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Soliz v. Davis

United States District Court, N.D. Texas, Dallas Division

September 6, 2017

MARK ANTHONY SOLIZ, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          MEMORANDUM OPINION AND ORDER DENYING AMENDED PETITION FOR WRIT OF HABEAS CORPUS

          ED KINKEADE, UNITED STATES DISTRICT JUDGE

         Mark Anthony Soliz, a Texas prisoner sentenced to death for capital murder, petitions the Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. A jury convicted Soliz for shooting Nancy Weatherly in the head during a home invasion and robbery. See State v. Soliz, No. F-45059 (413th District Court, Johnson County, Texas, Mar. 23, 2012). The Texas Court of Criminal Appeals (“CCA”) affirmed the judgment on direct appeal and denied habeas corpus relief. Soliz v. State, 432 S.W.3d 895 (Tex. Crim. App. 2014), cert. denied, 135 S.Ct. 1154 (2015); Ex parte Soliz, No. WR-82, 429-01 (Tex. Crim. App. Dec. 17, 2014) (order). Soliz has filed an amended federal petition raising twenty-one grounds for relief.

         All of the claims except one were previously presented in state court. The claims in large part involve trial counsel's strategy to “front load” aggravating and incriminating evidence at the guilt phase of trial. Soliz also challenges counsel's use of experts, counsel's decisions not to object to evidence and argument, the admission of his confession, counsel's choice of claims on appeal, and the constitutionality of the Texas death penalty statute.

         A claim adjudicated on the merits in state court may not be relitigated in federal habeas court unless it (1) is “contrary to” federal law then clearly established in the holdings of the Supreme Court or “involved an unreasonable application of” such law, or (2) “is based on an unreasonable determination of the facts” in light of the record before the state court. See § 2254(d); Harrington v. Richter, 562 U.S.86, 100 (2011). This standard will be discussed further where necessary below.

         In the following discussion, the record is cited as follows, with each abbreviation preceded by volume number, if any, and followed by the page number:

SHCR: State Habeas Clerk's Record. Pages 740 to 750 are out of order.
CR: trial court clerk's record (12 volumes)
RR: trial court reporter's record (74 volumes). Volumes 58 through 74 are not paginated, so the .pdf pagination is used.
SX, DX: trial exhibits of the State and the Defense, respectively.

         I. FACTUAL BACKGROUND

         The opinion on direct appeal contains the following summary of facts, which are presumed correct under 28 U.S.C. § 2254(e)(1):

