Diaz v. Quarterman

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
for the Fifth Circuit July 3, 2007
Charles R. Fulbruge III
Clerk
No. 05-70057
ARTURO DIAZ,
Petitioner-Appellant,
VERSUS
NATHANIEL QUARTERMAN, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
(7:04-CV-00225)
Before JONES, Chief Judge, and WIENER and DeMOSS, Circuit Judges.
PER CURIAM:*
This is a death penalty case in which Petitioner Arturo Diaz
appeals the district court’s denial of federal habeas relief. The
facts of Diaz’s underlying capital offense are detailed in this
Court’s opinion of April 11, 2007. See Diaz v. Quarterman, No.
*
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opinion should not be published and is not precedent except under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.
05-70057, 2007 WL 1112044, at *1-*3 (5th Cir. Apr. 11, 2007). In
summary, Diaz brutally stabbed one man to death and attempted to
stab another man to death in the course of robbing the two men. He
was convicted by a Texas jury of capital murder, attempted capital
murder, and aggravated robbery, and he was sentenced to death. He
unsuccessfully pursued an appeal with the Texas Court of Criminal
Appeals. He also unsuccessfully pursued habeas relief with that
court. In 2004, he filed a federal habeas petition in the U.S.
District Court for the Southern District of Texas. That court
denied relief on all of Diaz’s claims and declined to issue a
Certificate of Appealability (COA). He then filed an appeal with
this Court and requested a COA on seven issues. This Court
certified for appeal one issue presented by Diaz: whether trial
counsel rendered ineffective assistance during the punishment phase
of trial by failing to adequately investigate and present readily
available mitigating evidence. See id. We now affirm the district
court’s denial of habeas relief.
I. Facts Relating to Counsel’s Investigation and Presentation of
Mitigating Evidence
A. Punishment Phase of Trial
The trial record shows that the only witness offered by the
defense at the punishment phase of trial was a psychologist
appointed by the court to evaluate Diaz. The psychologist, Dr.
Pinkerman, testified that Diaz had a history of head trauma; an IQ
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of 89; some cognitive disabilities, which may have stemmed from
prolonged alcohol or substance abuse; and an early history of
behavior that indicated a propensity for delinquency and adult
criminal behavior. On cross, the State introduced Dr. Pinkerman’s
written report into evidence over defense’s objection. The report
included Dr. Pinkerman’s conclusions that Diaz “approached the
assessment in somewhat of an exaggerated manner which may reflect
an inability to cooperate with the testing or malingering in an
attempt to present himself with the false claim of mental illness”;
that Diaz was not mentally ill; and that Diaz’s profile matches
that of Type C offenders, whom Dr. Pinkerman described as the most
difficult criminal offenders -- those who are distrustful, cold,
irresponsible, and unstable. During closing arguments, defense
counsel referenced as mitigating evidence that Diaz was married
with a five-year-old daughter, had grown up with his grandmother,
had learning disabilities, and had strong feelings of guilt and
depression. No other mitigating evidence was presented.
B. State Habeas Court
Regarding the issue certified for appeal, the state habeas
court found the following:
Although Applicant’s argument . . . that he was
denied effective assistance of counsel based on trial
counsel’s alleged failure to present sufficient
mitigating evidence claims that some of Applicant’s
family members were available and willing to testify on
his behalf at the punishment phase, . . . Applicant does
not provide any specifics concerning which family members
were allegedly willing to testify on his behalf.
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In particular, he does not name said individuals,
give their relationship to Applicant, or explain why he
now claims that they had expressed a willingness to
testify.
Nor does Applicant attach any type of affidavit or
other form of factual support for his claim that some of
his family members would have been willing to testify.
He likewise does not, in any way, suggest what the
testimony of his family members would have been.
. . . .
Trial attorneys Rogelio Garza and Daniel R. Reyes
have provided credible information that two of
Applicant’s family members had been present during the
punishment phase of trial; that they had, however,
refused to be called to testify; and that Applicant had
not wanted them to call his family members to testify.
Said attorneys have likewise given credible
testimony, by affidavit, indicating that they had made
their decision concerning this topic based on their trial
strategy; that they had conferred with Applicant before
doing so; and that Applicant had agreed with said
decision.
