                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                   UNITED STATES COURT OF APPEALS
                        for the Fifth Circuit                 April 11, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 05-70057


                            ARTURO DIAZ,

                                             Petitioner-Appellant,


                               VERSUS


                   NATHANIEL QUARTERMAN, DIRECTOR,
               TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
                 CORRECTIONAL INSTITUTIONS DIVISION,

                                              Respondent-Appellee.




           Appeal from the United States District Court
                for the Southern District of Texas
                          (7:04-CV-00225)




Before JONES, Chief Judge, and WIENER and DeMOSS, Circuit Judges.

PER CURIAM:*

      Petitioner Arturo Diaz was convicted in Texas state court of

capital murder and sentenced to death. He comes before this Court

to request a Certificate of Appealability (“COA”) to appeal the

district court’s denial of federal habeas relief. For the reasons

stated below, we grant Diaz’s request in part and deny it in part.

  *
   Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                             I. Background

     In February 2000, Diaz was convicted in Texas state court of

the capital murder of Michael Ryan Nichols. He was sentenced to

death. The facts stated below are taken from the opinion of the

Texas Court of Criminal Appeals (“TCCA”) on direct appeal and the

report and recommendation of the magistrate judge as adopted by the

district court on federal habeas review.

     On April 1, 1999, Nichols was in McAllen, Texas on business.

That night, the night before he was murdered, Nichols went out with

an exotic dancer named Danielle Thomas who performed exotic dances

at parties and private dances. While they were out, a teller

machine destroyed Nichols’ bank card and Thomas loaned him $100.

When the    nightclubs   closed   at       2:00    a.m.,   Nichols   and   Thomas

returned to Thomas’ trailer, where they met up with Diaz and a

woman named Arcelia Reyes. The four watched movies until 4:00 or

5:00 a.m., when Thomas and Reyes, who provided security for Thomas,

borrowed Nichols’ truck to go to a motel so Thomas could dance.

Reyes returned the truck to Nichols before the dance ended. Thomas

called the trailer several times during the day, speaking sometimes

to Diaz and sometimes to Nichols. When Thomas and Reyes returned to

the trailer at 8:00 p.m. on April 2, the two men had left.

     John    Shepherd,   a   coworker         of    Nichols    who    shared   a

company-owned apartment in McAllen with him, later testified that

Nichols, Diaz, and a man named Joe Cordova arrived at the McAllen

apartment between 6:00 and 7:00 p.m. on April 2. Shepherd felt

                                       2
uncomfortable around Nichols’ companions. He noticed that Diaz had

tattoos on his forearms. Shepherd left to buy beer and cigarettes.

When he returned, he noticed that Nichols’ truck was in the center

of the parking lot, a fact that would become important later.

Nichols, Diaz, and Cordova were watching television in the living

room. Shepherd went to bed.

     While Shepherd was in bed, Thomas and Reyes stopped by the

apartment. Thomas testified that she had come to recover the $100

she had lent to Nichols on April 1. She saw that Nichols had two

fifty dollar bills in his wallet. He gave her one and kept the

other. After the murder, the second fifty dollar bill was not found

in Nichols’ wallet, or anywhere else for that matter. Instead, a

piece of paper with Diaz’s telephone number and first name were

found in Nichols’ wallet.

     Later that night, Shepherd was awakened by a loud noise. He

went to the living room and found Nichols bleeding from a wound in

his arm. Diaz was holding a large butcher knife. After Shepherd

asked three times “What’s going on?,” Nichols said, “Do what he

says, get the money and they’ll leave.” Cordova said some things in

Spanish and in English about Shepherd getting money; and Diaz spoke

angrily in Spanish. Diaz then grabbed Shepherd’s shirt and pushed

him down the hall to his room. Shepherd got some cash from his

pants pocket and gave it to Diaz. Diaz checked the pants for more

money, then grabbed Shepherd’s shirt and led him back to the living

room. Cordova told Shepherd to sit on the couch and do what he was

                                3
told. Diaz and Cordova subsequently put Nichols on the floor and

bound and gagged him with shoelaces and strips of bedding.

