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Hernandez v. Davis

United States District Court, W.D. Texas, El Paso Division

May 23, 2017

FABIAN HERNANDEZ, TDCJ No. 999553 Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          MEMORANDUM OPINION AND ORDER

          PHILIP R. MARTINEZ UNITED STATES DISTRICT JUDGE

         On this day, the Court considered Petitioner Fabian Hernandez's “First Amended Petition for a Writ of Habeas Corpus” (ECF No. 34)[1][hereinafter “Amended Petition”] filed on January 27, 2016; Respondent Lorie Davis's “Answer with Brief In Support” (ECF No. 46) [hereinafter “Answer”], filed on June 8, 2016; and Petitioner's “Reply to Respondent's Answer” (ECF No. 49) [hereinafter “Reply], filed on July 28, 2016, in the above-captioned cause.

         Pursuant to 28 U.S.C. §§ 2241(d), 2254, Petitioner challenges the death sentence that the state trial court imposed in his case after a jury found him guilty of capital murder. The Texas Court of Criminal Appeals affirmed his conviction and sentence, [2] and denied his petition for state habeas relief.[3] For the reasons discussed below, the Court concludes that Petitioner is entitled to neither federal habeas corpus relief nor a certificate of appealability.

         I. BACKGROUND AND PROCEDURAL HISTORY

         A. Guilt-Innocence Phase of Trial

         Evidence presented during the guilt-innocence phase of Petitioner's trial revealed the following factual scenario.

         Petitioner became romantically involved with Rene Urbina (Urbina Hernandez)[4] and together they had two children. 66 Rep. R. 63. Petitioner and Urbina Hernandez had a tumultuous relationship, which led to several brief periods of separation. 66 Rep. R. 303-305; 67 Rep. R. 68-70; 69 Rep. R. 15-17, 28. Petitioner and Urbina Hernandez eventually married on March 23, 2004. 66 Rep. R. 67; 69 Rep. R. 17; 69 Rep. R. 12. Their relationship remained tumultuous, however, and they permanently separated in April of 2006. 66 Rep. R. 61; 67 Rep. R. 68.

         On November 2, 2006, Petitioner encountered Diesta Dee Torres, an acquaintance of over twelve years, at an El Paso bar at approximately 10:00 p.m. 66 Rep. R. 271, 275. Petitioner, who had been consuming alcohol, confided in Torres regarding his deep sadness about the course of his life, and his concern for his estranged wife and their children. 66 Rep. R. 276-77; 67 Rep. R. 8. Petitioner and Torres left the bar together, and Petitioner asked Torres to drive him to a nearby hotel, where Petitioner planned to spend the night. 66 Rep. R. 278-80. As Torres drove Petitioner to the hotel, Petitioner asked Torres to let him exit the vehicle at an intersection within walking distance from Urbina Hernandez's home. 66 Rep. R. 272, 280-92, 294; 68 Rep. R. 14. At that time, Urbina Hernandez lived with her mother and two children. 66 Rep. R. 272, 294; 68 Rep. R. 14.

         That same evening, Urbina Hernandez's sister, Cynthia Estevez, was waiting at the Urbina Hernandez residence for Urbina Hernandez to return home. 66 Rep. R. 38-44. A little after two o'clock in the morning of November 3, 2006, Estevez heard three gunshots in fairly rapid succession outside of the house. Id. at 46, 66-67. When Estevez went outside to investigate, she saw the body of her sister's friend, Arturo Fonseca, lying prone on the ground at the curb between two parked vehicles. Id. at 57-58, 129-30. As Estevez rushed back inside to call for emergency-medical assistance, her mother passed by her and exited the house. Id. at 49. When Estevez returned outside, she saw her mother crying over another body lying supine on the road, which she recognized as her sister, Urbina Hernandez. Id. at 49-52.

         A neighbor, Isela Cordero, woke up at approximately 2:20 a.m. that morning to care for a sick child. Id. As she returned to her bedroom, she heard some “pops” outside, peered out her living room window, and saw a white, two-door Honda driving away slowly. 66 Rep. R. 95-99.

         Crime scene technicians from the El Paso Police Department arrived at the scene and recovered three shell casings coated with an unusual green lacquer sealant. 66 Rep. R. 156; 67 Rep. R. 120-22. The Medical Examiner confirmed during an autopsy that Urbina Hernandez died from a gunshot to her forehead, fired at point blank range, which killed her almost immediately. 66 Rep. R. 167-79. The Medical Examiner also confirmed that Fonseca died from a close range gunshot to the back of his head, which exited through his left temple. Id. at 182-92.

         At approximately four o'clock that morning, Petitioner arrived at the trailer home of his life-long friend, Sergio Carrasco; Carrasco lent his car keys to Petitioner and provided Petitioner with some blankets before going back to sleep. 67 Rep. R. 39-43, 51-53, 57-58. Petitioner left the trailer home before Carrasco arose again to get ready for work. Id. at 82, 92.

         Carrasco went to work that morning, but he returned home during his lunch break. When he did, he noticed a white, two-door Honda parked behind his trailer, covered with the same blankets that he had provided Petitioner earlier that morning. Id. at 56. After Carrasco returned to work, detectives contacted him and asked him to return to his trailer home. Id. at 63. When Carrasco arrived, law enforcement officers had already determined that the car parked behind the trailer belonged to Fonseca. 66 Rep. R. 209, 218, 225.

