United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS September 11, 2006 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III _____________________ Clerk
No. 05-70033
_____________________
LIONELL RODRIGUEZ,
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 Southern District of Texas No. 4:03-CV-317 ________________________________________
Before SMITH, GARZA, AND PRADO, Circuit Judges.
PER CURIAM:*
Lionel Gonzales Rodriguez was convicted in Texas state court
for the murder of Tracy Gee. He now seeks habeas corpus relief
from his sentence of death. After denying habeas relief on all
claims, the district court granted Rodriguez a certificate of
appealability (“COA”) on one issue: whether Rodriguez’s death
sentence violated his constitutional rights because he received
* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
1 ineffective assistance of counsel (“IAC”) in the punishment phase
of his trial. We find that Rodriguez’s claim is meritless and
AFFIRM the denial of habeas relief. We DENY Rodriguez’s request
for a COA on all other issues.
I.
These are the facts as recounted by the district court:
Rodriguez confessed to the murder for which he was
convicted. According to Rodriguez’s confession, he became
physically abusive in an altercation with his mother and sister
on the night of the murder. He then stole a shotgun and an
automatic rifle from his stepfather and drove around with his
cousin, Jaime Gonzalez, looking for a place to rob. Rodriguez
unsuccessfully attempted to rob a gas station. While driving
around, Rodriguez became angry at another driver and repeatedly
fired shots at him. This occurred in a residential neighborhood.
The other driver drove safely away and, at a distance, turned his
car around to write down Rodriguez’s license plate number.
Rodriguez jumped out of his car and fired another shot at the
other driver.
Rodriguez and Gonzalez continued driving. While stopped at
a stop light, Rodriguez noticed a young woman, Tracy Gee, sitting
alone in her car. He decided to rob her and steal the car. He
confessed to shooting at her one time with the rifle. The shot
2 pierced the passenger side window and Gee’s head fell forward.
Her car started rolling, and Rodriguez jumped out of his car and
ran over to the other car. He managed to get into the car and
pushed Gee out the driver side door onto the street. He then
drove off in the stolen car.
Gonzalez drove away from the scene, and a police officer,
Theron Runnels, pulled him over. Gonzalez exited the car and,
after initially approaching the officer, began to run. After a
chase, a second officer, Randy West, arrested Gonzalez for
evading arrest. In the meantime, Runnels found a rifle and
shotgun in the car. When West brought Gonzalez to Runnels so
that the latter could identify him, Gonzalez shouted that he did
not kill Gee but that his cousin did.
Rodriguez was arrested in the victim’s car while fleeing the
scene of the crime. His pants were stained with blood, and there
was blood, bone, and brain matter inside the car. Rodriguez had
brown matter in his hair. Police also recovered a fired bullet
from the victim’s car and found gunpowder residue in Gonzalez’s
car. The gunpowder residue showed that a gun was fired from
inside that car.
An autopsy revealed a massive entrance gunshot wound to
Gee’s right temple that had very large lacerations radiating
around it, and an exit wound with extensive lacerations on the
left forehead. Gee’s skull had massive fractures. Some of her
brain extruded through the wounds. Gee lost some bone fragments
3 from her skull when she was shot. The cause of death was the
gunshot wound.
During Rodriguez’s sentencing, the State presented evidence
that Rodriguez shot at the other driver. Officers Runnels and
West testified that, when West brought Gonzalez to the scene of
the crime where Runnels was performing inventory on Gonzalez’s
car, Gonzalez stated that his cousin, Rodriguez, killed Gee.
The State produced evidence that Rodriguez burglarized an
elementary school in January 1990. Rodriguez received probation
for the burglary, but his probation was later revoked. His
probation officer testified that Rodriguez was physically abused
by an alcoholic father during childhood. The probation officer
characterized Rodriguez as having average to somewhat above
average intelligence and having the potential to do something
with his life.