     The phone rang, and Cordova answered it. Shepherd later

testified that Cordova told the caller to “‘come to get us, or come

over here,’ something like that . . . . Pretty quick there was a

knock on the door.” Thomas testified that Reyes had received a

phone call around midnight and that she had borrowed Thomas’ car

and left for about forty-five minutes. Consistent with Thomas’

testimony, Shepherd testified that a large Hispanic woman arrived

at the apartment shortly after the phone call. The woman asked

Cordova and Diaz what was going on, and Cordova told her something

in Spanish. Shepherd testified that the woman did not look happy

with Cordova’s response. Cordova told the woman to face the door,

and he told Shepherd not to look at her.

     Diaz and Cordova beat Nichols. They put Shepherd on the floor

and bound and gagged him, then returned their attention to Nichols.

Cordova lifted Nichols up and held him while Diaz stabbed Nichols

in the torso numerous times. An autopsy revealed perforations of

Nichols’ liver, kidney, lungs, and heart. A knife thrust had

fractured a rib and broken off the tip of the knife, which remained

in the rib. The autopsy also revealed lacerations to Nichols’

scalp, neck, and flanks.

     When Cordova noticed that Shepherd had freed one of his hands,

he and Diaz beat Shepherd and stabbed him. Shepherd pretended to be

dead and lost consciousness.

                                4
     Diaz and a man known to Thomas as “Danny” arrived at Thomas’

trailer at 3:00 a.m. on April 3. They were very nervous and in a

hurry to leave. When Reyes returned, Thomas noted that she was very

upset.

     When Shepherd awoke, the apartment was dark. The evidence

indicates that it was between 3:00 and 4:00 a.m. Shepherd freed

himself from his bindings and left the apartment. He noticed

Nichols’ truck at the apartment gate with the driver's door open.

At Shepherd’s request, a neighbor called the police.

     When the police arrived at the apartment complex, they found

the gate locked and Nichols’ truck parked next to the keypad               box

inside the gate. There was blood in the truck, bedding material on

the ground, and a footprint on top of the keypad box that was later

found    to   match   Diaz’s   shoe.   Nichols   was   found   dead   in   the

apartment; a beer bottle with Diaz’s DNA on it was found on the

floor next to him.

     A man named Manuel Montes later testified that Cordova phoned

him at about 4:00 a.m. on April 3 and asked Montes to pick him up

from another neighborhood. Cordova was Montes’ neighbor and the

older brother of Montes’ best friend. Montes picked up Cordova,

Diaz, and a large woman and took them over to his house. Cordova

had a bloody shirt wrapped around his arm, and when he was

arrested, wounds were discovered on his arms and thigh.

     After daylight, Cordova borrowed a pair of Montes’ pants so

that he could go home and get pants for himself and Diaz. After

                                       5
Cordova and Diaz changed clothes, Cordova told Montes he would take

care of   the    trash   bag,   which       presumably   contained     the   dirty

clothes. Police later found a trash bag of clothing in Montes’

home; the clothing was stained with Cordova’s and Nichols’ blood.

     Montes also testified that he overheard Diaz telling some

other men, in Cordova’s presence, about a murder. According to this

testimony, Cordova held the man, and Diaz stabbed him.

     The defense presented no witnesses during the guilt-innocence

phase of trial. Instead, counsel argued that Diaz was not guilty of

capital murder because the State had failed to prove that the

murder occurred during the commission or attempted commission of a

robbery. The jury found Diaz guilty of the capital murder of

Nichols. They also found him guilty of the attempted capital murder

of Shepherd and of aggravated robbery.

     During     the   penalty   phase   of     trial,    the   State   presented

evidence that Diaz had engaged in misconduct while in the county

jail; that his misconduct included fighting and refusing to go to

court; that deputies had caught Diaz trying to dig a hole through

the wall of his cell; that Diaz was housed in a unit used to hold

members of the Pistoleros gang; and that Diaz had committed other

assaults and homicides. Dr. John Edward Pinkerman, a psychologist,

testified for Diaz. Prior to testifying, Dr. Pinkerman met with

Diaz twice to conduct a psychological evaluation. He documented his

findings in a written report. According to Dr. Pinkerman, Diaz’s

past medical history included head trauma from being knocked

                                        6
unconscious during fights and a head injury suffered in a car

accident. Dr. Pinkerman indicated that Diaz’s history of head

trauma could        impair   his   ability    to    control   and    regulate   his

judgment      and    perceive      reality;    that    Diaz    has    low-average

intelligence and the verbal ability of an eleven-year old; that

Diaz is prone to feeling guilty and might act out to incur

punishment; and that Diaz has a history of antisocial behavior as

a child that correlates with a high probability of adult criminal

behavior.