[The Crime Spree:]
The instant offense was one of numerous offenses that appellant and his accomplice, Jose Ramos, committed during an eight-day crime spree that ended when appellant and Ramos were arrested. Most of these offenses were committed in the Fort Worth area, but the instant offense took place in Godley, which is in Johnson County. This offense was discovered when Ramos mentioned it in response to a Fort Worth police detective's question about another offense that appellant and Ramos had committed.
Appellant's and Ramos's crime spree began with a June 22, 2010 burglary in which they took several long guns and a Hi-Point 9-millimeter semiautomatic handgun, among other items. Later that evening, appellant showed the stolen weapons to a potential buyer, Ramon Morales. Morales wanted to buy all five weapons, but appellant was not willing to part with a rifle and the handgun. Appellant told Morales that he had plans for them. Morales bought the three long guns and pawned them the following day.
On the morning of June 24, 2010, appellant approached a stranger, Justin Morris, in the parking lot of a shopping mall, pointed a gun at him, and demanded his wallet. Morris complied, and appellant took Morris's wallet and left. Appellant was later videotaped by a convenience-store security camera as he attempted to use Morris's debit card at an ATM.
Later that morning, after witnessing an argument between Luis Luna and a female friend of appellant's, appellant asked his friend if she wanted him to “get [Luna] wet, ” which was street talk for drawing Luna's blood or killing him. Appellant fired the gun in the direction of Luna's head, but the bullet passed through Luna's ear lobe without seriously injuring him.
That afternoon, appellant and Ramos held Jorge Contreras at gunpoint in a store parking lot while they stole his green Dodge pickup truck. Later the same day, appellant approached Sammy Abu-Lughod in a different store parking lot as Abu-Lughod was getting into his green Dodge Stratus. Appellant pointed a black handgun at Abu-Lughod and demanded his wallet, cell phone, and car. After taking Abu-Lughod's personal items, appellant told him to walk away. Abu-Lughod complied while appellant drove away in the Stratus.
Around 2:00 a.m. on June 28, 2010, appellant and Ramos approached four people who were leaving a bar and demanded their money and wallets. The victims complied. After taking their wallets, appellant and Ramos left in the Stratus.
At 3:30 a.m. on June 29, 2010, Ramos and appellant committed a “drive-by” shooting. Ramos drove the car while appellant fired shots into a house where they thought a rival gang member might be staying. At about 5:00 a.m., appellant and Ramos approached Enrique Samaniego as he was walking to his pickup truck to leave for work. Either appellant or Ramos shot Samaniego four or five times in the stomach. Samaniego sustained life-threatening injuries, but he survived.
Around 5:30 a.m., appellant and Ramos approached Ruben Martinez, a delivery truck driver who had just completed a beer delivery at a Texaco gas station, as Martinez was walking back to his truck. Appellant pointed the gun at Martinez and demanded his wallet. Martinez complied, offering his cell phone as well. Disappointed that Martinez's wallet contained only ten dollars, appellant shot him in the neck. Martinez later died from complications of this injury.
Less than an hour after shooting Martinez, appellant approached Kenny Dodgin as Dodgin was exiting his car in the parking lot of a Lowe's store. Appellant pointed a gun wrapped in a blue bandanna at Dodgin. Upon seeing appellant, Dodgin locked his car and ran toward the store. He heard three gun shots behind him.
Around 7:00 a.m., appellant burglarized two homes in Benbrook, a town southwest of Fort Worth. Later that morning, appellant and Ramos drove to Weatherly's home and committed the instant offense.
[The Arrests:]
The Fort Worth Police Department's Communications Division received the call when appellant robbed Abu-Lughod of his green Stratus, as well as later calls reporting robberies and shootings involving a green or teal sedan. A 9-1-1 call-taker supervisor informed detectives that the stolen Stratus might be the green or teal sedan involved in the later offenses. Detectives subsequently reviewed offense reports and compared notes. Based on the close physical and temporal proximity of some offenses as well as similarities in the descriptions of the suspect, weapon, vehicle, and modus operandi, they determined that approximately thirteen burglaries, aggravated robberies, and shootings in the Fort Worth area, dating from June 22 to June 29, were likely to be connected. Because of the escalation of violence in the Samaniego and Martinez offenses, all Fort Worth police officers were instructed to be on the lookout for the stolen Stratus.
Around 10:30 p.m. on June 29, officers in an unmarked vehicle established surveillance on the house of a known gang member, Arturo Gonzales, which was near the last known location of the Stratus. Eventually they observed the Stratus leaving Gonzales's house, closely following a Jeep Liberty. The two vehicles appeared to be traveling together. Officers identified the Stratus by its license plate as the vehicle they were searching for and radioed for a marked patrol unit to initiate a stop. With lights and siren activated, a marked unit began following the Stratus. Instead of stopping, however, the Stratus accelerated and passed the Liberty. After a brief pursuit, the Stratus crashed into a parked eighteen-wheeler.
Appellant exited through the passenger side window and ran through parking lots and across a freeway before officers stopped and arrested him. The other occupant of the Stratus, Elizabeth Estrada, exited the Stratus and ran behind the eighteen-wheeler, where officers quickly arrested her. The stolen handgun and the blue bandanna were found inside the Stratus. Meanwhile, police officers stopped the Liberty for an equipment violation and transported its occupants, including Ramos, to the police station for questioning.
[Police Interviews and Investigation:]