Mr. Garza and Mr. Reyes have further provided
credible affidavit testimony that they had presented all
to [sic] the mitigation evidence which they had had
available to them; that their decisions concerning use of
said evidence, including Dr. Pinkerton’s testimony, had
been based on their trial strategy; that they had
conferred with Applicant before making said decision; and
that Applicant had been in agreement with their decision.
Ex parte Diaz, No. CR-1464-99-G(1), paras. 1201-1204, 1208-1210
(370th Dist. Ct., Hidalgo County, Tex. Apr. 23, 2003) (proposed
order containing findings of fact, conclusions of law, and a
recommendation). Based on these findings, the court concluded that
Diaz was not entitled to habeas relief on the claim at issue here.
C. Federal Habeas Court
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When Diaz filed his petition with the district court, he
attached a series of affidavits in support of his argument that
counsel had provided ineffective assistance at the punishment phase
of trial. The affiants included his grandmother, his mother, one of
his sisters, a cousin, and a childhood teacher. All of the affiants
described Diaz’s difficult childhood and swore that they would have
testified on Diaz’s behalf if asked. The district court, adopting
the report and recommendation of the magistrate judge, determined
that Diaz was not entitled to habeas relief on this ground because
Diaz could not prove that counsel’s performance prejudiced his
defense. According to the court, the evidence of Diaz’s “childhood
privations” paled in comparison to the evidence presented to the
jury: “That Diaz committed an extremely violent murder, attempted
murder, and aggravated robbery; that Diaz committed a prior
unadjudicated homicide; and that Diaz committed numerous, and
sometimes violent, acts of misconduct while in the county jail
during his pretrial detention.” Diaz v. Dretke, No. M-04-225, at
17-18 (S.D. Tex. Aug. 19, 2005) (Magistrate Judge’s report and
recommendation). Accordingly, the court denied Diaz habeas relief,
holding that there was not a reasonable probability that the
evidence of Diaz’s childhood would have persuaded the jury to
impose a different sentence. We issued a COA on this issue and now
address Diaz’s appeal.
II. Discussion
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Diaz’s appeal is governed by a familiar standard of review: we
review the district court’s findings of fact for clear error and
its conclusions of law de novo. See Martinez v. Quarterman, 481
F.3d 249, 253 (5th Cir. 2007). Because Diaz filed his petition
after the effective date of the Antiterrorism and Effective Death
Penalty Act (AEDPA), we are bound by AEDPA’s various requirements,
see id. (citing Lindh v. Murphy, 521 U.S. 320, 336 (1997)),
including the requirement that we not grant habeas relief unless
the state court’s adjudication of petitioner’s claim
(1) 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; or (2) 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). Further, we must presume “a determination of
a factual issue made by [the] State court . . . to be correct”
unless the petitioner rebuts the presumption by clear and
convincing evidence. § 2254(e)(1).
The sole issue certified for appeal is whether Diaz’s trial
counsel rendered ineffective assistance during the punishment phase
of trial by failing to adequately investigate and present readily
available mitigating evidence. Under Strickland v. Washington, 466
U.S. 668, 684-86 (1984), a defendant’s Sixth Amendment right to
counsel includes the right to the effective assistance of counsel.
A defendant has not received his constitutionally guaranteed right
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to effective assistance of counsel if counsel’s performance was
deficient and the defendant was prejudiced thereby. Id. at 687.
Counsel’s performance is deficient if it falls below an objective
standard of reasonableness, as measured by prevailing professional
norms, see id. at 688; and counsel’s deficient performance
prejudices the defendant’s case “only if, but for counsel’s errors,
there is a reasonable probability that the final result would have
been different and confidence in the reliability of the verdict has
been undermined,” Leal v. Dretke, 428 F.3d 543, 548 (5th Cir.
2005). Failure to prove either deficient performance or prejudice
will defeat an ineffective assistance of counsel claim. Id. In the
context of the punishment phase of trial, the Supreme Court has
indicated that prevailing professional norms require counsel to
investigate thoroughly the defendant’s background, including his
“medical history, educational history, employment and training
history, family and social history, prior adult and juvenile
correctional experience, and religious and cultural influences.”