     Over defense’s objection, the State introduced Dr. Pinkerman’s

written report into evidence. The report included Dr. Pinkerman’s

conclusion that Diaz “approached the assessment in somewhat of an

exaggerated manner which may reflect an inability to cooperate with

the testing or malingering in an attempt to present himself with

the false claim of mental illness”; that Diaz was not mentally ill;

and that Diaz’s profile matches that of Type C offenders, which Dr.

Pinkerman described as the most difficult criminal offenders --

those who are distrustful, cold, irresponsible, and unstable. Also,

on cross, Dr. Pinkerman testified that Diaz had refused to discuss

the facts of the offense with him on the advice of Diaz’s attorney.

After   Dr.    Pinkerman     testified,       the   defense   called    no   other

witnesses.

     During closing arguments, the defense reiterated its earlier

argument, advanced during the guilt-innocence phase of trial, that

Diaz was not guilty of capital murder because the evidence did not

                                         7
show that the murder occurred during the commission or attempted

commission of a robbery. The prosecutor, in turn, urged the jury

that Diaz was not like them and that they had “a duty to protect

the people of [the] county.” The jury found that there was a

probability that Diaz would commit criminal acts of violence that

would constitute a continuing threat to society; that Diaz actually

killed or intended to kill Nichols, or anticipated that human life

would be taken; and that there was not sufficient mitigating

evidence to justify the imposition of a life sentence instead of

death. The trial court accordingly sentenced Diaz to death on the

capital murder charge. It sentenced Diaz to life in prison on the

attempted capital murder and aggravated robbery charges.

     The Texas Court of Criminal Appeals affirmed Diaz’s conviction

and sentence and later denied Diaz’s application for state habeas

relief. On June 16, 2004, Diaz filed a federal habeas petition in

the U.S. District Court for the Southern District of Texas. He made

four claims:

     (1) that trial counsel rendered ineffective assistance
     with respect to the guilt-innocence phase of trial by
     failing to adequately investigate the State’s case and
     fully discuss it with Diaz to ensure his plea of not
     guilty was knowing and voluntary;

     (2) that trial counsel rendered ineffective assistance
     with respect to the punishment phase of trial by (a)
     failing to adequately investigate and present readily
     available mitigating evidence, (b) failing to prepare the
     only witness offered, and (c) devoting almost their
     entire closing argument to a defensive theory that the
     jury had rejected during the guilt-innocence phase of
     trial;


                                8
     (3) that the trial court deprived Diaz of a fair trial by
     admitting evidence of gang membership; and

     (4) that the prosecutor infringed on Diaz’s right to
     remain silent by eliciting testimony that Diaz had
     refused to discuss the offense with his own mental health
     expert.

On December 10, 2004, Diaz amended his petition with the State’s

permission. He added two new claims:

     (5) that trial counsel rendered ineffective assistance
     during voir dire by failing to object to the exclusion of
     venire member Gerald Albrecht, and

     (6)   that  appellate   counsel  rendered   ineffective
     assistance by not appealing the prosecutor’s closing
     statements that alluded to community expectations.

The State moved for summary judgment. The magistrate judge filed a

report and recommendation recommending that the court grant the

State’s motion for summary judgment, dismiss Diaz’s habeas petition

with prejudice, and deny Diaz a COA. Specifically, the magistrate

found that Diaz’s first claim and the last two parts of his second

claim were unexhausted and therefore procedurally barred. Further,

the magistrate found that Diaz’s fifth and sixth claims were added

to his habeas petition after the limitations period had expired;

however, she ultimately recommended denial on the merits after

determining that both claims were subject to equitable tolling.

Finally, the magistrate concluded that Diaz was not entitled to

relief on the exhausted portion of his second claim or on his third

or fourth claims. The court adopted the magistrate judge’s report

and recommendation, dismissed Diaz’s petition with prejudice, and

stated that a COA would not issue. Diaz requests a COA from this

                                9
Court.

                               II. Discussion

     Diaz filed his federal habeas petition after the effective

date of the Antiterrorism and Effective Death Penalty Act (AEDPA).

Accordingly, his petition is subject to AEDPA’s requirements. Lindh

v. Murphy, 521 U.S. 320, 336 (1997). Under AEDPA, a petitioner must

apply for and obtain a COA before appealing a district court’s

denial of habeas relief. 28 U.S.C. § 2253(c); see also Miller-El v.

