Trevino v. Davis

• Decision Date: 27 June 2017
• Docket Number: No. 15-70019,15-70019
• 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

861 F.3d 545

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 June 27, 2017

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.

Matthew Hamilton Frederick, Deputy Solicitor General, Office of the Solicitor General for the State of Texas, Fredericka Searle Sargent, Assistant Attorney General, Office of the Attorney General, Criminal Appeals Division, Austin, TX, for Respondent–Appellee.

Before SMITH, DENNIS, and CLEMENT, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Carlos Trevino appeals the denial of habeas corpus relief on his claim of ineffective assistance of trial counsel ("IATC"). Because Trevino has not demonstrated that trial counsel's performance in the punishment phase prejudiced him, we affirm.

I.

Trevino was convicted of capital murder for killing Linda Salinas. Further discussion of the factual background can be found in Trevino v. Thaler , 678 F.Supp.2d 445, 449–50 (W.D. Tex. 2009), and Trevino v. Davis , 829 F.3d 328, 332–33 (5th Cir. 2016). We recite only the facts needed to resolve the merits of the IATC claim regarding the mitigating evidence of fetal alcohol spectrum disorder ("FASD"), the claim on which we granted a certificate of appealability ("COA").

A.

Before the punishment phase, Trevino's counsel investigated the question of mitigation.

[T]rial counsel attempted to find family members "that could give us some idea as to where or how Mr. Trevino grew up. What was going on in his life. What were the circumstances, you know, regarding his past. And we tried to find them, but really, I don't think we came up with any witnesses. We tried to contact his mother as best we could. She was from out of the city." Trial counsel retained an investigator to track down [Trevino's] education records.... Trial counsel interviewed [Trevino's] stepfather. [Trevino] failed to assist his trial counsel in identifying any family members or others who may have provided mitigating testimony.

Trevino v. Stephens , No. SA-01-CA-306-XR, 2015 WL 3651534, at *11 (W.D. Tex. June 11, 2015). Trevino's mother was the main connection to the evidence of FASD. Trevino's trial counsel testified at the state habeas hearing that Trevino's "mother was aware of [his] trial but she refused to communicate with [his] defense counsel." Id. at *11 n.35. That was not contested until 2003, when trial counsel stated in an affidavit that "I did know his mother was around but we never could connect. I believe she lived somewhere near Bastrop, Texas. I heard she was in the court house [sic ] one time but I never did talk with her."

Trial counsel ultimately put on a short presentation regarding mitigation. The district court's original opinion summarized the evidence presented in the punishment phase as follows:

The prosecution presented evidence establishing (1) [Trevino] was first referred to the Bexar County juvenile probation office at age thirteen, (2) as a juvenile, [Trevino] was adjudicated on charges of evading arrest, possession of up to two ounces of marijuana, unauthorized use of a motor vehicle, and unlawfully carrying a weapon (identified as a nine millimeter handgun), and (3) [Trevino] was convicted as an adult of operating a motor vehicle while intoxicated, burglary of a vehicle, and burglary of a building. The jury also heard uncontradicted testimony establishing (1) [Trevino] had identified himself to a juvenile probation officer as a member of a street gang and (2) [Trevino] was a documented prison gang member whose body bore the tell-tale tattoos indicative of [his] membership in the violent prison gang La Hermidad y Pistoleros Latinos ("HPL").

The defense presented a single witness, Trevino's aunt, who testified (1) she had known [Trevino] all his life, (2) [his] father was largely absent throughout [his] life, (3) [his] mother "has alcohol problems right now," (4) [his] family was on welfare during his childhood, (5) [Trevino] was a loner in school, (6) [Trevino] dropped out of school and went to work for his mother's boyfriend doing roofing work, (7) [Trevino] is the father of one child and is good with children, often taking care of her two daughters, and (8) she knows [he] is incapable of committing capital murder.