The State introduced records from the Harris County Jail
naming Rodriguez as an “escape threat” and as “aggressive towards
staff,” instructing jail staff to use handcuffs and leg irons
when moving Rodriguez from his cell. A Harris County Sheriff’s
Deputy testified that, during Rodriguez’s incarceration at the
Harris County Jail on the capital murder charge, there was a
standing order that Rodriguez was to wear leg irons and handcuffs
when he was out of his cell. Rodriguez became belligerent to a
jail deputy while being brought to a visit with his mother. Upon
returning to his cell, Rodriguez broke a window. There was also
4 evidence that while at Harris County Jail, Rodriguez was
frequently disruptive, and jail staff tried to perform a daily
search of his cell for shanks or weapons. During one of these
searches, deputies found a homemade shank.
Veronica Vinton and her father testified that, after
Veronica refused Rodriguez’s request for a date, Rodriguez
stalked her. Another witness testified that Rodriguez assaulted
him and damaged his car with a baseball bat. Other witnesses
testified that Rodriguez had a bad reputation for not abiding by
the law.
Gee’s sister Susan offered victim impact testimony. She
testified that her mother’s health was affected by Tracy Gee’s
death. She also described Tracy as a person of integrity, and
one who loved children.
Rodriguez’s sister, Veronica Lopez, testified on Rodriguez’s
behalf. She testified that he became very angry and rude when he
was on crack. She never saw Rodriguez get violent with anyone.
She testified that Rodriguez changed dramatically in the time
between the murder and his trial. He had adapted to being in
prison and started a program creating pamphlets that he and other
inmates would send to juvenile homes and churches so that young
people could read about how the inmates wound up on death row and
could avoid the same fate.
Rodriguez’s uncle testified that he is a recovering
alcoholic who became sober at age 23, the same age as Rodriguez
5 at the time of his trial. He testified that he saw changes in
Rodriguez, specifically in Rodriguez’s desire to help others.
Rodriguez’s aunt testified that Rodriguez’s father, Henry, abused
drugs and alcohol and was extremely violent toward his wife and
children. She also testified that Rodriguez changed and that he
had a religious conversion while incarcerated. Rodriguez’s great
aunt corroborated that he experienced a religious conversion and
that he was working to discourage kids from pursuing a path of
crime.
Janie Warstler, Rodriguez’s mother, testified that Henry was
very abusive and an alcoholic. She also suspected that he was
using drugs. Henry started taking Rodriguez to bars and giving
him beer to drink when Rodriguez was six or seven years old.
Rodriguez started using drugs in his early teens.
Henry threatened to kill Ms. Warstler on more than one
occasion. He choked her and pushed her against a wall,
threatened her with a knife, and tried to run her over. On one
occasion, he used a shotgun to shoot down the door of Ms.
Warstler’s mother’s house. He was also physically abusive to
Rodriguez and his siblings, and once threatened Rodriguez’s
sister with a gun. He also abused the family pets and other
animals.
When Rodriguez was 14, Janie left Henry, but Rodriguez
insisted on staying with his father. Some time later, Rodriguez
called his mother and told her that Henry was drunk all the time,
6 was not buying groceries, and was not giving Rodriguez any lunch
money. When Janie said she would come and get him, Rodriguez
told her not to because he was afraid Henry would be there and
would be violent. Janie sent her brothers to pick up Rodriguez.
Henry also testified and agreed with Janie’s testimony. He
also observed that Rodriguez has changed for the better during
the time he has been in prison. Several other witnesses
testified that Rodriguez has changed while in prison, experienced
religious conversion, had no significant disciplinary problems,
and was a positive influence on others.
The jury found that: (1) Rodriguez deliberately caused Tracy
Gee’s death and with the reasonable expectation that her death
would occur; (2) there is a reasonable probability that Rodriguez
would commit criminal acts of violence that would constitute a
continuing threat to society; and (3) there were not sufficient
mitigating circumstances to warrant imposition of a sentence of
life imprisonment rather than death. Accordingly, the Harris
County jury convicted Rodriguez of capital murder and sentenced
him to death on September 20, 1994.
II.
On direct appeal, the Court of Criminal Appeals affirmed
Rodriguez’s conviction and sentence. Rodriguez v. State, No.
71,974 (Tex. Crim. App. Feb. 5, 1997). Rodriguez did not seek
7 certiorari review in the Supreme Court of the United States.
