as a good kid who went astray.
Counsel’s witnesses conveyed the portrait to the jury on nearly every point
raised in the Section 2255 petition. A plea for “more of the same” does not, in
the circumstances of this case, show that the experienced trial counsel were
not functioning as counsel guaranteed to Bernard by the Sixth Amendment.
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. Further, given the horrific
nature of the crime, reasonable jurists could not debate that the additional,
cumulative evidence would in reasonable probability have influenced the jury’s
balancing of aggravating and mitigating factors.
B. Vialva
1. Conflict of Interest
Vialva contends that his counsel was inadequate because of a conflict of
interest. One attorney, Dwight Goains, applied for a job at the U.S. Attorney’s
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Office while the case was pending and did not secure Vialva’s prior consent. 2
Under the Sixth Amendment a criminal defendant has a right to be
represented by an attorney who has no conflict of interest. Holloway v.
Arkansas, 435 U.S. 475, 482, 98 S. Ct. 1173, 1177-78 (1978). In cases other
than multiple representation, the standards for testing conflict of interest arise
under Strickland. United States v. Newell, 315 F.3d, 510, 516 (5th Cir. 2002).
Ineffectiveness and prejudice must then be shown.
The district court held that the conflict of interest claim was procedurally
barred because it was not raised on appeal and a collateral challenge to a
conviction “may not do service for an appeal.” United States v. Frady,
456 U.S. 152, 165, 102 S. Ct. 1584, 1593 (1982). It alternatively held that the
claim was without merit, because Goains obtained a waiver from Vialva on
May 3, 2000, and requested a hearing in which Vialva confirmed that waiver
after the court advised him of his options on May 12, 2000. A defendant may
waive the right to proceed with conflict-free counsel after a hearing before the
trial court. Holloway, 435 U.S. at 483 n.5, 98 S. Ct. at 1178 n.5. The district
court found that Vialva clearly waived his right. Further, the district court
noted that Goains was not offered and did not accept the job during his
representation, hence “the mere fact of [defense counsel’s] future employment
plans did not create an actual conflict.” Garcia v. Bunnell, 33 F.3d 1193, 1199
(9th Cir. 1994), cert. denied, 514 U.S. 1024 (1995). Irrespective of procedural
default, there was no actual conflict, and any perceived conflict was waived at
the hearing. Finally, the court held that even if the waiver was ineffective, the
record shows no evidence of prejudice; Vialva makes no attempt in this court
2 Goains applied in early February 2000 and was rejected a month later, but he
indicated his continued interest for a position, which was offered and accepted post-trial.
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to demonstrate prejudice. Reasonable jurists could not debate that this
argument was properly rejected by the district court.
2. Failure to Procure Funding
Vialva claims his counsel were ineffective because they initially failed to
obtain additional funding for experts above the CJA guideline of $7,500.00 and
failed to ask for a continuance after additional funds were approved shortly
before trial.
As the district court noted, there was little scientific evidence linking the
defendants to the murder scene. Gunshot residue from the scene was never
tested, and no fingerprints or trace evidence was introduced. Vialva contends
that his counsel were inadequate because they did not hire additional experts
to contradict the testimony of the Government’s scientific witnesses. The
district court concluded that it was a reasonable decision to allocate limited
funds to other areas, rather than by hiring more forensic experts, particularly
when the central theory of the defense was a lack of physical evidence. Counsel
functioned adequately because they did prepare a proposal for additional
funding that, though initially denied, was eventually partially granted.
Finally, the district court held that Vialva’s insistence that his counsel should
have requested a continuance when additional funding was approved failed to
articulate what benefit would have resulted from a continuance and
speculatively presupposed that such a continuance would have been granted.
The court concluded that Vialva has shown neither inadequacy nor prejudice.
Reasonable jurists could not debate this conclusion.
3. Failure to Adequately Investigate
Vialva contends that his counsel failed to adequately investigate. As we
have stated, to succeed on a claim for failure to investigate, a defendant “must
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allege with specificity what the investigation would have revealed and how it
would have altered the outcome of the trial.” Druery v. Thaler, 647 F.3d 535,
541 (5th Cir. 2011). Further, “[a]n attorney need not pursue an investigation
that would be fruitless, much less one that might be harmful to the defense.”
Richter, 562 U.S. at ____, 131 S. Ct. at 789-90.