         Law enforcement officers were also dispatched to Petitioner's father's residence, where they found Petitioner. 26 Rep. R. 14-18, 20- 31, 38-63; 27 Rep. R. 55-56, 65. Based on information that Petitioner provided, officers also discovered a .380 caliber semi-automatic handgun and a box of ammunition with a distinctive green sealant over the primer in Petitioner's father's house. 66 Rep. R. 236-41; 67 Rep. R. 120-22; 68 Rep. R. 50-55. A Department of Public Safety forensic firearms examiner confirmed that all of the shell casings discovered at the murder scene were fired from the same weapon recovered from Petitioner's father's residence. 67 Rep. R. 101-25.

         At the conclusion of the guilt-innocence phase of trial, the jury found Petitioner guilty beyond a reasonable doubt of the capital murders of Urbina Hernandez and Fonseca, as charged in the indictment. 68 Rep. R. 152.

         B. Punishment Phase of Trial

         The prosecution sought a death sentence in Petitioner's case.[5] To secure a death sentence, the prosecution relied on Petitioner's affiliation with the Barrio Azteca criminal enterprise.[6] 69 Rep. R. 60-74; 70 Rep. R. 94-158. A gang intelligence officer with the El Paso County Sheriff's Department, Officer Jose Soria, testified that Petitioner was a confirmed Barrio Azteca member. 69 Rep. R. 64, 71-72. The prosecution also relied on a letter Petitioner wrote while in jail and awaiting trial, which called for fellow Barrio Azteca members to murder prosecution witnesses Torres and Carrasco-both of whom were also Petitioner's long-time friends. 69 Rep. R. 81-91; 70 Rep. R. 7, 27-35, 150-56. Officer Soria explained that the letter was addressed to another known Barrio Azteca member and was signed “Spook, ” Petitioner's gang moniker. 69 Rep. R. 83, 89-90. In addition to this letter, the prosecution introduced other letters in which Petitioner sought to have other individuals assaulted in retaliation for their actions against the Barrio Azteca. 70 Rep. R. 124-49.

         The prosecution also presented evidence that Petitioner had a prior conviction in New Mexico for manslaughter when he was eighteen years of age, and two prior convictions in Texas for misdemeanor theft. 70 Rep. R. 124; 71 Rep. R. 41-49; 72 Rep. R. 89-90, 109, 116, 124-33, 173.

         In an effort to avoid a death sentence, defense counsel presented evidence explaining the circumstances of Petitioner's manslaughter conviction. 71 Rep. R. 41-49; 72 Rep. R. 125-33. Petitioner's sister, Diane Hernandez Valdez, testified that the conviction resulted from an altercation in which she was involved with other individuals. 71 Rep. R. 41-45. She testified that Petitioner only became involved in response to a direct challenge. 71 Rep. R. 41-45. Hernandez Valdez claimed she fought until she heard a gunshot. Id. at 46-47. She explained that Petitioner had shot someone in the throat. Id. at 92.

         A Bureau Chief in the New Mexico Department of Corrections, Colleen McCarney, testified about Petitioner's non-violent behavior during his incarceration for manslaughter from July 1994 through June 1996. 72 Rep. R. 42-106. An inmate-classification expert, Frank AuBuchon, explained that the Texas Department of Criminal Justice (“TDCJ”) would likely be able to control Petitioner's actions in prison. 73 Rep. R. 5-84. A forensic psychologist, Dr. Mark Douglass Cunningham, testified, based on his statistical analysis and review of Petitioner's records, that there was a “very low risk” that Petitioner would commit acts of violence while in prison. 74 Rep. R. 217-29, 274-306.

         Defense counsel also presented testimony from several family members and friends regarding Petitioner's disadvantaged childhood, which included evidence that his father was an alcoholic who failed to provide guidance during Petitioner's formative years and was verbally abusive toward Petitioner's mother. 71 Rep. R. 29-35, 120-23, 145-56, 185-86, 205-12, 238-40, 268-80; 72 Rep. R. 20-24; 74 RR 237-58.

         Petitioner's family and friends also testified that Urbina Hernandez was verbally abusive toward Petitioner. 71 Rep. R. 51-57, 175, 224-27, 237-42; 72 Rep. R. 24-31, 140-43; 74 Rep. R. 260. The defense presented testimony that Urbina Hernandez was condescending toward Petitioner and would insult, embarrass, and humiliate him in front of his family; specifically, Urbina Hernandez would call him names in front of his family, yell obscenities at him in front of their children, throw items, and mistreat Petitioner in front of his mother. 71 Rep. R. 57, 224-26; 72 Rep. R. 142-43; 74 Rep. R. 260.

         Another major component of Petitioner's mitigation case involved his alleged impaired intellectual development and deficiencies. Petitioner's mother testified that she had poor nutrition during her pregnancy with him. 74 Rep. R. 248-49. She also testified that when Petitioner was six or seven years old, he contracted scarlet fever and was in the hospital for almost a month. Id. at 251-53, 267-68. During that time, Petitioner also developed meningitis, and the doctor informed Petitioner's mother that Petitioner developed mental health problems as a result of the illness. Id. at 252. When Petitioner returned home from the hospital, his mother noticed that he was “quieter” and “slower”; as a result, Petitioner's mother placed Petitioner in special education classes. Id. at 252-53. According to Dr. Cunningham, these adverse factors affected Petitioner's “coping capacity, ” which he described as the amount of stress a person can bear before “doing something stupid.” Id. at 111-16.

         Dr. Cunningham further testified that Petitioner suffered from an “intellectual deficiency” and had “deficient intelligence.” Id. at 108, 114, 121-22, 133-36. He described Petitioner's overall intelligence and intellectual abilities as being in the lower zone of the intelligence continuum toward intellectual disability. Id. at 159-60. As a result of this diminished “intellectual horsepower, ” Dr. Cunningham explained that Petitioner could not understand notions “with the same quality and awareness that you do when you have an intact mind.” Id. at 163-64.