Cockrell, 537 U.S. 322, 335-36 (2003). The district court denied

Diaz’s request for a COA; therefore, his only alternative is to

obtain a COA from this Court. 28 U.S.C. § 2253(c); see also Coleman

v. Quarterman, 456 F.3d 537, 541 (5th Cir. 2006).

     To obtain a COA, an applicant must make “a substantial showing

of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2);

Miller-El,   537   U.S.   at   336,   and   to   meet   this   standard,   the

applicant must demonstrate that “‘reasonable jurists could debate

whether (or, for that matter, agree that) the petition should have

been resolved in a different manner or that the issues presented

were “adequate to deserve encouragement to proceed further,”’”

Miller-El, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S.

473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 894 n.4

(1983))). We recognize that the inquiry in which this Court must

engage “is a threshold inquiry only, and does not require full

consideration of the factual and legal bases of [the petitioner’s]


                                      10
claim[s].” Neville v. Dretke, 423 F.3d 474, 482 (5th Cir. 2005)

(citing Miller-El, 537 U.S. at 336). We will issue a COA if Diaz

can demonstrate that “the [d]istrict [c]ourt’s application of AEDPA

to [his] constitutional claims . . . was debatable among jurists of

reason.” Miller-El, 537 U.S. at 336. A claim can be debatable “even

though every jurist of reason might agree, after the COA has been

granted   and    the    case       has   received      full   consideration,        that

petitioner      will   not       prevail.”     Id.    at   338.   Because    Diaz    was

sentenced to death, “we must resolve any doubts as to whether a COA

should issue in his favor.” Martinez v. Dretke, 404 F.3d 878, 884

(5th Cir. 2005).

     In evaluating the district court’s application of AEDPA to

Diaz’s claims, we keep in mind the standard of review imposed by

AEDPA on the district court. First,

     A district court may grant habeas relief only if it
     determines that the state court’s adjudication “resulted
     in a decision that was contrary to, or involved an
     unreasonable application of, clearly established Federal
     law, as determined by the Supreme Court” or “in a
     decision that was based on an unreasonable determination
     of the facts in light of the evidence presented in the
     State court proceeding.”

Leal v. Dretke, 428 F.3d 543, 548 (5th Cir. 2005) (quoting 28

U.S.C. § 2254(d)(1), (2)). Second, “a determination of a factual

issue made by [the] State court shall be presumed to be correct”

unless    the    petitioner        rebuts      the    presumption    by     clear    and

convincing evidence. 28 U.S.C. § 2254(e)(1).

     Diaz    requests        a    COA    on   seven    issues:    (1)   whether     the

                                              11
ineffective assistance of state habeas counsel is sufficient cause

to warrant review of a procedurally barred claim; (2) whether trial

counsel rendered ineffective assistance with respect to the guilt-

innocence phase of trial by failing to adequately investigate the

State’s case and fully discuss it with Diaz to ensure his plea of

not guilty was knowing and voluntary; (3) whether trial counsel

rendered ineffective assistance with respect to the punishment

phase of trial by (a) failing to adequately investigate and present

readily available mitigating evidence, (b) failing to prepare the

only witness offered, and (c) devoting almost their entire closing

argument to a defensive theory that the jury had rejected during

the guilt-innocence phase of trial; (4) whether the trial court

deprived Diaz of a fair trial by admitting evidence of gang

membership; (5) whether the prosecutor infringed on Diaz’s right to

remain silent by eliciting testimony that Diaz had refused to

discuss the offense with his own mental health expert; (6) whether

trial counsel rendered ineffective assistance during voir dire by

failing   to   object   to   the   exclusion   of   venire   member   Gerald

Albrecht; and (7) whether appellate counsel rendered ineffective

assistance by not appealing the prosecutor’s closing statements

that alluded to community expectations.

