Amador v. Quarterman

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 29, 2006
• Docket: 05-70026
• Status: Published

Opinion

United States Court of Appeals Fifth Circuit F I L E D REVISED AUGUST 29, 2006 IN THE UNITED STATES COURT OF APPEALS August 1, 2006 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 05-70026

JOHN JOE AMADOR

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 Western District of Texas, San Antonio No. 5:02-CV-230

Before JONES, Chief Judge, and KING and DENNIS, Circuit Judges.

KING, Circuit Judge:

In this capital murder case, petitioner John Joe Amador

appeals the district court’s dismissal of his petition for writ

of habeas corpus under 28 U.S.C. § 2254 on two of his claims that

he was denied effective assistance of counsel in violation of his

Sixth Amendment rights during the direct appeal of his conviction

before the Texas Court of Criminal Appeals. For the following

reasons, we AFFIRM the judgment of the district court. I. FACTUAL AND PROCEDURAL BACKGROUND

A. Criminal Proceedings

1. The Crime and Aftermath

a. The Crime

During the early morning of January 4, 1994, taxicab driver

Reza “Ray” Ayari stopped to pick up his friend Esther Garza, who

occasionally accompanied Ayari during his shifts. Garza had been

drinking heavily that night and had sought Ayari’s company

because she was upset over a fight she had recently had with her

boyfriend. According to Garza’s testimony, between 3:00 a.m. and

3:30 a.m., Ayari stopped on the west side of San Antonio, Texas,

to pick up two passengers, later identified as eighteen-year-old

John Joe Amador and his sixteen-year-old cousin Sara Rivas.

Amador asked Ayari to take them to Poteet, Texas, a town

approximately thirty minutes southwest of San Antonio. Ayari

replied that he would need twenty dollars in advance. Amador

indicated that he did not have twenty dollars, but directed Ayari

to a house where he could obtain the money. The house was later

identified as that of Amador’s girlfriend, Yvonne Martinez. The

cab stopped at Martinez’s house, Amador returned with the money,

and the four occupants--Ayari in the driver’s seat, Garza in the

front passenger seat, Amador in the seat behind Ayari, and Rivas

in the seat behind Garza--proceeded to Poteet.

-2- Garza testified that when they reached rural Bexar County,

the passengers directed Ayari to stop in front of a house with a

long driveway. As Ayari drove toward the house, he was shot in

the back of the head without warning. Garza was shot immediately

thereafter. Garza, who was still alive despite sustaining a

gunshot wound to the left side of her face, later testified that

she feigned death as Amador and Rivas pulled Ayari and Garza out

of the car, searched Garza’s pockets, and drove off down the

driveway, damaging the cab in the process. When police arrived

at the scene of the shootings, they found Ayari dead. Garza was

bleeding from the head and face, hysterical, and unable to speak

coherently. She was eventually able to tell the officers at the

scene that one of the suspects was male, that she had never seen

him before, and that he was 6’1”, possibly of Arabic ethnicity,

and had short black hair.1 Officers found .380 and .25 caliber

shell casings at the scene, and a .25 caliber bullet was removed

from Garza’s nasal cavity that night at the hospital. The cab

was eventually found abandoned in a median in the outskirts of

San Antonio, and a woman named Esther Menchaca later testified

that she had observed two people who resembled Amador and Rivas

walking away from the cab in the median as she drove to work in

the early morning of January 4.

1 It is undisputed that John Joe Amador is 5’6” and Hispanic.

-3- b. The Investigation

On January 10, 1994, after Garza had been released from the

hospital, she gave the Bexar County Sheriff’s Office a

description of the suspect to aid in creating a composite sketch.

Garza also spoke with lead investigator Detective Robert Morales

and gave a written statement, which reaffirmed the description

she had given at the scene, although she described the suspect as

Hispanic rather than Arabic as she had originally stated.

On January 24, 1994, acting on an anonymous “Crime Stoppers”

tip, a Bexar County Sheriff’s Deputy picked up Amador and his

girlfriend Yvonne Martinez from a San Antonio school and took

them to the sheriff’s department for questioning. Both denied

any knowledge of or involvement in the shootings. Officers also

took their pictures and prepared photo arrays to present to

Garza, the only eyewitness to the crime. While Amador and

Martinez were still being questioned, Detective Morales drove

Garza to the sheriff’s department. Garza testified at a pretrial

hearing that Detective Morales showed her the photo array

containing Martinez’s picture while they were in the car en route

to the sheriff’s department.2 While Garza did not identify any

2 The trial transcript reveals a number of discrepancies in the testimony of various witnesses regarding the dates that Garza was shown photo arrays, how many photo arrays she was shown, and whether the suspects’ photos were included in each photo array that she viewed. However, it is undisputed that Garza was unable to identify Amador from a photo array or otherwise prior to March 30, 1994.

-4- of the women in the photo array as a suspect, she did identify

Martinez as someone she knew from work and stated that Martinez

was definitely not the woman in Ayari’s cab the night of the

shootings. When Garza arrived at the sheriff’s department, the

officers showed her a second photo array, this time containing

pictures of Hispanic males.3 Garza was unable to identify any of

the men as a suspect. The officers then took her on a “show up”

to view Amador and Martinez, instructing her to look through

holes that had been cut in a piece of cardboard that was taped

against the window of the homicide office where Amador, Martinez,

and a sheriff’s deputy were sitting. Garza once again identified

Martinez as a former co-worker and confirmed that she had not

been in the cab on the night of the shootings. However, she was

unable to identify Amador as the male passenger in the car on the

night of the shootings, telling the officers that she did not

know whether he was the shooter and that “I’m just not up to that

right now.”

The following day, the officers asked Garza if she would

consent to be hypnotized in an effort to enhance her memory and

3 It is also unclear from the record whether this photo array contained a picture of Amador. The district court noted that Sergeant Sal Marin testified that, to his personal knowledge, no photo arrays prior to March 30, 1994, contained a photo of Amador. See Dist. Ct. Order n.27. However, the record reflects that Detective Morales handled most of the photo arrays, and it is unclear from his testimony and from the rest of the record which photo arrays contained photos of Amador and which did not.

-5- make her more confident in her identification. Garza agreed, and

on February 3, 1994, she underwent hypnosis performed by Brian

Price, a Bexar County Adult Probation Officer who had training as

an investigative hypnotist. During the session, she confirmed

her description of the suspect as a 6’1” Hispanic male. Based on

her description, a sketch artist rendered another composite

drawing of the suspect.

On March 16, 1994, Garza called Detective Morales and

informed him that a friend had told her that the two people who

had done the shootings were named John Joe Amador and Sara Rivas.

