UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________
No. 99-10673 _____________________
PAUL SELSO NUNCIO,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee. _________________________________________________________________
Appeal from the United States District Court for the Northern District of Texas (5:99-CV-025) _________________________________________________________________
January 24, 2000
Before WIENER, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Paul Selso Nuncio, convicted and sentenced to death for a
December 1993 capital murder, seeks a certificate of appealability
(COA) to appeal the denial of his federal habeas application.
DENIED.
I.
In affirming Nuncio’s conviction on direct appeal, the Texas
Court of Criminal Appeals described in detail the evidence
presented at the trial in 1995. Nuncio v. State, No. 72,121 (Tex.
Crim. App. 5 Feb. 1997)(unpublished). Our review of the record
confirms that there is ample evidentiary support for that
* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. description. A detailed summary of that evidence, drawn largely
from the Court of Criminal Appeals’ opinion, is necessary, however,
for consideration of Nuncio’s fact-intensive ineffective assistance
of counsel claims, including factors such as whether he knew right
from wrong at the time of the offense.
On 2 December 1993, Nuncio and six others (the group), each of
whom testified at trial, consumed alcoholic beverages in Plainview,
Texas. It was raining after midnight on 3 December; the group went
to the porch of the house owned and occupied by Pauline Farris.
Each group member testified that, although they made a good
deal of noise while there, they did not see any lights or hear any
sounds from inside the house. Nuncio attempted unsuccessfully to
“hot-wire” Farris’ car. When the rain subsided, all but Nuncio
left.
Between 2:00 and 3:00 a.m. on 3 December, Nuncio sold a
television to a guest at the Warrick Inn. When the purchaser
observed blood on Nuncio, he explained that he had been helping a
friend with some sheep. Nuncio returned to the purchaser’s room
about 45 minutes later with a camera, a stereo, and some rings; he
sold the camera and stereo for $20 and threw the rings in a trash
can. At the purchaser’s request, Nuncio gave him a written receipt
and confirmed his identity by showing his driver’s license and
writing the number on the receipt.
At approximately 4:25 a.m. on 3 December, after observing
Nuncio standing at a street corner, a Plainview Police Officer
asked for identification. Nuncio stated that he did not have any,
2 and misidentified himself as Joe Nuncio, from Frederick, Oklahoma.
Because Nuncio seemed disoriented and confused, the Officer
administered field sobriety tests, but concluded that Nuncio was
not intoxicated. At Nuncio’s request, the Officer took him to an
apartment complex.
Shortly thereafter, Nuncio encountered an acquaintance,
Brooks, and asked him to take him to “his house” to pick up a
television. In fact, Nuncio directed Brooks to Farris’ house,
where he picked up a television from the porch. Then, Nuncio had
Brooks take him to the Warrick Inn, where he attempted
unsuccessfully to sell the television. The prospective buyer
noticed blood on Nuncio.
Nuncio and Brooks next went to the Airport Motel. Between
5:00 and 5:30 a.m., Nuncio went to the room of Navarro and Ruiz;
both had been in the group. Navarro declined Nuncio’s invitation
to go drinking. Ruiz noted that Nuncio “was all drunk”.
About 6:30 a.m., Nuncio went to Lopez’s room at the Airport
Motel; Lopez was the daughter of Villalon, who had been in the
group. Nuncio offered to sell her the television; she told him to
come back later. Nuncio eventually sold it to a friend of
Villalon. Later, when Nuncio went back to Lopez’s room, she
confronted him about what appeared to be blood on his boot; Nuncio
did not respond, but simply stared at her and left. When Lopez
went to her mother’s room, Nuncio walked in and began cleaning his
boot, explaining that it had ketchup on it.
3 Late that morning, Nuncio asked Lopez and her husband to take
him to Lubbock, Texas; they refused. Later that afternoon, Nuncio
told Villalon he needed money to leave town and was going to a loan
company. Nuncio applied for a $150 loan at the loan company,
stating he needed it for “newborn stuff”. When the loan officer
questioned him about that purpose, in the light of the fact that he
had written on the application that he was single, Nuncio admitted
that he wanted the money for a trip, but thought the loan would not
be approved for that purpose. When the loan officer discovered
that Nuncio was not employed by the employer listed on the loan
application, the loan was denied.
