Reyes v. Quarterman

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 28, 2006
Charles R. Fulbruge III
Clerk
No. 05-70024
GILBERTO REYES,
Petitioner - Appellant,
v.
NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of Texas, Lubbock
USDC No. 5:03-CV-00186
Before JONES, Chief Judge, and BARKSDALE and PRADO, Circuit
Judges.
PER CURIAM:*
Petitioner Gilberto Reyes was convicted in Texas of capital
murder and sentenced to death. Reyes now seeks a certificate of
appealability (“COA”) from this Court to appeal the district
court’s denial of his petition for habeas corpus relief. He
contends that reasonable jurists could debate that his Sixth and
Fourteenth Amendment rights to the effective assistance of counsel
were not violated by his trial counsel’s failure to investigate and
*
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this opinion should not be published and is not precedent except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.
to present significant mitigating evidence, including, but not
limited to, evidence that he sustained substantial abuse as a
child. Because the district court’s conclusion that Reyes cannot
make a substantial showing of the denial of a constitutional right
is not debatable among reasonable jurists, we DENY his application
for a COA. We also find that the district court did not abuse its
discretion by not holding an evidentiary hearing on Reyes’s
ineffective assistance of counsel (“IAC”) claim.
I. BACKGROUND
A summary of the facts as recounted by the Texas Court of
Criminal Appeals and adopted by the district court will suffice:
Reyes dated Yvette Barraz for approximately eight months
before their relationship ended in January 1998. At around 6:00
p.m. on March 11, 1998, Barraz left her parents’ house for her job
as a waitress at Leal’s Restaurant (“Leal’s”) in Muleshoe, Texas.
At trial, Yolanda Jaramillo, Barraz’s co-worker, testified that
Barraz left Leal’s before she did, and that Barraz’s silver/gray,
1996 Mitsubishi Eclipse was not in the parking lot when she left
the restaurant.
Reyes arrived at his cousin’s home in Pecos, Texas at
approximately 11:45 p.m. on March 11, 1998. He asked Natividad
Ovalle, Jr., his cousin’s husband, how to get to Ojinaga, Mexico.
Ovalle testified that when Reyes left the home, he observed Reyes
drive away in a small gray car.
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Between 3:30 a.m. and 4:00 a.m. on March 12, officers at the
border check point in Presidio, Texas observed Reyes walking on the
highway heading towards Mexico. The officers stopped Reyes and
asked him to empty his pockets. Among Reyes’s possessions were a
couple of sets of keys, a large amount of currency in one-dollar
bills and five-dollar bills, and a couple of handfuls of change.
Reyes explained to the officers that one of the keys was the key to
his girlfriend’s car. Once a records check revealed that Reyes was
not involved in a string of burglaries in Presidio that had the
officers on heightened alert, Reyes was permitted to cross the
bridge into Mexico.
On March 12, because Barraz failed to return home, her parents
called the police. Upon receiving the call, police officers went
to the parking lot at Leal’s where they discovered blood and loose
change on the ground.
On March 13, 1998, the Presidio County Sheriff’s Office
received a teletype informing them that Reyes was connected to a
missing person and that it was possible that he used a gray 1996
Mitsubishi to get to Presidio. Presidio Sheriff’s Officers found
Barraz’s car parked behind a store in Presidio located about a half
of a mile from the border. They found Barraz’s body in the
hatchback area of the vehicle under some articles of clothing. Her
pants and underwear were pulled down to her knees, and she had
multiple head wounds and a laceration on one of the fingers of her
left hand. Officers found a knife on the back floorboard of the
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car and a claw hammer on the passenger side between the seat and
the edge of the door rail. Sergeant Dusty McCord, a Sergeant with
the Texas Ranger Division of the Department of Public Safety,
testified that he saw bloodstains on the passenger-side seat belt
and blood pooling in the hatchback area and on the floorboard
behind the passenger seat.
Reyes was arrested in Portales, New Mexico, on June 7, 1998.
Among his possessions were keys that matched the locks to Barraz’s
residence and vehicle.