She subsequently revealed that the source of this information

knew Martinez, whom the source had overheard talking about the

crime and whom Garza had previously recognized as a former co-

worker when Martinez was sitting with Amador during the show up

in the Bexar County Sheriff’s Office. On March 30, 1994, the

officers again showed Garza a photo array, and this time Garza

was able to identify Amador as the male suspect in the cab on the

night of the shootings. The picture of Amador contained in the

photo array was taken the same day that Garza had observed him

with Martinez during the show up, and in the picture he was

wearing the same black shirt. She was unable to identify Rivas

from another photo array.

An arrest warrant was issued for Amador, who had since gone

to California. An officer arrested Amador and brought him back

to Texas; Rivas was also arrested. On April 13, 1994, Rivas gave

-6- a written statement to Detective Morales. Rivas alleged in her

statement that Amador had shot and killed Ayari and that, at

Amador’s instruction, she had shot Garza with a gun that Amador

had given her.4 Later that day, Sergeant Sal Marin told Amador

that Rivas had confessed to shooting someone at Amador’s

direction. Amador then gave a written statement to Sergeant

Marin which, while inculpatory, spoke in hypothetical terms.5

4 Rivas’s statement was not admitted into evidence at Amador’s criminal trial, but it was admitted during the pretrial evidentiary hearing concerning Amador’s motion to suppress. 5 A partially redacted version of Amador’s statement was admitted into evidence at trial and read in open court. Trial Tr., Vol. XIX, pp. 167-69.

The portion of Amador’s statement read into the record at trial is as follows:

My name is John Joe Amador. I am 18 years old and I live at 3907 Eldridge Street in San Antonio, Texas. I have told Sergeant Marin that I am going to tell him about the murder of the taxicab driver and the shooting of a young girl.

I am going to tell my side of the story the way I want it to come out. I don’t need no attorney or anything for this. Sergeant Marin has read me my rights and I understand my rights.

During the early part of January 1994, I don’t remember the date other than it was sometime shortly after New Year’s Day, this is when this mess all started. It was during the night. I don’t remember what time it was, but I do know it was late.

They say I shot and killed a taxicab driver and my cousin Sara Rivas shot a young woman in the face. If this is true, Sara would have shot the young woman because I would have ordered her to do it. Sara is my cousin and she is not that type of a person. She is from Houston and was visiting here in San Antonio when all of this

-7- The next day, April 14, 1994, Amador contacted Sergeant

Marin to inquire whether his cousin was all right. After

assuring Amador that Rivas was fine, Sergeant Marin asked Amador

to accompany him to the scene of the crime and help him locate

the guns used in the shooting. Amador agreed to do so, but the

weapons were never found. While at the scene, Amador mentioned

that if he had committed the crime, he would have used .25 and

.380 caliber handguns.

c. Pretrial Hearing on Amador’s Motion to Suppress

Prior to trial, Amador filed numerous written motions to

suppress much of the prosecution’s evidence, including, inter

alia, objections to the admissibility of the statement that he

made regarding the caliber of the guns used in the shooting and

to the in-court identification of him by any witness. From May

22-24, 1995, the court held a pretrial hearing, which included

the presentation of evidence and arguments concerning Amador’s

motions.

shit happened. She wanted to visit her grandma who lives near Poteet, Texas, but she never made it over there.

In this situation I would have handed her a gun and I would have ordered her to shoot the woman with that gun. If all of this stuff about the murder is true and they can prove it in court, then I will take my death sentence.

This is all I want to say. I don’t want to say any more. I will just wait for my day in court.

Id.

-8- i. Amador’s Oral Statement Identifying the Caliber of the Guns Used in the Crime

At the time of Amador’s trial, Article 38.22, section 3 of

the Texas Code of Criminal Procedure barred the use of statements

by an accused resulting from a custodial interrogation at trial

unless an exception applied. At the pretrial hearing, Sergeant

Marin and Amador testified about their visit to the crime scene

to search for the weapons. The trial court ultimately ruled that

Amador’s statement was admissible under Article 38.22, section 3

of the Texas Code of Criminal Procedure, which provided, in

pertinent part:

(a) No oral . . . statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless:

(1) an electronic recording, which may include motion picture, video tape, or other visual recording, is made of the statement; . . .

(c) Subsection (a) of this section shall not apply to any statement which contains assertions of facts or circumstances that are found to be true and which conduce to establish the guilt of the accused, such as the finding of secreted or stolen property or the instrument with which he states the offense was committed.

TEX. CRIM. PROC. CODE ANN. art. 38.22(3)(c) (Vernon Supp. 1994).

Over Amador’s objections, the trial court determined that

Amador’s statement was admissible under this statute because,

although the statement was not recorded, “Sergeant Marin

indicated that subsequently they did determine that statement to

be true and it conduces to show his guilt of the offense.” Trial

-9- Tr., Vol. V, pp. 153-54.

ii. Garza’s In-Court Identification of Amador

Amador also argued that any in-court identification made by

Garza was inadmissible because the out-of-court identification

procedures had been unnecessary and suggestive in violation of

Amador’s due process rights. At the evidentiary hearing on May

22, 1995, Garza testified to the events leading up to the

shooting, the out-of-court identification procedures that the

Bexar County Sheriff’s Department employed, the phone call from

her friend who told her the names of the shooters, and her

eventual identification of Amador.6 See Trial Tr., Vol. III, pp.

6-75.

The two investigating officers, Detective Morales and

Sergeant Marin, also testified at the hearing, describing their

investigation, their interactions with Garza, Garza’s initial

hesitance to identify Amador, the hypnosis session, and the

identification procedures that they employed, including the show

up and the various photo arrays.7 See id., Vol. IV, pp. 7-109,

166-254.

After the presentation of the evidence and the arguments,

6 Garza’s eventual testimony at trial largely mirrored the contents of her pretrial testimony, although a hearsay objection at trial prevented the jury from hearing that Garza had initially learned Amador’s name from a friend. 7 Likewise, the officers’ testimony at trial was substantially similar to their pretrial testimony.

-10- Amador again moved to suppress any in-court identification

testimony from Garza, and, after considering the evidence

presented at the hearing and watching a videotape recording of

Garza’s hypnosis session, the court denied this motion.