Ramos admitted his participation in some of the offenses and provided useful information about them. However, when detectives questioned Ramos about the aggravated robbery in which Contreras's green pickup truck had been stolen, Ramos provided information that was inconsistent with the information detectives had already obtained about that offense. Specifically, Ramos indicated that the offense had ended badly and stated that it did not have to “end that way.” This statement puzzled detectives because no one had been hurt and no shots had been fired during the offense. Ramos also referred to a female victim rather than a male victim. After some initial confusion, detectives ascertained that Ramos was describing a previously unknown offense committed in Johnson County. Ramos indicated that a female victim had been shot during a burglary or robbery and her green Toyota Tundra pickup truck had been stolen.
Ramos provided directions to the stolen Tundra, which detectives found parked about a block from Gonzales's house. Detectives checked the truck's registration and obtained the name and address of its owner, Nancy Weatherly. They then contacted the Johnson County Sheriff's Office and drove to Weatherly's house. A sheriff's deputy joined them at the house. They observed that the gate and garage door were open, and the back door of the house was partially open. The interior had been ransacked. Weatherly's body was lying in the kitchen area next to a table and chair. She had been shot once in the back of the head.
The investigation of this offense was ongoing when Fort Worth Detectives William “Danny” Paine and Thomas Boetcher began questioning appellant at the police station. The interview was recorded. Boetcher advised appellant of his rights and appellant stated that he understood them. When asked if he was willing to talk about the offenses, appellant answered, “All right.” Paine and Boetcher initially questioned appellant about the Fort Worth offenses. Later, as they received information about the Johnson County investigation, they questioned appellant about that offense as well.
Paine and Boetcher also obtained two typed and signed statements from appellant that summarized his oral statement. The first typed statement concerned the Fort Worth offenses. In it, appellant admitted his involvement in the Abu-Lughod, Contreras, Morris, Martinez, Dodgin, and bar patron robberies, as well as the Luna shooting. He also acknowledged that Ramos did not participate in all of these offenses.
Appellant's second typed statement concerned the instant offense. In it, appellant admitted that he and Ramos had driven to Godley, where appellant had threatened Weatherly with a gun and had burglarized her house. Appellant denied shooting Weatherly, stating that after he and Ramos had loaded what they wanted into the Tundra, appellant left the gun inside with Ramos and went outside to start the car. He then heard a shot and saw Ramos walking out of the house. With Ramos driving the Tundra and appellant driving the car, they returned to Fort Worth.
After appellant signed the second typed statement, detectives questioned him further. Appellant wavered about whether he or Ramos was the person who shot Weatherly. Eventually, appellant stated that he would confess to the shooting just to “get this over with, ” and admitted that he shot Weatherly. He also wrote and initialed a sentence at the end of his second typed statement: “It was me that shot that wom[a]n!!!”
[Trial Evidence:]
Appellant's statements were not the only evidence that appellant committed the instant offense. Estrada, who was riding in the Stratus with appellant when it crashed, testified that appellant bragged to her about killing an “old lady” in a house in Godley. Appellant told Estrada that he knocked on the door, and when the lady opened it, he pointed the gun at her. The lady backed up, and appellant made her sit down. Appellant told Estrada that he killed one of the lady's horses, which made the lady cry. She begged for her life and prayed. When appellant showed the lady that he was stealing her jewelry box, she asked him not to take it because it had been a gift from her mother, who was now deceased. Appellant then told her to go with her mother and shot her in the head. He demonstrated for Estrada how he held out the gun and fired. He laughed about the incident and ridiculed the lady's “country” accent. He said that later, while taking methamphetamine, he had flashbacks about killing the lady and “seeing her brains go everywhere.” Weatherly's neighbor testified that she passed Weatherly's house around 10:30 a.m. on June 29 and saw a green Stratus parked by the house, facing the road. The next day, when she watched the news, she recognized the car that had been recovered in Fort Worth as the car she had seen at Weatherly's house. Further, a law-enforcement officer testified that, while he was transporting appellant and Ramos from Fort Worth to Johnson County for pretrial proceedings, he overheard appellant telling Ramos that all they needed to do was “play dumb, ” and authorities would “get” the man who pawned the guns (presumably a reference to Morales) on capital murder.
Forensic evidence also connected appellant to the instant offense. Jennifer Nollkamper, a forensic scientist with the Fort Worth Police Department crime laboratory, determined that the shell casing recovered from Weatherly's home had been fired through the Hi-Point 9-millimeter semi-automatic handgun recovered from the Stratus. Nollkamper testified that the bullet recovered from Weatherly's home was too damaged for her to state affirmatively that it was fired from the recovered weapon, but she could state affirmatively that it was fired from a Hi-Point 9-millimeter semi-automatic handgun. Lannie Emanuel, a tool mark and firearm examiner for a private forensic laboratory, agreed with Nollkamper's determination that the shell casing had been fired through the recovered weapon. Emanuel, however, did not think that the bullet was too damaged for a positive comparison. He testified affirmatively that the bullet recovered from Weatherly's home was fired from the recovered weapon.
William Walker, a fingerprint examiner with the Tarrant County Medical Examiner, positively identified a latent fingerprint on an audiocassette case in Weatherly's spare bedroom as appellant's fingerprint. A trace analyst from the Tarrant County Medical Examiner's Office identified gunshot residue on appellant's clothing and hands, the interior of the Stratus, and a blue bandanna and towel that were recovered from the Stratus.