Instead, he timely filed a state habeas application on March 27,
1998. Rodriguez’s application was denied by the Texas Court of
Criminal Appeals based on the trial court’s findings of fact and
conclusions of law. Ex parte Rodriguez, No. 50,773-01 (Tex.
Crim. App. Oct. 23, 2002).
On July 3, 2003, Rodriguez timely filed an amended federal
writ of habeas corpus.1 Rodriguez v. Dretke, No. H-03-317 (S.D.
Tex. 2005). On March 29, 2005, the district court ordered that
all habeas relief be denied, and granted a COA on one claim.
Rodriguez filed notice of appeal on May 19, 2005. Rodriguez
appeals the denial of a COA on six claims and presents one claim
on the merits.
III.
Because Rodriguez’s habeas petition was filed in the
district court after the effective date of the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254,
AEDPA governs his petition. See Lindh v. Murphy, 521 U.S. 320,
336 (1997). We will consider Rodriguez’s COA request first,
followed by the issue for which the district court granted COA.
A.
1 Rodriguez filed a skeletal petition at first, and then, with leave of court, filed an amended application.
8 Under AEDPA, Rodriguez must obtain a COA from either the
district court or appellate court before he can appeal the denial
of habeas relief. See 28 U.S.C. § 2253(c(1)); Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003). To obtain a COA, Rodriguez
must make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). That is, if
Rodriguez can show that the district court’s application of AEDPA
to his constitutional claims was debatable among reasonable
jurists, we will issue a COA. Miller-El, 537 U.S. at 336.
In deciding whether to grant a COA, we are limited “to a
threshold inquiry into the underlying merit of [the petitioner’s]
claims.” Miller-El, 537 U.S. at 327 (citing Slack v. McDaniel,
529 U.S. 473, 481 (2000)). Our analysis “requires an overview of
the claims in the habeas petition and a general assessment of
[their] merits” rather than a “full consideration of the factual
or legal bases adduced in support of the claims.” Id. at 336.
“Because the present case involves the death penalty, any doubts
as to whether a COA should issue must be resolved in [the
petitioner’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248
(5th Cir. 2000).
In deciding whether to grant a COA, we recognize that AEDPA
imposes a deferential standard of review on a federal habeas
court with respect to claims adjudicated on the merits in state
court. A federal court cannot grant habeas relief unless the
state court adjudication of that claim either:
9 (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); see Wiggins v. Smith, 539 U.S. 510, 520
(2003). A decision is contrary to clearly established federal
law if it “reaches a legal conclusion in direct conflict with a
prior decision of the Supreme Court or if it reaches a different
conclusion than the Supreme Court based on materially
indistinguishable facts.” Miniel v. Cockrell, 339 F.3d 331, 337
(5th Cir. 2003), cert. denied, 540 U.S. 1179 (2004). We presume
the facts to be correct unless Rodriguez meets his burden of
rebutting that presumption by clear and convincing evidence. 28
U.S.C. § 2254(e)(1).
Rodriguez argues that reasonable jurists would find it
debatable that: (1) the admission of Gonzalez’s statement and
Rodriguez’s jail disciplinary records did not violate Rodriguez’s
Sixth Amendment right, (2) the challenge for cause of potential
juror Anita Rodriguez did not violate Rodriguez’s right to due
process, and (3) the ineffective assistance of counsel he
received with respect to each of the aforementioned alleged
errors did not violate his Sixth Amendment right. Each claim
will be addressed in turn.
1. Admission of Accomplice Statements and Jail Disciplinary
10 Records
Rodriguez claims a COA should issue because reasonable
jurists could debate whether his Sixth Amendment right was
violated by the district court’s admission of Gonzalez’s
statement implicating Rodriguez as Gee’s murderer as an “excited
utterance.” He also argues the admission of his jail
disciplinary records and Gonzalez’s statement violated the Sixth
Amendment under Crawford v. Washington, 541 U.S. 36 (2004).
Rule 803(2) of the Texas Rules of Criminal Evidence2 states
that an “excited utterance” is a “statement relating to a
startling event or condition made while the declarant was under
the stress of excitement caused by the event or condition.” Tex.