         In summation, defense counsel argued to the jury that, based on the testimony from McCarney, AuBuchon, and Cunningham, the State failed to show that Petitioner would be a continuing threat to society, since he would be incarcerated for the rest of his life, and TDCJ would be able to prevent Petitioner from committing future acts of violence in prison. 75 Rep. R. 93-96, 106-11, 119-22, 129-31.

         After the punishment phase of Petitioner's trial, the jury unanimously concluded beyond a reasonable doubt that there was a probability that Petitioner would commit criminal acts of violence that would constitute a continuing threat to society. Additionally, after taking into consideration all of the evidence-including the circumstances of the offense, Petitioner's character and background, and Petitioner's personal moral culpability-the jury further determined that no sufficient mitigating circumstances warranted imposing a life sentence rather than a death sentence. 76 Rep. R. 5-6. The same day, the state trial court imposed a sentence of death in accordance with state law. 76 Rep. R. 9-14.

         C. Direct Appeal

         After the state trial court imposed the death sentence, Petitioner appealed. He argued that the state trial court erred when it

(1) refused to permit defense counsel to ask the jury venire questions regarding their views on whether specific types of evidence would constitute mitigating evidence for the purpose of allowing them to make challenges for cause and inform [counsel's] use of peremptory challenges;
(2) denied defense counsel's challenges for cause of six venire members;
(3) granted the prosecution's challenges for cause of two venire members;
(4) ordered a mental health examination of Petitioner by [Dr. Richard E. Coons] after defense counsel had him tested for mental retardation without first limiting the prosecution expert's examination to the issue of measures of intelligence; and
(5) excluded, during the punishment-phase of trial, the Petitioner's proffered testimony of Urbina Hernandez's drug abuse and promiscuity.

Appellant's Br. iii-v, AP 76, 276.

         The Texas Court of Criminal Appeals affirmed Petitioner's conviction and sentence in an opinion issued on November 21, 2012. Hernandez v. State, 390 S.W.3d 310 (Tex. Crim. App. 2012). The United States Supreme Court denied Petitioner's petition for writ of certiorari on December 16, 2013. Hernandez v. Texas, 134 S.Ct. 823 (2013).

         D. State Habeas Corpus Proceedings

         After exhausting his state appellate remedies, Petitioner filed an application for state habeas corpus relief on February 2, 2012, asserting that both his trial and appellate counsel rendered ineffective assistance and that the state trial court committed error.

         First, Petitioner alleged that his trial counsel rendered ineffective assistance by failing to

(1) object to the testimony of prosecution mental health expert [Dr. Coons];
(2) raise Fifth and Eighth Amendment challenges to the state trial court's pretrial ruling requiring Petitioner to submit to evaluation by prosecution mental health expert, Dr. Coons, if he wished to introduce the testimony of defense mental expert, Dr. Luiz Natalicio, regarding his alleged low intellectual level;
(3) permit the examination of Petitioner by Dr. Coons conditioned upon Dr. Coons not expressing an opinion regarding Petitioner's future dangerousness;
(4) object to the state trial court's exclusion of the testimony of defense expert . . . AuBuchon regarding Petitioner's lack of future dangerousness if sentenced to a term of life without parole;
(5) object when the prosecution argued that the term “probability, ” as used in the Texas future-dangerousness capital sentencing special issue, meant “more than a mere possibility”; and
(6) object to the absence of a provision in the punishment-phase jury charge instructing the jury that the prosecution was required to bear the burden of proving a negative answer to the mitigation special issue beyond a reasonable doubt.

1 State Habeas R. 13-14.

         Petitioner also claimed that his state appellate counsel rendered ineffective assistance by failing to argue that the Texas twelve-ten rule is unconstitutional.[7]

         Finally, Petitioner claimed that the state trial court erred in requiring Petitioner to submit to an examination by prosecution mental health expert Dr. Coons before allowing Petitioner to introduce the testimony of Dr. Natalicio regarding his low intellectual level. 1 State Habeas R. 13-14.

         On November 19, 2012, the state trial court held an evidentiary hearing on Petitioner's claims, and Petitioner presented testimony from his former trial counsel, Jamie Gandara and Edythe Marie Payan.[8] The state trial court then issued its findings of fact and conclusions of law and recommended that state habeas corpus relief be denied. 2 State Habeas R. 572-86. The Texas Court of Criminal Appeals adopted all but one of the state habeas trial court's findings of fact and all but one of the trial court's conclusions of law and denied state habeas corpus relief. Ex parte Fabian Hernandez, 2015 WL 376357, at *1.

         E. Petitioner's Federal Habeas Petition

         Petitioner filed the instant Amended Petition on January 27, 2016 (ECF No. 34), along with a series of exhibits. As grounds for relief in his Amended Petition, Petitioner asserts six claims:

1. Petitioner was denied effective assistance of counsel at the punishment stage of his capital murder trial because his trial counsel failed to:
a. object when the trial court ruled that he was not allowed to introduce evidence of his low scores on standardized intelligence tests unless he waived his Fifth Amendment privilege and submitted to a comprehensive examination by the prosecution's mental health expert;
b. permit an examination by the State's psychiatrist on the condition that the psychiatrist not express any opinion on the question of Petitioner's future dangerousness;
c. object to the prosecution's statements during voir dire and closing argument that the term “probability, ” as used in Texas first capital sentencing special issue, meant “more than a mere possibility”;
d. object to the absence of an instruction in the punishment-phase jury charge instructing the jury that the prosecution was required to bear the burden of proving a negative answer to the second capital sentencing special issue, the mitigation special issue, beyond a reasonable doubt; and e. adequately investigate and present available evidence (such as a brain scan) showing Petitioner suffered from organic brain dysfunction due to in utero exposure to alcohol and childhood head trauma.
2. Petitioner was denied effective assistance of counsel on appeal because his appellate counsel failed to:
a. argue that the state trial court abused its discretion when it ruled that the testimony of the State's expert satisfied the standards for scientific testimony;
b. argue that the state trial court erred in excluding the defense expert's opinion on future dangerousness; and
c. argue that the state trial court erred in allowing the coercive jury instruction on mitigation.[9]
3. Petitioner's sentence violates the Fifth and Fourteenth Amendments because the state trial court did not allow him to adduce evidence of his low scores on standardized intelligence tests unless he first submitted to a comprehensive examination from the State's expert.
4. Petitioner's sentence violates the Eighth and Fourteenth Amendments because the state trial court did not allow him to introduce evidence of his low scores on standardized intelligence tests unless he first submitted to a comprehensive examination by the State's expert.
5. The state trial court erred in not allowing Petitioner to ask the jury panel questions regarding whether they could consider specific kinds of mitigating evidence in determining the mitigation special issue because such questions could have led to challenges for cause, pursuant to the Sixth, Eighth, and Fourteenth Amendments.
6. The state trial court erred in not allowing Petitioner to ask the jury panel questions regarding whether they could consider specific kinds of mitigating evidence in determining the mitigation special issue because such questions could have assisted in the effective utilization of peremptory challenges, pursuant to the Sixth, Eighth, and Fourteenth Amendments.

Am. Pet. 2-76.

         Respondent thereafter filed her Answer on June 8, 2016, and Petitioner filed his Reply on July 28, 2016.

         II. STANDARD OF REVIEW

         The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs the Court's review of Petitioner's claims for federal habeas corpus relief. Penry v. Johnson, 532 U.S. 782, 792 (2001). The AEDPA “imposes a highly deferential standard of review for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt.” Hardy v. Cross, 565 U.S. 65, 66 (2011) (per curiam) (quoting Felkner v. Jackson, 562 U.S. 594, 598 (2011) (per curiam)).

         A. Claims Adjudicated in State Court

         A federal habeas court presumes that claims raised in state-court proceedings have been adjudicated “on the merits in the absence of any indication or state-law procedural principles to the contrary.” Johnson v. Williams, 133 S.Ct. 1088, 1094 (2013). It reviews adjudicated claims under 28 U.S.C. § 2254(d). Harrington v. Richter, 562 U.S. 86, 98-99 (2011). A federal habeas court's review under § 2254(d) “is limited to the record that was before the state court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). It may not grant habeas relief unless the state court adjudication of the claim

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d); Brown v. Payton, 544 U.S. 133, 141 (2005); Williams v. Taylor, 529 U.S. 362, 404-05 (2000).

         The “contrary to” and “unreasonable application” clauses of 28 U.S.C. § 2254(d)(1) have independent meanings. Bell v. Cone, 535 U.S. 685, 694 (2002). Pursuant to the “contrary to” clause, a federal habeas court may grant relief if (1) the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or (2) the state court decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Brown, 544 U.S. at 141; Mitchell v. Esparza, 540 U.S. 12');">540 U.S. 12, 15-16 (2003) (“A state court's decision is ‘contrary to' . . . clearly established law if it ‘applies a rule that contradicts the governing law set forth in [Supreme Court] cases' or it ‘confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] precedent.'”). A state court's failure to cite governing Supreme Court authority does not, per se, establish that the state court's decision is “contrary to” clearly established federal law: “the state court need not even be aware of [Supreme Court] precedents, so long as neither the reasoning nor the result of the state-court decisions contradicts them.” Mitchell, 540 U.S. at 16 (citation omitted).

         Pursuant to the “unreasonable application” clause, a federal habeas court may grant relief if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the petitioner's case. Brown, 544 U.S. at 141; Wiggins v. Smith, 539 U.S. 510, 520 (2003). A federal court making the “unreasonable application” inquiry should ask whether the state court's application of clearly established federal law was “objectively unreasonable.” McDaniel v. Brown, 558 U.S. 120, 132- 33 (2010); Wiggins, 539 U.S. at 520-21. An “unreasonable” application is different from a merely “incorrect” one. Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (“The question under the AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold.”); Wiggins, 539 U.S. at 520; Price v. Vincent, 538 U.S. 634');">538 U.S. 634, 641 (2003) (“[I]t is the habeas applicant's burden to show that the state court applied that case to the facts of his case in an objectively unreasonable manner.”).

         As the Supreme Court has explained, the petitioner “must show that the state court's ruling on the claim . . . was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Bobby v. Dixon, 565 U.S. 23, 24 (2011) (quoting Harrington, 562 U.S. at 103).

         Legal principles are “clearly established” for purposes of AEDPA review when the holdings, as opposed to the dicta, of Supreme Court decisions, as of the time of the relevant state-court decision, establish those principles. Yarborough v. Alvarado, 541 U.S. 652, 660-61 (2004); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). Pursuant to AEDPA, what constitutes “clearly established federal law” is determined through review of the decisions of the Supreme Court, not the precedent of other federal courts. See Lopez v. Smith, 135 S.Ct. 1, 2 (2014) (holding that AEDPA prohibits the federal courts of appeals from relying on their own precedent to conclude that a particular constitutional principle is “clearly established”).

         AEDPA also significantly restricts the scope of federal habeas review of state courts' findings of fact. Section 2254(d)(2) precludes federal habeas corpus relief on any claim that was adjudicated on the merits in the state court unless the state court's adjudication resulted in a decision based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Wood v. Allen, 558 U.S. 290, 301 (2010). Even if reasonable minds reviewing the record might disagree about the factual finding in question (or the implicit credibility determination underlying the factual finding), this does not suffice to supersede the state trial court's factual determinations on habeas review. Wood, 558 U.S. at 301; Rice v. Collins, 546 U.S. 333, 341-42 (2006).

