Sanchez v. Davis, 17-10652

• Decision Date: 28 August 2019
• Docket Number: No. 17-10652,17-10652
• Citation: 936 F.3d 300
• Parties: Roberto SANCHEZ, Petitioner–Appellant, v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

936 F.3d 300

Roberto SANCHEZ, Petitioner–Appellant,

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

No. 17-10652

United States Court of Appeals, Fifth Circuit.

FILED August 28, 2019

James Robert Sheppard, III, Counsel, King & Spalding, L.L.P., Houston, TX, for Petitioner-Appellant.

Roberto Sanchez, New Boston, TX, pro se.

Heather Gebelin Hacker, Assistant Solicitor General, Office of the Attorney General for the State of Texas, Austin, TX, Elizabeth Alisse Goettert, Assistant Attorney General, Office of the Attorney General, Financial Litigation & Charitable Trusts Division, Austin, TX, for Respondent-Appellee.

Before DAVIS, HIGGINSON, and WILLETT, Circuit Judges.

DON R. WILLETT, Circuit Judge:

A Texas jury took just 24 minutes to convict Roberto Sanchez of murder for chasing down unarmed Sergio Gonzalez and stabbing him in the heart. In this federal habeas action, Sanchez claims his Sixth Amendment right to effective assistance of counsel was violated because his trial attorney failed to object when the prosecution asked a witness whether Sanchez was in the United States legally. (He was not.) Even if the nonobjection constituted ineffective assistance, Sanchez cannot show prejudice—a "reasonable probability" that his trial would’ve gone better had his lawyer spoken up. Evidence of Sanchez’s guilt was overwhelming, to put it mildly, including his bragging "it felt good to kill somebody" immediately after he killed somebody. Sanchez is not entitled to habeas relief, and we AFFIRM.

I. The Murder, The Trial, The Appeals, and Then Habeas

Ten years ago, Roberto Sanchez went to a Fort Worth nightclub where his two cousins worked. At closing time, one of his cousins told a customer with whom she’d been talking that she was getting a ride with Sanchez. Frustrated, the customer confronted Sanchez and his cousins in the parking lot as they prepared to drive away, banging on their car window. Sanchez got out and drew a knife. The unarmed customer fled. Sanchez chased him, caught him, and stabbed him. According to Sanchez’s cousins, he then returned to the car "happy," boasting "it felt good to kill somebody."

Sanchez refused the State’s plea deal—25 years—despite knowing that his cousins would testify. At trial, the prosecution had this exchange with one cousin:

Q. And did you—how old were you when you met Roberto?

A. Ever since I was a baby. I don’t recall since I was a little girl.

Q. Did you both live in Honduras together?

A. No. He was living in a little town and I was living in another.

Q. So you were living in different towns, but they were nearby in Honduras?

A. Yes, yes.

Q. And did you come here before or after he did?

A. I came—I came here first.

Q. And are you aware, is Roberto Sanchez here legally or illegally?

A. Well, illegal, he doesn’t have papers.

Sanchez’s lawyer didn’t object to this mention of Sanchez’s immigration status, and the topic never came up again. After closing arguments, the jury deliberated 24 minutes before convicting Sanchez.

During sentencing deliberations, the jury sent this note: "If [Sanchez] is ever released on parole, will [he] remain in our country, or would he be deported back to Honduras?" The court replied that it was "not able to supply additional information," and the jury sentenced him to 70 years in prison.

On appeal, Sanchez argued that the trial court should’ve declared a mistrial when the prosecution asked whether Sanchez was in the country "legally or illegally." The state appellate court disagreed, citing Sanchez’s failure to timely object.¹

After exhausting direct appeals, Sanchez filed a state habeas application asserting, among other things, ineffective assistance of counsel. In an affidavit, Sanchez’s trial counsel insisted his nonobjection was strategic—that Sanchez, if he took the stand, would’ve been "up front and truthful" about his unlawful status in hopes of appearing credible and forthright to the jury. The plan was for Sanchez to admit it "on his own" to bolster his believability, particularly since counsel wanted Sanchez to testify in support of various defenses and also intended to cross-examine the cousins on whether their incriminating testimony was coerced with threats of deportation. The lawyer added that he stood ready to object if the question arose again.

The state trial court denied Sanchez’s habeas application, holding there was no deficient performance (counsel’s "chosen defense was the result of reasonable trial strategy") and no prejudice (no "reasonable probability that the result of the proceeding would have been different had counsel objected to a single reference to [Sanchez’s] illegal status"). On appeal, the Texas Court of Criminal Appeals denied the application without written order.

