Mejia v. Davis

• Citation: 906 F.3d 307
• Decision Date: 11 October 2018
• Docket Number: No. 17-41137,17-41137
• Parties: David MEJIA, Petitioner-Appellee v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

906 F.3d 307

David MEJIA, Petitioner-Appellee

v.Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellant

No. 17-41137

United States Court of Appeals, Fifth Circuit.

FILED October 11, 2018

David Adler, Bellaire, TX, Nelson Ebaugh, Esq., Houston, TX, for Petitioner-Appellee.

Kyle Douglas Hawkins, Office of the Attorney General, Office of the Solicitor General, Austin, TX, Jon Rodney Meador, Assistant Attorney General, Office of the Attorney General, Postconviction Litigation Division, Austin, TX, for Respondent-Appellant.

Before DAVIS, HAYNES, and DUNCAN, Circuit Judges.

STUART KYLE DUNCAN, Circuit Judge:

The State of Texas appeals a grant of habeas corpus ordering petitioner David Mejia to be retried for killing Marcos Torres. During a bar fight in 1998, Mejia stabbed Torres in the heart with a steak knife Mejia was carrying in his back pocket. Mejia's experienced attorney, Alex Luna, deployed a self-defense strategy based on Mejia's claim that Torres was threatening him with a gun. Nonetheless, a jury found Mejia guilty of murder and a state court later concluded that Luna had provided Mejia constitutionally effective assistance.

Years later, however, a federal district court ruled that Luna had been ineffective by failing to request certain jury instructions—specifically, a lesser-included-offense instruction for manslaughter at the guilt phase and a "sudden passion" instruction at the penalty phase. The court reasoned Luna had no strategic reason for failing to request these instructions, either of which could have resulted in the jury giving Mejia a sentence much lower than the life sentence he received. The court also ruled that the state habeas court was objectively unreasonable in ruling otherwise.

We conclude that the federal court failed to defer to the state court's reasonable application of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and therefore erred in granting Mejia habeas corpus relief. Specifically, we conclude that (1) given Luna's all-or-nothing strategy, he reasonably declined a "double-edged" manslaughter instruction that could have lowered Mejia's chances of an acquittal; (2) even assuming Luna should have sought a sudden passion instruction, it is unlikely that the instruction would have changed Mejia's sentence; and (3) crucially, neither conclusion would have been an objectively unreasonable application of Strickland by the state habeas court.

We therefore VACATE the district court's judgment and RENDER judgment for the State.

I.

A.

Early in the morning of April 17, 1998, outside a small bar called Alicia's Place in Victoria, Texas, David Mejia killed Marcos Torres by stabbing him once in the heart with a steak knife. Mejia had come to Alicia's Place with his friend, Johnny Arce, and three others, planning to confront Torres for a past grievance. Mejia put the steak knife in his back pocket when he arrived, although he claimed he had used the knife in the car to eat a lemon and put the knife in his pocket "by accident" because he "wasn't thinking."

Arce entered the bar and challenged Torres, who followed him outside. Fighting promptly commenced. Witnesses described Torres being surrounded and chased by men from Arce's car. During the fracas, Mejia stabbed and killed Torres and then fled with the others in Arce's car. They went to an apartment where Mejia told someone he had "stabbed some dude," showing how he had pulled the knife from his back pocket and stabbed Torres in the heart. Mejia was heard to say, "I got the motherfucker. I stabbed him."

Four days later Mejia turned himself in. He admitted stabbing Torres but claimed he did so only because Torres had threatened him during the melee by pulling up his shirt to reveal a gun.

B.

Mejia was tried for murder in February 1999. See TEX. PENAL CODE § 19.02(b). His experienced defense attorney, Alex Luna, based his strategy on self-defense. For example, Luna: (1) extensively questioned prospective jurors about self-defense during voir dire; (2) elicited Mejia's testimony claiming Torres had a gun and threatened him; (3) argued that after the stabbing Mejia acted like someone with a clear conscience (i.e. , he turned himself in and did not try to hide the knife); and (4) elicited testimony from a police officer about Torres’s history of assault and weapons-related misconduct. During closing, Luna explained why Mejia could have reasonably believed he needed to defend himself with deadly force, and concluded by stating, "[I]f you think that person is going to threaten you or kill you, then you've got the right to defend yourself."

