Aranda v. Lumpkin

Case: 20-70008 Document: 00516539180 Page: 1 Date Filed: 11/09/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 20-70008
FILED
Summary Calendar November 9, 2022
Lyle W. Cayce
Arturo Daniel Aranda, Clerk
Petitioner—Appellant,
versus
Bobby Lumpkin, Director, Texas Department of
Criminal Justice, Correctional Institutions Division,
Respondent—Appellee.
Appeal from the United States District Court
For the Southern District of Texas
USDC No. 6:89-CV-13
Before Haynes, Graves, and Engelhardt, Circuit Judges.
Per Curiam:*
Petitioner Arturo Aranda was convicted of the murder of a police
officer and sentenced to death. Following state court proceedings, Aranda
petitioned for a writ of habeas corpus in federal court, which the district court
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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denied. Aranda then sought a certificate of appealability on various issues
from this court. We granted the certificate of appealability on two issues:
(1) Aranda’s Miranda claim and (2) Aranda’s ineffective-assistance-of
counsel-claim. Having now considered those issues on the merits and having
held oral argument, we affirm the district court.
I
Early in the morning hours of July 31, 1976, brothers Arturo and Juan
Aranda were in the process of transporting a large quantity of marijuana from
Laredo to San Antonio, Texas. The brothers were stopped by Officers Pablo
Albidrez and Candelario Viera of the Laredo Police Department. A gunfight
erupted, and Officer Albidrez was shot through the chest and killed. The
Aranda brothers were apprehended and arrested near the scene.
During the gunfight, Arturo Aranda was hit in the shoulder and hand.
He was transported to a hospital, where a .38 caliber handgun was found
hidden in his pants. Ballistic testing later showed that this weapon could have
fired the bullet that killed Officer Albidrez, and no other recovered weapon
could have. Following a brief surgery, Aranda was transported to the Webb
County Jail, where he confessed to killing Officer Albidrez. He also signed a
written waiver of his Miranda rights. As relevant to this appeal, he argues his
waiver of his Miranda rights was not knowing and intelligent.
Both brothers were charged for the murder of Officer Albidrez. Juan
Aranda was tried first; he was found guilty and sentenced to life in prison.
Arturo Aranda was tried next, and a jury found him guilty. In the punishment
phase of the trial, the jury sentenced Aranda to death. Also relevant to this
appeal, Aranda now contends that his trial counsel was ineffective for failing
to investigate mitigating circumstances.
Arturo Aranda appealed, his conviction was affirmed, and the
Supreme Court denied certiorari. Aranda v. State, 736 S.W.2d 702 (Tex.
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Crim. App. 1987) (en banc), cert. denied, 487 U.S. 1241 (1988). He filed a
state post-conviction application, which was denied. Aranda then sought
federal habeas relief. On April 20, 1989, Aranda filed his federal habeas
petition. Following briefing, the district court granted summary judgment in
favor of the State. Aranda moved for reconsideration, which the State
opposed.
For reasons which are unclear from the record, Aranda’s motion for
reconsideration was not ruled on for nearly three decades. Eventually, the
matter was reassigned, and the newly assigned district judge denied Aranda’s
motion. The district court declined to grant a certificate of appealability
(“COA”) as to any claims. On appeal, we granted a COA to consider two of
Aranda’s claims: (1) his Miranda claim and (2) his ineffective-assistance-of-
counsel claim, both of which we address now.
II
Because Aranda filed his initial federal habeas petition before the
enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA),
his claims are governed by the law as it existed before AEDPA. Slack v.
McDaniel, 529 U.S. 473, 481 (2000). “Under pre-AEDPA standards of
review, this court will review the legal conclusions of the district court de
novo and the state court’s findings of fact for clear error.” Kunkle v. Dretke,
352 F.3d 980, 985 (5th Cir. 2003). “This court must accord a presumption
of correctness to all findings of fact if they are supported by the record.” Id.However, “[t]he pre-AEDPA standards do not require a federal court to
defer to the state court’s legal conclusions.” Id.III
We granted Aranda a COA on two claims: (1) a Miranda claim, and
(2) an ineffective-assistance-of-counsel claim. We examine each claim in
turn.
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A. The Miranda Claim
Aranda argues that his waiver of his Miranda rights was not knowing-
and-voluntary, and therefore his confession was introduced in violation of his
Miranda rights. Specifically, he argues that his waiver could not have been
knowing-and-voluntary because (1) he “did not understand” the English-
language waiver form, (2) he had not recovered from surgery earlier in the
day to knowingly and intelligently understand the consequences of his
waiver, and (3) he did not know he was facing a capital murder charge.
