Valdez v. Cockrell

• Citation: 274 F.3d 941
• Decision Date: 03 December 2001
• Docket Number: No. 99-41216,99-41216
• Parties: (5th Cir. 2001) ALBERTO VALDEZ, Petitioner - Appellee, v. JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent - Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 941

274 F.3d 941 (5th Cir. 2001)

ALBERTO VALDEZ, Petitioner - Appellee, v. JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent - Appellant.

No. 99-41216

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

December 3, 2001

Revised December 21, 2001

Appeals from the United States District Court For the Southern District of Texas

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Janie Cockrell, Director of the Texas Department of Criminal Justice, Institutional Division ("the Director"), appeals the district court's grant of the writ of habeas corpus to the petitioner, Alberto Valdez ("Valdez"). We hold that a full and fair hearing is not a prerequisite to the application of 28 U.S.C. § 2254's deferential scheme. Therefore, we vacate and remand to the district court for an assessment of Valdez's claims applying the standards set forth in § 2254(d) and (e)(1). With respect to the Director's appeal of the district court's evidentiary rulings, we affirm in part and vacate in part.

I

A Texas jury found Valdez guilty of the capital murder of Police Sergeant J.D. Bock in May 1988.¹ Following the sentencing phase, the jury answered the two special issue questions in the affirmative, finding that the act had been deliberate and that Valdez posed a future danger to society.² The court then imposed a sentence of death. Valdez's conviction and sentence were affirmed on direct appeal. See Valdez v. State, 776 S.W.2d 162 (Tex. Crim. App. 1989) (en banc), cert. denied, Valdez v. Texas, 495 U.S. 963, 110 S. Ct. 2575 (mem.), 109 L. Ed. 2d 757 (1990).

Valdez filed a state habeas petition, raising twenty-four legal issues. The state habeas court held a two-day hearing in November of 1990. At this hearing, Valdez presented evidence of his ineffective assistance of counsel claim.³ Valdez's theory was that if his trial counsel had investigated his background, they would have found significant evidence that Valdez was mentally retarded, suffered abuse as a child at the hands of his father, and had behaved as a model prisoner during his previous periods of incarceration. Valdez argued that had the jury heard such evidence there was a reasonable probability that the jury would have answered one of the special questions differently, sparing his life. After the presentation of witnesses, the hearing recessed to allow both parties to secure additional witnesses if necessary.

On a motion by the parties to close the proceeding, the state habeas court held a final hearing on the proposed findings. During that hearing, counsel for Valdez and the State presented lengthy arguments as to those findings. One month later, the state habeas court issued findings of fact and law denying Valdez relief.

The state habeas court held that Valdez's trial counsel was not deficient and that any deficiency did not prejudice Valdez. The habeas court found that the trial counsel's lack of investigation into Valdez's background was reasonable. School records, admitted into evidence during the hearing, indicated that Valdez had a full scale I.Q. of 73 and had been classified as educable mentally retarded. The court found that the fact that Valdez had dropped out of school did not put his counsel on notice to inquire into these school records because it found that it was common for Hispanic males in the Corpus Christi, Nueces County, Texas area to drop out of school. With regard to a conviction in Hockley County, trial counsel had received the penitentiary packet containing the conviction and judgment but had not requested the underlying pleadings. These pleadings contained a letter from his attorney in that case requesting a psychiatric evaluation of Valdez, and the resulting evaluation, which would have also shown that Valdez had a full scale I.Q. of 63 and was determined to be of borderline intelligence. The state habeas court concluded that the failure to request these pleadings did not fall beyond the professional standard of conduct for defense attorneys. Moreover, the state habeas court found that the defendant had knowledge of this psychological testing and had not made it known to his attorneys.