The prosecution painted a different picture. For example, it emphasized that: (1) Mejia and the others went to the bar looking to confront Torres; (2) on the way to the bar Mejia armed himself with a knife; and (3) Mejia failed to mention that Torres had a gun until he turned himself in four days after the killing, and virtually no witness other than Mejia reported that Torres had a gun.¹ During closing arguments, the prosecution told the jury, "[C]ommon sense tells you that [Mejia] did it intentionally and knowingly. Common sense tells you that he went to that parking lot at Alicia's for a purpose."

Following closing arguments, the trial judge asked Luna about jury instructions:

COURT: Do you have any further requested instructions?

LUNA: No further requested instructions.

COURT: This does not include submission of any lesser—anything on any lesser included offense to the jury, based upon the testimony and the position—and the self-defense instruction. This is the Charge of the Court that you want to submit; is that correct?

LUNA: That is correct.

The jury was instructed on murder and self-defense.² Later that morning, the jury returned a verdict rejecting Mejia's self-defense theory and finding him guilty of murder.

The case moved to the penalty phase. Mejia testified and was asked by the prosecution if he believed what he did to Torres was the right thing to do; Mejia responded, "[A]t the time, I did." Luna argued for a lower sentence by emphasizing, among other points, that (1) the evidence showed Mejia was retreating as Torres advanced on him; (2) the evidence did not show "any initial aggression by Mejia"; (3) Mejia "never got rid of the knife, never hid the knife, never made any efforts to hide the knife"; (4) Mejia self-reported to the local police; and (5) the stabbing was a "one wound

incident [and] ... not a situation where he stabbed the person three or four times." Given all this, Luna argued that a sentence between "10 and 20 years would be appropriate and reasonable." The prosecution again told a different story. In addition to arguing that Mejia continued to refuse to accept responsibility for the crime, the prosecution also presented evidence about Mejia's criminal history—in particular his juvenile aggravated assault conviction for shooting someone in the back with a .22 pistol and his adult resisting arrest conviction for punching a police officer in the jaw.³ Noting the "swift verdict returned this morning," the prosecution told the jury "the evidence that you heard ... speaks for itself" and asked for a sentence of "imprisonment for life and a $10,000 fine."

The jury sentenced Mejia to the maximum penalty available under the law—life in prison and a $10,000 fine. TEX. PENAL CODE § 12.32 ("An individual adjudged guilty of a felony of the first degree shall be punished by imprisonment ... for life or for any term of not more than 99 years or less than 5 years" and may be "punished by a fine not to exceed $10,000.").

C.

Mejia's conviction was affirmed on direct appeal. Mejia v. State , No. 13-99-160-CR, 2000 WL 34252057 (Tex. App.—Corpus Christi June 1, 2000, pet. ref'd). Eleven years later, Mejia filed a state habeas application, alleging his attorney failed to notify him of the denial of his direct appeal. He was permitted to file an out-of-time application on August 22, 2012—13 years after the jury's verdict. Ex parte Mejia , No. AP-76, 2011 WL 2420533 (Tex. Crim. App. June 15, 2011). Of the seven grounds raised, only the second is relevant here: Mejia claimed Luna provided ineffective assistance by failing to request (1) a lesser-included-offense instruction of manslaughter at the guilt phase, and (2) a sudden passion instruction at the penalty phase.

The State's response included an affidavit from Luna, which stated in relevant part:

The strategy of the whole trial was self-defense. This was brought out in voir dire and in questioning of all the witnesses. The testimony of the whole trial centered around [Mejia]'s contention that the deceased had a gun. My recollection was that [Mejia]'s position was that he was not guilty of any thing [sic] because of his self defense strategy. That was why he plead[ed] not guilty and agreed to testify on his behalf on this contention of self-defense. There was no evidence of any provocation on behalf of the deceased. Applicant had gone to the confrontation with the knowledge of the purpose and had armed himself with the weapon, a knife.

The state habeas court denied Mejia's application on December 3, 2012. Specifically, the court found that "the affidavit of Applicant's trial attorney Alex Luna is credible," and concluded that Luna "provided effective assistance of counsel." The Texas Court of Criminal Appeals denied review without written opinion on March 20, 2013.

D.

On July 10, 2013, Mejia filed a habeas corpus application in federal district court. The district court appointed counsel and ordered Mejia to submit an amended petition, which he did on September 16, 2016. On October 11, 2017, the district court granted Mejia habeas relief based on ineffective assistance of counsel. Mejia v. Stephens , 289 F.Supp.3d 799 (S.D. Tex. 2017). The court reasoned that Luna performed deficiently in two respects that prejudiced Mejia: first, by failing to request a manslaughter instruction during...