Javier Flores, a forensic serologist for the Texas Department
of Public Safety Laboratory, performed DNA testing on the evidence
collected from Barraz’s car and the parking lot at Leal’s. Flores
testified that Barraz’s DNA matched the bloodstains in the parking
lot at Leal’s, inside the vehicle, and on the claw hammer. Flores
also testified that Reyes’s DNA matched a semen stain on Barraz’s
underwear with an accuracy level of one in less than 5.7 billion.
Glen Groben, the deputy medical examiner who performed an
autopsy on Barraz, testified that Barraz had six separate blunt
force injury wounds to her head that were consistent with being
struck by a claw hammer. Although Groben found that Barraz’s
death was caused by blunt force trauma to the head, he also noted
that there was evidence of strangulation. Groben determined that
Barraz was alive when she was strangled and beaten, and that she
had been sexually assaulted at or near the time of death. Based
on a crime scene photograph of Leal’s, Groben testified that while
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it appeared that Barraz was initially injured in the restaurant’s
parking lot, there was not enough blood in the parking lot to
suggest that she died there.
The court appointed counsel to represent Reyes at trial and
during the punishment proceeding. On January 31, 2000, a jury
found Reyes guilty of murdering Barraz while in the course of
kidnaping her, in violation of TEX. PENAL CODE § 19.03(a)(2).
During the punishment stage, the prosecution called eight
witnesses. Evidence from these witnesses demonstrated that Reyes
was charged with driving while intoxicated and aggravated assault
with a deadly weapon on February 9, 1998, after an individual who
observed someone shoot at a car with a rifle called the Muleshoe
police. Reyes was also observed chasing Barraz and her sister into
their parents’ home. The investigating officer found Reyes with a
rifle in his truck and bullets in his pocket.
Evidence also demonstrated that Reyes was a member of the 8th
Street Posse, a “social club” that sometimes engaged in fights with
another “social club.” Reyes was charged with aggravated assault
and placed on deferred adjudication supervision for driving a truck
over a curb and into Robert Rodriguez, a member of a “social club”
in Muleshoe. Because he was subsequently charged with driving
while intoxicated, Reyes’s deferred adjudication was revoked, and
he was sent to a state, military-style boot camp program.
Finally, Dr. Gripon, a psychiatrist, testified that he
believed Reyes to be a continuing threat to society because Reyes’s
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behavior had increased in its progression towards violence, he had
been involved in gang-related activity, and he had abused
substances.
During the punishment phase, Reyes’s trial counsel presented
nine witnesses: Hector Arzola, Margie Lopez, Don Carter, Nicky
Chavez, Maria Reyes, Nora Gonzales, Chris Ramos, Jesse Reyes, and
Dr. Walter Quijano. Arzola, Lopez, and Carter were called to rebut
evidence against Petitioner regarding an aggravated assault charge.
Maria Reyes and Jesse Reyes testified that Petitioner supported his
family after his father died, Barraz abused Petitioner, and
Petitioner often took care of Barraz’s daughter. Nicky Chavez,
Chris Ramos, and Nora Gonzales testified that Petitioner was a hard
worker and a good employee. Lastly, Dr. Quijano testified that
Reyes would not be a continuing threat or a future danger to
society. Following the punishment hearing, the jury answered the
punishment special issue regarding Reyes’s future dangerousness
affirmatively, and it answered the punishment special issue
regarding mitigating evidence negatively. See TEX. CODE CRIM. PROC.
art. 37.071 § 2. Consequently, on February 2, the trial court
sentenced Reyes to death.
The court appointed an attorney to represent Reyes on direct
appeal. The Texas Court of Criminal Appeals denied relief and
affirmed Reyes’s conviction and sentence. Reyes v. State, 84
S.W.3d 633 (Tex. Crim. App. 2002).
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While Reyes did not file a petition for a writ of certiorari
to the United States Supreme Court, during the pendency of his
direct appeal, he filed an application for a writ of habeas corpus
with the state habeas court. Reyes’s new court appointed attorney
argued that, inter alia, Reyes was deprived of his Sixth and
Fourteenth Amendment rights because his trial counsel failed to
adequately investigate and present mitigating evidence at trial.