Earlier that day, Farris’ neighbors found her on her living
room floor. Her house had been ransacked. When investigators
arrived, they observed she was nude, lying face down. She was not
wearing any rings, and her bottom denture plate was lying several
feet from her body. The forensic pathologist who conducted the
autopsy testified that Farris (who was 61) had been sexually
assaulted and severely beaten, and died of asphyxia as a result of
manual strangulation.
On 5 December, Nuncio became a suspect. After police
recovered a television, identified the next day by Farris’
daughter, an arrest warrant was issued. He was arrested two days
later, after police found him hiding in a closet in a house in
Plainview.
At the police department, Nuncio voluntarily gave oral and
written statements in which he stated that: he was an addict; he
4 had been molested as a child; he was “messed up” on drugs and
alcohol the night of the murder and decided to break into Farris’
house to steal items he could sell to get money for more drugs; he
did not think anyone was in the house but, after he broke in, he
saw Farris and they began fighting; he hit and kicked her, knocking
her down until she no longer attempted to get up; he put two
televisions and a stereo on the front porch and some rings in his
pocket; he saw that Farris was naked and decided to “have sex” with
her; and he did not mean to kill her and did not know she was dead
until he heard about it later. A detective testified that Nuncio
was emotional and cried during his two-hour post-arrest interview.
In a consensual search, clothing and boots Nuncio wore on the
night of the murder were recovered. The DNA analysis of a blood
sample from a boot indicated a 98.8% probability of a match to
Farris’ blood.
At the guilt/innocence phase of trial, the jury, having been
instructed on the lesser-included offenses of murder, burglary of
a habitation, aggravated sexual assault, and robbery, convicted
Nuncio for capital murder.
At the punishment phase, the State presented evidence that
Nuncio had been convicted for felony theft in 1990 and had been
subsequently convicted for two misdemeanor thefts. Five law
enforcement officers testified that his reputation as a peaceable
and law-abiding citizen was bad. His probation officer testified
that Nuncio was a “sorry” probationer who was unable to maintain
5 employment; and that he was a dishonest, passive-aggressive type
who never learned to obey rules.
The justice of the peace who arraigned Nuncio for capital
murder testified that he appeared to think the arraignment was “a
comical situation, [a] very funny situation”. Two inmates
testified that, while in jail post-arrest, Nuncio watched a
television broadcast about Farris’ murder; when an inmate remarked
that whoever had killed her was going to be famous, Nuncio smiled
and said, “yeah, I’m going to be famous”.
Elsa Martinez, who lived with Nuncio for about three years and
had two children by him, testified that: Nuncio had a bad temper
when he was drunk; he had not visited their children since 1989;
and he had once struck her. A cousin and an acquaintance of Nuncio
testified that they had never known Nuncio to have had a steady
job.
In response to a hypothetical question based on the evidence,
the State’s expert witness, Dr. Coons, a forensic psychiatrist,
opined that: the hypothetical subject would take advantage of
weaker persons; was willing to engage in violent behavior to get
what he wanted; did not have a conscience with respect to theft,
lying, responsibility to family, sexual exploitation, rape, and
killing, and was cold and heartless; and, there was a significant
probability he would hurt someone else.
Smithey, a Texas Department of Criminal Justice investigator,
testified that: stealing is a major source of violence in prison;
inmates with violent histories are often recruited into prison
6 gangs; inmates can obtain drugs and alcohol; and an inmate with a
tendency to steal, who had been convicted of a violent, brutal
crime, and who tends to become violent when intoxicated, would
probably continue to commit acts of violence in prison. On cross-
examination, Smithey described statistics reflecting that 40% of
all capital murder defendants in prison had committed an act of
criminal violence while there; and that 25% of inmates sentenced to
death had committed acts of violence while in prison.
For the defense, Coke, a licensed drug and alcohol counselor,
testified that a substance abuse test performed on Nuncio revealed
addictions to alcohol and drugs. Dr. Taylor, a forensic
psychiatrist, testified that psychiatric evaluations were accurate
predictions of behavior only about a third of the time. Dr. Wall,
a clinical psychologist, testified that, on average, the accuracy
rate for predictions of future dangerousness tended to be about one
in eight, and were never better than one in three. Another
clinical psychologist, Dr. Quijano, testified that, based on a
review of his probation and jail records, Nuncio would do well in
prison; and that the Texas prison system had attempted to control
violence more effectively in recent years by improving the
classification of prisoners and reducing overcrowding.