2. Trial, Conviction, and Sentencing

On June 30, 1995, a Bexar County grand jury returned an

indictment against Amador on a charge of capital murder. Amador

entered a plea of not guilty. The guilt-innocence phase of his

jury trial began on July 5, 1995.

a. Evidence Adduced at Trial

i. Amador’s Oral Statement Identifying the Caliber of the Guns Used in the Crime

At the guilt-innocence phase of the trial, Sergeant Marin

testified to Amador’s statement during the prosecution’s case-in-

chief, and Amador’s counsel objected once more, this time on

hearsay grounds. The court overruled this objection and allowed

Sergeant Marin to testify that Amador had identified the guns

used in the shootings as .25 and .380 caliber weapons. Sergeant

Marin also testified that the sheriff’s department had publicly

identified one of the weapons as a .380 caliber handgun in a

press release dated January 4, 1994. Trial Tr., Vol. XIX, p.

189. The jury also heard testimony from Bexar County Sheriff’s

Department Detective Adrian Ramirez that on the morning of the

shootings, officers had found a spent .25 caliber shell casing

inside the abandoned taxicab. Id. Vol. XIX, p. 4. An officer

-11- who was present at the crime scene, Daniel Sanchez, testified

that he found a .380 caliber shell casing at the scene on the

morning of the shootings. Id. Vol. XVIII, p. 257.

The prosecution also presented eyewitness testimony from

Garza, who identified Amador in court. In addition to describing

the events leading up to the January 4, 1994, shooting, Garza

testified that: (1) she had been “drinking all day” before Ayari

picked her up the night of the shootings, and she had consumed

approximately fourteen to fifteen beers and one wine cooler; (2)

when Ayari stopped to pick up Amador and Rivas, she was still

“intoxicated,” “drunk,” and “wasted,” had been crying about a

fight she had had with her boyfriend, and “wasn’t really paying

attention to anything”; (3) she was able to view Amador briefly

that night when he walked in front of the cab’s headlights to get

money from Martinez’s house and when he was in the back seat

talking to her and Ayari; (4) on January 10, 1994, she gave a

statement describing the suspect to aid the sheriff’s department

in creating a composite sketch and initially believed that the

suspect was 6’1”;8 (5) she had never seen Amador before the night

of the shootings; (6) on January 24, 1994, she was taken to the

8 Garza explained that, when she saw him at the sheriff’s department, Amador looked different from the individual she had observed on the night of the shootings because he had shorter hair and was not as tall as she had remembered from her “slouched down” vantage point in the cab.

-12- sheriff’s department and instructed to view two people later

identified as Amador and Martinez through holes cut into a piece

of cardboard; (7) during this show up, she recognized Martinez as

a former co-worker but “couldn’t say” that she recognized Amador;

(8) on that same day, before the show up, Detective Morales

showed her a photo array of Hispanic males and a photo array of

Hispanic females, but she could not identify any of them as

suspects;9 (9) on February 3, 1994, she submitted to a hypnosis

session, no one during the session suggested to her the identity

of her assailant, and afterwards she assisted in creating another

composite sketch; (10) on March 30, 1994, Sergeant Marin showed

her a photo array and she identified Amador from that array; and

(11) she was never able to identify Rivas from a photo array or

otherwise. Id. Vol. XVIII, pp. 93-252. A hearsay objection

prevented Garza from testifying to the March 16, 1994, phone call

from her friend who told her that he had heard that Amador and

Rivas were involved in the shootings. Id. Vol. XVIII, p. 148.

Sergeant Marin and Detective Morales both testified

regarding the procedures that they used that led to Garza’s

positive identification of Amador. Sergeant Marin told the jury

that: (1) he picked up Amador and Martinez on January 24, 1994,

after receiving a “Crime Stoppers” tip implicating them in the

shooting of Ayari; (2) on that day, the officers conducted a show

9 She testified that on that day she did, however, identify Martinez as someone she knew from work.

-13- up at the homicide office where they had Garza look at Amador and

Martinez through eye holes that were cut into a piece of

cardboard; (3) using a cardboard apparatus of this sort was not a

“normal” procedure; (4) the officers could have used a lineup or

photo array identification procedure on that date but did not;

(5) Garza had been unable to identify Amador at the show up or

from any photo array until March 30, 1994; (6) to his personal

knowledge, Amador’s picture had not been included in a photo

array before March 30, 1994, but (7) numerous officers were

working on the case and it would not have been normal procedure

to include information in his reports regarding the activities of

other officers; (8) in April 1994, Rivas gave a statement to the

sheriff’s department;10 and (9) on April 13, 1994, he took a

statement from Amador.11 Id. Vol. XIX, pp. 131-233.

The defense called Detective Morales, who testified that:

(1) he was the lead investigator in the case; (2) he had

“numerous contacts” with Garza before she was able to identify

Amador; and (3) there was nothing urgent that prompted the

officers to do the show up with Garza on January 24, 1994, but

rather it was just convenient. Id. Vol. XX, pp. 173-202.

Neither officer testified about Garza’s hypnosis session or about

10 The contents of this statement were held to be inadmissible. 11 Portions of this statement were read into evidence. See supra note 5.

-14- the phone call that they received from Garza indicating that she

had learned the names of the suspects from a friend.

Two other witnesses provided testimony that tended to

implicate Amador in the shootings, Martinez and a witness named

Esther Menchaca, who had driven by and seen Amador and Rivas

walking on the median after they had abandoned the cab on the

morning of January 4, 1994. Martinez testified that: (1) Amador

was her boyfriend; (2) Amador awoke her in the early morning

hours of January 4, 1994, by knocking on her window and asked her

for money for a taxi ride; (3) approximately two weeks before

January 4, 1994, Amador had told her that he “wanted to do

something crazy involving a taxicab”; (4) sometime during the

afternoon of January 4, 1994, Amador told her that he and his

cousin had taken a taxi to Poteet and had shot someone; (5)

Amador described the murder to her in great detail; and (6)

Amador had written her a letter from prison pressuring her not to

testify. Id. Vol. XIX, pp. 251-93; id. Vol. XX, pp. 12-46.

Menchaca testified that, early in the morning of January 4,

1994, she was on her way to work heading toward Poteet. At

approximately 4:15 a.m. she observed an abandoned taxicab in the

median of Highway 16 and saw a male and a female walking along

side of the road. On May 3, 1994, she positively identified

Amador from a photo array as the male she had seen walking down

the road. Id. Vol. XIX, pp. 61-129.

-15- b. Conviction and Sentencing

On July 10, 1995, the jury returned its verdict, finding

Amador guilty of capital murder. The punishment phase of the

trial began that same day. On July 11, 1995, the jury sentenced

Amador to death.