R. Evid. 803(2). The “critical factor” for determining whether a
statement is an excited utterance is “‘whether the declarant was
still dominated by the emotions, excitement, fear, or pain of the
event.’” Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App.
2005) (citing Zuliani v. State, 97 S.W.3d 589, 596 (Tex. Crim.
App. 2003)).
Reasonable jurists would not debate the district court’s
determination that Gonzalez’s statement was an excited utterance,
and that its admission did not violate the Sixth Amendment. In
the district court, Rodriguez argued the facts are insufficient
2 After Rodriguez’s trial, the Texas Rules of Criminal Evidence changed its title to the Texas Rules of Evidence.
11 to show that Gonzalez’s statement was spontaneous and
unreflective, because of the period of time that had elapsed
between Gonzalez’s flight and his return to his vehicle. The
district court concluded that Rodriguez’s argument fails because
an “excited utterance” is not defined by the period of time
elapsed between the startling event and the statement made about
it. See Zuliani, 97 S.W.3d at 596 (“[I]t is not dispositive that
the statement is an answer to a question or that it was separated
by a period of time from the startling event; these are simply
factors to consider in determining whether the statement is
admissible under the excited hearsay exception.”). The district
court noted that: (1) Gonzalez blurted out his remarks concerning
Tracy Gee’s murder after fleeing a routine traffic stop, being
chased by police officers, and being apprehended while weapons
from within his vehicle were being inventoried by police, and (2)
Gonzalez actually observed the events he described and his
intervening actions, including hiding in a swimming pool and in
someone’s vehicle, and demeanor were known to the two officers.
Rodriguez fails to make a substantial showing that he was denied
his constitutional right.
b.
Rodriguez also argues that reasonable jurists could debate
the district court’s determination that the introduction of both
Gonzalez’s statement and the jail disciplinary records do not
12 violate Crawford,3 541 U.S. 36 (2004). See also U.S. CONST.
amends. VI, XIV. Rodriguez’s arguments are barred by the non-
retroactivity doctrine of Teague v. Lane. Lave v. Dretke, 444
F.3d 333, 337 (5th Cir. 2006) (holding that the rule in Crawford
is not to be applied retroactively); see also Teague v. Lane, 489
U.S. 288, 301 (1989) (holding that, except in very limited
circumstances, a federal habeas court cannot retroactively apply
a new rule of criminal procedure).
determination that the state court admitted both Gonzalez’s
statement and the jail disciplinary records under prevailing law
at the time that Rodriguez’s conviction became final. The
district court found that the officers’ testimonies recounting
Gonzalez’s statement satisfied the Confrontation Clause because
they qualified under a firmly-rooted hearsay exception. See
White v. Illinois, 502 U.S. 346, 355 n.8, 356 (1992). Rodriguez
has not shown that a COA should be granted on this issue. See
Teague, 489 U.S. at 301. As to the jail disciplinary records,
the district court determined that the trial court admitted the
jail disciplinary records, over objection, under the business
records exception to the general rule barring hearsay. The
3 Crawford v. Washington held that out-of-court testimonial statements are per se inadmissible against a criminal defendant unless the defendant has had a prior opportunity to cross examine the declarant. 541 U.S. 36, 68 (2004). Crawford did not define “testimonial.” Id.
13 business records exception was applicable at the time of
Rodriguez’s trial and direct appeal. TEX. R. CRIM. EVID. 803(6).
Rodriguez fails to make a substantial showing that his
constitutional right was denied by the admission of either of
these pieces of evidence.
2. Challenge to Prospective Juror Anita Rodriguez
jurists could debate whether the State did not violate his right
to due process by misinforming the trial court regarding the
eligibility of a challenged juror, Anita Rodriguez.
Prior to voir dire, the prosecution advised the trial court
that it believed Ms. Rodriguez was subject to a challenge for
cause under Texas Code of Criminal Procedure article 35.16(a)(2),
which provides that a juror is disqualified from serving if she
has been convicted of any grade of theft or of a felony. TEX.