One of Nuncio’s aunts testified that: he was neglected as a
child and had been placed in an orphanage for a time; and she had
never seen him do anything violent or aggressive. Another aunt
testified that: Nuncio’s stepfather was involved with drugs and
stealing; she had never known Nuncio to be aggressive; and his
7 father “has never been there for him”. Nuncio’s younger brother
testified that: he and Nuncio used marijuana at a young age; his
father’s second wife punished them by hitting them with a wire
hanger and then putting them in a closet; and Nuncio had been
sexually molested by his cousins.
In fixing punishment, the jury answered “yes” to the first
special issue: whether it found “from the evidence beyond a
reasonable doubt that there is a probability that the defendant
would commit criminal acts of violence that would constitute a
continuing threat to society”. It answered “no” to the second:
whether it found “from the evidence, taking into consideration all
of the evidence, including the circumstances of the offense, the
defendant’s character and background, and the personal moral
culpability of the defendant, that there is a sufficient mitigating
circumstance or circumstances to warrant that a sentence of life
imprisonment rather than a death sentence be imposed”. Therefore,
in March 1995, Nuncio was sentenced to death.
When Nuncio entered the penitentiary that August, he was
examined and found to have no mental illness. However, six to nine
months later, he was diagnosed by prison medical personnel as
paranoid schizophrenic. Later entries in his prison medical
records cast some doubt on that diagnosis; for example, in April
1997, he was diagnosed with no indication of schizophrenia, and
other records suggest possible malingering.
In early 1997, the Court of Criminal Appeals affirmed the
judgment and sentence on direct appeal. Nuncio v. State, No.
8 72,121 (Tex. Crim. App. 5 Feb. 1997) (unpublished). Nuncio did not
seek review by the United States Supreme Court.
That prior November, counsel had been appointed to represent
Nuncio in state habeas proceedings. The state application, filed
in August 1997, presented 19 claims, including ineffective
assistance of counsel for failure to investigate Nuncio’s
psychological history. The state trial court conducted an
evidentiary hearing in March 1998. That testimony, discussed
below, is the supporting evidence for this COA application. Once
again, a detailed description is required.
Hall, appointed to represent Nuncio on direct appeal,
testified that: when he met with Nuncio in May 1995, he noticed he
had a “nervous type of laugh” at inappropriate times; and he had
been concerned about Nuncio’s reported laughter during trial and at
arraignment. On cross-examination, he testified that: Nuncio
appeared to be competent when he met with him; he saw nothing to
suggest Nuncio was mentally ill, other than the way he laughed; he
did not see anything in the record to suggest Nuncio was insane at
the time of the offense, other than he had been sexually abused in
the past, had problems with the probation office, and had an
alcohol problem; and there was not much mitigating evidence
introduced at trial, but there “were a lot of things that could
have been looked into for mitigation”.
murder, and who, as noted, had testified at the punishment phase,
testified at the evidentiary hearing that: at arraignment, Nuncio
9 had a “cocky” attitude and acted as though he thought it was a
comical, funny situation; but Nuncio understood the nature of the
charges against him.
The former Officer who had testified at trial about his
encounter with Nuncio on the night of the murder testified at the
evidentiary hearing that: Nuncio appeared dazed, confused, and
disoriented when he had first encountered him; but he had
concluded, based on field sobriety test results and the fact he did
not smell any alcohol, Nuncio was not intoxicated.
Stoffregen, Nuncio’s appointed trial counsel, testified that:
he had no pre-trial indication Nuncio was not competent; Nuncio was
not very helpful in communicating his memory of events on the night
of the murder; and, because he had difficulty obtaining expert
witnesses, he decided not to have Nuncio examined by a mental
health expert, because he did not want to “burn” an expert needed
to testify at the punishment phase. This meant, if the expert
examined Nuncio, the expert could not be called as a witness
regarding future dangerousness, because the State could discover
the examination results. Counsel admitted, however, he could have
tried to exclude the examination results through a motion in
limine, but was not sure such a tactic would have been successful.
On cross-examination by the State, Stoffregen testified that:
he had no indication before trial an insanity defense might be
available; he investigated Nuncio’s background by talking with his
family and obtaining school records and criminal history; and he
10 asked questions calculated to elicit information regarding mental
illness if it existed.