Soliz, 432 S.W.3d at 896-900.

         II. COUNSEL'S DECISION NOT TO RETAIN A FALSE-CONFESSION EXPERT (CLAIM 1)

         Trial counsel moved to suppress all of the oral and written the statements made by Soliz. 2 CR 264-67. The trial court denied the motion after a hearing. 9 CR 1746. In his state habeas corpus application, Soliz argued that trial counsel were ineffective for failing to present testimony from a false-confession expert during the suppression hearing. He supported the claim with an affidavit from psychologist Gregory DeClue. SHCR 36-48, 169. The state court overruled the claim. See SHCR 730, 749-50 (Respondent's proposed findings of fact and conclusions of law), 771 (Order adopting Respondent's proposed findings and conclusions).

         A. Clearly established federal law

         The clearly established law for ineffective-assistance claims begins with Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a petitioner must demonstrate that counsel's representation was deficient, meaning that it fell below an objective standard of reasonableness. Id. at 687-88. A petitioner must also demonstrate prejudice, meaning a reasonable probability, sufficient to undermine confidence in the outcome, that but for counsel's unprofessional errors the result of the proceeding would have been different. Id. at 694. The failure to prove either deficient performance or actual prejudice is fatal to an ineffective-assistance claim. Strickland, 466 U.S. at 700.

         In addressing Strickland claims that have been adjudicated in state court, “[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable, ” not whether trial counsel's performance fell below the Strickland standard. Richter, 562 U.S. at 101. This review is “doubly deferential, ” meaning the Court takes a “highly deferential” look at counsel's performance through the “deferential lens of § 2254(d).” Cullen v. Pinholster, 563 U.S. 170, 190 (2011). Here, Soliz must demonstrate, based on the state-court record, that it was unreasonable for the CCA to conclude (1) he did not overcome the strong presumption of competence and (2) he did not undermine confidence in the verdict. See Id. at 190; § 2254(d)(2).

         B. Facts before the state court

         Soliz's confession was admitted in audiovisual format, such that the trial judge could see and hear the interview as it took place. 5 RR 200-201. During the suppression hearing, counsel addressed suggestibility through cross-examination and highlighted multiple risk factors for a false confession. See 5 RR 120-26, 149-51, 169-70 and 6 RR 30-35, 47-49, 55-56, 66 (drug use, drug withdrawal, mental health history, and suggestibility); 5 RR 84-90, 127-35, 140, 153-55 and 6 RR 19-22, 24 (interrogation techniques), 5 RR 142, 147-48 and 6 RR 26-29, 63 (sleep deprivation).

         The habeas record included Dr. DeClue's affidavit, in which he stated he would have identified the following risk factors for an involuntary confession: Fetal Alcohol Spectrum Disorder (“FASD”), suggestibility, and sleep deprivation in Soliz, plus interrogation techniques that included minimizing the offense, pressuring Soliz to change his story, and failing to ask Soliz details that only a person who had witnessed the shooting would know. SHCR 175-80. Dr. DeClue said he would have testified about these factors, and he would have provided research, literature, and “an expert opinion to aid the trial judge's evaluation of the confession, ” but he did not opine that Soliz's confession was false. SHCR 180-81, ¶ 42.

         Trial counsel Michael Heiskell also provided an affidavit to the habeas court. He said that the case-in-chief “painted a picture of overwhelming guilt, ” and that a false-confession expert was “totally unnecessary in light of the totality of the circumstances surrounding the confession and the corroborating evidence that existed connecting Mr. Soliz to the crimes.” SHCR 443, ¶ 2, 3. Trial counsel otherwise spent $193, 737.23 on experts in this case, according to the Johnson County Auditor. See 12 CR 2328. Three experts on FASD and a prison classification expert testified at the punishment phase, in addition to the following consulting experts: $7, 500 for Dr. John Roache (1 CR 47); $30, 000 for mitigation specialist Dr. Jolie Brams (1 CR 48; 4 CR 721); $5, 000 for Dr. Raymond Singer (1 CR 112); $12, 900 for Dr. Emily A. Fallis (1 CR 149; 12 CR 2213); $5, 000 for DNA expert Robert Benjamin, Ph.D. (4 CR 650); $13, 008.88 for mitigation specialist Mary Burdette (12 CR 2213); and $2, 500 for jury consultant Bret Dillingham (10 CR 1797). Counsel even used an expert, Dr. Brams, to coordinate his many mitigation experts. 4 CR 719.