On October 9, 2002, the Texas Court of Criminal Appeals adopted the
trial court’s recommendation to deny relief. Ex parte Reyes, No.
52,801-01 (Tex. Crim. App. Oct. 9, 2002).
Reyes filed his original petition for a writ of habeas corpus
in federal district court on September 19, 2003. He argued, inter
alia, that he was denied effective assistance of counsel as
guaranteed by the Sixth and Fourteenth Amendments because trial
counsel failed to investigate and/or present mitigating evidence at
trial.
In the district court, Reyes presented affidavits from two
investigators, two attorneys, and four witnesses who testified in
the state habeas court. The district court acknowledged that those
affidavits include the following information which Reyes claimed
should have been presented as mitigating evidence:
Michael Ward, a licensed private investigator hired by state
habeas counsel to assist in the investigation for Reyes’s trial,
stated that he contacted Vince Gonzales who relayed that Gonzales
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had been contacted by trial counsel to conduct a mitigation
investigation after trial had commenced. He also corroborated
Gonzales’s statement that trial counsel worked the case alone.
Alexander Calhoun, an attorney, stated that in his
professional opinion an attorney in a capital murder trial is
derelict in his duties if he waits until after trial has started to
begin conducting a mitigation investigation.
Nicky Chavez stated that although she testified at trial, she
was not contacted until after trial started. She stated that
neither trial counsel nor the investigator discussed her testimony
with her before she testified. She also stated that Reyes’s mother
neglected her children, often left them unsupervised, did not clean
the family’s house, and did not ensure that the children were
clean. Chavez also said that Reyes was one of her husband’s
trusted employees, Reyes provided for his family after his father’s
death, and that she did not believe that he would commit a violent
crime in the future.
Lenny Pineda stated that Reyes provided for his family after
his father’s death, Reyes’s mother neglected her home and her
children, Reyes’s mother was emotionally abusive towards him, and
that Barraz “played around” on Reyes. He also stated that while he
was present at the incident involving Robert Rodriguez, Reyes’s
brother was not present and that the incident did not involve
yelling or threats. Lastly, Pineda affirmed that while he was told
that there was a subpoena for him, he was never contacted by anyone
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from Reyes’s defense team.
Chris Ramos stated that although he testified at trial,
defense counsel spent about ten minutes with him before he
testified and never asked him about Reyes’s family or childhood.
He observed Reyes’s mother neglect the home and the family, call
Reyes names, and otherwise emotionally abuse Reyes. He also stated
that Barraz and Reyes had a bad relationship, and that Barraz used
Reyes for money.
Ismael Reyes, Reyes’s brother, stated that he was never
contacted by any of his brother’s attorneys. He stated that he and
his brother began inhaling gasoline, freon, and paint almost daily
when they were fifteen years old. Ismael Reyes stated that his
brother had been hit in the head several times and was abusing
cocaine daily right before murdering Barraz. He also stated that
Barraz treated his brother poorly and had hit Reyes in the face.
Lisa Milstein, a private investigator retained by Reyes’s
state habeas counsel, stated that she interviewed Reyes’s brothers,
Ismael and Marcos, Reyes’s mother, Maria, and Nicky Chavez. She
also stated that she interviewed several jurors who stated that
they did not learn anything about Reyes or why he would have killed
Barraz.
The district court denied habeas relief and refused to issue
a COA. This application for a COA followed. Reyes now asks this
Court to grant a COA on the issue of whether his trial counsel’s
failure to investigate and present mitigating evidence deprived him
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of effective assistance of counsel as guaranteed by the Sixth and
Fourteenth Amendments. He also claims that the district court
erred in not holding an evidentiary hearing on his IAC claim.
II. DISCUSSION
A. Standard of Review
Reyes’s habeas claim is governed by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132,
110 Stat. 1214 (1996), because he filed his original habeas
petition under 28 U.S.C. § 2254 on September 19, 2003, after
AEDPA’s April 24, 1996 effective date. See Fisher v. Johnson, 174
F.3d 710, 711 (5th Cir. 1999) (citing Lindh v. Murphy, 521 U.S.