LaFont, appointed co-counsel for trial, testified that: he
had no difficulty communicating with Nuncio; he did not believe an
insanity defense was available; he interviewed Nuncio’s aunts,
brother, and mother, and inquired about Nuncio’s background; and
his questions should have resulted in disclosure of psychological
problems, had any existed. On cross-examination by the State,
LaFont testified he saw no reason to request that Nuncio be
examined for sanity or competency.
Coffman, a private investigator hired by Nuncio’s state habeas
counsel, testified that: he attempted to locate family members and
other witnesses who could testify about Nuncio’s mental history;
and he spoke with Cecelia Dominguez, who was married to Nuncio’s
father for 15 years, and received some information regarding the
possibility of Nuncio having talked to a counselor when he was
young, but Nuncio’s father did not know when the counseling took
place or anything about the counselor.
Nuncio’s father, who had not testified at trial, testified at
the evidentiary hearing that: Nuncio’s lawyers or investigators
did not talk to him prior to trial; he was not called to testify at
trial; he took Nuncio to a counselor when Nuncio was a child,
because he had problems with memory, learning, “hearing things”,
and “imagining stuff”; Nuncio had a hard time communicating with
people; Nuncio did not seem to have a good sense of what was right
or wrong; and Nuncio reminded him of a schizophrenic character in
11 a movie. On cross-examination, he admitted that: he heard about
Nuncio’s trial a few days before it started, but did not attend
because he had just begun a new job and could not afford to take
time off; and Nuncio’s brother and mother both knew about Nuncio
having visited a counselor and about the problems he had been
experiencing at that time.
Nuncio’s mother, who had testified during the punishment
phase, testified at the evidentiary hearing that: Nuncio’s lawyers
and investigators did not ask her about his having mental problems;
and she did not remember Nuncio having mental problems while he
lived with her. In fact, the Oklahoma Health Department records
about Nuncio’s counseling include a statement by Nuncio’s mother:
“Paul is a very smart [and] active boy. He does not have a hearing
or speech problem. He always tells me his problems [and] talks to
me.... Paul does mine [sic] me, his real mother but does not like
step-mother because she miss treats [sic] him”.
Cecelia Dominguez, married, as noted, to Nuncio’s father for
approximately 15 years, and who had not testified at trial,
testified at the evidentiary hearing that: Nuncio and his brother
came to live with her and the father when they were ages eight and
nine, and again in June 1980, when they were 10 and 11; she did not
attend trial; Nuncio’s lawyers and investigators never talked to
her; and she took Nuncio to a counselor three times when he was in
the fifth grade because he was having learning problems, was
hoarding food in his room, had a short attention span, and had
difficulty communicating.
12 Four of the jurors from Nuncio’s trial testified that, if
there had been evidence Nuncio suffered from mental illness, they
would have considered it in reaching their verdict at the
punishment phase.
Dr. Wall, the forensic psychologist who had testified for
Nuncio at the punishment phase, testified at the evidentiary
hearing that: “[t]here most certainly was a possibility” Nuncio
was insane at the time of the offense; and he would have suggested
a psychological evaluation had he been aware of Nuncio’s Oklahoma
counseling, disorientation and confusion on the night of the
murder, behavior at arraignment, inappropriate smiling during jury
selection, and the statements by his father and stepmother
regarding his behavior as a child. On cross-examination, he
testified he could not say Nuncio was mentally ill at the time of
the offense, but only that there was a probability; and he had not
examined Nuncio.
Dr. Taylor, the psychiatrist who had testified for Nuncio at
the punishment phase, testified at the evidentiary hearing that:
he would have suggested a psychological or psychiatric evaluation
prior to trial, had he been aware of Nuncio’s Oklahoma counseling,
disorientation and confusion on the night of the murder, and
inappropriate behavior at arraignment and trial; and such
information would have been valuable for his mitigating evidence
testimony. On cross-examination, he testified that he could not
give an opinion on insanity, because he had not examined Nuncio and
did not have sufficient information about Nuncio and the crime.
13 Dr. Quijano, the clinical psychologist who had testified for
hearing that: prior to trial, he was not made aware of any issues
regarding insanity or mental health relating to mitigation; he
evaluated Nuncio approximately two years after the trial (April and
August 1997), and found he suffered from paranoid schizophrenia; it
was likely Nuncio was mentally ill at the time of the offense, but
he could not say with certainty whether Nuncio was legally insane
then; the offense report did not suggest Nuncio was insane; the
defense should have investigated Nuncio’s disorientation and
confusion on the night of the murder and his inappropriate
arraignment and trial behavior as possible symptoms of mental
illness; and there would have been a “richer presentation” of
mitigating evidence had Nuncio been examined pre-trial by a mental
health expert.