     As an initial housekeeping matter, we note that Issue 1 --

whether the ineffective assistance of state habeas counsel is

sufficient cause to warrant review of a procedurally barred claim

-- does not embody a separate ground for relief, that is, “it is

                                     12
not an issue that raises ‘a substantial showing of the denial of a

constitutional right.’” Busby v. Dretke, 359 F.3d 708, 713 n.3 (5th

Cir. 2004) (quoting 28 U.S.C. § 2253(c)(2)). Rather, it is an issue

that Diaz raises only to promote review of his procedurally barred

claims. Accordingly, we will address it only to the extent that it

impacts those claims.1

      Further, based on our limited, threshold inquiry and general

assessment of the merits of the remaining issues, we conclude that

Issue   3(a)   presents   an   issue    that   is   adequate   to   deserve

encouragement to proceed further, that is, whether trial counsel

rendered ineffective assistance with respect to the punishment

phase of trial by failing to adequately investigate and present

readily available mitigating evidence. Accordingly, we grant a COA

as to this issue. If Diaz wishes to file a supplemental brief with

respect to the merits of this issue, he may do so within thirty

days of the date of this order. The supplemental brief should only

address matters that have not already been covered in the brief in

support of the COA application. The State may file a response

fifteen days thereafter.

      We now proceed to address the remaining issues in turn,

grouping like issues for readability.


  1
   The Government contends that we should not address this issue
at all because it was not raised before the district court;
however, the record shows that Diaz argued ineffective assistance
as cause for default in his response to the Government’s motion for
summary judgment.

                                   13
              A. Ineffective Assistance of Counsel

     Diaz presents five ineffective assistance of counsel claims

(Issues 2, 3(b), 3(c), 6, and 7). The district court, in adopting

the magistrate’s report and recommendation, ruled that Issues 2,

3(b), and 3(c) were unexhausted and therefore procedurally barred.

Finding no cause for the procedural default, the court did not

address their merits. The court then addressed the merits of Issues

6 and 7 and found that neither provided grounds for habeas relief.

Diaz finds error with the district court’s procedural rulings and

with its conclusion that he is not entitled to relief with respect

to Issues 6 or 7.

     We review procedural rulings resulting in the denial of habeas

relief under the standard set forth in Slack v. McDaniel, 529 U.S.

473 (2000):

     When the district court denies a habeas petition on
     procedural grounds without reaching the prisoner’s
     underlying constitutional claim, a COA should issue when
     the prisoner shows, at least, that jurists of reason
     would find it debatable whether the petition states a
     valid claim of the denial of a constitutional right and
     that jurists of reason would find it debatable whether
     the district court was correct in its procedural ruling.

529 U.S. at 484. With respect to Issue 2, we find that reasonable

jurists could not debate the district court’s procedural ruling,

and we decline to issue a COA as to that claim. We do not consider

the district court’s procedural ruling as to Issues 3(b) and (c),

however, because we find that reasonable jurists could not debate

whether they state a valid claim of the denial of a constitutional


                                14
right. We address Issue 2 first and then address Issues 3(b) and

(c) alongside the remaining ineffective assistance claims.

                                1.

     Under AEDPA, a petitioner must exhaust his claims in state

court before presenting them to a federal court for review. See 28

U.S.C. § 2254(b)(1)(A). To exhaust his claims, a petitioner must

“fairly present” their substance to the state court. Ruiz v.

Quarterman, 460 F.3d 638, 643 (5th Cir. 2006) (citing Picard v.

Connor, 404 U.S. 270, 275 (1971)). If the court to which the

petitioner would be required to present his unexhausted claims

would now find the claims procedurally barred, the petitioner has

procedurally defaulted his claims and we are barred from reviewing

them. Id. (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1

(1991)). The failure to exhaust may be excused if the petitioner

can demonstrate cause for the default and actual prejudice, or that

application of the procedural bar would result in a “fundamental

miscarriage of justice.” Id. (citing Coleman, 501 U.S. at 750).

     Diaz concedes that he failed to exhaust Issue 2. However, he

argues that state habeas counsel were responsible for this failure

and that the ineffective assistance of state habeas counsel can

constitute cause for procedural default. The district court did not

address whether the ineffective assistance of state habeas counsel

can constitute cause for procedural default. However, the law is

settled that it cannot. See Elizalde v. Dretke, 362 F.3d 323, 328-


                                15
30 (5th Cir. 2004). A defendant does not have a constitutional

right to the assistance of counsel in state habeas proceedings, so

he cannot blame state habeas counsel for any procedural default

that occurs therein. See id. Because Diaz has offered no other

cause for his default nor attempted to demonstrate that application

of the procedural bar would result in a fundamental miscarriage of

justice, reasonable jurists could not debate the district court’s

ruling that Issue 2, which was concededly unexhausted, was not

subject to review.2

                                2.