320, 326 (1997)). Under the AEDPA, a state habeas petitioner may
appeal a district court’s denial of habeas relief only if the
district court or the court of appeals first issues a COA. 28
U.S.C. § 2253(c)(1); Miller-El v. Cockrell, 537 U.S. 322, 336
(2003) (characterizing a COA as a “jurisdictional prerequisite”
without which “federal courts of appeals lack jurisdiction to rule
on the merits of appeals from habeas petitioners”); Neville v.
Dretke, 423 F.3d 474, 478 (5th Cir. 2005). In deciding whether to
grant a COA, the Supreme Court has emphasized that a “court of
appeals should limit its examination to a threshold inquiry into
the underlying merit of [the petitioner’s] claims.” Miller-El, 537
U.S. at 327 (citing Slack v. McDaniel, 529 U.S. 473, 481 (2000)).
“This threshold inquiry does not require full consideration of the
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factual or legal bases adduced in support of the claims. In fact,
the statute forbids it.” Id. at 336.
We will only issue a COA “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 satisfy this standard, Reyes must
establish 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
(citing Slack, 529 U.S. at 484). “The COA determination under §
2253(c) requires an overview of the claims in the habeas petition
and a general assessment of their merits.” Id. at 336. While the
issuance of a COA “must not be pro forma or a matter of course,” a
petitioner meets the burden under § 2253(c) by “demonstrat[ing]
that reasonable jurists would find the district court’s assessment
of the constitutional claims debatable or wrong.” Id. at 337-38.
“[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. Lastly, any doubt as to whether a COA should issue in
a death-penalty case must be settled in favor of the petitioner.
Medellin v. Dretke, 371 F.3d 270, 275 (5th Cir. 2004); Newton v.
Dretke, 371 F.3d 250, 254 (5th Cir. 2004).
In deciding whether the district court’s denial of Reyes’s
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petition was debatable, we recognize the deferential standard of
review that the AEDPA requires a district court to apply when
considering a petition for habeas relief. See Brown v. Dretke, 419
F.3d 365, 371 (5th Cir. 2005) (“With respect to the review of
factual findings, AEDPA significantly restricts the scope of
federal habeas review.”); see also Miniel v. Cockrell, 339 F.3d
331, 336 (5th Cir. 2003). Under the AEDPA, a federal court must
not grant a writ of habeas corpus “with respect to any claim that
was adjudicated on the merits in State court proceedings” unless
the court 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 of the United States.” 28 U.S.C. § 2254(d)(1).
A state court’s decision is contrary to Supreme Court
precedent if: (1) “the state court arrives at a conclusion opposite
to that reached by [the Supreme Court] on a question of law”; or
(2) “the state court confronts facts that are materially
indistinguishable from a relevant Supreme Court precedent and
arrives at a result opposite to [that of the Supreme Court].”
Williams v. Taylor, 529 U.S. 362, 405 (2000) (opinion of O’Connor,
J.) (interpreting and explaining the statutory language “contrary
to, or involved an unreasonable application of”). “A state court’s
decision is an unreasonable application of clearly established
federal law whenever the state court identifies the correct
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governing legal principle from the Supreme Court’s decisions but
applies that principle to the facts of the prisoner’s case in an
objectively unreasonable manner.” Young v. Dretke, 356 F.3d 616,
623 (5th Cir. 2004) (internal quotation marks omitted); accord
Williams, 529 U.S. at 409. “An unreasonable application may also
occur if ‘the state court either unreasonably extends a legal
principle from [Supreme Court] precedent to a new context where it
should not apply or unreasonably refuses to extend that principle
to a new context where it should apply.’” Young, 356 F.3d at 623(alteration in original) (quoting Williams, 529 U.S. at 407).1
“[A] determination of a factual issue made by a 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). In addition to explicit findings of fact, the
presumption of correctness also attaches to “unarticulated findings
1
Reyes contends that the district court should not have
afforded deference to the state habeas court’s determination
because the district court decided that the state court’s
application of law was objectively reasonable on different
grounds than those used by the state court. However, § 2254’s
deferential standard applies because “[t]he statute compels
federal courts to review for reasonableness the state court’s
ultimate decision, not every jot of its reasoning.” Santellan v.