CODE. CRIM. PROC. art. 35.16(a)(2). Defense counsel objected to the
challenge on the grounds that a successfully completed probation
was not a conviction for purposes of disqualifying a prospective
juror.4 Ms. Rodriguez admitted to the trial court that she had
been convicted of misdemeanor theft in 1984 and placed on
probation, and she said that her probation was terminated. The
4 Trial counsel was unsure and inquired upon objecting whether a successfully completed probationary period was a conviction for the purpose of determining eligibility for jury service. The trial court obtained advice from the court clerk that it was a conviction.
14 trial court granted the challenge for cause. Neither the trial
court nor defense counsel requested copies of Ms. Rodriguez’s
probation records.
Records from the Harris County Clerk’s Office reflect that
Ms. Rodriguez was successfully discharged from her probation, and
the charge against her was dismissed. In the district court,
Rodriguez argued that Ms. Rodriguez was not subject to challenge
for cause because she received and successfully completed
probation; he believes the prosecution lied to the trial court
about Ms. Rodriguez’s eligibility to serve. Rodriguez further
argued that the prosecution deliberately confused the trial court
by employing the term “terminating” rather than “revoking” in
describing the manner in which Ms. Rodriguez’s probation ended.
The district court found the fact that Ms. Rodriguez’s probation
had “terminated” was an accurate reflection, and the trial court
deemed it enough to rule on the challenge. Reasonable jurists
would not debate the district court’s determination that
Rodriguez failed to make a substantial showing that prosecutorial
misconduct violated his right to due process.
3. Ineffective Assistance of Counsel
We turn to Rodriguez’s IAC claims regarding the admission of
Gonzalez’s statement and the jail disciplinary records and the
challenge to potential juror, Ms. Rodriguez. Rodriguez alleges
that reasonable jurists could debate the district court’s
decision in denying his IAC claims based on (1) his appellate
15 counsel’s failure to appeal the admission of Gonzalez’s statement
through the testimonies of Officers Runnels and West, (2) his
appellate counsel’s failure to appeal the introduction of the
jail disciplinary records in the Texas Court of Criminal Appeals,
and (3) his trial counsel’s failure to timely supplement the
record with evidence demonstrating the trial court’s erroneous
conclusion in dismissing Ms. Rodriguez as a juror, and to advise
appellate counsel of this possible ground for error.5
Strickland v. Washington governs IAC claims. 466 U.S. 668
(1984). In order to prevail, Rodriguez must meet both the
deficiency and prejudice prongs of the Strickland test. Id. at
687. Rodriguez must tie the deficiency and prejudice prongs to
specific acts or omissions of his counsel that are not the result
of professional judgment. Id. at 690. If Rodriguez fails to
prove either prong, his claim fails.
First, to prove deficiency, Rodriguez must prove that in
light of all the circumstances as they appeared at the time of
the conduct, his counsel’s representation fell below an objective
standard of reasonableness. Id. at 687. Rodriguez’s burden is
5 Rodriguez alternatively argued in the district court that he obtained IAC from his appellate counsel too, “if” appellate counsel had knowledge of the county clerk’s office records. The record shows that Rodriguez’s appellate counsel attempted to supplement the appellate record before the Texas Court of Criminal Appeals with Ms. Rodriguez’s misdemeanor probation records, which was denied. The district court concluded that Rodriguez failed to identify how his appellate counsel performed deficiently.
16 heavy. Id. at 689 (stating that the court presumes the alleged
deficiencies “fall[] within the wide range of reasonable
professional assistance”). See also Jones v. Barnes, 463 U.S.
745, 749 (1983) (“It is not required that an attorney argue every
conceivable issue on appeal, especially when some may be without
merit. Indeed, it is his professional duty to choose among
potential issues, according to his judgment as to their merit and
his tactical approach.”(internal citations omitted)). Second, to
prove prejudice, Rodriguez “must show that there is a reasonable
probability that, but for [his] counsel’s unprofessional errors,
the result of [his] proceeding would have been different.” Id.
at 694.
A COA will not issue on any of Rodriguez’s IAC claims
because reasonable jurists would not debate the district court’s
determination on each issue. Rodriguez’s counsel objected to the
admission of Gonzalez’s statement, and he was overruled.
