Canales v. Davis

• Decision Date: 21 July 2020
• Docket Number: No. 18-70009,18-70009
• Citation: 966 F.3d 409
• Parties: Anibal CANALES, Jr., Petitioner - Appellant v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent - Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

966 F.3d 409

Anibal CANALES, Jr., Petitioner - Appellant

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

No. 18-70009

United States Court of Appeals, Fifth Circuit.

FILED July 21, 2020

David Paul Voisin, Jackson, MS, Joseph J. Perkovich, Esq., Phillips Black, Inc., New York, NY, for Petitioner - Appellant.

Matthew Hamilton Frederick, Deputy Solicitor General, Office of the Solicitor General for the State of Texas, Tina J. Miranda, Assistant Attorney General, Office of the Attorney General, Financial Litigation & Charitable Trusts Division, Austin, TX, for Respondent - Appellee.

Before HIGGINBOTHAM, SOUTHWICK, and HAYNES, Circuit Judges.

HAYNES, Circuit Judge:

PetitionerAnibal Canales appeals the district court's denial of habeas relief on his claim for ineffective assistance of trial counsel.We AFFIRM.

I.Background

A.Factual Background

A prior panel of this Court has thoroughly reviewed the factual background of this case, which we only briefly summarize here.SeeCanales v. Stephens , 765 F.3d 551, 559–61(5th Cir.2014).Canales was a member of the Texas Mafia, a prison gang.Id. at 559.He and other members of the gang agreed to kill Larry Dickerson, and they did so in July 1997.Id. at 559–60.In 1998, Canales sent another Texas Mafia member, Bruce Innes, a letter confessing to Dickerson's murder.Id. at 560.

In November 1999, Canales was indicted for capital murder.Id.In February 2000, he sent another note to Innes.The district court described the letter: "[A]lthough written in code, [it] appeared to ask the gang to retaliate against Larry (‘Iron-head’) Whited because he believed Whited had informed prison authorities about his role in the killing" of Dickerson.Id.Canales sent a third letter to another inmate in April 2000.Id. at 561.He wrote that he had "been bummed a bit" due to his case and its outcome because of "snakes in the yard."Id.He wrote: "I'm a firm believer that what goes around, comes around!"Id.This letter was also introduced at trial.Id.The 1998 letter was used in the guilt phase and the 1999 and 2000 letters were used at the punishment phase to establish that Canales posed a threat of future dangerousness.Id.Canales was convicted of capital murder in state district court, and, based on the jury's answers to questions required by Texas law, the court sentenced him to death.Id.

B.Procedural History

The Texas Court of Criminal Appeals("TCCA") affirmed Canales's conviction and sentence on direct appeal.Canales v. State , 98 S.W.3d 690(Tex. Crim. App.2003).The TCCA denied his first state habeas petition on the merits.Ex parte Canales , No. WR-54,789-01(Tex. Crim. App.Mar. 12, 2003)(per curiam)(unpublished).

On November 29, 2004, Canales filed the present petition in federal district court, raising thirteen separate grounds for relief.The court stayed the proceedings so that Canales could present his unexhausted claims in state court.The TCCA dismissed his subsequent state application as an abuse of writ without reaching the merits of his claims.Ex parte Canales , No. WR-54,789-02, 2008 WL 383804(Tex. Crim. App.Feb. 13, 2008).

Canales then returned to federal district court.Of relevance here, the district court dismissed Canales's claim that he received ineffective assistance of trial counsel in violation of Wiggins v. Smith , 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471(2003), as procedurally defaulted.Canales , 765 F.3d at 559.But it granted Canales a certificate of appealability ("COA") on that claim, among others.Id.While Canales's case was on appeal, the Supreme Court decided Trevino v. Thaler , 569 U.S. 413, 133 S.Ct. 1911, 185 L.Ed.2d 1044(2013).In Trevino , the Court held that, under Texas's procedural system, a defendant may defeat a procedural default to an ineffective assistance of counsel claim in federal court if the defendant shows that his counsel was ineffective in the initial collateral proceeding.569 U.S. at 429, 133 S.Ct. 1911.

Based on Trevino , a panel of this court held that Canales had established cause to excuse the procedural default on his claim of ineffective assistance of trial counsel at sentencing.Canales , 765 F.3d at 571.The panel concluded that Canales's trial counsel's performance fell below an objective standard of reasonableness.Id. at 570.The panel also concluded that there was some potential merit to Canales's claim that he was prejudiced by the deficient performance.Id. at 570–71.Trial counsel had failed to hire a mitigation specialist, interview family members, or collect any records or historical information on Canales's life.Id. at 570.The panel remanded to the district court to determine the merits of Canales's prejudice claim in the first instance.Id. at 571.