Wiggins v. Smith, 539 U.S. 510, 524 (2003) (quoting ABA GUIDELINES FOR
THE APPOINTMENT AND PERFORMANCE OF COUNSEL IN DEATH PENALTY CASES 11.4.1(C), at
93 (1989)).
Petitioner Diaz argues that counsel’s performance was
constitutionally deficient because counsel did not “review,
investigate, or even attempt to introduce evidence” of the type
required under Wiggins. Diaz contends that counsel could have
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obtained Wiggins-type evidence by speaking to his family members,
who were “ready, willing, and able to testify.” Further, Diaz
argues that counsel’s performance prejudiced his defense because if
counsel had interviewed his family members, counsel would have
discovered evidence of an unstable and deprived childhood, poverty
and neglect, violence and instability, a lack of male role models,
abandonment, and self-mutilation. He presents affidavits from four
family members and one childhood teacher evidencing the above, the
same affidavits offered in support of his federal habeas petition.
Respondent Quarterman’s response is three-fold: (1) Diaz’s
affidavits should be excluded because they were not presented to
the state court and are therefore “unexhausted”; (2) counsel’s
performance was not deficient because he was following Diaz’s
instruction not to call any family members as mitigation witnesses;
and (3) counsel’s performance was not prejudicial because the
anticipated testimony was weak and Diaz would not have permitted
the evidence to be admitted anyway.
As stated above, the state habeas court determined that Diaz
had not provided “any specifics concerning which family members
were allegedly willing to testify,” nor attached “any type of
affidavit or other form of factual support for his claim that some
of his family members would have been willing to testify,” nor
suggested “what the testimony of his family members would have
been.” It also determined that Diaz’s trial counsel had provided
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“credible information that two of [Diaz]’s family members had been
present during the punishment phase of trial, that they
had . . . refused to be called to testify, and that [Diaz] had not
wanted [counsel] to call his family members to testify.” Finally,
the court determined that Diaz’s trial counsel had provided
“credible affidavit testimony” that their decisions relating to the
presentation of mitigating evidence were based on “trial strategy.”
Pursuant to AEDPA, we must presume these factual determinations to
be correct absent clear and convincing evidence to the contrary.
The only evidence Diaz offers to rebut the state court’s findings
is the series of affidavits presented for the first time to the
district court. Regardless of whether these affidavits are
“unexhausted” per 28 U.S.C. § 2254(b)(1), as the State contends, we
cannot consider them per § 2254(e)(2) as they comprise “new
evidence” that was not properly presented to the state court, and
they do not evidence a factual predicate that could not have been
discovered through the exercise of due diligence. See Roberts v.
Dretke, 356 F.3d 632, 641 (5th Cir. 2004). Without the affidavits,
Diaz has failed to rebut the presumption of correctness that
attaches to the state court’s findings, and he cannot make his case
that counsel were constitutionally ineffective at the punishment
phase of trial. The finding that Diaz did not want his family
members to testify precludes both a finding of deficient
performance and a finding of prejudice. See Dowthitt v. Johnson,
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230 F.3d 733, 748 (5th Cir. 2000) (“Counsel will not be deemed
ineffective for following their client’s wishes, so long as the
client made an informed decision.”); see also Schriro v. Landrigan,
127 S. Ct. 1933, 1941 (2007) (“If [defendant instructed his counsel
not to offer any mitigating evidence], counsel’s failure to
investigate further could not have been prejudicial under
Strickland.”). A finding of prejudice is also precluded by the
state court’s determination that Diaz presented nothing to evidence
what his attorneys could have found if they had investigated his
background. A petitioner cannot show prejudice with respect to a
claim that counsel failed to investigate and present mitigating
evidence without adducing what the investigation would have shown.
See Strickland, 466 U.S. at 696 (recognizing that some evidence is
required to show that “the decision reached would reasonably likely
have been different”). Accordingly, the state court’s denial of
relief was in line with Strickland and its progeny, and Diaz is not
entitled to federal habeas relief.
III. Conclusion
For the reasons stated above, we AFFIRM the district court’s
denial of habeas relief.
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