3. Direct Appeal to the Texas Court of Criminal Appeals

On July 9, 1996, Amador appealed his conviction and sentence

to the Texas Court of Criminal Appeals (“TCCA”), alleging six

points of error.12

a. Amador’s Oral Statement Identifying the Caliber of the Guns Used in the Crime

Amador’s appellate counsel did not assign as error the trial

court’s ruling admitting into evidence Amador’s statement

identifying the caliber of the weapons used in the shooting.

b. Garza’s In-Court Identification of Amador

The points of error did include an allegation that the trial

court erred by admitting into evidence Garza’s in-court

12 Amador’s brief assigned the following as error: (1) the trial court’s admission of Garza’s in-court identification of Amador; (2) the trial court’s instructions to the jury during the punishment phase of the trial regarding the capital sentencing “special issues” questions; (3) the trial court’s failure to quash the indictment against Amador because it failed to allege the issues to be decided by the jury at the punishment phase; (4) the death penalty’s violation of the Eighth Amendment; (5) the death penalty’s violation of the United Nations Charter; and (6) the insufficiency of the evidence to support the jury’s guilty verdict.

-16- identification of Amador because the out-of-court show up and

hypnosis identification procedures were unnecessary and

suggestive in violation of Amador’s due process rights. The TCCA

did not reach the substance of this claim; instead, it held that

Amador’s counsel had failed to preserve the alleged error at

trial. The court stated that after Amador’s counsel filed his

motion to suppress Garza’s in-court identification testimony,

[t]he trial judge agreed to view the videotape [of Garza’s hypnosis session] and rule on the admissibility of Garza’s in-court identification testimony afterwards. The judge told defense counsel he would contact his office and notify him of the ruling. However, [Amador’s counsel] does not contend that such a ruling was ever made or direct us to any portion of the record where such a ruling can be found. Further, [Amador’s counsel] made no objection to the admission of the evidence when it was introduced at the trial on the merits.

. . . .

[Amador’s counsel] presents no justification, cause, or excuse for his failure to object to the admission of the evidence at the time of its introduction. . . . Therefore, presenting nothing for review, Amador’s first point of error is overruled.

Amador v. Texas, No. 72,162, 5-6 (Tex. Crim. App. Apr. 23, 1997)

(en banc) (unpublished). The trial court had in fact ruled on

and denied the motion to suppress on May 23, 1995, as reflected

in the trial court’s docket entry from that date, located on page

three of the first volume of the trial record. The TCCA also

rejected the remaining five points of error and affirmed Amador’s

conviction and sentence. Id. Amador’s counsel filed a petition

for rehearing with the TCCA, but once again failed to provide the

-17- court with the citation to the record evidencing the trial

court’s denial of Amador’s motion to suppress. The TCCA denied

the petition for rehearing on June 23, 1997, and the mandate

issued that same day. Amador did not file a petition for writ of

certiorari with the Supreme Court of the United States.

B. Post-Conviction Proceedings

1. State Habeas Proceedings

Amador filed his petition for state habeas corpus relief in

state district court for the 226th Judicial District of Bexar

County on December 12, 1997. Amador alleged thirty-four total

grounds for relief, including, inter alia, eight claims of

ineffective assistance of counsel by his appellate counsel during

his direct appeal, eleven claims of ineffective assistance of

counsel at trial, and six claims of prosecutorial misconduct.

The court held an evidentiary hearing on these claims from

October 1-2 and 7-8, 1998. On February 14, 2001, the court

adopted the state’s proposed findings of fact and conclusions of

law, recommending that habeas relief be denied on each of

Amador’s claims. Ex parte Amador, No. 94-CR-3643-W1 (Feb. 14,

2001) [hereinafter “State Habeas Order”]. The TCCA adopted all

of the findings of fact and conclusions of law set forth in the

state trial court’s order and denied relief. Ex parte Amador,

No. 48,848-10 (Tex. Ct. Crim. App. Sept. 12, 2001) (unpublished).

The TCCA’s denial of two of these claims is relevant to the

-18- instant appeal.

a. Amador’s Oral Statement Identifying the Caliber of the Guns Used in the Crime

First, Amador argued that he was denied effective assistance

of counsel on appeal because his attorney failed to assign as

error the trial court’s evidentiary ruling that Amador’s

statements concerning the caliber of guns used in the shootings

were admissible. Trial Tr., Vol. XVIII, p. 174. Amador argued

that the admission of this testimony under Article 38.22, section

3 of the Texas Code of Criminal Procedure was error because that

provision applied only to statements containing facts that were

unknown to law enforcement at the time the statement was made and

later found to be accurate. See Dansby v. Texas, 931 S.W.2d 297,

298-99 (Tex. Crim. App. 1996) (holding that oral statements

resulting from custodial interrogation were inadmissible because

they merely confirmed information that law enforcement officers

already knew). In the instant case, at the time Amador made the

statement in question, the Bexar County Sheriff’s Department was

already aware of the caliber of the guns used in the shooting and

therefore this statutory exception was inapplicable.

The TCCA rejected this argument for two reasons. First, it

indicated that Amador’s pretrial motion to suppress on Article

38.22 grounds was insufficient to preserve the error for direct

appellate review. The court stated that, because Amador’s

counsel also objected to the admission of the statement at trial

-19- on hearsay grounds, “any complaint raised on appeal would have

been required to have raised that argument. Put in other words,

an argument based upon Art. 38.22 . . . was precluded by the

hearsay objection lodged at trial.” State Habeas Order at 19.

In a footnote, the court added that it “is aware of the legal

proposition that if a motion to suppress is heard and denied, no

further objection is necessary to preserve the error. However,

in the instant [case] a further objection was made hence making

that proposition inapplicable.” Id. at 19 n.5. The court cited

no relevant authority for this statement. Second, the court

stood by its initial ruling at trial that “the statements in

question were admissible as an exception to the prohibition

outlined by” Article 38.22. According to the court, because the

statement was admissible, Amador’s counsel could not have been

ineffective for failing to raise this issue on appeal because

Amador suffered no prejudice as a result. See Strickland v.

Washington, 466 U.S. 668 (1984) (requiring a habeas petitioner to

show both deficient performance and prejudice to prove

ineffective assistance of counsel).

Second, Amador argued that he received ineffective

assistance of counsel on direct appeal because his attorney

failed properly to allege that the state trial court erred in

admitting Garza’s in-court identification testimony that was the

-20- result of unnecessary and suggestive identification procedures in

violation of his due process rights. Specifically, Amador

faulted his appellate counsel for failing to direct the TCCA to

the docket notation indicating that this issue had indeed been

preserved for review.13 See State Habeas R., Vol. I, pp. 11-12.