On remand, the State argued that the district court had "all the evidence it need[ed], without an evidentiary hearing," and that the facts were undisputed.The district court disagreed, concluding that Canales was entitled to funding for expert and investigative assistance.Canales's three experts interviewed over a dozen people; conducted clinical and neuropsychological tests on Canales; and reviewed medical, legal, and prison records.Each submitted an expert report to the district court.

The district court, after reweighing the new mitigating evidence against the aggravating evidence, held "that there is no reasonable probability that a juror would have found that the mitigating evidence outweighed the aggravating evidence."Thus, it denied Canales relief on his Wiggins claim.We granted Canales a COA on this claim.Canales v. Davis , 740 F. App'x 432, 433(5th Cir.2018)(per curiam).

II.Discussion

On appeal, Canales argues that the district court erred in its no-prejudice holding.The State argues that 28 U.S.C. § 2254(e)(2) bars consideration of Canales's new mitigating evidence.Alternatively, the State argues that that Canales's claim fails on the merits because he cannot demonstrate prejudice.If the new evidence were not admitted, affirmance would be very straightforward.But even assuming arguendo that we may consider Canales's new evidence, we hold that Canales fails on the merits of his Wiggins claim.¹

To prevail on his Wiggins claim, Canales must show that his trial counsel's performance was deficient and that the deficiency prejudiced his defense.Wiggins , 539 U.S. at 521, 123 S.Ct. 2527.A panel of this court has already held that Canales satisfied the first prong, Canales , 765 F.3d at 569–70, and nothing has demonstrated a reason that we would disturb the law of the case as to this point.Accordingly, we address the prejudice prong only.

"In assessing prejudice, we reweigh the evidence in aggravation against the totality of available mitigating evidence."Wiggins , 539 U.S. at 534, 123 S.Ct. 2527.To determine whether Canales has made the requisite showing, we must ask whether under Texas's capital sentencing statute, "the additional mitigating evidence [is] so compelling that there [is] a reasonable probability that at least one juror could have determined that because of the defendant's reduced moral culpability, death [is] not an appropriate sentence."Kunkle v. Dretke , 352 F.3d 980, 991(5th Cir.2003)(internal quotation marks and citation omitted).Such a reasonable probability exists if "the likelihood of a different result [is] substantial, not just conceivable."Harrington v. Richter , 562 U.S. 86, 112, 131 S.Ct. 770, 178 L.Ed.2d 624(2011).

The dissenting opinion takes the position that, when we review a federal habeas petition de novo, prejudice is satisfied when the new mitigating evidence "might have" influenced one juror.SeeDissenting Op.at 421–22, 427.We disagree with this prejudice standard.When the Supreme Court established the substantial likelihood standard for evaluating prejudice in Richter , it made no distinction between cases that were reviewed de novo and those that received deference under the Antiterrorism and Effective Death Penalty Act.SeeRichter , 562 U.S. at 111–12, 131 S.Ct. 770.Rather, the Court focused solely on the reasonable-probability standard for prejudice, as first established in Strickland v. Washington , 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984), and clarified that standard.SeeRichter , 562 U.S. at 111–12, 131 S.Ct. 770(establishing the substantial likelihood standard upon observing that " Strickland asks whether it is ‘reasonably likely’ the result would have been different"(quotingStrickland , 466 U.S. at 696, 104 S.Ct. 2052 )).Moreover, the Supreme Court's recent holding in Andrus v. Texas did not change the law on assessing prejudice.See––– U.S. ––––, 140 S. Ct. 1875, 1886, ––– L.Ed.2d ––––(2020)(per curiam).The Court rearticulated the prejudice inquiry—"whether there is a reasonable probability that at least one juror would have struck a different balance"—and remanded to the state court for consideration of the prejudice prong consistent with the articulated legal principle.Id.(internal quotation marks and citation omitted).

A.Aggravating Evidence

The State presented documentary evidence of Canales's prior convictions, which included: a five-year sentence for theft, a fifteen-year sentence for sexual assault, and a fifteen-year sentence for aggravated sexual assault.

The State also presented testimony of Suzanne Hartbarger, Canales's sexual assault victim, and Innes.Hartbarger testified that Canales approached her in a parking lot near her college.Canales told her he was a police officer investigating a drug sale, in which she had been named as a suspect.He informed her that she was going to jail and that he would drive her there.In the car, Hartbarger realized Canales was not a police officer.But when she told him that she was going to jump out of the car, Canales responded by telling her that he would "blow [her] away."After driving for some time, Canales stopped the car,...