         Moreover, § 2254(e)(1) requires that a petitioner challenging state court factual findings establish by clear and convincing evidence that the state court's findings were erroneous. Schriro, 550 U.S. at 473-74 (“AEDPA also requires federal habeas courts to presume the correctness of state courts' factual findings unless applicants rebut this presumption with ‘clear and convincing evidence.'”); Rice, 546 U.S. at 338-39; Miller-El v. Dretke, 545 U.S. 231, 240 (2005).[10]

         However, the deference to which state-court factual findings are entitled under AEDPA does not imply an abandonment or abdication of federal judicial review. See Miller-El v. Dretke, 545 U.S. at 240 (explaining that the standard is “demanding but not insatiable”); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (“Even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. Deference does not by definition preclude relief.”).

         A federal habeas court reviewing a state court's rejection on the merits of a claim for relief pursuant to the AEDPA must focus exclusively on the propriety of the ultimate decision reached by the state court and not evaluate the quality, or lack thereof, of the state court's written opinion supporting its decision. Maldonado v. Thaler, 625 F.3d 229, 239 (5th Cir. 2010); Pondexter v. Dretke, 346 F.3d 142, 148 (5th Cir. 2003); Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc).

         B. Claims Not Adjudicated in State Court

         A petitioner may not escape § 2254(d)'s deferential review by “using evidence that is introduced for the first time” in federal court. Blue v. Thaler, 665 F.3d 647, 656 (5th Cir. 2011). Claims without a state-court merits adjudication are subject to § 2254(e)(2)'s limitation on new evidence. Pinholster, 563 U.S. at 185-86. A petitioner must first prove that he “made adequate efforts during state-court proceedings to discover and present the underlying facts.” Williams, 529 U.S. at 430. If the petitioner was less than diligent in developing the facts, an evidentiary hearing is permissible only where (1) there is a new, retroactive rule of constitutional law, or (2) the facts could not have been discovered with due diligence and such facts demonstrate actual innocence of the crime by clear and convincing evidence. 28 U.S.C. § 2254(e)(2)(A)-(B). If, on the other hand, the petitioner did exercise diligence, a district court nevertheless has discretion to deny a hearing. Schriro, 550 U.S. at 468. A district court should grant a hearing only where the inmate was denied a full and fair hearing in state court and the inmate's allegations, if true, would warrant relief. Blue, 665 F.3d at 655. Further, a district court may deny a hearing if the federal record is sufficiently developed to make an informed decision. McDonald v. Johnson, 139 F.3d 1056, 1060 (5th Cir. 1998).

         C. Ineffective-Assistance-of-Counsel Claims

         The standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), governs ineffective-assistance-of-trial-counsel claims. To prove such a claim, a petitioner must satisfy both prongs of the Strickland test by showing (1) constitutionally deficient performance by counsel, and (2) actual prejudice to his legal position. Id. at 689-94; Motley v. Collins, 18 F.3d 1223, 1226 (5th Cir. 1994). A court need not address both components if the petitioner makes an insufficient showing on one. Strickland, 466 U.S. at 697.

         To demonstrate deficiency, a petitioner must show that “counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id. at 687. A court considering such a claim “must indulge a strong presumption that counsel's representation was within the wide range of reasonable professional assistance.” Id. at 689.

         To demonstrate prejudice, a petitioner must show “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Porter v. McCollum, 558 U.S. 30, 38-39 (2009) (citation omitted). A mere allegation of prejudice is not sufficient to satisfy the prejudice prong of Strickland. Armstead v. Scott, 37 F.3d 202, 206 (5th Cir. 1994). The probability “of a different result must be substantial, not just conceivable.” Harrington, 562 U.S. at 112. Thus, counsel's performance is entitled to “a heavy measure of deference” by a reviewing court. Cullen, 563 U.S. at 197 (citation omitted).

         Moreover, where a state court has adjudicated a petitioner's ineffective-assistance-of-counsel claims, the federal court must review those claims “through the deferential lens of § 2254(d), ” id. at 190, and must consider not only whether the state court's determination was incorrect, but also “whether that determination was unreasonable.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citing Schriro, 550 U.S. at 473). Pursuant to § 2254(d), “because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard.” Id. As such, “[e]stablishing that a state court's application of Strickland was unreasonable . . . is all the more difficult.” Harrington, 562 U.S. at 105. Accordingly, “[w]hen § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Id.

         In those instances where a state court failed to adjudicate a claim under the Strickland test, such as when the state court summarily dismissed the claim under the Texas writ-abuse statute or the petitioner failed to fairly present the claim to the state court, a federal habeas court's review of the un-adjudicated claim is de novo. See Porter, 558 U.S. at 39 (holding de novo review of the allegedly deficient performance of petitioner's trial counsel was necessary because the state courts failed to address this prong of the Strickland analysis); Rompilla v. Beard, 545 U.S. 374, 390 (2005); Wiggins, 539 U.S. at 534.

         III. ANALYSIS

         A. Grounds 3 and 4--The State Trial Court Erred When It Excluded Petitioner's Standardized Mental Health Testing Evidence.

         Two of Petitioner's grounds for relief relate to the state trial court's ruling requiring that he submit to an examination by the prosecution's expert as a prerequisite to introducing his own expert testimony. Specifically, Petitioner argues that the state trial court violated his Fifth, Eighth, and Fourteenth Amendment rights when the state trial court refused to permit his trial counsel to introduce the testimony of defense expert Dr. Natalicio-a psychologist-regarding Petitioner's scores on standardized IQ tests unless Petitioner submitted to a comprehensive examination by prosecution expert Dr. Coons-an attorney and psychiatrist-regarding Petitioner's future dangerousness. Am. Pet. 63B67. Petitioner asserts that, as a result, he “lost the opportunity to put important evidence about his mental limitations before the jury.” Id. at 59.