As for the presentation of witnesses regarding Valdez's childhood background and other humanizing elements, the court also rejected the claim that counsel had been deficient. The habeas court found that Valdez's "drug use, childhood abuse and hardship, creativity, artistic talent, kindliness towards family was known and available to the applicant at the time of trial." Ex parte Valdez, No. 87-CR-1459-B at 10 (117th Dist. Ct., Nueces County, Tex., Mar. 31, 1997) (unpublished). Furthermore the court found that "evidence of kindness and family assistance was presented at the punishment phase by the testimony of applicant's brother Daniel Valdez, Mary Jane Barrientes, Julie Saldana, and Maria Saldana." Id. In light of these facts, the habeas court concluded that the additional witness testimony offered during the habeas hearing on these matters would have been cumulative and the failure to present this evidence was "a decision of trial strategy which was sound and reasonable as judged at the time of the trial." Id. at 11. More generally, the state habeas court found that trial counsel "exercised reasonable and sound judgment in deciding which individuals to present as punishment witnesses." Id. at 8. Finally, without specific findings of historical fact, the state habeas court concluded that trial counsel's failure to present the mitigating evidence offered in the habeas hearing had not prejudiced Valdez. The state habeas court reached no conclusion as to whether Valdez was mentally retarded, noting that it rejected Valdez's Eighth Amendment claim "without deciding the issue of Valdez's mental retardation." Id. at 19.

Based on these findings and conclusions, the Texas Court of Criminal Appeals affirmed the denial of habeas relief in a one-page order. See Ex parte Valdez, Application No. 31,184-01 (Aug. 13, 1997) (unpublished order). The 117th District Court of Nueces County set Valdez's execution for January 14, 1998. The United States District Court for the Eastern District of Texas granted Valdez a stay of execution and appointed counsel.

Valdez then filed the instant § 2254 petition in the United States District Court for the Southern District of Texas and requested an evidentiary hearing. The district court granted Valdez an evidentiary hearing with regard to his ineffective assistance of counsel claim. It did so because it determined that Valdez had not received a full and fair hearing before the state habeas court. Because Valdez had not received such a hearing, the district court concluded that, under Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963), an evidentiary hearing was mandatory.⁴

The district court determined that the state habeas court denied Valdez a full and fair hearing because the state habeas court lost the exhibits admitted into evidence during the hearing, and, as a result, excluded those exhibits from its resolution of Valdez's case. These lost exhibits included: (1) the results of intelligence tests conducted on Valdez at age thirteen by the Corpus Christi School District; (2) the results of intelligence tests conducted on Valdez at age eighteen by the Big Spring State Hospital, and the accompanying psychiatric evaluation issued by the hospital; and (3) the fee applications submitted by Carl Lewis and David Gutierrez, his trial counsel. The district court also found that "it appear[ed] that other crucial evidence was excluded from proceedings," namely, the trial transcript, as the state habeas judge informed the parties at the hearing on the proposed findings that he "had never read the record of the trial" and that he "did not intend to" as he did not "have the time." See Order for Evidentiary Hr'g (S.D. Tex. Jan. 13, 1999) (unpublished) at 10 n.8. (quoting State Habeas Hr'g on Proposed Findings Tr. at 144-45). Consequently, according to the district court, "the [state habeas] judge denied Valdez's petition without seeing evidence which might have been favorable to Valdez, which the judge did not rule must be excluded, and which the judge even indicated had to be reviewed." Valdez v. Johnson, 93 F. Supp. 2d 779, 782 (S.D. Tex. 1999).

The court found that the "exclusion" of exhibits also resulted in a failure to develop the state factual record, which Valdez had not caused. Hence, the district court concluded that 28 U.S.C. § 2254(e)(2)⁵ did not bar an evidentiary hearing.⁶ Moreover, as discussed above, Townsend required an evidentiary hearing. Alternatively, the district court found it had the discretion to order an evidentiary hearing under Rule 8 of the Rules Governing § 2254 Cases.⁷

After the evidentiary hearing,⁸ the district court granted habeas relief concluding that Valdez's attorneys were ineffective in their preparation for and presentation at sentencing. In reaching this conclusion, the district court reviewed Valdez's ineffective assistance of counsel claim de novo. The district court found that the deferential framework set forth at § 2254(d) and 2254(e)(1) "largely d[id] not apply" because it had held an evidentiary hearing to remedy the state's denial of a full and fair hearing. Valdez, 93 F. Supp. 2d at 777 (S.D. Tex. 1999). Therefore, it applied the presumption of correctness only to the state habeas court's specific findings of historical fact, namely: (1) "it is common in the Corpus Christi, Nueces County Texas area for Hispanic males to drop out of school"; (2) "[t]he fact that the applicant had dropped out of school did not put Carl Lewis on notice of any potential mental problem, if any"; and (3) "Carl Lewis's failure to request the entire court jacket regarding the applicant's burglary charge in Hockley County did not fall below the professional standard of conduct for defense attorneys." See ...