When requesting additional funds for defense, Vialva’s lawyer explained
that his counsel had gone through all the Government’s evidence, compared
witness testimony, inspected the crime scene, inspected the elements of the
crime, and inspected the vehicle involved in the crime. Counsel also hired a
fact investigator and a forensic consultant who assisted with the investigation.
Vialva contends that not enough was done to investigate the possibility
of another shooter or impeachment material for Brown and Lewis, but he has
not identified what further investigation could have been undertaken or what
such investigation might have discovered. Vialva’s counsel argued to the jury
that no forensic evidence linked him to the scene, and counsel emphasized the
problems with Brown’s and Lewis’s credibility. Had counsel delved further
into the prior criminal activities of Brown and Lewis, as Vialva now suggests,
he would have emphasized crimes in which Vialva was involved. Vialva also
contends that his counsel should have found evidence that he was not the
leader of the gang, but his leadership was established by the testimony of
multiple witnesses. Based on these and numerous other facts, the district
court concluded that Vialva has not alleged anything that additional
investigation might have revealed that would have in reasonable probability
affected the outcome of the trial; the court found no ineffectiveness.
Reasonable jurists could not debate these conclusions.
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4. Failure to Present a Coherent Defense
Vialva argues that his counsel were inadequate because they did not
present a coherent defense or provide adversarial testing of the Government’s
case. Vialva contends that his counsel did not adequately cross-examine
witnesses or develop a credible theory to counter the Government’s theory of
the crime. Vialva asserts that this failure was possibly attributable, in part,
to counsel’s failure to develop a working relationship with Vialva or spend
adequate time with him.
Despite his contention, Vialva does not propose an alternate, more
persuasive defense. 3 Vialva’s defense at trial was largely an argument that
the prosecution had not proved its case. This is a viable strategy, as it
“sometimes is better to try to cast pervasive suspicion of doubt than to strive
to prove a certainty that exonerates.” Richter, 562 U.S. at ____, 131 S. Ct. at
789-90. Vialva does not explain what further information existed about
deficiencies in the Government’s investigation or how such additional
deficiencies could have been used to exonerate him.
As the district court also noted, brevity of consultation time with the
client does not establish a claim for ineffective assistance of counsel unless a
defendant can show what benefit would have resulted from more consultation
time. Schwander v. Blackburn, 750 F.2d 494, 499 (5th Cir. 1985). Vialva has
not done so. To the extent Vialva relies for this point on ABA Guidelines in
effect at the time of trial, the Supreme Court has approved using them as a
guideline to professional norms, but “not its definition.” Bobby v. Van Hook,
3Vialva briefly asserts that expert evidence on his “cognitive capacity” would have
refuted the theory that he was the gang leader and had the ability to instigate the carjacking
and murders. The district court flatly rejected this claim on two grounds: the accomplice
testimony was contrary to this notion, and the crime required no feat of advance planning.
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558 U.S. 4, 8, 130 S. Ct. 13, 16 (2009) (noting also that counsel’s representation
cannot be encompassed by a “set of detailed rules” [internal citation omitted]).
Finally, Vialva makes much of his counsel’s alleged failure to adequately
cross-examine Brown and Lewis. The district court addressed the cross-
examination of both witnesses at some length, concluding that counsel for both
defendants vigorously cross-examined the witnesses by pointing out all of their
prior inconsistent statements and attempting to demonstrate a lack of
credibility. The district court also lists the various favorable admissions that
were elicited from both Brown and Lewis on cross-examination, including
evidence that the gang did not have a leader and that one of the witnesses did
not think Vialva was actually going to kill the Bagleys. Reasonable jurists
could not debate the district court’s conclusion that the factors Vialva raises
concerning a coherent defense strategy did not prove constitutional
ineffectiveness or prejudice.
5. Ineffective Assistance During Penalty Phase
Vialva argues that his counsel was inadequate during the penalty phase
of the trial by failing to present mitigating evidence, failing to obtain adequate
funding and time to present mitigating evidence, misuse of expert testimony,
and failure to secure individualized sentencing. Vialva asserts that an
adequate investigation would have produced mitigating evidence including:
details of Vialva’s turbulent upbringing, his mother’s illness, his symptoms of
bipolar disorder, his ability to form friendships, and his history of illness and
injury, including Attention Deficit Hyperactivity Disorder and depression.