Aranda’s Miranda violation claim falls flat. Aranda challenged his
confession before the trial court and was offered a full and fair hearing by the
court. Although that hearing focused primarily on the voluntariness of the
waiver, Aranda raised some of the same issues he does here, including his
purported difficulties speaking English and his condition after surgery at the
time of his interrogation. But the trial court rejected these arguments, saying
that it was “inclined to believe the peace officers and the District Attorney”
and that “the statement will be admissible on the trial of the merits.”
Although the trial court made few explicit findings of fact, its ruling (and
comment that it believed the prosecution’s witnesses rather than Aranda)
necessarily implies that it found both that Aranda was either explained the
form and his rights in Spanish or had sufficient grasp of English to waive his
rights, and that Aranda’s condition was not so poor after his surgery that he
was incapable of waiving his rights. See Townsend v. Sain, 372 U.S. 293, 314
(1963) (explaining that “if the state court has decided the merits of the claim
but has made no express findings,” a court may still “reconstruct the findings
of the state trier of fact, either because his view of the facts is plain from his
opinion or because of other indicia”). The findings necessarily implied in the
ruling are entitled to our deference. See 28 U.S.C. § 2254(d) (1988); see also
Wainwright v. Witt, 469 U.S. 412, 430–31 (1985) (explaining that a transcript
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can satisfy the requirement of an “adequate written indicia” by a state court
entitled to deference under § 2254(d)).
Nor can we say that such findings were unreasonable. The record is
replete with evidence that Aranda had a working grasp of English and that he
was explained his rights in Spanish. And although Aranda emphasizes the
nature of his wounds at some length, there was significant testimony
indicating that by the time of his interrogation he had sufficiently recovered
and had a full understanding of the circumstances surrounding his
interrogation. Finally, because the hospital records only demonstrate that
Aranda was given pain medication around noon, reason dictates Aranda
would likely no longer be under the influence of the drug by the time of his
interrogation in the evening.
Finally, Aranda cites no authority for his proposition that a failure to
advise him that he faced the death penalty prior to his confession constitutes
a Miranda violation, and we decline to create such a novel rule here. Indeed,
at oral argument, Aranda conceded that Miranda does not require that prior
to issuing a waiver, the defendant be advised of the potential worst outcome.
And both the Supreme Court and this court have intimated that no such rule
exists. See Colorado v. Spring, 479 U.S. 564, 576 (1987) (“We have held that
a valid waiver does not require that an individual be informed of all
information ‘useful’ in making his decision or all information that might
affect his decision to confess.” (cleaned up)); Vanderbilt v. Collins, 994 F.2d
189, 197 (5th Cir. 1993) (explaining that “a knowing and voluntary waiver of
Miranda rights does not require that the defendant understand every possible
consequence of the decision to waive the right”). And as the State points
out, such a rule would prospectively bind prosecutors’ hands based on
representations made (or omitted) by investigators, who lack the discretion
to determine whether to seek the death penalty.
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Moreover, the record indicates that Aranda was told that he was
suspected of the murder of a police officer. He was thus—at a minimum—
aware that he was suspected of a serious crime, and a reasonable individual,
regardless of education, would have understood that the penalty for such a
crime would be severe. In these circumstances, the failure to explain to
Aranda precisely the consequences he may face for the crime he is accused
of does not create a Miranda violation.
But even assuming that there was a Miranda violation, Aranda must
demonstrate that it resulted in “actual prejudice” and “had substantial and
injurious effect or influence in determining the jury’s verdict.” Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993). Aranda fails to do so here, as the
record demonstrates that any purported Miranda error was harmless. The
State produced overwhelming evidence of Aranda’s guilt. This evidence
included the testimony of Officer Viera, who identified Petitioner in open
court. It included significant ballistic evidence that Arturo Aranda’s gun
killed Officer Albidrez. And it included the testimony of Aranda’s brother
Juan Aranda, who described the gunfight with the officers.
Perhaps recognizing the voluminous evidence against him, Aranda
strives to undermine the other evidence of his guilt. He first argues that
Officer Viera’s eyewitness account of the shooting should be completely
disregarded because the “immense stress” caused by the gunfight renders
Officer’s Viera’s account “inherently unreliable.” But Officer Viera’s
testimony was unequivocal. Officer Viera was able to offer a detailed
description of the events that unfolded on the morning of July 31, 1976.