Cockrell, 271 F.3d 190, 193 (5th Cir. 2001). In addition, “there
is no reason for a court deciding an ineffective assistance claim
...to address both components of the inquiry if the defendant
makes an insufficient showing on one.” Strickland v. Washington,
466 U.S. 668, 697 (1984). Hence, regardless of whether the state
habeas court had provided no reasons or unsatisfactory ones,
“authority under AEDPA is still limited to determining the
reasonableness of the ultimate decision.” Santellan, 271 F.3d at
193.
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which are necessary to the state court’s conclusions of mixed law
and fact.” Pondexter v. Dretke, 346 F.3d 142, 148 (5th Cir. 2003)
(quoting Valdez v. Cockrell, 274 F.3d 941, 948 n. 11 (5th Cir.
2001)). A writ of habeas corpus may issue if the state court’s
adjudication of a claim “resulted in a decision that was based on
an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).
B. Evidentiary Hearing.
Before we address whether reasonable jurists would find it
debatable that Reyes received effective assistance of counsel, we
consider Reyes’s assertion that the district court erred by not
holding an evidentiary hearing on his IAC claim. Based on our
review of the record, it is arguable that Reyes did not properly
preserve this issue in district court.2 While Respondent does not
claim that this narrow issue is raised for the first time on
appeal, “we, not the parties, select the appropriate standard of
review, including whether an issue will even be addressed if not
raised in district court.” Guidry v. Dretke, 397 F.3d 306, 319
(5th Cir. 2005), cert. denied, 126 S. Ct. 1587(2006).
2
Reyes only tersely mentioned the issue in his supplemental
brief to the district court. Out of an abundance of caution, we
will address Reyes’s procedural concern which serves as a
precursor to our discussion of his IAC claim for a COA. However,
a COA is not required to review whether the district court erred
by not granting Reyes an evidentiary hearing because that
decision was neither made by a state court nor does it seem to
otherwise fall within the underlying deference framework required
by AEDPA.
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The district court’s decision to not grant an evidentiary
hearing is reviewed for abuse of discretion. McDonald v. Johnson,
139 F.3d 1056, 1059 (5th Cir. 1998). The court found that a
hearing was not required because Reyes did not demonstrate any
factual dispute whose favorable outcome would have entitled him to
relief, and each of his claims could be resolved by reference to
the state court record. Neither in the district court nor in this
court did Reyes attempt to satisfy the statutory requirements that
would justify an evidentiary hearing.
Under 28 U.S.C. § 2254(e)(2), an applicant who has failed to
develop the factual basis of a claim in the state habeas court may
not obtain an evidentiary hearing in federal habeas proceedings
unless two conditions are met. First, the petitioner’s claim must
rely on a new rule of constitutional law, or on a factual predicate
that could not have been previously discovered through the exercise
of due diligence. 28 U.S.C. § 2254(e)(2)(A)(ii). Second, “the
facts underlying the claim would be sufficient to establish by
clear and convincing evidence that, but for constitutional error,
no reasonable factfinder would have found the applicant guilty of
the underlying offense.” 28 U.S.C. § 2254(e)(2)(B). However,
these requirements do not work against a petitioner unless the
petitioner’s failure to develop facts was due to “lack of
diligence, or some greater fault, attributable to the prisoner or
the prisoner’s counsel.” Dowthitt v. Johnson, 230 F.3d 733, 758
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(5th Cir. 2000)(quoting Williams, 529 U.S. at 432), cert. denied,
532 U.S. 915 (2001). This determination depends on “whether the
prisoner made a reasonable attempt, in light of the information
available at the time, to investigate and pursue claims in state
court.” Williams, 529 U.S. at 435.