The district court recites at length that much of the mitigating evidence
was actually presented to the jury through the testimony of Vialva’s friends
and family and Dr. Cunningham. Witnesses testified that Vialva made people
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laugh, got along well with others, and was generally helpful. Vialva’s mother
testified in detail about Vialva’s turbulent upbringing. Dr. Cunningham is a
well-respected mental health expert who has frequently testified for the
defense in capital cases. Dr. Cunningham expanded on both the risk factors
and mitigating circumstances based on his examination of Vialva’s educational
records, psychological records, medical records, criminal records, and other
records. He highlighted the difficult circumstances of Vialva’s childhood as he
related that Vialva was exposed to domestic violence and criminal behavior.
He noted that Vialva suffered from mild physical abnormalities and possible
brain damage and had experienced a number of emotionally damaging events.
Despite all the negative influences, Dr. Cunningham found Vialva had
demonstrated several positive attributes including graduation from high
school, a continued bond with his mother, continued protection of his younger
sister, and a long-term dating relationship.
Using the mitigating factors, Dr. Cunningham countered the
Government’s testimony about future dangerousness with his own statistical
models. Although the statistical models were subjected to vigorous cross-
examination, the district court concluded that counsels’ decision to call
Dr. Cunningham was not ineffective because he presented strong mitigating
evidence. Reasonable jurists could not debate this conclusion.
Additionally, even if counsel had been ineffective in their use of experts
at the penalty stage, Vialva has not proven that he was prejudiced. The
overwhelming evidence against the defendants also established that Vialva
was the leader of the group. As the district court noted: “[Vialva] decided that
the Bagleys had to be killed because they had seen his face. He also was the
one who decided to burn the vehicle. He was the one who mercilessly shot the
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Bagleys in their heads after they begged for their lives.” Reasonable jurists
could not debate the district court’s conclusion that Vialva has not shown
prejudice.
Finally, Vialva contends that his counsel were defective in failing to
properly advocate for severance during the sentencing proceeding. Vialva’s
counsel requested a separate penalty phase trial by filing a pretrial motion, a
motion at the end of jury selection, and a motion at the beginning of the penalty
phase. All of the motions were denied. Vialva claims that the motions were
“plagued by the absence of any factual or empirical support for the request”
and failed to adequately address the issue of a “leader” and a “follower” being
sentenced in a joint penalty phase. 4
With the motion for severance, however, Vialva’s counsel submitted an
18-page legally supported memorandum that warned of potential distortions
from the jury’s comparing aggravating and mitigating evidence offered by each
defendant. After failing in this initial attempt, counsel renewed the motion
two more times. Vialva now contends that his counsel should have raised
statistical arguments in the motion for severance. The suggestion such
arguments would have prevailed where a well-crafted memorandum did not is
pure speculation. The district court’s rejection of this ineffectiveness argument
is not reasonably debatable.
II. Brady Claims
Both petitioners argue that the Government denied their constitutional
rights under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), because
4When the issue of severance was raised on direct appeal, this court, albeit on plain
error review, held that Bernard’s mitigating evidence of his Christian conversion was “not
sufficiently ‘mutually antagonistic’ or ‘irreconcilable’ to [Vialva] to suggest, much less compel,
severance at the penalty phase.” Bernard, 299 F.3d at 475.
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the Government did not disclose all material exculpatory or impeaching
evidence to the defense. To establish a Brady violation, a defendant must
prove that (1) the prosecution actually suppressed the evidence, (2) the
evidence was favorable to the defense, and (3) the evidence was material.
Brady, 373 U.S. at 87, 83 S. Ct. at 1194; Reed v. Stephens, 799 F.3d 753, 781
(5th Cir. 2014). “A petitioner’s Brady claim fails if the suppressed evidence
was discoverable through reasonable due diligence.” Reed, 739 F.3d at 781.
Suppressed evidence is material if “there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding would
have been different. A ‘reasonable probability’ is a probability sufficient to
undermine confidence in the outcome.” Id. (citing United States v. Bagley,
473 U.S. 667, 682, 105 S. Ct. 3375 (1985)).
The district court held the Brady claims were procedurally defaulted
because they could have been raised on direct appeal, and petitioners could not
establish cause or prejudice for their failure to raise the claims seasonably.