         1. State Court Disposition

         Pretrial litigation concerning Petitioner's mental health lasted several months and continued into his trial. Given defense counsel's desire to introduce Dr. Natalicio's testimony, the prosecution sought to compel Petitioner to submit to an evaluation by Dr. Coons. See 30 Rep. R. 5-16. The state trial court held a pretrial hearing in which this matter was discussed in July of 2009. Id. at 5-54. During this hearing, defense counsel argued that the examination should be limited to the parameters of the defense expert's evaluation, while the prosecution sought a more robust examination. Id. at 17-31. The state trial court postponed its ruling on the prosecution's motion to compel the examination. See Id. at 54.

         The following day, the state trial court held a hearing on defense counsel's motion to suppress Petitioner's statement, and Dr. Natalicio testified. 31 Rep. R. 60-156. Dr. Natalicio's testimony at this hearing consisted of his initial assessment of Petitioner's intellect and school achievement; in the course of preparing his assessment, he had reviewed Petitioner's police record, indictment, social history, and videotaped interview with detectives. Id. at 60-97, 141-56.

         Dr. Natalicio opined that Petitioner did not understand the Miranda warnings provided before his videotaped interrogation and that he was likely mentally incompetent throughout the videotaped interview. Id. at 67-69. Dr. Natalicio testified that Petitioner's comprehension level was below the fifth grade level. Id. at 69. He added that Petitioner suffered from a language processing deficit involving the left frontal lobe of his brain, and simply could not process language. Id. at 89-90. Dr. Natalicio also testified that Petitioner suffered from organic brain damage, most likely the result of his mother's excessive alcohol consumption while pregnant with Petitioner, a head injury Petitioner suffered when ejected from a moving vehicle around age four, and further brain injury resulting from the scarlet fever Petitioner contracted around age seven. Id. at 91. He explained that Petitioner's school records show Petitioner suffered from a developmental problem, which left him unable to learn certain things. Id. at 92.

         During cross-examination, Dr. Natalicio testified that as part of his evaluation of Petitioner, he performed a mental status examination, administered the Wechsler Adult Intelligence Scale Revised (“WAIS-R”) and a wide-range of achievement tests, and spent approximately seven and a half hours interviewing Petitioner over three different sessions. 31 Rep. R. 118-22. He added that he conducted a “political interview” of Petitioner during the mental status examination, which covered Petitioner's appearance, sensory functions, mood, and ability to use his intellect. Id. at 120-24. During the interviews, Dr. Natalicio also discussed Petitioner's prior conviction for manslaughter and the factual basis for that conviction. Id. at 126. Dr. Natalicio claimed that Petitioner informed him that he shot someone to protect his sister from an assault. Id.

         Thereafter, Petitioner's trial counsel filed two motions to prohibit the examination of Petitioner by the prosecution's mental health expert or, in the alternative, to limit the scope of the expert's examination of Petitioner to assessing the level of Petitioner's intellectual functioning. 2 Clerk's R. 764-71, 778-82. The state trial court subsequently granted the prosecution's motion to have Petitioner evaluated by Dr. Coons. 3 Clerk's R. 791-92.

         During a pretrial Daubert hearing in August of 2009, the prosecution's mental health expert, Dr. Coons, testified that he was licensed both as an attorney and a physician and had previously testified on the subject of future dangerousness in capital murder trials on thirty to fifty occasions. 34 Rep. R. 13-21. He explained that, in the course of evaluating an individual for possible mental health commitment, psychiatrists routinely made predictions regarding whether the individual will engage in violence in the future-more specifically, whether the individual was homicidal or suicidal. Id. at 24-25. He testified that when evaluating an individual for future dangerousness, he examines the person's history of violence, attitude toward violence, personality in general and the existence of any personality disorders, criminal record and the facts surrounding the most recent offense, and treatment of other people generally. Id. at 22- 23. He further explained that, in the course of preparing to testify at trial, he reviewed Petitioner's offense reports for the murders of Urbina Hernandez and Fonseca; prison and medical records from the New Mexico Department of Corrections; school records; and Petitioner's videotaped statement. Id. at 31-33. He also reviewed the letter, attributed to Petitioner, soliciting the murder of two potential prosecution witnesses and longtime friends, Torres and Carrasco. Id. at 33.

         Dr. Coons ultimately concluded that there was a probability that Petitioner posed a future danger. Id. at 38.

         During cross-examination, Dr. Coons testified that he disagreed with the American Psychiatric Association's position on the efficacy of expert testimony on future dangerousness. Id. at 50-52. He also indicated that there was a difference of opinion within the medical community regarding the efficacy of future dangerousness predictions by mental health experts. Id. at 54.

         Petitioner's trial counsel subsequently filed a notice of Petitioner's intention not to submit to any evaluation or interview by Dr. Coons and two motions seeking to preclude imposition of the death penalty based upon assertions that Petitioner was mentally retarded and mentally immature. 3 Clerk's R. 812-15.

         During a third and fourth pretrial hearing, the parties discussed extensively the admissibility of Dr. Natalicio's opinions regarding Petitioner's low intellectual level and mental retardation and the state trial court's prior ruling mandating Petitioner's submission to examination by Dr. Coons as a precondition to Dr. Natalicio testifying at trial. 36 Rep. R. 142-55. At the conclusion of both hearings, the state trial judge postponed any final ruling on the admissibility of Dr. Natalicio's trial testimony.