Officer Viera’s testimony held up under cross-examination, and he was
adamant that Aranda shot first. And Viera identified Arturo Aranda in open
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court. This eyewitness testimony cannot be discounted based on after-the-
fact speculation that stress renders it unreliable. 1
Aranda’s attempts to impugn the ballistics evidence against him are
also faulty. At trial, a ballistics expert testified that Aranda’s weapon could
have fired the bullet that killed Officer Albidrez, and no other recovered
weapon could have. Aranda first argues that there was “conflicting”
evidence as to who possessed a .38 caliber handgun—which was identified as
the murder weapon at trial—on the night of the shooting. But he points to
no such conflicting testimony in the record. Moreover, the .38 caliber
handgun was found on Aranda’s person at the hospital. 2 Aranda asks us to
disregard that evidence, too, with a conclusory argument that it is a “rather
incredible scenario.” But again, Aranda cites no evidence to draw that
testimony into doubt. Finally, Aranda contends that the firearm toolmark
evaluation used to analyze the gun found on Aranda’s person was “not
conclusive.” But Aranda still fails to direct us to any record evidence
demonstrating that the firearm toolmark evaluation was inconclusive. In
1
Indeed, the primary support Aranda musters to support this argument consists of
two nonbinding state-court cases. But these cases do not aid Aranda. In People v. Lerma,
47 N.E.3d 985, 993 (Il. 2016), the court listed stress as only one of several factors that can
influence the reliability of eyewitness testimony. Other factors included “the wearing of
partial disguises” and “cross-racial identification.” Id. And in State v. Guilbert, 49 A.3d
705, 722–23 (Conn. 2012), the court only allowed for expert testimony regarding the
unreliability of eyewitness testimony; it did not hold that all eyewitness testimony is
inherently unreliable.
2
That the handgun was found on Aranda’s person at the hospital as opposed to at
the scene of the crime is of no moment. As explained at oral argument, because the state
prioritized getting Aranda into the ambulance and to the hospital, no thorough search of
his person at the scene was conducted. Instead, the officers discovered Aranda laying on
his stomach and conducted a cursory pat down of his back and sides. Only at the hospital
did they conduct a more thorough search that revealed the location of the gun, Aranda’s
front waistband.
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short, Aranda’s arguments regarding the ballistics evidence are conclusory,
speculative, and run against the weight of the record.
Finally, Aranda argues that his confession must have had a substantial
influence on the jury’s verdict because the prosecutor mentioned it in his
closing. But Aranda’s argument misses the mark, as the prosecutor actually
minimized the importance of Aranda’s confession in his closing argument.
First, the prosecutor gave his initial closing argument in which he did not
even mention the confession. Rather, it was Aranda’s attorney who focused
on the confession in his closing argument, in which he asked the jury to
disregard the confession as he argued it was involuntary. When the
prosecutor rose to rebut Aranda’s closing, he stated that “[w]e didn’t need
that statement of Arturo’s.” The prosecutor then only briefly addressed
Arturo’s confession later, as his discussion of the confession comprises only
about one page of eighteen pages of transcript of the prosecutor’s rebuttal.
Moreover, the prosecutor did not focus on the probative value of Aranda’s
confession; rather, he only briefly described why the confession was
voluntary. 3 When viewed in context, the prosecutor’s closing argument
makes clear how little the prosecution relied on the confession relative to
other evidence, including the ballistic evidence and witness testimony.
We remain cognizant that “confessions have profound impact on the
jury.” Bruton v. United States, 391 U.S. 123, 140 (1968) (White, J.,
dissenting). But the erroneous admission of a confession does not, in every
case, constitute harmful error. Our precedents illustrate as much. See Jones
v. Davis, 927 F.3d 365, 370–71 (5th Cir. 2019). Given the profuse amount of
evidence presented against Petitioner at trial, we are convinced that the
3
In addition, the court’s jury charge regarding Aranda’s confession directed the
jury to examine the confession, determine its voluntariness, and reject the confession if it
was not voluntary.
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admission of the confession did not have “a substantial and injurious effect
or influence” in the context of the trial as a whole. Brecht, 507 U.S. at 637.
B. The Strickland Claim
Aranda also argues that he was denied effective assistance of counsel
in violation of the Sixth Amendment under Strickland v. Washington, 466
U.S. 668 (1984) and Wiggins v. Smith, 539 U.S. 510 (2003). Ineffective
assistance of counsel claims are reviewed under Strickland’s two-prong test.