         C. Counsel's alleged deficiency

         A reasonable argument exists that trial counsel met Strickland's objective standard of reasonableness. Counsel was clearly capable and willing to acquire expert assistance when he believed it was necessary. Given the strength of the State's case and the circumstances of the confession, counsel could reasonably conclude that a confession expert was not worth the expense and that expert fees were better spent on punishment mitigation. Counsel did not overlook the suggestibility issues, but adequately developed false-confession risk factors through cross-examination. He could reasonably conclude that the trial judge's ability to view the police interview in audiovisual format also reduced the need or impact of an expert opinion. See 6 RR 116 (counsel's argument that the trial court “clearly heard and saw the demeanor of the Defendant”). Further, the expert offered by Soliz, Dr. DeClue, did not opine that his confession was false. Such an expert could be harmful to the defense in that the factfinder might presume that the expert withheld his opinion because it would not support the defense. Soliz fails to demonstrate that the state court's ruling as to counsel's choice of experts was unreasonable. See Richter, 562 U.S. at 107 (holding that counsel is entitled to balance limited resources in accord with effective trial tactics and strategies).

         D. Strickland prejudice analysis

         The state court also reasonably rejected Soliz's assertion of prejudice. The expert upon whom this claim is based did not conclude that Soliz's confession was false. Dr. DeClue states that, “proving conclusively that a confession is, in fact, false requires the existence of verifiable contrary evidence, ” but DeClue does not discuss any evidence that contradicts Soliz's confession. See SHCR 171, ¶ 11, 180 ¶ 40-42. The expert's opinion would have simply been cumulative “risk factor” evidence, albeit somewhat more detailed than what trial counsel established through cross-examination without an expert. And given that the trial judge viewed the confession for himself, the state court could reasonably conclude that more “risk factor” information would not have changed the outcome of the suppression hearing.

         The confession aside, trial evidence includes testimony from Elizabeth Estrada that Soliz bragged about shooting an “old lady” in the head in Godley. 44 RR 194-97. Soliz gave Estrada details about the crime and told her he had flashbacks about killing the lady and “seeing her brains go everywhere, ” which describes the crime scene accurately. 43 RR 43-45 (description of crime scene); 44 RR 276-77 (Estrada's testimony). Weatherly's neighbor also testified that a green Stratus was parked at Weatherly's house, facing the road, on the day her body was discovered. 44 RR 91-92. A law enforcement officer who transported Soliz and Ramos to Johnson County overheard Soliz tell Ramos that all they needed to do was “play dumb, ” and authorities would “get” the man who had pawned the guns (presumably, Ramon Morales) on capital murder. 38 RR 123-24 (Morales's testimony); 43 RR 226 (officer's testmony). The physical evidence included a shell casing and a bullet recovered from Weatherly's home that had been fired through the handgun recovered from the Stratus that Soliz used to flee the police. 42 RR 121; 45 RR 139, 149-50. Soliz's fingerprint was found on an audiocassette case in Weatherly's spare bedroom. 44 RR 126. Gunshot residue was found on Soliz's pants and hands, the interior of the Stratus, and the bandanna and towel recovered from the Stratus. 45 RR 117. This evidence of guilt corroborates the confession and is overwhelming.

         The state court could reasonably reject the assertion that counsel's failure to hire an expert to provide more “risk factor” information undermines confidence in the verdict. E.g., Leal v. Dretke, 428 F.3d 543, 549 (5th Cir. 2005) (finding no Strickland prejudice where expert's testimony was “not definitive” and State produced overwhelming evidence of guilt). The Court denies claim 1.