The district court acknowledged that while at least one of
Reyes’s federal habeas attorneys also represented him in state
habeas proceedings, federal habeas counsel did not provide an
explanation for failing to submit an affidavit from the mitigation
investigator to the state habeas court or any information regarding
trial counsel’s strategy at the punishment phase to either the
state court or the district court. However, even assuming that
Reyes made a reasonable attempt to investigate and pursue his
claims in the state habeas court, we find that the district court
did not abuse its discretion in refusing to hold an evidentiary
hearing. When “[t]he district court ha[s] sufficient facts before
it to make an informed decision on the merits of [the habeas
petitioner’s] claim” it does not abuse its discretion in failing to
conduct an evidentiary hearing. McDonald, 139 F.3d at 1060.
Moreover, we have previously expressed that “[a] full and fair
hearing does not necessarily require live testimony.” Murphy v.
Johnson, 205 F.3d 809, 816 (5th Cir. 2000) (explaining that this
Court has repeatedly stated that a paper hearing is sufficient
especially where, as here, the trial court and the state habeas
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court were one and the same). Accordingly, because we conclude
that the district court did not abuse its discretion by not holding
a hearing on Reyes’s IAC claim, we turn to Reyes’s request for a
COA.
C. Would reasonable jurists find it debatable that Reyes
received effective assistance of counsel?
Reyes seeks a COA because he contends that reasonable jurists
could debate whether his Sixth and Fourteenth Amendment rights to
effective assistance of counsel were violated. Specifically, Reyes
argues that trial counsel rendered IAC by failing to investigate
and to present significant mitigating evidence, including, but not
limited to, evidence that he sustained substantial abuse as a
child.
Strickland v. Washington, 466 U.S. 668 (1984), governs IAC
claims. See Williams, 529 U.S. at 390-91. In order to establish
IAC, a petitioner must demonstrate that his counsel’s performance
was deficient and that the deficiency prejudiced his defense.
Strickland, 466 U.S. at 687-88. The absence of either deficient
performance or prejudice will defeat an IAC claim. Leal v. Dretke,
428 F.3d 543, 548 (5th Cir. 2005).
Trial counsel’s performance is deficient only when
“representation [falls] below an objective standard of
reasonableness.” Strickland, 466 U.S. at 687-88. We measure
reasonableness against “prevailing professional norms,” viewed in
light of all of the circumstances at the time of the performance.
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Id. at 688. “Judicial scrutiny of counsel’s performance is highly
deferential. . . . a court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. at 689.3
Although “we consider it indisputable that, in the context of
a capital sentencing proceeding, defense counsel has the obligation
to conduct a ‘reasonably substantial, independent investigation’
into potential mitigating circumstances[,]” Neal v. Puckett, 286
F.3d 230, 236-37 (5th Cir. 2002) (quoting Baldwin v. Maggio, 704
F.2d 1325, 1332-33 (5th Cir. 1983)), counsel’s failure to do so is
not per se deficient performance. Moore v. Johnson, 194 F.3d 586,
615 (5th Cir. 1999). “[O]ur principal concern in deciding whether
[defense counsel] exercised ‘reasonable professional judgmen[t],’
is not whether counsel should have presented a mitigation
case....Rather, we focus on whether the investigation supporting
counsel’s decision not to introduce mitigating evidence of [the
defendant’s] background was itself reasonable.” Wiggins v. Smith,
539 U.S. 510, 522-23 (2003) (quoting Strickland, 466 U.S. at 691).
The Supreme Court has referred to the American Bar
3
Moreover, we have stated that courts “must be particularly
wary of ‘arguments that essentially come down to a matter of
degrees. Did counsel investigate enough? Did counsel present
enough mitigating evidence? Those questions are even less
susceptible to judicial second-guessing.’” Dowthitt v. Johnson,
230 F.3d 733, 743 (5th Cir. 2000)(quoting Kitchens v. Johnson,
190 F.3d 698, 703 (5th Cir. 1999)), cert. denied, 532 U.S. 915(2001).
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Association’s (“ABA”) standards for capital defense work as
“‘guides to determining what is reasonable’” Id. at 524 (quoting
Strickland, 466 U.S. at 688). “The ABA Guidelines provide that
investigations into mitigating evidence ‘should comprise efforts to
discover all reasonably available mitigating evidence and evidence
to rebut any aggravating evidence that may be introduced by the
prosecutor.’” Id. (quoting ABA Guidelines for the Appointment and
Performance of Counsel in Death Penalty Cases 11.4.1(C), p. 93
(1989) (emphasis added)). However, in assessing reasonableness a
court must consider whether the known evidence would lead a
reasonable attorney to investigate further. Id. at 527. While
Strickland does not require attorneys to investigate every possible
line of mitigating evidence irrespective of its potential
usefulness, or to present such evidence in every case, “‘strategic
choices made after less than complete investigation[s] are
reasonable’ only to the extent that ‘reasonable professional
judgments support the limitations on investigation.’” Id. at 533
(quoting Strickland, 466 U.S. at 689).