         After these four pretrial hearings, the prosecution filed a brief arguing in favor of its second motion to allow the prosecution's mental health expert to evaluate Petitioner and to compel the production of the factual bases for Dr. Natalicio's proposed trial testimony. 3 Clerk's R. 903-07. The state trial court subsequently issued two brief orders granting the prosecution's motions, requiring Petitioner to submit to a mental health evaluation by its expert. Id. at 309. Petitioner's trial counsel filed a second motion requesting that the state trial court limit the scope of Dr. Coons's examination of Petitioner to assess Petitioner's intellectual functioning level and a second notice of Petitioner's invocation of his right to refuse psychiatric examination by the prosecution's mental health expert. Id. at 919-22.

         During the punishment phase of Petitioner's capital murder trial, the defense called Dr. Natalicio to testify outside the jury's presence in a bill of review proceeding. 72 Rep. R. 177-95. During the proceeding, Dr. Natalicio testified that he evaluated Petitioner regarding his intellectual functioning and achievement and studied “the social context of his development.” Id. at 178. He reported that Petitioner had an estimated IQ of 62 and a mental age of nine, his verbal score on the WAIS-R was 68, his performance score was 106, and his full scale was 84. Id. at 182, 186. He explained that Petitioner's low scores on standardized testing were likely the product of in utero exposure to alcohol. Id. at 187-88. These scores also indicated that Petitioner suffered from frontal and prefrontal lobe damage and limited intellectual functioning. Id. at 191-92. He concluded that, as a result, Petitioner suffered from deficits in his ability to make judgments. Id. at 192-93.

         At the conclusion of Dr. Natalicio's testimony, the parties re-urged their previously asserted positions, and the state trial court ruled that Dr. Natalicio would not be permitted to testify before the jury because Petitioner refused to submit to an examination by the prosecution's mental health expert. 72 Rep. R. 195B97. Accordingly, Dr. Coons did not testify during either phase of trial.

         On direct appeal, Petitioner alleged that the state trial court erred when it ordered his examination by the State's mental-health expert. Appellant's Br. 37-44, AP 76, 276; Hernandez v. State, 390 S.W.3d 310, 321 (Tex. Crim. App. 2012). Specifically, he asserted that the state trial court refused to limit the expert's examination to the scope of the limited matters covered by his own expert. Relying on Estelle v. Smith, 451 U.S. 454 (1981), [11] Soria v. State, 933 S.W.2d 46 (Tex. Crim. App. 1996), [12] and Lagrone v. State, 942 S.W.2d 602 (Tex. Crim. App. 1997), [13]Petitioner argued that the state trial court's refusal to limit the State expert's examination deprived him of his Fifth Amendment right against self-incrimination and denied him the opportunity to present a defense during the punishment phase of his trial.

         The Texas Court of Criminal Appeals rejected Petitioner's point of error, noting that “[w]hen a defendant intends to present mental-health expert testimony, the State is entitled to compel the defendant to undergo examination by the State's expert for rebuttal purposes (“Lagrone examination”).” Hernandez, 390 S.W.3d at 321 (citing Lagrone, 942 S.W.2d at 609-12)). The Texas Court of Criminal Appeals added that it would not review a trial court's Lagrone ruling unless the defendant first submitted to a Lagrone examination and suffered actual use of the results of the examination by the State. Id. at 321-22.

         2. State Habeas Review

         Similarly, in his application for state habeas corpus relief, Petitioner once again argued that the state trial court erred in refusing to permit the defense to call Dr. Natalicio to testify regarding Petitioner's low intellectual functioning without requiring Petitioner to submit to an examination by Dr. Coons. 1 State Habeas R. 13, 50-60.

         After the evidentiary hearing held in Petitioner's state habeas corpus proceeding, the state habeas trial court concluded that Dr. Natalicio's interviews and examination of Petitioner allowed him to form opinions which were relevant not only to the issue of Petitioner's intellectual level, but also to the mitigation and future dangerousness special issues. 2 State Habeas R. 577. The state habeas trial court further determined that Petitioner's trial counsel made a strategic decision to forego Dr. Natalicio's testimony based upon a full understanding of the facts and law and for the purpose of precluding possibly harmful testimony by the State. 2 State Habeas R. 578.

         Consequently, the state habeas trial court concluded that Dr. Natalicio's examination of Petitioner was relevant to the issues of future dangerousness and mitigation, the admissibility of Dr. Natalicio's testimony was addressed on direct appeal, and Petitioner could not re-litigate the issue during his state habeas corpus proceeding. Id. at 581-82. The Texas Court of Criminal Appeals adopted these findings and conclusions when it denied Petitioner's state habeas corpus application. Ex parte Fabian Hernandez, 2015 WL 376357, at *1.

         3. Clearly Established Federal Law

         In Estelle v. Smith, 451 U.S. 454 (1981), the State's psychiatrist examined, without the benefit of Miranda warnings, a Texas defendant charged with capital murder to determine defendant's competence to stand trial. At the punishment phase of the trial, the prosecution called the State's psychiatrist to testify in rebuttal to the defendant's three lay witnesses. 451 U.S. at 458-59. The psychiatrist predicted that the defendant would pose a risk of future dangerousness. Id. at 460.

         The Estelle court held that the use of the psychiatrist's testimony violated the defendant's Fifth Amendment right against self-incrimination because the defendant was not warned prior to his pretrial examination that his statements could be used against him at trial. Id. at 466-68. The Supreme Court reasoned that “[a] criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding.” Id. at 468. The Supreme Court also held the defendant's Sixth Amendment right to counsel was violated by the admission of the State's psychiatrist's testimony following an unwarned examination. Id. at 471.