         III. COUNSEL'S DECISION TO OFFER THE CONFESSION INTO EVIDENCE (CLAIM 1A)

         Soliz challenges trial counsel's decision to offer his recorded confession into evidence. Trial counsel offered the confession without qualification and for all purposes on the fourth day of trial, during the recross-examination of Detective Paine. 41 RR 134-35. Soliz contends trial counsel were ineffective for doing so because they waived any error in its admission for purposes of appeal. Pet. 26-30. Soliz acknowledges that this claim was not raised in state court and is subject to procedural bar. He argues, however, that state habeas counsel's failure to raise the claim amounted to ineffective assistance that excuses any procedural bar under Martinez v. Ryan, 566 U.S. 1 (2012) and Trevino v. Thaler, 133 S.Ct. 1911 (2013). See Reply 1-2.

         The absence or ineffectiveness of initial-review state habeas counsel can establish cause for the procedural default of an unexhausted ineffective-assistance claim against trial counsel. Martinez, 566 U.S. at 17; Trevino, 133 S.Ct. at 1921. To establish this procedural-bar exception, petitioner must show (1) he had no initial state habeas counsel or his initial state habeas counsel was ineffective under Strickland, and (2) the underlying ineffective-assistance claim against trial counsel is “substantial, ” meaning it has “some merit.” Martinez, 566 U.S. at 14.

         A. The claim against trial counsel

         Soliz asserts “there can be no tactical justification whatsoever for trial counsel offering Soliz's confession into evidence.” Pet. 28. As noted in the previous discussion, however, trial counsel believed, “[a]fter a thorough and exhausting review of all the evidence, ” that the evidence “painted a picture of overwhelming guilt.” SHCR 443, ¶ 2. Counsel identified the mitigation issue as paramount in the “all but certain punishment phase.” Id. With counsel's mitigation strategy in mind, the Court turns to the record to “affirmatively entertain the range of possible reasons” trial counsel may have had for introducing the confession. See Pinholster, 563 U.S. at 196 (internal quotes and citations omitted) (holding that federal court is required not simply to give the attorneys the benefit of the doubt, but to entertain the range of possible reasons they may have had for proceeding as they did).

         The record demonstrates that trial counsel offered the confession to introduce the defense theory that Ramos was the leader of their week-long crime spree, while Soliz, due to cognitive deficits and FASD, was the “dumb criminal” who allowed himself to be used and then confessed in writing. Counsel introduced this theory during opening remarks when he said that Soliz “went on a crime spree” due to fetal alcohol syndrome, which he described as “a brain damaging medical diagnosis, ” mixed in with neglect and drug abuse. 38 RR 42. Counsel said that FASD is a medical condition associated with “law breaking” and “aggressive behaviors.” 38 RR 43. He asked the jury to pay close attention to the role that Ramos played during the offense because the jury would hear evidence that Soliz, due to his medical disorder, was “a follower.” 38 RR 43. Counsel said that, while some of the crimes committed are unspeakable and heartbreaking, the jury would see evidence of an “unspeakable, heartbreaking childhood, ” and that Soliz “is what he learned, ” “is what he lived.” 38 RR 43-44. Trial counsel then developed this theory during cross-examination of Detective Paine by showing:

• Ramos and Arturo Gonzles were in the same gang and had known each other longer than Ramos had known Soliz (41 RR 64);
• Ramos sold or gave the murder weapon to Soliz (42 RR 32-33);
• Ramos's girlfriend, Maria Rivera, owned the car used in the first burglary, where the murder weapon was procured (41 RR 79-80);
• Ramos subsequently distanced himself by calling the police and reporting Rivera's vehicle “borrowed and not returned” (41 RR 81-82);
• Ramos refused to sign a written statement and invoked his right to counsel (41 RR 89);
• Soliz's cohorts described him as psychotic and said he “wasn't all there mentally” (41 RR 90-91);
• Ramos was very familiar with the criminal justice system and had prior convictions for burglary, theft, evading arrest, solicitation of prostitution, assault of a family member, and possession of a controlled substance (41 RR 92-94);
• Ramos took possession of the jewelry proceeds from their crimes (41 RR 97); • Ramos made significant decisions during the Weatherly robbery, including electing to drive Weatherly's truck, and used his acquaintances to pawn stolen items (41 RR 98-100); and
• sometimes, criminals take advantage of and cause others to act on their behalf in order to insulate themselves from liability (41 RR 100).