The state habeas court, apparently believing that Amador was

arguing that his counsel had not raised the issue of Garza’s

identification testimony at all on appeal, rejected Amador’s

claim for two reasons: (1) Amador’s counsel had in fact raised

the issue of the admissibility of the identification testimony on

appeal and the TCCA held that the issue was not properly

preserved for review; and (2) the claim “erroneously presupposes

that the testimony of Garza was inadmissible as a violation [of

Amador’s] right to due process of law,” and the admission of the

evidence did not prejudice Amador because, even if pretrial

identification techniques had been unnecessary and suggestive,

the in-court identification testimony was still admissible

because “the totality of the circumstances reveal no substantial

13 At the state habeas corpus evidentiary hearing, Amador’s appellate counsel testified that, at the time of the direct appeal, he believed the state’s argument that this error had not been preserved for review to be incorrect. He also testified that, despite this belief, he made no effort to direct the TCCA to the location in the docket where the trial court formally overruled Amador’s motion to suppress the in-court identification testimony; he did not search the record for this information; and he did not file a motion for rehearing identifying the docket entry in question. State Habeas Evidentiary Hearing Tr., Vol. II, 10-35.

-21- likelihood of misidentification.”

2. Federal Habeas Proceedings

Amador filed his 28 U.S.C. § 2254 petition for federal

habeas corpus relief in the United States District Court for the

Western District of Texas on May 24, 2002, and filed an amended

and supplemental habeas petition on May 2, 2003. He alleged

sixty total claims for relief. On September 3, 2003, the state

filed a motion for summary judgment. The district court

ultimately granted the state’s motion for summary judgment,

denying all of Amador’s claims for relief. Amador v. Dretke, No.

SA-02-CA-230-XR (Apr. 11, 2005) [hereinafter “Dist. Ct. Order”].

However, the district court granted a certificate of

appealability (“COA”) on two of those claims: (1) that Amador

received ineffective assistance of counsel on appeal because his

counsel failed to assign as error the trial court’s admission of

his statement identifying the caliber of guns used in the

shooting; and (2) that Amador received ineffective assistance of

counsel on appeal because his counsel failed properly to present

a challenge to the state trial court’s denial of Amador’s

pretrial motion to suppress the in-court identification testimony

of Garza.

a. Amador’s Oral Statement Identifying the Caliber of the Guns Used in the Crime

Citing reasons different from those cited in the TCCA’s

opinion, the district court denied Amador’s claim regarding his

-22- statement identifying the caliber of guns. As a preliminary

matter, the district court noted that when the TCCA denied this

point of error, it essentially held that Amador’s counsel had

procedurally defaulted on this claim by failing to re-urge his

Article 38.22 objection at trial and asserting only a hearsay

objection instead. Further, the court noted that the state

habeas court’s reasoning on this point was likely erroneous

because the district court’s “independent research has disclosed

no other instances other than [Amador’s] case in which a Texas

appellate court has applied such a rule of procedural default to

foreclose merits review of an Article 38.22 claim following a

trial court’s formal denial of a pretrial motion to suppress.”

Dist. Ct. Order at 127. Therefore, the district court proceeded

to review the merits of Amador’s claim pursuant to Ford v.

Georgia, 498 U.S. 411, 423-24 (1991) (holding that application of

state procedural default rules bars federal habeas merits review

of a claim only when the state procedural default rule is firmly

in place and regularly followed).

Reviewing the merits of the claim, the district court noted

that, under its review of the relevant Texas case law, Amador’s

statement was likely inadmissible under Article 38.22 of the

Texas Code of Criminal Procedure. However, applying the Texas

harmless-error principles that governed at the time of Amador’s

direct appeal, the court held that, even if Amador’s statement

had been inadmissible, any error in admitting the statement would

-23- have been harmless and therefore Amador could not prove the

prejudice necessary to establish ineffective assistance of

counsel under Strickland, 466 U.S. 668.

The district court also denied Amador’s claim regarding

Garza’s in-court identification testimony, holding that Amador

failed to show that Garza’s identification testimony was

inadmissible and therefore his counsel’s failure to properly

preserve this point of error did not constitute prejudice under

Strickland. First, with regard to the hypnosis procedure, the

district court stated that Amador “never alleged any specific

facts, nor presented any evidence, before the state habeas court

establishing that any of the procedures employed . . . were

unduly suggestive or otherwise tainted Esther Garza’s subsequent

in-court identification of [Amador] as one of her and Ayari’s

assailants.” Dist. Ct. Order at 83.

Second, the court determined that, even if the show up by

its very nature had been suggestive, Garza’s identification of

Amador had nonetheless been reliable under Manson v. Brathwaite,

432 U.S. 98, 114 (1977). The district court accordingly rejected

Amador’s claim, finding that the TCCA reasonably applied the law

to find that Garza’s identification was admissible and there was

no prejudice under Strickland.

On May 10, 2005, Amador filed a timely notice of appeal with

-24- this court.

II. STANDARD OF REVIEW

This habeas proceeding is governed by the Antiterrorism and

Effective Death Penalty Act (“AEDPA”) because Amador filed his

§ 2254 habeas petition on December 12, 1997, after AEDPA’s

effective date of April 24, 1996. See Fisher v. Johnson, 174

F.3d 710, 711 (5th Cir. 1999). This court has jurisdiction to

resolve the merits of Amador’s habeas petition because, as stated

above, the district court granted him a COA. See Dist. Ct. Order

at 123-28; see also 28 U.S.C. § 2253(c)(1); Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003) (explaining that a COA is a

“jurisdictional prerequisite” without which “federal courts of

appeals lack jurisdiction to rule on the merits of appeals from

habeas petitioners”).

We review de novo the district court’s grant of summary

judgment denying a state petitioner’s request for habeas relief.

Ogan v. Cockrell, 297 F.3d 349, 355-56 (5th Cir. 2002); Fisher v.

Texas, 169 F.3d 295, 299 (5th Cir. 1999). We review the district

court’s conclusions of law de novo and its findings of fact, if

any, for clear error. Collier v. Cockrell, 300 F.3d 577, 582

(5th Cir. 2002). Moreover, “‘a federal habeas court is

authorized by Section 2254(d) to review only a state court’s

‘decision,’ and not the written opinion explaining that

decision.’” Pondexter v. Dretke, 346 F.3d 142, 148 (5th Cir.

-25- 2003) (quoting Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002)

(en banc)).

Under AEDPA, a federal court may not grant a writ of habeas

corpus “with respect to any claim that was adjudicated on the

merits in State court proceedings” unless the petitioner shows

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,” or that 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)(1); Williams v. Taylor, 529 U.S. 362, 402-13 (2000). A

state court’s decision is “contrary to” clearly established

federal law if (1) the state court “applies a rule that

contradicts the governing law” announced in Supreme Court cases,

or (2) the state court decides a case differently than the

Supreme Court did on a set of materially indistinguishable facts.

Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003). A state court’s

application of clearly established federal law is “unreasonable”

within the meaning of AEDPA when the state court identifies the

correct governing legal principle from Supreme Court precedent,

but applies that principle to the case in an objectively

unreasonable manner. Wiggins v. Smith, 539 U.S. 510, 520 (2003).

-26- A writ of habeas corpus may also issue if the state court’s

adjudication of a claim “resulted in a decision that was based on

§ 2254(d)(2). Under AEDPA, state-court factual findings are

“presumed to be correct” unless the habeas petitioner rebuts the

presumption through “clear and convincing evidence.” Id.

§ 2254(e)(1); see Miller v. Johnson, 200 F.3d 274, 281 (2000).

III. DISCUSSION

Both of Amador’s ineffective assistance of appellate counsel

claims are governed by the test set forth in Strickland, 466 U.S.

at 687-88. To prevail on a claim of ineffective assistance of

counsel, a habeas petitioner first must show that counsel’s

performance was deficient. Id. Counsel’s performance is

deficient if it falls below an objective standard of

reasonableness. Id. A court’s review of counsel’s conduct is

deferential, presuming that “counsel’s conduct falls within the

wide range of reasonable professional assistance.” Id. at 689.

While counsel need not raise every nonfrivolous ground available

on appeal, “a reasonable attorney has an obligation to research

relevant facts and law, or make an informed decision that certain

avenues will not prove fruitful. . . . Solid, meritorious

arguments based on directly controlling precedent should be

discovered and brought to the court’s attention.” United States

-27- v. Williamson, 183 F.3d 458, 462-63 (5th Cir. 1999).

Once the petitioner establishes deficient performance, he

then must show that counsel’s objectively unreasonable

performance prejudiced the petitioner. Strickland, 466 U.S. at

688. A petitioner suffers prejudice if, but for the deficient

performance, the outcome of the trial--or, in this case, the

appeal--would have been different. Id. Although Strickland

itself involved ineffective assistance of trial counsel, the

Strickland analysis applies equally to claims of ineffective

assistance of appellate counsel. See Mayabb v. Johnson, 168 F.3d

863, 869 (5th Cir. 1999) (applying Strickland to an ineffective

assistance of appellate counsel claim and noting that “[w]hen we

do not find prejudice from the trial error, by extension, we

cannot find prejudice from an appellate error predicated on the

same issue”); see also Smith v. Robbins, 528 U.S. 259, 285 (2000)

(noting that Strickland is the appropriate standard to apply to

claims of ineffective counsel on appeal).

A. Amador’s Oral Statement Identifying the Caliber of Guns Used in the Shootings

Applying Strickland, we first must determine whether the

failure of Amador’s appellate counsel to assign as error the

court’s admission of Amador’s statement identifying the caliber

of the guns constituted deficient performance.14 On its face,

14 Like the district court, we decline to treat this claim as procedurally defaulted in light of the TCCA’s holding that “an argument based upon Art. 38.22 . . . was precluded by the hearsay

-28- the applicable statute mandates that an unrecorded, inculpatory

statement made by the accused that is the product of a custodial

interrogation is admissible if the statement “contains assertions

of facts or circumstances that are found to be true and which

conduce to establish the guilt of the accused, such as the

finding of secreted or stolen property or the instrument with

which he states the offense was committed.” TEX. CRIM. PROC. CODE

ANN. art. 38.22(3)(c). Citing a number of TCCA cases

interpreting Article 38.22, section 3, Amador contends that the

TCCA erred when it held that the statement was admissible because

this provision applies only to statements that provide facts that

were unknown to the police at the time the statement was made and

were later found to be true. See Romero v. Texas, 800 S.W.2d

539, 545 (Tex. Crim. App. 1990) (“The reliability demanded by

Sec. 3 is founded upon [the] premise [] that the oral confession

contain facts that lead to the discovery of items or information

previously unknown to the police.”); see also Dansby, 931 S.W.2d

at 298-99; Port v. Texas, 791 S.W.2d 103, 108 (Tex. Crim. App.

objection lodged at trial” despite Amador’s pretrial objection to the admission of the statement on Article 38.22 grounds. State Habeas Order at 19. We similarly conclude that even if this ruling were properly characterized as one of procedural default and review would otherwise be barred on independent and adequate state grounds, it does not meet the criteria for procedural default because such a rule is neither firmly in place nor regularly followed in Texas state courts. See Ford, 498 U.S. at 423-24. The state points to no cases supporting the existence of such a rule, and we have found none. We therefore address the TCCA’s alternative holding on the merits.

-29- 1990). Amador argues that, contrary to the finding made by the

TCCA in this case, his statement was inadmissible and did not

fall under the Article 38.22, section 3 exception because, at the

time he made the statement on April 14, 1994, the police already

knew the caliber of the guns used in the shootings.

Specifically, Amador correctly notes that the record reflects

that, on January 4, 1994, a .25 caliber bullet was removed from

Garza’s nasal cavity the day of the shootings, the police found a

.25 caliber shell casing in the taxicab and a .380 caliber shell

casing at the crime scene, and the Bexar County Sheriff’s

Department issued a press release stating that a .380 caliber gun

was used in the crime.

Because we hold that the TCCA’s determination that Amador

failed to establish the prejudice prong of the Strickland test

was not an unreasonable application of clearly established law,

we pretermit a decision on the deficient performance prong of

Strickland and assume without deciding that Amador has shown

deficient performance. See Strickland, 466 U.S. at 697 (“[A]

court need not determine whether counsel’s performance was

deficient before examining the prejudice suffered by the

defendant as a result of the alleged deficiencies. . . . If it is

easier to dispose of an ineffectiveness claim on the ground of

lack of sufficient prejudice, which we expect will often be so,

that course should be followed.”). Amador’s Strickland claim

fails because he cannot establish that, but for this deficient

-30- performance, the outcome of his appeal would have been different.