See United States v. Stumpf, 900 F.2d 842, 845 (5th Cir. 1990). We need not
decide whether a COA is required on this sub-issue. Even if the claims were
not procedurally defaulted, reasonable jurists could not debate the district
court’s further conclusion that the information referenced by petitioners was
either cumulative of already-disclosed evidence, not material under Brady, or
not suppressed by the Government.
Petitioners emphasize that despite conducting multiple interviews of
Brown and Lewis over an extended period, investigators regularly declined to
take or record official statements that would have revealed further
contradictions with their trial testimony. The district court pointed out
initially the absence of any legal authority supporting the contention that the
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Government has an obligation to record or turn over to the defense every
interaction with a witness, especially where the agent doubts the witness’s
truthfulness. See Moore v. Illinois, 408 U.S. 786, 795,
92 S. Ct. 2562, 2568 (1972). It is undisputed that defense counsel had access
to several of Brown’s and Lewis’s prior statements and used those for extensive
cross-examination. The court consequently held that any contradictions that
such interactions might have unearthed would have been cumulative of the
numerous contradictions and “lies” exposed during the cross-examinations of
Brown and Lewis. See, e.g., Spence v. Johnson, 80 F.3d 989, 995 (5th Cir. 1996)
(“[W]hen the undisclosed evidence is merely cumulative of other evidence, no
Brady violation occurs”); Jackson v. Johnson, 194 F.3d 641, 648-50
(5th Cir. 1999).
Next, even if the Government was aware of and failed to turn over
additional information about Brown’s criminal history, petitioners have not
shown how it would have been material or exculpatory. During the guilt phase
of trial, Brown admitted to pleading guilty for his involvement in the Bagleys’
murders. His status as a gang member, his possession of the murder weapon,
and his participation in gang activities were all revealed to the jury. Had
Brown’s additional crimes been disclosed at trial, they could have opened the
door, as the district court noted, for the Government to introduce the
petitioners’ involvement in crimes like the kick-burglaries, to which Brown
testified in the penalty phase. Accordingly, the district court concluded that
additional evidence of Brown’s criminal past would not have been material, i.e.
reasonably likely to lead the jury to a different outcome in the guilt phase.
Bernard alleges that Brown’s story about how the fire was started could
have been used to impeach the theory upon which the Government relied to
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secure Bernard’s death sentence. Brown initially told the Government that
Bernard started the fire by throwing a lit match into the Bagleys’ car through
an open window; contrary to this, the Government’s forensic evidence showed
that the window was closed. Bernard argues that informing the jury of Brown’s
initial assertion would have undercut the Government’s theory as to Bernard’s
involvement in the murders. However, at trial, Brown testified that he did not
actually see Bernard set the car on fire and that his prior statements had been
lies. Accordingly, the district court held that any prior statements by Brown
that a match went through the car’s open window are not material to the issue
of Bernard’s participation. Reasonable jurists could not debate this conclusion.
Petitioners allege that the Government suppressed critical impeachment
evidence regarding Brown’s mental health and drug use. They claim that the
Government knew that Brown suffered from “bipolar disorder” or “serious
mental illness” for which Brown was given “psychotropic medications” that
were “affecting him” during Bernard’s trial. Bernard references Brown’s pre-
sentence investigation report and a mental health evaluation conducted after
his arrest in July 1999. 5 Noting that Brown’s sentencing occurred nine months
after Bernard’s trial and sentencing, the district court doubted the PSR could
have been suppressed. The court held that evidence of Brown’s drug use
appeared in the trial testimony of fellow gang member Gregory Lynch, who
said Brown smoked a “blunt” on the day of the murders. Brown’s drug use also
5 Reference is made to Brown’s receiving certain medications while he was in custody
in a juvenile detention facility months before trial. Without a diagnosis, however the function
or effect of the medications is not probative. Moreover, there is no proof why the Government
would have been privy to otherwise confidential juvenile records. Finally, in its Section 2255
opinion, the district court comments that nothing in Brown’s testimony at trial suggested he
was incompetent to testify.
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could not be deemed “suppressed” because it would logically have been known
by Bernard and Vialva as well. The court observed that Brown’s recollection,
even if impaired by drugs, was corroborated by other witnesses.
The court references petitioners’ claim concerning allegedly suppressed
mental health information and concludes “[a]s to any other types of
information, [petitioners] have not presented anything other than unsupported
allegations that information has been suppressed and/or that it is material.”