Even if counsel’s performance was deficient, conduct is only
prejudicial 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.
In the district court, Reyes alleged that his attorney’s
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failure to investigate and present mitigating evidence cannot be
attributed to trial strategy because trial counsel did not contact
an investigator to conduct an investigation into evidence for the
punishment phase until the “Thursday or Friday” before the
punishment phase’s commencement on the following Monday. The
district court reasoned that, assuming arguendo that trial
counsel’s performance was objectively deficient because a
reasonably prudent attorney would have conducted an investigation
into punishment before starting a capital murder trial and that
Reyes has proffered mitigating evidence that was not presented at
trial, Reyes still failed to demonstrate prejudice. The district
court found that: (1) much of the evidence revealed to the state
habeas court had already been heard by the jury; and, (2) while the
aggravating evidence was as strong as the evidence in Wiggins and
Williams, the two major Supreme Court cases offering guidance on
how to dispose of Reyes’s claim, the mitigating evidence was far
weaker than the substantial abuse apparent in those cases. See,
e.g., Hood v. Dretke, 93 F. App’x 665, 668 (5th Cir. 2004).
Accordingly, the district court ultimately concluded that the state
court’s decision on Reyes’s IAC claim was not contrary to, and did
not involve, an unreasonable application of clearly established
federal law. We conclude that reasonable jurists would not find it
debatable that Reyes was not prejudiced by a deficient presentation
of mitigating evidence.
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While there was evidence that Reyes’s mother neglected her
home and her children, and was emotionally abusive towards Reyes,
the mitigating evidence was far weaker than the substantial abuse
apparent in Wiggins and Williams. In Wiggins, counsel failed to
present evidence to the jury that: (1) Wiggins’s alcoholic mother
frequently left him and his siblings alone for days, forcing them
to beg for food and to eat paint chips and garbage; (2) Wiggins’s
mother had sex with men while her children slept in the same bed
and that she had once forced Wiggins’s hand against a hot stove,
causing him to be hospitalized; (3) Wiggins was physically abused
by two foster mothers, raped by a foster father, and gang-raped by
boys in another foster home; and, (4) Wiggins was sexually abused
by a supervisor in his Job Corps program. Wiggins, 539 U.S. at
516-17. In Williams, counsel failed to present evidence to the
jury that: (1) Williams’s parents had been imprisoned for
criminally neglecting Williams and his siblings; (2) Williams had
been severely and repeatedly beaten by his father; (3) Williams had
been placed in an abusive foster home; and, (4) Williams was
borderline mentally retarded. Williams, 529 U.S. at 395-96.
In light of the district court’s application of Williams and
Wiggins, we conclude that Reyes has not established that jurists of
reason could disagree with the district court’s resolution of his
constitutional claims or that reasonable jurists could conclude the
issues presented are adequate to deserve encouragement to proceed
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further.4 Accordingly, we deny Reyes’s application for COA on his
IAC claim.
III. CONCLUSION
For the foregoing reasons, we DENY Reyes’s application for a
COA. We also find that the district court did not abuse its
discretion by not holding an evidentiary hearing on Reyes’s IAC
claim.
4
We also note, as previously mentioned, that the district
court acknowledged that while at least one of Reyes’s federal
habeas attorneys also represented him in state habeas
proceedings, federal habeas counsel did not provide an affidavit
(or an explanation for failing to submit one) from Reyes’s trial
counsel regarding his strategy at the punishment phase to either
the state court or the district court. Had an affidavit been so
presented, the record would be far better developed for review.
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