         Trial counsel then introduced the confession and continued his cross-examination of Detective Paine, contrasting Soliz to “smart criminals” who do not flee the police, do not waive their rights, and do not implicate themselves on videotape. At the end of the examination, Detective Paine admitted that sometimes “smart criminals” use “dumb criminals” to do their dirty work. 41 RR 140.

         During closing argument, counsel reminded the jury that the defense, not the State, had introduced the confession. 47 RR 57. He argued that, because of Soliz's many impairments and the police tactics, the confession did not rise to the level of evidence expected in a capital murder trial. 47 RR 58-59. He asked the jury to convict Soliz of murder, not capital murder, because Soliz was “not the smart one here, ” and the because the State had failed to prove he had the intent to kill. 47 RR 60-62.

         A reasonable argument exists that trial counsel met Strickland's objective standard. Reasonable counsel could have decided that the chance of success on appeal was slim given the circumstances of the confession and other, strong evidence of guilt. See Arizona v. Fulminante, 499 U.S. 279, 296 (1991) (establishing that erroneous admission of confession is harmless if State can establish beyond a reasonable doubt that it did not contribute to the conviction). By offering the confession rather than waiting for the State to do it, counsel diluted its negative impact and presented himself to the jury as forthright and honest. In doing so, counsel did not give up his adversarial role, but used the confession to support the mitigation theory, undermine the reliability of the confession, and argue for a murder conviction.

         There are “countless ways” to provide effective assistance in any given case. Strickland, 466 U.S. at 689. “Attorneys representing capital defendants often face daunting challenges in developing strategies, not least because the defendant's guilt is often clear.” Florida v. Nixon, 543 U.S. 175, 191 (2004). In such cases, “avoiding execution may be the best and only realistic result possible.” Id. (internal quotations and brackets omitted). Such strategic choices, made after a thorough investigation of the law and facts relevant to plausible options, are “virtually unchallengeable.” Strickland, 466 U.S. at 690. “Such tactical decisions, made on an informed and reasoned basis, do not fall below Strickland standards simply because they do not succeed as planned.” See Jones v. Butler, 837 F.2d 691, 693-94 (5th Cir. 1988).

         While Soliz takes issue with counsel's chosen strategy, he does not address the reasons for it that are obvious in the record and does not show that counsel's approach was inconsistent with the standards of professional competence. Moreover, Soliz does not attempt to show he would have prevailed on an appeal of the suppression issue but for trial counsel's alleged error. Pet. 29. He states that “a confession by its nature creates more potential for harm” than other types of evidence (Reply, p. 2-3), but does not argue harm under the facts of this case. Accordingly, Soliz does not show that the ineffective-assistance claim against trial counsel has “some merit.”

         B. State habeas counsel's alleged deficiency

         Soliz was represented in state habeas proceedings by the Office of Capital Writs (“OCW”), a Texas public defender's office that specializes in post-conviction capital litigation. OCW filed an application raising eighteen claims for relief supported by an extra-record investigation. SHCR 8-439. Asserting that the confession was “powerful and ultimately devastating” evidence, Soliz concludes that OCW's failure to challenge trial counsel's waiver of the suppression issue resulted in a “total deprivation of Mr. Soliz's right to counsel under the Sixth Amendment” that satisfies Martinez. Pet. 29-30. The record does not, however, support the assertion that Soliz was “totally deprived” of counsel - at either at trial or on habeas review. As for showing prejudice, the amended petition concludes without explanation that this very high burden is met. Pet. 30.

         In an all-too-common approach, Soliz assumes that if he can show some merit to the claim against trial counsel, then he has met his burden under Martinez to show that state habeas counsel was ineffective in failing to challenge trial counsel's representation. This approach improperly pretermits a discussion of habeas counsel's representation, which would include the facts known to the attorneys at OCW and the reasons they had for proceeding as they did. Soliz's failure to address OCW's representation under the first prong of Strickland is fatal to his Martinez argument. Matthews v. Davis, 665 F. App'x 315, 321 (5th Cir. Nov. 3, 2016) (holding that procedural default is not excused under Martinez simply because the ineffective-assistance-of-trial-counsel claim is substantial; petitioner must show state habeas counsel was ineffective for failing to bring it).

         Claim 1A is procedurally barred because the claim against trial counsel has no merit and, alternatively, because Soliz does not attempt to show that OCW was ineffective. See Martinez, 566 U.S. at 17. In the alternative, the Court finds the record is sufficient to address this claim on the merits. For the reasons discussed de novo above, claim 1A against trial counsel is denied on the merits. See § 2254(b)(2).