On cross-examination, he admitted that: before trial, he had
received copies of offense reports, jail records, and probation
records (including the report of Nuncio’s confusion and
disorientation on the night of the murder, and the “going to be
famous” jail-statement); Nuncio’s behavior on the night of the
murder (attempting to hot-wire Farris’ car, giving a false name to
the Officer, and systematically selling Farris’ property) showed he
was goal-oriented and knew right from wrong; there was nothing in
the Oklahoma counseling records to suggest Nuncio suffered from
mental illness; the Oklahoma records, Nuncio’s disorientation on
the night of the murder, and his inappropriate attitude at
14 arraignment, taken together, did not suggest mental illness; and,
when he examined Nuncio in 1997, Nuncio knew that the conduct for
which he had been convicted was wrong.
On redirect, Dr. Quijano testified he would have suggested a
mental examination if the information about Nuncio’s childhood
problems had been available to him pre-trial. On re-cross, he
stated he was not testifying an insanity defense was available, and
could not testify Nuncio did not know the difference between right
and wrong.
Dr. Coons, the forensic psychiatrist who had testified for the
State during the punishment phase, did likewise at the evidentiary
hearing — that: Nuncio’s behavior following the murder showed he
knew his conduct was wrong; an insanity defense had not been
available; and the Oklahoma records contained nothing indicating
the need for a psychiatric evaluation for an insanity defense. On
cross-examination, he testified that: if he were working for the
defense and had all of the information about Nuncio’s childhood
problems, he would bring up the possibility of a mental health
evaluation, but would warn defense counsel that, from a tactical
standpoint, it might develop information that would not be in the
best interest of the client.
Gonzales, a mitigation specialist appointed to assist Nuncio
pre-trial, testified that: Nuncio exhibited unusual behavior
during trial preparation and at trial, such as wanting to use a
Tejano music tape at trial and inappropriate laughter and smiling
at trial; and he did not interview Nuncio’s father or stepmother,
15 because he was directed elsewhere by Nuncio, but should have done
so, because it would have affected the outcome of the case. On
cross-examination, he acknowledged that having a capital murder
client evaluated by a mental health professional could be risky,
because the prosecution might be able to obtain information
damaging to the client.
Following the evidentiary hearing, the trial court entered
very detailed findings of fact and conclusions of law, recommending
that relief be denied. The Court of Criminal Appeals denied habeas
relief in September 1998, adopting the findings and conclusions.
Ex parte Nuncio, No. 38,356-01 (Tex. Crim. App. 23 Sept. 1998)
(unpublished).
In January 1999, the district court appointed the same
attorney who represented Nuncio in state habeas proceedings to
represent him in the federal proceedings; the federal petition was
filed that March. That May, the district court granted the State’s
summary judgment motion and denied habeas relief. A COA was denied
in June.
II.
Nuncio contends he is entitled to a COA because of ineffective
assistance of counsel at his trial’s guilt/innocence and punishment
phases. The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) applies, Nuncio having filed for federal habeas relief
after its effective date. See Green v. Johnson, 116 F.3d 1115,
1119-20 (5th Cir. 1997). Pursuant to AEDPA, “[u]nless a circuit
justice or judge issues a [COA], an appeal may not be taken to the
16 court of appeals from ... the final order in a habeas corpus
proceeding in which the detention complained of arises out of
process issued by a State court”. 28 U.S.C. § 2253(c)(1)(A).
To obtain a COA, Nuncio must “ma[k]e a substantial showing of
the denial of a constitutional right”. 28 U.S.C. § 2253(c)(2)
(emphasis added). “A ‘substantial showing’ requires the applicant
to ‘demonstrate that the issues are debatable among jurists of
reason; that a court could resolve the issues (in a different
manner); or that the questions are adequate to deserve
encouragement to proceed further’”. Drinkard v. Johnson, 97 F.3d
751, 755 (5th Cir. 1996) (emphasis in original; quoting Barefoot v.
Estelle, 463 U.S. 880, 893 n.4 (1983)), cert. denied, 520 U.S. 1107
(1997), overruled in part on other grounds, Lindh v. Murphy, 521
U.S. 320 (1997).