The prejudice inquiry in this case turns on a question of Texas

state law: whether the statement was in fact admissible at trial

under Article 38.22, section 3 of the Texas Code of Criminal

Procedure. To be sure, some Texas courts have applied a gloss on

Article 38.22, section 3, holding that provision applicable only

to statements containing facts that were unknown to the police at

the time and later found to be true; however, every Texas state

court to have addressed the issue in the instant case--from the

trial court to the state habeas court to the TCCA--has held that

the statement was in fact admissible under the broad language of

this provision. See, e.g., State Habeas Order at 19 (holding

that “the statements in question were admissible as an exception

to the prohibition outlined by” Article 38.22). Although other

Texas courts have interpreted Article 38.22, section 3

differently than the state habeas court did in this case, “in our

role as a federal habeas court, we cannot review the correctness

of the state habeas court’s interpretation of state law.” Young

v. Dretke, 356 F.3d 616, 628 (5th Cir. 2004) (declining to review

the state habeas court’s determination of the validity of a Texas

statute under the Texas constitution in the context of a

Strickland claim); see also Bradshaw v. Richey, --- U.S. ----,

126 S. Ct. 602, 604 (2005) (“We have repeatedly held that a state

court’s interpretation of state law . . . binds a federal court

sitting in habeas corpus.”); Estelle v. McGuire, 502 U.S. 62, 67-

-31- 68 (1991) (“[I]t is not the province of a federal habeas corpus

court to reexamine state-court determinations on state-law

questions.”); Gibbs v. Johnson, 154 F.3d 253, 259 (5th Cir. 1998)

(“As a federal court in a habeas review of a state court

conviction, we cannot review state rulings on state law.”).

Therefore, because the state habeas court held that Amador’s

statement identifying the caliber of the guns was admissible

under Texas law, the result of Amador’s appeal would not have

been different had his appellate counsel raised this claim.

Accordingly, the TCCA’s determination that Amador did not receive

ineffective assistance of appellate counsel under Strickland was

not an unreasonable application of federal law.

Amador also argues that he received ineffective assistance

of counsel when his appellate counsel failed to identify the

docket entry reflecting that the trial court had entered an

adverse ruling on his objection to the admission of Garza’s in-

court identification testimony, thereby preserving the objection

for appeal.

Under the first prong of the Strickland test, the conduct of

Amador’s appellate counsel was deficient because it fell below an

objective standard of reasonableness. During the state habeas

evidentiary hearing, Amador’s appellate counsel testified to his

own conduct during the direct appeal. By his own admission,

-32- appellate counsel knew that the TCCA’s holding that the alleged

error had not been preserved was incorrect; despite this

knowledge, counsel did not respond to the assertion in the

state’s appellate brief that the trial court had not ruled on the

objection, did not attempt to locate the docket entry reflecting

the trial court’s adverse ruling, and did not attempt to correct

the misconception in the subsequent petition for rehearing.

State Habeas Evidentiary Hearing Tr., Vol. II, 10-35. Moreover,

Amador’s counsel admitted that his failure to do these things

served “no strategic purpose.” Id. at 21; see Busby v. Dretke,

359 F.3d 708, 715 (2004) (“Strategic decisions . . . can rarely

constitute ineffective assistance of counsel, so long as they are

based on reasonable investigations of the applicable law and

facts.”) (citing Strickland, 466 U.S. at 691) (emphasis added);

Moore v. Johnson, 194 F.3d 586, 604 (5th Cir. 1999) (“The Court

is . . . not required to condone unreasonable decisions parading

under the umbrella of strategy, or to fabricate tactical

decisions on behalf of counsel when it appears on the face of the

record that counsel made no strategic decision at all.”). Given

that counsel knew in advance that the state would argue that the

court had not entered an adverse ruling on the objection, that

counsel’s failure to investigate was a result of negligence

rather than trial strategy, and that the information to rebut the

state’s argument was easily accessible through a copy of the

trial docket, counsel’s conduct fell below an objective standard

-33- of reasonableness. See Rompilla v. Beard, 545 U.S. 374 (2005)

(holding that counsel’s performance fell below an objective

standard of reasonableness when counsel failed to examine readily

available files containing mitigating evidence despite notice

that the state intended to use information from those files in

prosecuting counsel’s client).

However, Amador’s ineffective assistance of counsel claim

fails because he cannot show that he suffered prejudice from his

counsel’s deficient conduct. Relevant to whether Amador suffered

prejudice is whether Garza’s in-court identification testimony

was inadmissible because it was tainted by out-of-court

identification procedures that violated Amador’s due process

rights under the Fifth and Fourteenth Amendments. Out-of-court

identification procedures violate a defendant’s due process

rights if those procedures are (1) unnecessary and suggestive,

and (2) unreliable. See Brathwaite, 432 U.S. at 114 (enunciating

the two-prong test to determine the admissibility of in-court

identification testimony based on out-of-court identification

procedures); United States v. Atkins, 698 F.2d 711, 713 (5th Cir.

1983) (applying the two-prong Brathwaite test to possibly

suggestive identification procedures).

In this case, the show up was unnecessary and suggestive

under the first prong of the Brathwaite test. Requiring Garza to

view Amador through the cardboard apparatus while Amador was

standing in the homicide office of the Bexar County Sheriff’s

-34- Department was suggestive because the procedure encouraged Garza

to identify the person she was viewing as the suspect. Indeed,

the Supreme Court has acknowledged that show ups such as this one

are inherently suggestive procedures, noting, “[t]he practice of

showing suspects singly to persons for the purpose of

identification, and not as part of a lineup, has been widely

condemned.” Stovall v. Denno, 388 U.S. 293, 302 (1967); see also

United States v. Wade, 388 U.S. 218, 228-30 (1967) (noting that

show ups are inherently suggestive); cf. United States v. Guidry,

406 F.3d 314, 319 (5th Cir. 2005) (holding that the show up

procedure was not suggestive where the show up was not one-on-

one, but rather was the equivalent of a lineup procedure).

Moreover, although show ups often will not violate a

defendant’s due process rights when they are performed out of

necessity or urgency, Detective Morales testified that there was

no exigency or urgent need for performing the January 24, 1994,

show up at the sheriff’s department and that they could have used

a lineup procedure but chose not to. Trial Tr. Vol. XX, p. 194;

cf. Stovall, 388 U.S. at 302 (holding that a show up did not

violate the defendant’s due process rights when the only witness

who could identify or exonerate him was in the hospital near

death); Livingston v. Johnson, 107 F.3d 297, 309 (5th Cir. 1997)

(holding that a show up did not violate defendant’s due process

rights when the “exigency of the circumstances” made the

-35- procedure necessary).15

However, the TCCA did not unreasonably apply clearly

established federal law when it held that the identification

testimony at issue in this case was nonetheless admissible

because it was reliable under the second prong of the Brathwaite

test. See Brathwaite, 432 U.S. at 114 (“[R]eliability is the

linchpin in determining the admissibility of identification

testimony”). Under the reliability prong, even if an

identification procedure is unnecessary and suggestive in

15 Amador contends that the hypnosis session that Garza underwent in addition to the show up was unnecessary and inherently suggestive. The Supreme Court has acknowledged the suggestive nature of hypnosis, observing that

[t]he most common response to hypnosis, however, appears to be an increase in both correct and incorrect recollections. . . . Three general characteristics of hypnosis may lead to the introduction of inaccurate memories: the subject becomes “suggestible” and may try to please the hypnotist with answers the subject thinks will be met with approval; the subject is likely to “confabulate,” that is, to fill in details from the imagination in order to make an answer more coherent and complete; and, the subject experiences “memory hardening,” which gives him great confidence in both true and false memories, making effective cross-examination more difficult.