More specifically, referring to the claim that Brown “provided false information
to Dr. Shinder”, the court concludes that Vialva failed to show the materiality
of the evidence or how it would have fortified the defense beyond already
available impeachment evidence. Because Dr. Shinder’s report, taken as a
whole, does not support petitioners’ claims, their reliance on Banks v. Dretke,
540 U.S. 668, 124 S. Ct. 1256 (2004), is factually as well as legally misplaced.
The prosecutors in Banks suppressed information that a critical witness was a
government informant, which was qualitatively different from other
impeachment in the case. Here, the information, if suppressed, was
cumulative or at best of equivocal value to the defense. Dr. Shinder’s report,
prepared to determine whether Brown should be certified as an adult, contains
nothing about “bipolar disorder” or “serious mental illness” and in fact credits
Brown with an ability to recall events accurately.
Bernard finally alleges that the suppressed evidence cannot be
considered cumulative, because “at least one juror would have evaluated
Brown’s credibility differently had the jury known about Brown’s serious
mental illness and violent criminal past and [it] not been actively misled by
the Government about Brown’s trustworthiness.” Because of our
disagreements, outlined above, with the premises of this argument, we do not
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accept Bernard’s conclusion that the body of evidence to which he refers would
have been reasonably likely to affect the outcome at trial. 6 Reasonable jurists
could not debate the district court’s rejection of petitioners’ Brady claims.
III. Cumulative Error
Both petitioners contend that reasonable jurists could debate whether
the cumulative impact of all of the errors allegedly committed by counsel and
the alleged Brady violations are sufficient to undermine confidence in the
judgments and warrant relief. In light of its discussion, the district court held
that Bernard failed to demonstrate any constitutional error or “any cumulative
errors approaching constitutional dimension.” Livingston v. Johnson,
107 F.3d 297, 309 (5th Cir.), cert. denied, 522 U.S. 880, 118 S. Ct. 204 (1997).
See Derden v. McNeal, 978 F.2d 1453, 1456 (5th Cir. 1992) (en banc).
Reasonable jurists could not debate this conclusion.
IV. Fifth Amendment
Bernard argues that his conviction and sentence violate the Fifth
Amendment because the indictment failed to allege the “culpable mental state”
factors and statutory aggravating factors required by the statute and therefore
did not authorize a conviction for first-degree murder eligible for the death
sentence. Bernard raised this issue on direct appeal and we determined that
the challenged error did not amount to plain error based on overwhelming
evidence. Bernard, 299 F.3d at 488-89. We need not address this claim again;
his argument is foreclosed by precedent. See United States v. Robinson,
Vialva urges the same Brady claims and argues that the court abused its discretion
6
by not ordering discovery to investigate the full extent of the Government’s evidence
“suppression.” The above discussion renders it unnecessary to address this point.
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367 F.3d 278, 286 (5th Cir. 2004). Reasonable jurists could not debate the
district court’s rejection of this claim.
V. Eighth Amendment
Vialva argues that his execution would constitute cruel and unusual
punishment because, although he was 19 years old at the time of the offense,
he was “operating at a much lower mental age[.]” There is no legal support for
Vialva’s argument, and, as the district court noted, it has been rejected by the
courts. See Parr v. Quarterman, 472 F.3d 245, 261 (5th Cir. 2006), cert. denied,
551 U.S. 1133 (2007); In re Garner, 612 F.3d 533, 535-36 (6th Cir. 2010) (“The
Roper Court did not hold that the Eighth Amendment prohibits a death
sentence for an offender with a ‘mental age’ of less than 18.”). Reasonable
jurists could not disagree with the district court’s disposition of this issue.
VI. Discovery and Hearing
Under 28 U.S.C. § 2555(b) an evidentiary hearing is required “[u]nless the
motion and the files and records of the case conclusively show that the prisoner
is entitled to no relief.” This court reviews for an abuse of discretion the district
court’s decision to deny such a hearing and further discovery.
Clark v. Johnson, 202 F.3d 760, 765-66 (5th Cir. 2000). In light of the foregoing
discussion, we conclude that reasonable jurists could not disagree with the
district court’s disposition of any of Bernard’s and Vialva’s claims on the
voluminous record presented. See United States v. Hall, 455 F.3d 508
(5th Cir. 2006). Accordingly, there is no warrant for a COA on the court’s
procedural decisions.
CONCLUSION
Based on the foregoing, Bernard’s and Vialva’s motions for certificates
of appealability are DENIED.
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