Rodriguez contended in the district court that his appellate
counsel was ineffective by failing to raise this ground on direct
appeal. Rodriguez’s state appellate counsel filed a brief
containing thirty points of error, but did not raise as a claim
for relief the trial court’s admission of Gonzalez’s accusations
against Rodriguez. The district court found that there was no
error in admitting Gonzalez’s statement, and, therefore,
Rodriguez’s appellate counsel was not deficient for failing to
raise the issue. Further, the district court concluded Rodriguez
17 cannot show prejudice because it is not reasonably likely that he
would have received any relief had the claim been presented.
Rodriguez argued in the district court that the reliability
of the jail disciplinary records was subject to challenge at the
time of appeal. The district court found that Rodriguez cannot
show that his appellate counsel was deficient in failing to
object to the admission of these records because the trial court
properly admitted the records according to the law existing at
the time of Rodriguez’s trial and direct appeal.
Finally, reasonable jurists would agree that Rodriguez
cannot show deficiency or prejudice on the issue of whether his
trial counsel was ineffective for failing to obtain Ms.
Rodriguez’s records in time to present them to the trial court
and for failing to advise appellate counsel of this possible
ground for error. See Jones, 463 U.S. at 751-52.
For the issue certified by the district court, we engage in
a determination of its merits under AEDPA. Rodriguez claims that
his death sentence violates the Sixth and Fourteenth Amendments
because he received IAC during his sentencing proceedings. As
discussed, a petition for a writ of habeas corpus shall not be
granted with respect to any claim that was adjudicated on the
merits in state court proceedings unless the prior adjudication
“resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established federal law, as
18 determined by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d). Again, a decision is contrary to clearly established
federal law if it “reaches a legal conclusion in direct conflict
with a prior decision of the Supreme Court or if it reaches a
different conclusion than the Supreme Court based on materially
indistinguishable facts.” Miniel v. Cockrell, 339 F.3d 331, 337
(5th Cir. 2003), cert. denied, 540 U.S. 1179 (2004). As also
discussed, in ruling on the merits, we defer to state court’s
factual findings unless they “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). Our inquiry into reasonableness is objective, not
subjective, and we will not issue the writ as a result of our
independent judgment that the state habeas court “applied clearly
established federal law erroneously or incorrectly.” Williams v.
Taylor, 529 U.S. 362, 409-11 (2000). We presume correct the
factual findings of the state unless the petitioner “rebut[s] the
presumption of correctness by clear and convincing evidence.” 28
Rodriguez contends that trial counsel neither investigated
nor presented evidence in relation to the etiological origins of
his brain damage and the link between the damage to his brain’s
frontal lobes and his impulsive nature. Rodriguez’s evidence
consists of written statements found in the institutional records
of the Orchard Creek Hospital, a psychiatric facility where
19 Rodriguez was treated prior to his trial for Gee’s murder, that
were known to his counsel but were not presented at his trial.
In addition, Rodriguez complains that his jury did not hear a
neuro-psychologist’s opinion that his abusive upbringing, lengthy
drug addiction, and use of cocaine damaged his brain’s frontal
lobes. He argues that this unproferred evidence could have
persuaded one juror to vote against the death penalty.
Rodriguez admitted that his counsel at his state habeas
proceeding did not provide this claim to the state court.
Pursuant to 28 U.S.C. § 2254(b)(1), Rodriguez should have fully
exhausted remedies available to him in state court before
proceeding to federal court; he should have presented the
substance of his claim in the state court. Nobles v. Johnson,
127 F.3d 409, 420 (5th Cir. 1997). “A habeas petitioner fails to
exhaust state remedies ‘when he presents material additional
evidentiary support to the federal court that was not presented
to the state court.’” Kunkle v. Dretke, 352 F.3d 980, 988 (5th
Cir. 2003), cert. denied, 543 U.S. 835 (2004) (quoting Graham v.
Johnson, 94 F.3d 958, 968 (5th Cir. 1996)). See also Moore v.