      Moving on to the merits of Issues 3(b), 3(c), 6, and 7,3 we

start by setting out the applicable law: A criminal defendant has

a right to counsel under the Sixth Amendment, and the right to

counsel entails the right to effective assistance of counsel.



  2
     Diaz attempts for the first time here to make a new argument
that incompetent, as opposed to ineffective, state habeas counsel
can be held responsible for procedural default because Texas
promises a defendant competent counsel. He did not make this
argument before the district court, and we will not consider it
here. See Roberts v. Cockrell, 319 F.3d 690, 695 (5th Cir. 2003).
  3
     The State contends that a COA should not issue as to either
Issue 6 or Issue 7 because both were added to Diaz’s habeas
petition after the statute of limitations had run. The district
court, in adopting the magistrate’s report and recommendation,
ruled that Diaz was entitled to equitable tolling as to both claims
because at the time Diaz’s original petition was filed, the State
consented to Diaz filing an amended petition outside the
limitations period. We find no fault with the court’s decision not
to apply the limitations bar to Issues 6 and 7; however, we note
that waiver is the more appropriate justification for the court’s
decision in this situation.

                                16
Strickland v. Washington, 466 U.S. 668, 684-86 (1984). To prove

ineffective assistance of counsel under Strickland, a defendant

must show (1) “that counsel’s performance was deficient,” and (2)

“that the deficient performance prejudiced the defense.” Id. at

687. A finding of deficient performance requires a showing that

“‘counsel made errors so serious that counsel was not functioning

as the “counsel” guaranteed the defendant by the Sixth Amendment,’”

Leal, 428 F.3d at 548 (quoting Strickland, 466 U.S. at 687), that

is, petitioner must show that counsel’s performance fell below an

objective standard of reasonableness, as measured by prevailing

professional   norms,   Strickland,       466   U.S.    at   688.   Deficient

performance is prejudicial “only if, but for counsel’s errors,

there is a reasonable probability that the final result would have

been different and confidence in the reliability of the verdict has

been undermined.” Leal, 428 F.3d at 548 (citing Little v. Johnson,

162 F.3d 855, 860-61 (5th Cir. 1998)). Failure to prove either

deficient performance or prejudice will defeat an ineffective

assistance of counsel claim. Id.

     Diaz   claims   that   his   trial   counsel      rendered   ineffective

assistance with respect to the punishment phase of trial by failing

to prepare the only witness offered and by devoting almost their

entire closing argument to a defensive theory that the jury had

rejected during the guilt-innocence phase of trial. The trial court

did not reach the merits of these claims because it determined they


                                    17
were   procedurally         barred;   however,     it   is   clear   to   us   that

reasonable jurists could not debate whether Diaz stated a valid

claim of the denial of a constitutional right as to either. As

Diaz’s brief establishes, his complaints about counsel’s witness

preparation and closing arguments are based on his underlying

complaint that counsel did not adequately investigate or present

available mitigating evidence. He contends that if counsel had

properly prepared defense witness Dr. Pinkerman, they would have

realized   that      they    needed   to    investigate      and   present     other

mitigating evidence. Diaz also contends that counsel failed by

relying solely on a rejected defensive theory during closing

instead of presenting mitigating evidence. Assuming, arguendo, that

counsel’s decision not to further investigate or present available

mitigating evidence was reasonable,4 then failing to prepare Dr.

Pinkerman and failing to address any mitigating evidence in closing

cannot have been constitutionally flawed. Diaz has provided no

additional ground for finding the witness preparation or closing

argument   to   be    constitutionally          deficient,   and   therefore     the

district court’s ruling is not debatable among reasonable jurists.

       Diaz also claims that his trial counsel rendered ineffective

assistance during voir dire by failing to object to the exclusion

of venire member Gerald Albrecht. Albrecht was excluded from the

  4
   We make this assumption because the reasonableness of counsel’s
decision not to further investigate or present mitigating evidence
is the subject of another claim, with respect to which we have
granted Diaz a COA.

                                           18
jury panel after he stated that his religious beliefs would cause

him to “lean against the death penalty” and that he could not “set

[his] religious beliefs aside” to decide a case solely on the

evidence without regard to his beliefs. The State moved for his

exclusion for cause, and defense counsel joined its motion.

     Reasonable jurists could not debate the district court’s

conclusion that trial counsel’s performance during voir dire was

not ineffective. While a juror generally may not be challenged for

cause based on his views about capital punishment, a juror whose

views would prevent or substantially impair the performance of his

duties as a juror may be. Adams v. Texas, 448 U.S. 38, 45 (1980).