         The Supreme Court did distinguish, however, the facts in Estelle v. Smith from situations in which a defendant intends to introduce psychiatric evidence at the penalty phase, emphasizing its opinion in Jurek v. Texas, 428 U.S. 262 (1976). See Id. at 472-73. In that case, the Supreme Court expressly recognized the predictive nature of the Texas capital sentencing scheme's future dangerousness special issue and the propriety of psychiatric testimony. Jurek, at 472-73.

         In Buchanan v. Kentucky, 483 U.S. 402, 408-411 (1987), the prosecution used psychiatric evidence to rebut an “extreme emotional disturbance” defense raised through a social worker who read several reports relating to defendant's mental condition to the jury. During cross-examination, the prosecution asked the social worker to read other reports on the defendant's progress after his pretrial institutionalization, including a report on a pretrial psychological evaluation conducted pursuant to the parties' joint motion. 483 U.S. at 410-11. The defense objected, arguing that the latter report was the product of an unwarned examination similar to the one in Estelle v. Smith. Id. at 411-12.

         The Buchanan court rejected the argument, holding that the use of the psychological evaluation did not violate the defendant's Fifth Amendment right against self-incrimination. Id. at 423-24. It explained that where a defendant requested a psychiatric examination in order to prove a mental-status defense, he waived the right to raise a Fifth Amendment challenge to the prosecution's use of the evidence obtained through that examination to rebut the defense. Id. at 423. The Buchanan court also rejected the defendant's analogous Sixth Amendment claim. Id. at 424.

         More recently, in Kansas v. Cheever, 134 S.Ct. 596 (2013), the Supreme Court confronted yet another similar situation. In Cheever, a capital murder defendant notified a federal court that he intended to introduce expert evidence suggesting that his voluntary methamphetamine intoxication rendered him incapable of forming the specific intent necessary for his offense. 134 S.Ct. at 599. The district court ordered the defendant to submit to a psychiatric evaluation to assess how the methamphetamine had affected him at the time of his offense. Id.

         After the federal case was dismissed without prejudice, Kansas state officials re-instituted a capital murder case against the defendant. Id. The defendant asserted a voluntary intoxication defense, again arguing that his methamphetamine use rendered him incapable of premeditation. Id. The defense presented the testimony of an expert in psychiatric pharmacy, who testified that the defendant's long-term methamphetamine abuse had damaged his brain, and, on the morning of the fatal shooting, the defendant was acutely intoxicated. Id. The prosecution then sought to present rebuttal testimony from the forensic psychiatrist who had evaluated the defendant during the federal prosecution. Id. at 600. The defense objected, arguing that the defendant's Fifth Amendment rights would be violated by the admission of the testimony because the defendant had not agreed to his federal-court-ordered evaluation. Id. The state trial court allowed the testimony. Id. On appeal, the Kansas Supreme Court reversed the state trial court's ruling. Id. The United States Supreme Court upheld the state trial court's ruling and reversed the Kansas Supreme Court, underscoring the principle of parity: “Any other rule would undermine the adversarial process, allowing a defendant to provide the jury, through an expert operating as a proxy, with a one-sided and potentially inaccurate view of his mental state.” Id. at 601

         4. Analysis

         The Texas Court of Criminal Appeals' rejection on the merits of Petitioner's grounds for relief was fully consistent with the principles discussed by the Supreme Court in Buchanan and Cheever. The Fifth Circuit has likewise recognized the fundamental fairness of permitting the prosecution to evaluate a criminal defendant when the defendant advises that he will present expert mental health testimony premised, in part, upon a clinical evaluation. See Schneider v. Lynaugh, 835 F.2d 570, 576 (5th Cir. 1988) (“It is unfair and improper to allow a defendant to introduce favorable psychological testimony and then prevent the prosecution from resorting to the most effective and in most instances the only means of rebuttal: other psychological testimony. The principle also rests on ‘the need to prevent fraudulent mental defenses.'” (footnotes omitted)).

         Petitioner essentially wanted the state court to apply a new rule of constitutional criminal procedure, which is precluded by the Supreme Court's non-retroactivity doctrine announced in Teague v. Lane, 489 U.S. 288 (1989). At the time that Petitioner's conviction became final for Teague purposes, neither the Supreme Court nor any federal circuit court had held that that the Fifth or Eighth Amendment allowed a criminal defendant to introduce expert mental health testimony during the punishment phase of a capital murder trial, premised in part upon a clinical interview of the defendant, without submitting to a clinical interview by the prosecution's mental health expert.

         Insofar as Petitioner argues that the state trial court improperly applied the state evidentiary rules announced in Lagrone, 942 S.W.2d at 602 and Soria, 933 S.W.2d at 46, in ruling on the admissibility of Dr. Natalicio's testimony, those arguments do not furnish a basis for federal habeas corpus relief.

         It is well-settled law in the Fifth Circuit that, in reviewing state evidentiary rulings in habeas corpus petitions, a federal court does not sit as super state supreme court to review error under state law. Bridge v. Lynaugh, 838 F.2d 770, 772 (5th Cir. 1988). It is not the province of a federal habeas court to reexamine state court determinations on state- law questions, such as the admissibility of evidence under state procedural rules. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Goodrum v. Quarterman, 547 F.3d 249, 261 (5th Cir. 2008). A federal court may grant habeas relief based on an erroneous state court evidentiary ruling only if the ruling also violates a specific federal constitutional right or renders the petitioner's trial fundamentally unfair. Brown v. Epps, 686 F.3d 281, 286 n.20 (5th Cir. 2012); Goodrum, 547 F.3d at 261; Johnson v. Puckett, 176 F.3d 809, 820 (5th Cir. 1999); Pemberton v. Collins, 991 F.2d 1218, 1226 ...


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