Trevino v. Davis

• Decision Date: 11 July 2016
• Docket Number: No. 15-70019,15-70019
• Citation: 829 F.3d 328
• Parties: Carlos Trevino, Petitioner–Appellant v. Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

829 F.3d 328

Carlos Trevino, Petitioner–Appellant

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

No. 15-70019

United States Court of Appeals, Fifth Circuit.

FILED July 11, 2016

Warren Alan Wolf, Law Office of Warren Alan Wolf, John Joseph Ritenour, Jr., Esq., Ritenour Law Firm, P.C., San Antonio, TX, for Petitioner–Appellant.

Fredericka Searle Sargent, Assistant Attorney General, Fredericka Searle Sargent, Assistant Attorney General, Office of the Attorney General, Criminal Appeals Division, Austin, TX, for Respondents–Appellees.

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

W. EUGENE DAVIS

, Circuit Judge:

Carlos Trevino (“Trevino”) seeks a certificate of appealability (“COA”) to appeal the district court's dismissal, on the pleadings and without an evidentiary hearing, of his habeas corpus petition under 28 U.S.C. § 2254

, claiming that he was deprived his Sixth Amendment right to effective assistance of counsel when his trial counsel allegedly failed to adequately investigate and present mitigation evidence at the punishment phase of his capital murder trial. The district court held that Trevino's claim is procedurally barred, even under Martinez v. Ryan, ––– U.S. ––––, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), and Trevino v. Thaler, ––– U.S. ––––, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013), because Trevino failed to sufficiently allege that his initial state habeas counsel rendered ineffective assistance. In the alternative, the district court held that his claim must be dismissed on the merits because the new mitigating evidence Trevino seeks to develop and admit, which the district court characterized as “double-edged,” could not outweigh the substantial aggravating evidence.

Trevino seeks a COA, arguing that reasonable jurists could debate whether the district court properly dismissed his claims on the pleadings and whether it erred by failing to hold an evidentiary hearing. For the reasons set out below, we conclude that reasonable jurists could debate whether the district court correctly dismissed his habeas claim with respect to potential evidence of his fetal alcohol syndrome (“FAS”) or, more broadly, fetal alcohol spectrum disorder (“FASD”). Indeed, reasonable jurists would agree that the district court erred in prematurely dismissing that claim. We also conclude that no reasonable jurist could debate whether the district court erred in dismissing his habeas claim with respect to his additional character witness testimony that is not relevant to an FASD diagnosis or whether the district court erred by failing to hold an evidentiary hearing before its dismissal on the pleadings.

I. Factual Background and Procedural History

This is the second time this case has come before us and the first in which we reach beyond the procedural default issue to address the merits. Trevino contends that if his trial counsel had conducted a constitutionally sufficient investigation, he not only would have located more witnesses to testify about his character but also would have been able to discover and introduce evidence that Trevino suffers from FASD. The background is set out more fully in the prior opinions in this case,¹ but we summarize them here for convenience.

A. Trial²

Trevino was convicted for the June 9, 1996 gang rape and murder of 15–year–old Linda Salinas in San Antonio, Texas. One of the other participants, Juan Gonzales (Trevino's cousin), testified on behalf of the prosecution that he was with the group that night, though he walked away briefly during the murder. He testified that although Trevino did not rape Salinas himself, he held her down while another participant raped her; that Trevino encouraged Gonzales to rape her (though Gonzales refused); that Trevino discussed the need to get rid of Salinas as a witness; and that Trevino later appeared with blood on his shirt. Gonzales also testified that Trevino bragged after the murder that he had “learned how to kill in prison” and “learned how to use a knife in prison.” Thus, although Gonzales did not witness the murder itself, he presented substantial testimony of Trevino's involvement in the crime.

Salinas's body was discovered the day after her murder, and an autopsy revealed that she suffered two stab wounds

to her neck, one of which was fatal, as well as other injuries consistent with sexual assault. The prosecution presented this autopsy evidence at Trevino's trial. The prosecution also presented testimony from forensic and DNA experts establishing that fibers found on Salinas's clothing were consistent with fibers from Trevino's slacks and that Trevino's DNA could not be excluded as a source of DNA found in Salinas's panties.