The Supreme Court has stated,

     The state of this case law leaves trial courts with the
     difficult task of distinguishing between prospective
     jurors whose opposition to capital punishment will not
     allow them to apply the law or view the facts impartially
     and jurors who, though opposed to capital punishment,
     will nevertheless conscientiously apply the law to the
     facts adduced at trial.

Wainwright v. Witt, 469 U.S. 412, 421 (1985). Although Albrecht may

have equivocated about his position on capital punishment, as Diaz

contends, he ultimately said that his religious beliefs would cause

him to lean against the death penalty and that he would not be able

to set aside those beliefs to render a decision based on the

evidence. For all intents and purposes, Albrecht stated that he

would not be able to apply the law or view the facts impartially

because of his religious beliefs. In light of these remarks, it was


                                19
not error for the trial court to dismiss Albrecht for cause and

considering there was no error to preserve, it was not unreasonable

for Diaz’s counsel not to object to a motion to exclude Albrecht.

Accordingly, reasonable jurists could not debate the district

court’s    conclusion      that    trial     counsel’s    performance      was   not

ineffective.

     Finally, Diaz claims that his appellate counsel rendered

ineffective assistance by not appealing the prosecutor’s closing

statements that alluded to community expectations. During closing,

the prosecutor told the jury members that they were there “as a

duty to the community. You are acting as public servants to this

community.” The prosecutor argued that Diaz “is not like you. You

have a duty to protect the people of this county.” Defense counsel

objected   to    the    prosecutor’s        statements    and   the   trial    court

instructed the jury to disregard them; however, the court denied

counsel’s motion for a mistrial. Appellate counsel did not appeal

this decision.

     Reasonable jurists could not debate the district court’s

conclusion       that     appellate     counsel’s        performance     was     not

ineffective. The Supreme Court has recognized that one of appellate

counsel’s core duties is to distinguish weak claims from strong

claims and focus the court’s attention only on the strong claims on

appeal.    See    Jones    v.     Barnes,    463   U.S.    745,   751-52      (1983)

(“Experienced advocates since time beyond memory have emphasized



                                        20
the importance of winnowing out weaker arguments on appeal and

focusing on one central issue if possible, or at most on a few key

issues.”). In that vein, the Supreme Court has held that “appellate

counsel who files a merits brief need not (and should not) raise

every nonfrivolous claim, but rather may select from among them in

order to maximize the likelihood of success on appeal.” Smith v.

Robbins, 528 U.S. 259, 288 (2000). Further, the Court has indicated

that although “it is still possible to bring a Strickland claim

based on counsel’s failure to raise a particular claim, . . . it is

difficult   to   demonstrate   that   counsel   was   incompetent.”   Id.

“Generally, only when ignored issues are clearly stronger than

those presented, will the presumption of effective assistance of

counsel be overcome.” Id. (quoting Gray v. Greer, 800 F.2d 644, 646

(7th Cir. 1986)). In Diaz’s case, appellate counsel argued on

appeal that the evidence was insufficient to support a conviction

for capital murder; that the trial court had erroneously admitted

hearsay evidence; that the trial court had erroneously admitted a

note found in Diaz’s apartment, evidence of Diaz’s tattoos, and

evidence of gang membership; that trial counsel were ineffective;

and that the evidence was insufficient to support a death sentence.

We cannot say that the claim regarding the prosecutor’s closing

arguments was clearly stronger than any of the claims raised by

appellate counsel. In fact, we think it was considerably weaker

considering that the trial court instructed the jury to disregard


                                  21
the offending comments. Accordingly, reasonable jurists could not

debate the district court’s conclusion that appellate counsel’s

performance was not ineffective. A COA will not issue as to Issues

3(b), 3(c), 6, or 7.

                    B. Evidence of Gang Membership

     Diaz argues that the trial court deprived him of a fair trial

by admitting evidence of gang membership. The district court, in

adopting the magistrate’s report and recommendation, ruled that

Diaz’s First Amendment rights were violated by the admission of

such evidence. However, it ultimately denied relief after finding

that the trial court’s error was harmless. We must determine

whether reasonable jurists could debate this determination.