Under AEDPA, we may not grant habeas relief
with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the 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). Nuncio does not dispute that the state courts
adjudicated the merits of his claims; accordingly, the § 2254(d)
standards apply. Therefore, to obtain a COA, he must make the
17 requisite substantial showing that, in the light of those
standards, the state habeas court erred.
“[P]ure questions of law and mixed questions of law and fact
are reviewed under § 2254(d)(1), and questions of fact are reviewed
under § 2254(d)(2)”. Corwin v. Johnson, 150 F.3d 467, 471 (5th
Cir.), cert. denied, ___ U.S. ___, 119 S. Ct. 613 (1998).
Therefore, when reviewing a question of law, we defer to the state
court’s ruling unless its “decision rested on a legal determination
that was contrary to ... clearly established federal law as
determined by the Supreme Court”. Lockhart v. Johnson, 104 F.3d
54, 57 (5th Cir.) (internal quotation marks and citation omitted),
cert. denied, 521 U.S. 1123 (1997). Likewise, we “will not disturb
a state court’s application of law to facts unless the state
court’s conclusions involved an ‘unreasonable application’ of
clearly established federal law as determined by the Supreme
Court”. Davis v. Johnson, 158 F.3d 806, 812 (5th Cir. 1998)
(quoting 28 U.S.C. § 2254(d)(1)), cert. denied, ___ U.S. ___, 119
S. Ct. 1474 (1999). A state court’s “application of federal law is
unreasonable only when reasonable jurists considering the question
would be of one view that the state court ruling was incorrect”.
Id. at 812 (internal quotation marks and citation omitted). State
court factual findings are presumed correct unless rebutted by
clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see Davis,
158 F.3d at 812.
18 The ineffective assistance claims on which Nuncio premises his
COA request are governed by Strickland v. Washington, 466 U.S. 668
(1984):
First, the 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 the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant can make both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
Id. at 687 (emphasis added).
Whether counsel’s performance was deficient, including the
adequacy of his pretrial investigation and the reasonableness of a
particular strategic or tactical decision, and whether the
deficiency, if any, prejudiced the defense, are legal conclusions,
reviewed under § 2254(d)(1). See Moore v. Johnson, 194 F.3d 586,
604 (5th Cir. 1999) (applying pre-AEDPA law); Carter v. Johnson,
131 F.3d 452, 463 (5th Cir. 1997), cert. denied, 523 U.S. 1099
(1998) (applying pre-AEDPA law). But, “a state habeas court’s
determination that counsel conducted a pretrial investigation or
that counsel’s conduct was the result of a fully informed strategic
or tactical decision” are factual determinations reviewed under §
2254(d)(2). Moore, 194 F.3d at 604.
The state court applied Strickland. Nuncio does not contend
that, consistent with § 2254(d)(1), its decision is “contrary” to
19 Supreme Court precedent. Accordingly, in order to obtain a COA, he
must make a substantial showing that, pursuant to § 2254(d)(2), the
state court made “an unreasonable determination of the facts”, or
that, pursuant to § 2254(d)(1), its “application” of Strickland was
“unreasonable”.
The claimed substantial showing for the first ineffective
assistance prong, deficient performance, is based on three factors:
(1) the investigation was inadequate because counsel neither
interviewed Nuncio’s father and stepmother nor discovered his
Oklahoma counseling records; (2) counsel failed to obtain a
psychological evaluation of Nuncio and, as a result, did not
present an insanity defense at the guilt/innocence phase; and (3)
because of these first two deficiencies, counsel failed, at the
punishment phase, to present evidence of Nuncio’s mental health
history. The claimed substantial showing for the prejudice prong,
resulting from the claimed deficient performance, is that Nuncio
was prevented from: (1) presenting an insanity defense at the
guilt/innocence phase; and (2), at the punishment phase, using his
history of mental illness (a) to rebut the State’s future
dangerousness evidence, and (b) in mitigation.
A.
1.
Regarding the investigation, the state habeas court found
that: counsel thoroughly investigated Nuncio’s background and the
facts surrounding the commission of the offense; Nuncio understood
the nature of the charges against him and was able to communicate
20 with counsel about the case; and, based on interviews with Nuncio
and his answers regarding his prior mental health history, the
focus of the defense investigation was directed toward areas that
did not include mental health issues. The court concluded that
counsel did not render deficient performance by failing to
interview Nuncio’s father and stepmother and failing to discover
the Oklahoma records, because, in conducting their investigation,
they reasonably relied on the information Nuncio provided the
defense team.
