United States District Court, W.D. Texas, El Paso Division
FABIAN HERNANDEZ, TDCJ No. 999553 Petitioner,
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
MEMORANDUM OPINION AND ORDER
R. MARTINEZ UNITED STATES DISTRICT JUDGE
day, the Court considered Petitioner Fabian Hernandez's
“First Amended Petition for a Writ of Habeas
Corpus” (ECF No. 34)[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.
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,  and denied his petition for state
habeas relief. For the reasons discussed below, the Court
concludes that Petitioner is entitled to neither federal
habeas corpus relief nor a certificate of appealability.
BACKGROUND AND PROCEDURAL HISTORY
Guilt-Innocence Phase of Trial
presented during the guilt-innocence phase of
Petitioner's trial revealed the following factual
became romantically involved with Rene Urbina (Urbina
Hernandez) 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.
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.
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.
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.
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
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.
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.
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.
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.
Punishment Phase of Trial
prosecution sought a death sentence in Petitioner's
case. To secure a death sentence, the
prosecution relied on Petitioner's affiliation with the
Barrio Azteca criminal enterprise. 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.
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.
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.
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.
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
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.
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.
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
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.
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.
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
(3) granted the prosecution's challenges for cause of two
(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
(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.
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).
State Habeas Corpus Proceedings
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.
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
(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
1 State Habeas R. 13-14.
also claimed that his state appellate counsel rendered
ineffective assistance by failing to argue that the Texas
twelve-ten rule is unconstitutional.
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.
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. 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.
Petitioner's Federal Habeas Petition
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
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.
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
Am. Pet. 2-76.
thereafter filed her Answer on June 8, 2016, and Petitioner
filed his Reply on July 28, 2016.
STANDARD OF REVIEW
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)).
Claims Adjudicated in State Court
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;
(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,
“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).
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.”).
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).
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
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).
§ 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
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.”).
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
Claims Not Adjudicated in State Court
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).
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
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.
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).
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
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.
Grounds 3 and 4--The State Trial Court Erred When It Excluded
Petitioner's Standardized Mental Health Testing
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.
State Court Disposition
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.
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.
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.
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.
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.
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.
Coons ultimately concluded that there was a probability that
Petitioner posed a future danger. Id. at 38.
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.
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.
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.
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.
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
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.
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),
Soria v. State, 933 S.W.2d 46 (Tex. Crim. App.
1996),  and Lagrone v. State, 942
S.W.2d 602 (Tex. Crim. App. 1997), 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.
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
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.
State Habeas Review
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.
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.
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.
Clearly Established Federal Law
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
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.
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
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.
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.
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.
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
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)).
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.
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.
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 ...