On July 3, 1997, after deliberating approximately eight hours, [Trevino's] jury returned its verdict at the punishment phase of trial, finding (1) beyond a reasonable doubt, there is a probability [Trevino] would commit criminal acts of violence which would constitute a continuing threat to society, (2) beyond a reasonable doubt [Trevino] actually caused the death of Linda Salinas or, if [he] did not actually cause her death, [he] intended to kill her or another, or [he] anticipated a human life would be taken, and (3) taking into consideration all of the evidence, including the circumstances of the offense, [Trevino's] character and background, and [his] personal moral culpability, there were insufficient mitigating circumstances to warrant a sentence of life imprisonment be imposed upon [Trevino]. In accordance with the jury's verdict, the state trial court imposed a sentence of death.

Trevino , 678 F.Supp.2d at 452–53.

Trevino's initial collateral-review proceedings began with new appointed counsel while the direct appeal was ongoing. His initial state habeas counsel brought IATC claims with respect to the penalty phase but did not include a claim that trial counsel had failed adequately to investigate and present mitigating circumstances. Trevino alleges in his second amended petition that his state habeas counsel's petition included only "record-based claims" and that he conducted no independent mitigation investigation to uncover new evidence that might have lead him to conclude that he should bring an IATC claim on mitigation grounds.

B.

After Trevino's state habeas petition had been denied by the Texas Court of Criminal Appeals, he filed a federal habeas petition, raising for the first time his claim that trial counsel had been ineffective in investigating and presenting mitigating evidence at the punishment phase.

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, and the Federal District Court then denied Trevino's [IATC] claim. 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 [IATC] claim.

Trevino v. Thaler , ––– U.S. ––––, 133 S.Ct. 1911, 1916, 185 L.Ed.2d 1044 (2013). We affirmed on the same ground. The Supreme Court reversed, extending its holding in Martinez v. Ryan , 566 U.S. 1, 17, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), that ineffective assistance of state habeas counsel would excuse procedural default of IATC claims, to Texas, where "it [is] highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of [IATC] on direct appeal...." Trevino , 133 S.Ct. at 1921.

We remanded to the district court, where Trevino filed his second amended habeas petition. That court denied all habeas relief under that petition and refused to grant a COA, so Trevino sought a COA from this court.

[W]e grant[ed] [it] on the questions of whether the district court erred by: (1) concluding that Trevino failed to sufficiently plead cause to excuse his procedural default under Martinez / Trevino ; (2) concluding that Trevino's trial counsel's performance was not deficient under Strickland with respect to his failure to discover and introduce FASD evidence; and (3) concluding that Trevino's trial counsel's performance did not prejudice Trevino to the extent his counsel failed to investigate and present evidence, both expert and lay, showing that Trevino suffers from FASD.

Trevino , 829 F.3d at 356. We now review the merits of those claims.¹

II.

Trevino's IATC claim was procedurally defaulted because he did not raise it in his initial state habeas petition. The procedural default may now be excused if he can demonstrate that his state habeas counsel was ineffective and the underlying IATC claim is substantial. Trevino , 133 S.Ct. at 1921. The substantiality of the underlying IATC claim is based on the same standard for granting a COA. Martinez , 566 U.S. at 14, 132 S.Ct. 1309. We have already issued a COA on that issue, so we assume that requirement is satisfied. See Trevino , 829 F.3d at 356. We further assume, without deciding, that Trevino's state habeas counsel was ineffective.

III.

Trevino's IATC claim fails, because he has not shown that he was prejudiced by the mitigation investigation of his trial counsel.² To prove prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."³ For mitigation-investigation claims, "we reweigh the evidence in aggravation against the totality of available mitigating evidence." Wiggins v. Smith , 539 U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). Our merits discussion is limited by the COA to "potential evidence of FASD," including "lay witness testimony, such as personal and family history interviews relevant to a possible FASD diagnosis, that might otherwise have been excluded as character witness testimony" as to which a COA was denied. Trevino , 829 F.3d at 356.

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