Nuncio contends that these findings and conclusions are
unreasonable, asserting that the court’s reliance on trial
counsel’s evaluation of Nuncio was misplaced. Nuncio points to
trial counsel’s testimony that he had limited contact with Nuncio;
and that Nuncio did not communicate well and could only remember
parts of the night of the crime, as demonstrating that counsel
performed deficiently by basing the scope of his investigation on
information he obtained from Nuncio, and by failing to talk to his
father and stepmother, which would have led to discovery of the
Oklahoma records. Nuncio concedes that those records do not reveal
mental illness, but maintains that, pre-trial, had his experts been
made aware of them, they would have recommended a psychological
evaluation, which would have revealed his mental illness.
He contends further that his bizarre behavior (disorientation
and confusion on the night of the murder, inappropriate attitude at
arraignment, “going to be famous” jail-statement, inappropriate
smiling during trial, and insistence on using Tejano music then),
21 and counsel’s awareness that Nuncio had been sexually abused as a
child, together with counsel’s knowledge that such abuse can lead
to mental illness, should have alerted counsel that Nuncio had
mental health problems which warranted further investigation and
evaluation by a mental health expert.
For this point, Nuncio has not made the requisite substantial
showing that the state court unreasonably determined counsel
performed an adequate investigation. The information Nuncio
provided to counsel and the investigator did not direct them to his
father or stepmother, or to any issues regarding his mental health;
and Nuncio did not inform counsel about the counseling. Moreover,
Nuncio’s father testified that Nuncio’s mother and brother, both of
whom testified at the punishment phase, were aware of that
counseling. They chose not to disclose that information to the
defense team, despite questioning by counsel and the investigator
designed to elicit it.
Because Nuncio appeared to the defense team to have a rational
understanding of the trial proceedings, neither counsel nor the
investigator had reason to doubt his depiction of his own history.
As the Supreme Court stated in Strickland:
The reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions. Counsel’s actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what defendant has said,
22 the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel’s failure to pursue those investigations may not later be challenged as unreasonable. In short, inquiry into counsel’s conversations with the defendant may be critical to a proper assessment of counsel’s investigative decisions, just as it may be critical to a proper assessment of counsel’s other litigation decisions.
Strickland, 466 U.S. at 691.
Likewise, the evidence does not provide the requisite
substantial showing that the state court unreasonably determined
counsel did not perform deficiently by failing, based on Nuncio’s
behavior, to recognize a possibility of mental problems. All three
of the attorneys appointed to represent him at trial and on direct
appeal testified at the evidentiary hearing that: he understood
the proceedings and was able to communicate with them; and they saw
no indication that an insanity defense might be available, or that
he might be mentally ill. As noted, Dr. Quijano testified at the
habeas evidentiary hearing that: despite being aware pre-trial of
Nuncio’s behavior on the night of the murder, of his jail-
statement, and of his attitude at arraignment, he did not suggest
defense counsel should investigate whether such behavior was a
symptom of mental illness; and those incidents, taken together, did
not suggest mental illness.
2.
The state habeas court found that counsel made a strategic
decision not to have Nuncio examined by one of the appointed mental
23 health experts because counsel did not want to “burn” an expert who
could rebut the State’s psychiatric experts. It concluded that the
challenged decision was a reasonable trial strategy in the light of
Nuncio’s no mental health history representation and of counsel’s
knowledge of the effectiveness of the State’s psychiatrist.
unreasonable, because: trial counsel admitted at the habeas
evidentiary hearing he would not have had to “burn” one of the
experts; there were many available psychologists who could have
conducted an evaluation; and, even if counsel had used one of
Nuncio’s experts to evaluate him, he could have filed a motion in
limine, thus making it possible for that expert to testify without
fear that, on cross, damaging information would be revealed about
the evaluation. Relying on the testimony of Drs. Wall and Quijano
at the evidentiary hearing, Nuncio contends that, had an evaluation
been conducted, there is a “strong probability” his mental illness
would have been discovered.