First, Aranda must demonstrate that his counsel’s performance was
deficient. Strickland, 466 U.S. at 687. To establish deficient performance,
Aranda must show “that counsel’s representation fell below an objective
standard of reasonableness.” Id. at 688. This is an uphill battle, as we apply
a “strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Id. at 689. As to the second prong,
Aranda must demonstrate that that the deficient performance prejudiced the
defense. Id. at 687. In a death penalty case, “the question is whether there
was a reasonable probability that, absent the errors, the sentencer . . . would
have concluded that the balance of aggravating and mitigation circumstances
did not warrant death.” Id. at 695. “Prejudice exists when the likelihood of
a different result is ‘substantial, not just conceivable.’” Trottie v. Stephens,
720 F.3d 231, 241 (5th Cir. 2013) (quoting Harrington v. Richter, 526 U.S. 86,
112 (2011)). We are also mindful that “[s]urmounting Strickland’s high bar
is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010).
Aranda argues that his trial counsel was deficient for failing to
adequately investigate evidence of mitigation to be used at the sentencing
stage, including evidence that Aranda had a difficult upbringing or a possible
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brain injury. 4 When examining a failure to investigate, we are mindful that
the Supreme Court has emphasized that “strategic choices made after less
than complete investigation are reasonable precisely to the extent that
professional judgments support the limitations on the investigation.”
Wiggins, 539 U.S. at 521 (quoting Strickland, 466 U.S. at 690–91). And “we
continue to extend highly deferential treatment to counsel’s sentencing
strategy and tactical decisions.” Pape v. Thaler, 645 F.3d 281, 292 (5th Cir.
2011).
With respect to investigating Aranda’s personal background more
generally, Aranda fails to show that his trial attorney failed to conduct an
adequate investigation into Aranda’s past. Aranda argues that “had trial
counsel conducted any investigation, Mr. Aranda’s wife could have testified
that Mr. Aranda always treated her and their children well, and that Mr.
Aranda maintained that relationship with his children when he was
imprisoned.” Aranda also argues that had trial counsel learned about
Aranda’s employment history, he could have put forth evidence that would
“have further undermined, for example, the proposition that Aranda posed
any danger within structured environments.”
But the affidavit of Aranda’s trial attorney, Larry Dowling, contradicts
Aranda’s argument that his counsel failed to make an adequate investigation
into Aranda’s background. Rather, Dowling’s affidavit makes clear that he
4
At various points in his opening brief, Aranda seeks to make other arguments,
including that Aranda’s attorney was deficient for failing to “conduct voir dire in light of
hostility towards Mexican Americans in Victoria” and that counsel “made no effort to look
into the validity of [Aranda’s rape] conviction.” We did not grant a COA on these claims
and in fact explicitly denied a COA for many of these claims. See Aranda v. Lumpkin, No.
20-70008, 2021 WL 5627080 (5th Cir. Nov. 30, 2021). Accordingly, we will not consider
these claims, and limit out analysis to the single Strickland claim on which we granted a
COA.
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had extensive familiarity with Aranda’s history and circumstances.
Dowling’s attested that he “knew that Mr. Aranda grew up in a poor family
of many children in the barrios of San Antonio.” Dowling also attested that
his investigation had revealed that “[t]here was substantial evidence,
notwithstanding his background, that Mr. Aranda was a nonviolent person,”
and that “there was available evidence that . . . [Aranda] demonstrated his
ability and willingness to be a peaceable and cooperative prisoner.” Although
Aranda points to two categories of evidence from his background that he
wishes his attorney had put forth at sentencing, the record as a whole,
especially in light of Dowling’s affidavit, does not evince a failure to
investigate Aranda’s background generally.
Indeed, the record reveals that Dowling in fact did do an investigation
into Aranda’s past circumstances, but he made the strategic choice not to put
forth this evidence “because [he] believed the jury would not be able to
consider such evidence as mitigating circumstances.” And, as the Texas law
stood at the time, he was correct. It would be another decade until the
Supreme Court clarified that Texas courts must allow jurors to express a
“reasoned moral response” to such evidence. See Penry v. Lynaugh, 492 U.S.
302 (1989). Aranda’s counsel was not constitutionally required to predict a
significant change in the law. Maryland v. Kulbicki, 577 U.S. 1, 4 (2015).
Indeed, we must be sure to consider a “context-dependent consideration of
the challenged conduct as seen from counsel’s perspective at the time,”
Wiggins, 539 U.S. at 523 (cleaned up), and make “every effort” to “eliminate
the distorting effects of hindsight.” Strickland, 446 U.S. at 689. Viewed
properly, Dowling’s decision not to introduce evidence of Aranda’s
background was a strategic choice which was “virtually unchallengeable.”
Strickland, 446 U.S. at 690. This claim therefore fails.
The record does, however, demonstrate one narrow area where
Dowling made a less-than-complete investigation: evidence of Aranda’s
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head injury resulting from a police confrontation when he was sixteen.
Dowling states that he “did not conduct any extensive investigation of Mr.