Sanchez then filed a federal habeas petition, raising the same ineffective-assistance claim. The district court held that Sanchez was not entitled to habeas relief and denied him a certificate of appealability (COA).

In denying relief, the district court determined that the state court reasonably applied the Supreme Court’s decision in Strickland ,² noting:

• the "overwhelming evidence of [Sanchez’s] guilt";

• the prosecution didn’t "predicate its trial strategy or shape its closing argument around [his immigration] status";

• Sanchez’s immigration status came up only once; and

• the jury note alone is not "clear and convincing evidence of ethnic or racial bias or proof that [Sanchez’s] illegal status had a substantial and injurious influence on the jury’s verdict in either phase."

Sanchez next sought a COA from this court. Judge Costa granted it, reasoning that trial counsel’s purported strategy was questionable, Sanchez’s legal status was inadmissible, the state court’s no-ineffective-assistance conclusion was doubtful, and its no-sentencing-prejudice conclusion was debatable.³

When assessing a denial of habeas relief, we review the district court’s findings of fact for clear error and its conclusions of law de novo.⁴ And we "may affirm on any ground supported by the record."⁵ Whether counsel rendered ineffective assistance is a "mixed question of law and fact."⁶

II. Sanchez Is Not Entitled to Habeas Relief

To obtain habeas relief under § 2254, Sanchez must establish that the state court decision rejecting his ineffective-assistance claim "was contrary to" or unreasonably applied "clearly established Federal law, as determined by the Supreme Court."⁷ And as the Court stressed in Harrington v. Richter , state-court merits decisions merit deference.⁸ Unless no "fairminded jurist[ ] could disagree that the state court’s decision conflicts with this Court’s precedents," the state court’s decision must stand.

Here, "the only question that matters"⁹ is whether the state court’s denial of Sanchez’s ineffective-assistance claim flouted or unreasonably applied Strickland v. Washington , which declared the standard for such claims.¹⁰ It doesn’t matter if we think Sanchez makes a strong case. What matters is whether the state court was unreasonable in rejecting it. "It bears repeating," the Court emphasized in Richter , "that even a strong case for relief does not mean the state court’s contrary conclusion was unreasonable."¹¹

The key inquiry is whether there is any room for principled judicial disagreement? Could any fairminded jurist believe that the state court reasonably applied Strickland in rejecting Sanchez’s ineffective-assistance claim? If yes, game over. Federal habeas relief is "not a substitute for ordinary error correction through appeal."¹² It’s a difficult standard to meet, says the Court—"because it was meant to be."¹³

Under Strickland , a convicted defendant must make two showings: (1) that trial counsel’s performance "fell below an objective standard of reasonableness;"¹⁴ and (2) "a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different."¹⁵ Put more simply, Sanchez must show "both that his counsel provided deficient assistance and that there was prejudice as a result."¹⁶

But again, this is habeas, not a direct appeal, so our focus is narrowed. We ask not whether the state court denial of relief was incorrect , but whether it was unreasonable —whether its decision was "so lacking in justification" as to remove "any possibility for fairminded disagreement."¹⁷ Could earnest judges come to varying conclusions as to whether the state court rightly held that counsel’s nonobjection was not ineffective assistance, and, even if it was, that Sanchez suffered no prejudice?

A. Whether Trial Counsel Erred Is Disputed But Not Dispositive

In Strickland , the Supreme Court remarked that "advocacy is an art and not a science," adding that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable."¹⁸ In other words, there’s a "wide range of professionally competent assistance,"¹⁹ and informed strategy normally cannot constitute "deficient performance."²⁰ Our review is thus "highly deferential" and must carefully avoid second-guessing and "the distorting effects of hindsight."²¹ Actually, our review is "doubly deferential" given that Strickland and § 2254(d) "apply in tandem," thus making Sanchez’s path "all the more difficult."²² As the State rightly puts it, we defer "both to trial counsel’s reasoned performance and then again to the state habeas court’s assessment of that performance."²³

Sanchez’s trial counsel maintains that his decision not to object to the immigration-status testimony was a conscious and informed part of his trial strategy. The state court was persuaded that the nonobjection was indeed strategic. And the State’s briefing here ably discusses why not objecting may have been reasonable. For his part, Sanchez forcefully asserts the inadmissibility of immigration-status evidence and insists that allowing such testimony to pass unchallenged reveals an...