         IV. ADMISSION OF SOLIZ'S CONFESSION (CLAIM 20)

         Claim 20 challenges the trial court's ruling to admit Soliz's confession. Pet. 194-200. Soliz raised this claim on direct appeal. He argued that the confession was involuntary because he did not affirmatively waive his Miranda rights, and he made a request to terminate the interview that the police ignored. See Appellant's Opening Brief, 32, 41-42 (points of error 3, 4); Miranda v. Arizona, 384 U.S. 436 (1966). As discussed in the previous claim, the CCA ruled that Soliz waived any error with respect to his confession when trial counsel offered it into evidence. Soliz, 432 S.W.3d at 902-03.

         A. Procedural default

         A federal court will not review a question of federal law decided by a state court if the state court decision rests on a state-law ground that is independent of the merits of the claim and adequate to support that judgment. Coleman v. Thompson, 501 U.S. 722, 729 (1991), modified by Martinez, 566 U.S. 1. Respondent contends this claim is procedurally defaulted because the state court ruling was based on a version of the contemporaneous-objection rule, which is an independent and adequate state procedural bar precluding federal habeas relief. The CCA ruling is repeated below:

By offering his oral statement into evidence, appellant waived error concerning the trial court's ruling on his motion to suppress this statement. See Decker v. State, 717 S.W.2d 903, 908 (Tex. Crim. App. 1986) (stating that, when appellant offered his confession into evidence before the jury and the trial court admitted it as a defense exhibit, appellant waived his objection to the admission of his confessions); see also Ex parte Moore, 395 S.W.3d 152, 157 (Tex. Crim. App. 2013) (stating that when a defendant affirmatively asserts during trial that he has “no objection” to the admission of evidence, he waives any error in its admission despite a pre-trial ruling denying his motion to suppress).
Appellant's written statements were offered by the prosecutor and admitted into evidence after appellant's oral statement had been admitted and published to the jury. These written statements were summaries of the oral statement. Because appellate waived error with respect to his oral statement, the admission of his written statements does not constitute reversible error. See Coble v. State, 330 S.W.3d 253, 282 (Tex. Crim. App. 2010).

Soliz, 432 S.W.3d at 903.

         The contemporaneous objection rule, if that is what the CCA applied, is adequate to preclude federal review. See Allen v. Stephens, 805 F.3d 617, 635 (5th Cir. 2015), cert. denied, 136 S.Ct. 2382 (2016). The CCA did not, however, cite Texas Rule of Appellate Procedure 33.1, which is the contemporaneous objection rule for preservation of error on appeal. See Grado v. State, 445 S.W.3d 736, 738-39 (Tex. Crim. App. 2014). To the extent the opinion appears to rest on trial counsel's assertion that he had “no objection” to the written confessions, the record does bear this out. Trial counsel actually stated, “No additional objections” to the written statements. 41 RR 150 (emphasis added). Neither did the CCA rely on the fact that trial counsel did not assert the particular Miranda objections upon which the claim is based. Rather, it was counsel's decision to offer the oral statement into evidence that “waived” the appellate claim.

         Based on the trial record and the CCA reasoning, it appears that the CCA might have applied the invited-error doctrine. See Woodall v. State, 336 S.W.3d 634, 644 (Tex. Crim. App. 2011) (“the law of invited error provides that a party cannot take advantage of an error that it invited or caused, even if such error is fundamental”). But see Prystash v. State, 3 S.W.3d 552, 531 (Tex. Crim. App. 1999) (explaining that invited error is a type of “estoppel” not “waiver”). Like the contemporary objection rule, the invited-error doctrine qualifies as a state procedural bar which may preclude federal review. See Druery v. Thaler, 647 F.3d 535, 545-46 (5th Cir. 2011), cert. denied, 565 U.S. 1207 (2012).

         Whichever procedural bar the state court applied, Soliz may overcome it by showing cause for the default and actual prejudice, or demonstrating that the failure to consider the claim will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750. Soliz does not make an argument to overcome the default. Pet. 194-200; Reply 1-3. It is therefore barred. See Druery, 647 F.3d at 545 (refusing to address alleged error in omission of jury instruction ...


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