     To   obtain   federal       habeas    relief   based   on    non-structural

constitutional     error,    a    petitioner     must   show     not   only    that

constitutional     error    occurred,      but   also   that     the   error   “had

substantial and injurious effect or influence in determining the

jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)

(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). As

the magistrate explained,

     the jury had substantial evidence of Diaz’[s] violent
     nature and his history of criminal violence, including
     violence while in jail, completely apart from any
     evidence of gang membership. In view of the particularly
     violent nature of the Nichols murder and the evidence of
     Diaz’[s] other acts of violence and misconduct, the
     evidence of Diaz’[s] gang membership did not have “a
     substantial and injurious effect or influence in
     determining the jury’s verdict.”


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Diaz v. Dretke, No. M-04-225 (S.D. Tex. 2005) (magistrate judge’s

report and recommendation). Having reviewed the evidence presented

to the jury concerning Diaz’s criminal history and history of

violence, we are persuaded that reasonable jurists could not debate

that the trial court’s admission of evidence of gang membership was

harmless. The jury had ample evidence of a history of crime and

violence such that any mention of gang membership was harmless. A

COA will not issue as to this claim.

                    C. Right to Remain Silent

     Diaz argues that the prosecutor infringed on his right to

remain silent by eliciting testimony that he had refused to discuss

his offense with his own mental health expert. The record shows

that on cross-examination, the prosecutor and Dr. Pinkerman, Diaz’s

mental health expert, had the following exchange:

     Q. Did you talk to [Diaz] about the facts of his current
     incarceration?

     A. No, I did not.

     Q. [Diaz] told you that he didn’t want to talk about
     that; is that correct?

     A. That’s correct.

     Q. He told you that he had been advised by his attorneys
     not to talk about the facts of his current incarceration;
     is that right?

     A. That’s correct.

The prosecutor made no other comment about Diaz’s choice not to

discuss his offense with Dr. Pinkerman. The district court, in



                                23
adopting the magistrate’s report and recommendation, ruled that

Diaz’s Fifth Amendment right to remain silent was not violated by

this discourse.

      Reasonable jurists could not debate the district court’s

determination. Under the Fifth Amendment, a criminal defendant has

a right to remain silent post-arrest. Miranda v. Arizona, 384 U.S.

436   (1966).   At    trial,   a    prosecutor   may   not   comment   on     the

defendant’s choice to exercise that right. See, e.g., Doyle v.

Ohio, 426 U.S. 610, 617-18 (1976). Here, the prosecutor did not

comment on Diaz’s silence in a way that violated his constitutional

rights. “The test for determining if a constitutional violation has

occurred is whether ‘the language used was manifestly intended or

was of such character that the jury would naturally and necessarily

take it to be a comment on the failure of the accused to testify.’”

United States v. Wharton, 320 F.3d 526, 538 (5th Cir. 2003)

(quoting United States v. Rocha, 916 F.2d 219, 232 (5th Cir.

1990)). A prosecutor’s intent “is not manifestly impermissible if

there is some other, equally plausible explanation for [his]

remark,” and “the question is not whether the jury might or

probably    would    view   the     challenged   remark   [as   a   comment   on

silence],    but     whether   it    necessarily    would    have   done    so.”

Barrientes v. Johnson, 221 F.3d 741, 780 (5th Cir. 2000). When the

above discourse is viewed in context, as the law requires, see

Wharton, 320 F.3d at 538, it becomes apparent that the prosecutor


                                        24
was likely trying to comment on the expert’s lack of familiarity

with Diaz’s mental condition, not on Diaz’s silence. Dr. Pinkerman

had indicated in his written report that Diaz was experiencing

“mild to moderate anxiety, depression and feelings of guilt”

associated with his current incarceration. (Trial Tr. vol. 37, 155-

56, Feb. 15, 2000.) By questioning Dr. Pinkerman about what Diaz

had told him about his current incarceration, the prosecutor was

likely seeking to prove that Dr. Pinkerman did not know if Diaz was

experiencing anxiety and depression because of what he had done or

because he was in jail. (Trial Tr. vol. 37, 155-56.) In light of

this plausible explanation for the prosecutor’s comment, the jury

would not necessarily have viewed the comment as a comment on

silence    and   the   prosecutor’s     intent   was   not   “manifestly

impermissible.” Accordingly, reasonable jurists could not debate

that Diaz’s right to remain silent was not violated.

                             III. Conclusion

     For   the   foregoing    reasons,    Diaz’s   Application   for   a

Certificate of Appealability is GRANTED IN PART and DENIED IN PART.




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