Aranda’s background for the purpose of developing specific evidence of
disorders caused by his background.” This decision is a “strategic choice[]
made after less than complete investigation,” which is “reasonable precisely
to the extent that professional judgments support the limitations on the
investigation.” Wiggins, 539 U.S. at 528 (quoting Strickland, 466 U.S. at
690). We therefore must consider whether Dowling’s decision to forgo a
more complete investigation into Aranda’s head injury is supported by
professional judgment.
In his affidavit, Dowling explained his strategic decision to forgo an
investigation into any disorder that Aranda may have. Specifically, Dowling
was concerned that developing and presenting evidence of a disorder would
open the door for the State to use psychiatrists to show that the disorder
would make Aranda dangerous in the future, which was a consideration a
Texas jury must have considered in imposing the death penalty. Dowling
was also concerned that the risk of presenting evidence of a disorder was not
worthwhile without a mitigating instruction, unless it was so significant that
it could demonstrate that Aranda’s crime was not “deliberate”—a very high
bar. In sum, Dowling stated that “[i]n my opinion a responsible, competent
trial lawyer would not take the risk of presenting such evidence without the
assurance of a mitigation instruction.” He further attested that “[b]ecause
of the foregoing problems with developing and discovering evidence which
mitigates ‘blameworthiness’ and because of the failure of Texas courts to
instruct a jury on ‘mitigation,’ I would not, and in this case did not, develop
evidence as to neurological, psychological, psychiatric or sociological reasons
pertinent to the Defendant’s ability to control his own behavior.”
Dowling’s well-reasoned explanation for his decision to forgo an
investigation here is fatal to Aranda’s Strickland claim. Based on the law as
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it stood at the time of Aranda’s sentencing, Aranda’s counsel was reasonable
to think that such evidence could well have backfired. These sentencing
strategies and tactical decisions are beyond the reach of a Strickland claim.
We note that this case is different in kind from Wiggins. To be sure,
in Wiggins, the Supreme Court held that an attorney rendered ineffective
assistance of counsel by failing to investigate and present mitigating evidence
of a capital defendant’s background at the sentencing stage. 539 U.S. at 524.
But the Court emphasized that counsel had not reasoned that a mitigation
case “would have been counterproductive.” Id. at 525. Here, because of the
unique death penalty sentencing scheme Texas had in place at the time of
Aranda’s sentencing—a factor not present in Wiggins—Aranda’s counsel
expressed a reasonable concern that any additional investigation into
Aranda’s mental disorder could lead to evidence that would be
counterproductive. In light of that serious concern, it was reasonable for
Dowling to forgo additional investigation into the issue, because as the
Wiggins court noted, “Strickland does not require counsel to investigate
every conceivable line of mitigating evidence no matter how unlikely the
effort would be to assist the defendant at sentencing.” Id. at 533.
Finally, Aranda argues that the district court made a legal error by
imposing too high of a standard for his Strickland claim. Aranda contends
that the district court required him to show that his trial counsel was “not
functioning as counsel,” rather than that his performance fell “below an
objective standard of reasonableness.” This argument is easily disposed of.
First, the “not functioning as counsel” language was pulled directly from
Strickland, which used that language to describe what constituted a deficient
performance. 466 U.S. at 687 (“[T]he defendant must show that counsel’s
performance was deficient. This requires showing that counsel made errors
so serious that counsel was not functioning as the ‘counsel’ guaranteed by
the Sixth Amendment.”). Indeed, we have repeated the exact language that
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Aranda objects to, Brooks v. Kelly, 579 F.3d 521, 523 (5th Cir. 2009), and
affirmed district courts that also applied this standard. See Rabe v. Thaler,
649 F.3d 305, 307 (5th Cir. 2011) (affirming a district court’s finding that a
trial attorney did not make “errors so serious that he was not functioning as
counsel”). Second, a review of the trial judge’s order denying Aranda’s
Strickland claim makes clear he was applying the proper standard. The trial
court quoted Strickland at length, including the requirement that any
deficiency be judged by an “objective standard.” Third, even were there
some gap between performance which “below an objective standard of
reasonableness” and performance which demonstrated that an attorney was
“not functioning as counsel,” we are convinced that, for the reasons
discussed at length above, the performance of Aranda’s trial counsel did not
fall below an objective standard of reasonableness.
IV
For the foregoing reasons, we AFFIRM the district court’s denial of
habeas relief and an evidentiary hearing. 5
5
An evidentiary hearing would not prove beneficial where: (1) the parties have not
proffered any evidence that is disputed; (2) the evidence was appropriately presented
during the state-court proceedings’ and (3) Aranda has not identified any new evidence
that could be developed if he were granted an evidentiary hearing at this juncture.
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