Based on this and other evidence, the jury returned a guilty verdict. During the punishment phase, the prosecution presented substantial evidence regarding Trevino's culpability and future dangerousness, including his former arrests and admitted membership in a violent street gang. Trevino's state trial counsel called only one witness, Trevino's aunt, who testified generally about his rough childhood and his mother's alcoholism. Her testimony, comprising approximately five pages, made up the entirety of his mitigation case.

At the conclusion of the punishment phase, the jury found (1) that he constituted a future risk of dangerousness, (2) that he had actually caused the death of Salinas or, if he did not actually cause her death, that he intended to kill her or another, or anticipated a loss of life, and (3) that there were insufficient mitigating circumstances to warrant a sentence of life imprisonment. In accordance with the verdict, the state trial court imposed a sentence of death.

B. Post–Conviction Proceedings

The Supreme Court summarized the post-conviction proceedings, which are central to this COA application, as follows:

Eight days later the judge appointed new counsel to handle Trevino's direct appeal. Seven months after sentencing, when the trial transcript first became available, that counsel filed an appeal. The Texas Court of Criminal Appeals then considered and rejected Trevino's appellate claims. Trevino's appellate counsel did not claim that Trevino's trial counsel had been constitutionally ineffective during the penalty phase of the trial court proceedings.

About six months after sentencing, the trial judge appointed Trevino a different new counsel to seek state collateral relief . As Texas' procedural rules provide, that third counsel initiated collateral proceedings while Trevino's appeal still was in progress. This new counsel first sought postconviction relief (through collateral review) in the trial court itself. After a hearing, the trial court denied relief; and the Texas Court of Criminal Appeals affirmed that denial. Trevino's postconviction claims included a claim that his trial counsel was constitutionally ineffective during the penalty phase of Trevino's trial, but it did not include a claim that trial counsel's ineffectiveness consisted in part of a failure adequately to investigate and to present mitigating circumstances during the penalty phase of Trevino's trial. [See ] Wiggins v. Smith, 539 U.S. 510, 523, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)

(counsel's failure to investigate and present mitigating circumstances deprived defendant of effective assistance of counsel).

Trevino then filed a petition in federal court seeking a writ of habeas corpus. The Federal District Court appointed another new counsel to represent him. And that counsel claimed for the first time that Trevino had not received constitutionally effective counsel during the penalty phase of his trial in part because of trial counsel's failure to adequately investigate and present mitigating circumstances during the penalty phase. App. 438, 456–478. Federal habeas counsel pointed out that Trevino's trial counsel had presented only one witness at the sentencing phase, namely Trevino's aunt. The aunt had testified that Trevino had had a difficult upbringing, that his mother had an alcohol problem, that his family was on welfare, and that he had dropped out of high school. She had added that Trevino had a child, that he was good with children, and that he was not violent. Id., at 285–291.

Federal habeas counsel then told the federal court that Trevino's trial counsel should have found and presented at the penalty phase other mitigating matters that his own investigation had brought to light. These included, among other things, that Trevino's mother abused alcohol while she was pregnant with Trevino, that Trevino weighed only four pounds at birth, that throughout his life Trevino suffered the deleterious effects of Fetal Alcohol Syndrome, that as a child Trevino had suffered numerous head injuries without receiving adequate medical attention, that Trevino's mother had abused him physically and emotionally, that from an early age Trevino was exposed to, and abused, alcohol and drugs, that Trevino had attended school irregularly and performed poorly, and that Trevino's cognitive abilities were impaired. Id., at 66–67.

The federal court stayed proceedings to permit Trevino to raise this claim in

state court. The state court held that because Trevino had not raised this claim during his initial postconviction proceedings, he had procedurally defaulted the claim, id., at 27–28; and the Federal District Court then denied Trevino's ineffective-assistance-of-trial-counsel claim, id., at 78–79. The District Court concluded in relevant part that, despite the fact that “even the most minimal investigation ... would have revealed a wealth of additional mitigating evidence,” an independent and adequate state ground (namely Trevino's failure to raise the issue during his state postconviction proceeding) barred the federal habeas court from considering the ineffective-assistance-of-trial-counsel claim. Id., at 131–132. See Coleman v. Thompson, 501 U.S. 722, 729–730, 111 S.Ct. 2546, 115

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