Rock v. Arkansas, 483 U.S. 44, 59-60 (1987). While there is no evidence in this case that the hypnosis procedure alone was explicitly suggestive, the very fact that it happened shortly after another inherently suggestive procedure (i.e., the show up) is relevant to the overall suggestiveness of the identification procedures under the totality of the circumstances. See Stovall, 388 U.S. at 302 (analyzing the totality of the circumstances to determine if an identification procedure violated due process). Nevertheless, there is no evidence in this case that the hypnosis procedure alone was explicitly suggestive or that it became so when it occurred shortly after the show up.

-36- violation of a defendant’s due process rights, the resulting

testimony is admissible if the identification is nonetheless

reliable in light of the totality of the circumstances; i.e., if

it poses “no substantial likelihood of irreparable

misidentification.” Id. at 116; Stovall, 388 U.S. at 302 (“[A]

claimed violation of due process of law depends on the totality

of the circumstances surrounding it.”); see also Neil v. Biggers,

409 U.S. 188, 198 (1972). The Brathwaite Court articulated five

factors that courts should apply in evaluating the reliability of

an identification procedure: (1) the witness’s opportunity to

view the suspect; (2) the witness’s degree of attention; (3) the

accuracy of the witness’s initial description of the suspect; (4)

the witness’s level of certainty; and (5) the time between the

crime and the trial confrontation. Brathwaite, 432 U.S. at 114-

16; see also Neil, 409 U.S. at 198; United States v. Hefferon,

314 F.3d 211, 217-18 (5th Cir. 2002) (applying the Brathwaite

factors to determine that the show up had sufficient indicia of

reliability for the witness’s identification testimony to be

admissible at trial).

Garza testified at both the pretrial hearing and at trial

before the jury that she had a sufficient view of Amador’s face

when Amador crossed in front of the taxicab’s headlights on his

way to retrieve money from Martinez’s house and when Amador was

inside the cab talking to her and Ayari. Trial Tr., Vol. III,

pp. 11-15, 60-61; id. at Vol. XVIII, pp. 109-115, 193, 214, 218.

-37- Garza emphasized that she got a “good look” at Amador’s face

during Amador’s walk back to the taxicab from Martinez’s house.

Id. at Vol. III, p. 46; id. at Vol. XVIII, p. 214. Although her

initial estimation of Amador’s height was incorrect, Garza

explained that she was slouched down during the car ride and thus

had overestimated Amador’s height from that angle. Other than

this height discrepancy, Garza’s description of the suspect

remained certain and unchanged from January 10, 1994, through the

end of the trial; indeed, Garza testified at trial that Amador

had changed his appearance dramatically by shaving his head

between the time of the shootings and the trial. Moreover,

despite the suggestiveness of the January 24, 1994, show up,

Garza refused to identify Amador on that day based on the height

discrepancy and Amador’s shaved head, which was different from

the full head of dark hair that Amador had on the night of the

shootings. Id. at Vol. III, pp. 24-26, 60-61; id. at Vol. XVIII,

pp. 145, 154, 229, 232. In fact, Garza explained that she was

reluctant to identify anyone until she was confident in her

identification; she explained that when she finally identified

Amador as the male passenger in the cab that night--two months

after the hypnosis session and three months after the shootings--

she “had all that time to think about it and [she] just pictured

him and [she] just [knew] . . . it’s him.” Id. at Vol. XVIII, p.

248.

As in Brathwaite,

-38- we cannot say that under all the circumstances of this case there is a very substantial likelihood of misidentification. . . . Short of that point, such evidence is for the jury to weigh. We are content to rely upon the good sense and good judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.

Brathwaite, 432 U.S. at 116. In this case, the jury heard

extensive testimony and cross examination regarding the

identification procedures and Garza’s initial reluctance to

identify Amador, not only from Garza but also from Sergeant Marin

and Detective Morales. Given that Garza’s identification of

Amador was ultimately reliable under the Brathwaite factors, and

because the jury was able to make an informed decision regarding

the reliability of that identification based on the copious

evidence presented at trial, the TCCA’s application of Strickland

was not unreasonable because no prejudice ensued despite the

suggestiveness of the identification procedures.

Moreover, even if the identification testimony should have

been excluded under Brathwaite because the identification was

ultimately unreliable, there still would not have been prejudice

under Strickland given the weight of the other inculpatory

evidence offered at trial. Even without Garza’s identification

of Amador as the male passenger in the cab on the night of the

shootings, the jury heard Amador’s voluntary statement describing

what he “would have” done had he been involved in the shootings

-39- and concluding that “[i]f all this stuff about the murder is true

and they can prove it in court, then I will take my death

sentence.” The jury also heard testimony from Martinez, who

described Amador’s confession to her detailing what happened on

the night of the shootings, mentioned Amador’s prior statement

that he wanted to do something “crazy involving a taxicab,” and

testified that Amador had written her a letter from prison

warning her not to testify. The jury also heard about the Crime

Stoppers tip that led to Amador’s arrest and Amador’s accurate

identification of the caliber of the guns used in the shooting

once in custody. Moreover, witness Esther Menchaca testified,

placing Amador and Rivas at the scene of the abandoned taxicab

shortly after the shootings occurred in the early morning of

January 4, 1994, and explaining that she had previously

identified Amador from a photo array.

Given the great weight of additional evidence against

Amador, we cannot say that there is a reasonable probability

that, but for the admission of the identification evidence, the

outcome of the trial would have been different. See Strickland,

466 U.S. at 695. Accordingly, the TCCA did not unreasonably

apply clearly established federal law when it held that counsel’s

failure to argue this point adequately on appeal does not rise to

the level of constitutional error. See Mayabb, 168 F.3d at 869

(“When we do not find prejudice from the trial error, by

extension, we cannot find prejudice from an appellate error

-40- predicated on the same issue.”).

IV. CONCLUSION

For the foregoing reasons, we hold that the TCCA did not

unreasonably apply clearly established federal law as announced

by the Supreme Court. We therefore AFFIRM the district court’s

denial of habeas relief.

-41-