Quarterman, 454 F.3d 484, 491 (5th Cir. 2006) (“Evidence is not
material for exhaustion purposes if it supplements, but does not
fundamentally alter, the claim presented to the state courts.”)
(internal quotations and citation omitted) (emphasis in
original).
In assessing the exhaustion of Rodriguez’s IAC claim as it
20 pertains to his counsel’s failure to investigate Rodriguez’s
brain damage, we look to Rodriguez’s diligence at the state
habeas level: “[A] failure to develop the factual basis of a
claim is not established unless there is a lack of diligence . .
. . Diligence . . . depends upon whether [petitioner] made a
reasonable attempt, in light of the information available at the
time, to investigate and pursue claims in state court . . . .”
Williams, 529 U.S. at 430-32, 435 (2000).
Rodriguez claims that he could not present these pieces of
evidence in the state habeas proceedings because he was not
provided enough resources to conduct his investigation. However,
the record shows that the Texas Court of Criminal Appeals granted
Rodriguez $4,000 for investigative services in connection with
his state habeas proceeding.6 As noted by the district court,
Rodriguez does not explain why he did not obtain at least some
neurological or psychological tests with the funds granted him.
It is unclear whether Rodriguez exercised sufficient diligence at
the state habeas level.
However, even if Rodriguez had exhausted his state remedies
for this claim, his claim fails. See 18 U.S.C. § 2254(a)(2) (“An
application for a writ of habeas corpus may be denied on the
merits, notwithstanding the failure of applicant to exhaust the
6 In total, Rodriguez requested more than eleven thousand dollars for investigative services, almost half of which was requested just days before his petition for writ of habeas corpus was due.
21 remedies available in the courts of the State.”) Again,
Strickland governs Rodriguez’s IAC claim. 466 U.S. 668 (1984).
In order to prevail, Rodriguez must meet both the deficiency and
prejudice prongs of the Strickland test. Id. at 687. As
discussed, to prevail on the deficiency prong, Rodriguez must
demonstrate that counsel’s representation fell below an objective
standard of reasonableness. Strickland, 466 U.S. at 687. In
order to prove prejudice, Rodriguez must show a reasonable
probability that but for his counsel’s deficient performance, the
“additional mitigating evidence [was] so compelling that there is
a reasonable probability that at least one juror reasonably could
have determined that because of [the defendant’s] reduced moral
culpability, death was not an appropriate sentence.” Neal v.
Puckett, 286 F.3d 230, 241 (5th Cir. 2002) (en banc) cert.
denied, 537 U.S. 1104(2003); see also Strickland, 466 U.S. at 695
(“[T]he question is whether there is a reasonable probability,
that, absent the errors, the sentencer . . . would have concluded
that the balance of aggravating and mitigating circumstances did
not warrant death.”)
The evidence does not support the contention that
Rodriguez’s trial counsel performed deficiently by not presenting
evidence of Rodriguez’s brain damage. Trial counsel pursued a
mitigation case that described Rodriguez as a changed person.
The jury heard abundant evidence lessening Rodriguez’s moral
22 culpability and humanizing him. They heard from witnesses who
described Rodriguez as having reformed his conduct through
religious studies following his incarceration in 1991 and that he
had a good disciplinary record while incarcerated. It is a
reasonable conclusion, and within trial counsel’s purview of
professional judgment, that evidence of brain damage to explain
Rodriguez’s violent behavior would counteract counsel’s
mitigation strategy. Evidence of Rodriguez’s permanent brain
damage presents the proverbial double-edged sword: it could
bolster the state’s case on future dangerousness without
significantly reducing, if at all, Rodriguez’s moral
blameworthiness.
Further, even if Rodriguez’s counsels’ performance could be
described as deficient, Rodriguez cannot demonstrate prejudice.
The jury found there was not sufficient mitigating evidence to
warrant imposition of a life sentence in lieu of the death
sentence. It is not reasonably likely that this outcome would
change if, assuming arguendo, his counsel had not erred in
presenting this additional evidence. See Strickland, 466 U.S. at
696.
IV
For the foregoing reasons, we AFFIRM the denial of habeas
relief and DENY Rodriguez’s request for a COA.