Nuncio has not made the requisite substantial showing. His
selective references to trial counsel’s testimony do not portray
accurately counsel’s explanation for not having Nuncio examined by
one of his experts. Counsel acknowledged that, had he attempted to
have an evaluation conducted secretly, there was always a
possibility the State could find out about the examination, through
jail personnel or cross-examination. Moreover, Nuncio omits any
mention of the other reasons counsel chose not to have him
evaluated: Nuncio’s no history of mental problems representation;
24 counsel’s observation of Nuncio, which revealed no hints of mental
illness; and counsel’s decision that all of the experts were needed
to rebut the testimony of the State’s expert psychiatrist, whom
counsel knew to be an effective witness.
In a related contention, Nuncio maintains that the state
habeas court’s conclusion that counsel made a reasonable and
informed strategic decision not to pursue an insanity defense is
unreasonable, because it is based on the erroneous assumption that
counsel made a thorough investigation, and overlooks counsel’s
concession that he had no defense. This challenged conclusion was
based on findings that: counsel was familiar with the insanity
defense and had raised it on behalf of other clients; after talking
to and observing Nuncio, and investigating his background and the
facts, counsel had no indication an insanity defense was available;
Nuncio’s behavior in committing the crime, his efforts to conceal
his identity, and the detail of his confession revealed he knew the
difference between right and wrong when he committed the crime; and
there was no evidence Nuncio was insane at the time of the offense.
Nuncio has not made the requisite substantial showing. There
is no evidence that an insanity defense was available to Nuncio.
He was not diagnosed with any mental illness until at least six
months after his conviction. Even after examining Nuncio twice in
1997, Dr. Quijano was unable to testify that Nuncio was legally
insane at the time of the crime. Moreover, Nuncio’s post-arrest
statement to the police, and his actions between the time of the
25 murder and arrest, establish, as conceded by Dr. Quijano, that he
knew his conduct had been wrong.
3.
The state habeas court found that counsel effectively
presented extensive mitigating evidence and, by use of expert
witnesses, family members, and cross-examination, competently
rebutted the State’s punishment evidence. It concluded that the
record did not support a conclusion that mental illness was
available as mitigating evidence.
unreasonable, asserting that they are based on the contested
conclusion that counsel conducted an adequate investigation and a
reliable evaluation of Nuncio. But, as discussed, he has not made
the requisite substantial showing in that regard. Accordingly, his
mitigating evidence claim likewise fails.
B.
Because Nuncio has not made the requisite substantial showing
concerning performance, we need not consider the prejudice prong.
See Strickland, 466 U.S. at 687. But, even assuming the requisite
showing for performance, he has not made a substantial showing that
the state court unreasonably determined his defense was not
prejudiced thereby.
The state habeas court concluded that Nuncio was not so
prejudiced, because it could not be established he suffered from a
mental illness until after his post-conviction admission to the
penitentiary.
26 1.
Nuncio contends that the fact that there was no defense
asserted at trial, together with the possibility that he was
insane, raises a question about the reliability of the result at
the guilt/innocence phase. But, as stated, there is no evidence he
was insane at the time of the offense; indeed, there is substantial
evidence, detailed supra, he knew his conduct had been wrong.
Accordingly, he was not prejudiced by the decision not to present
an insanity defense.
Next, Nuncio maintains that deficient performance prejudiced
him at the punishment phase by preventing him from using his
claimed history of mental illness in mitigation and to rebut the
State’s future dangerousness evidence. He asserts that, had such
evidence been presented, there is a reasonable probability the jury
would have answered the special issue on mitigation differently.
And, noting that the State portrayed his bizarre, inappropriate
behavior as evidence of his guilty conscience and lack of remorse,
he maintains there is a reasonable probability the jury would have
answered the future dangerousness special issue differently, had
that evidence been rebutted by mental illness evidence, which could
have been used to explain his bizarre behavior as a symptom of his
illness, rather than as evidence of his lack of conscience.
Nuncio has not made the requisite substantial showing that he
was prejudiced in this regard at the punishment phase. Trial
counsel presented the testimony of three mental health experts
27 (Drs. Ross, Taylor, and Quijano) to rebut the State’s future
dangerousness evidence. And, counsel presented substantial
mitigating evidence, including Nuncio’s remorse, parental neglect,
time in an orphanage, mistreatment by one of his stepmothers,
addiction to drugs and alcohol and intoxication at the time of the
offense, and possible sexual abuse as a child. Moreover, as the
state habeas court ruled, the evidence did not support a conclusion
that, pre-conviction, Nuncio suffered from a mental illness.
III.
Because Nuncio has not made the requisite substantial showing
regarding claimed ineffective assistance of counsel at trial, a COA
is