Case: 18-41150      Document: 00515535206         Page: 1    Date Filed: 08/20/2020




            United States Court of Appeals
                 for the Fifth Circuit                               United States Court of Appeals
                                                                              Fifth Circuit

                                                                            FILED
                                                                      August 20, 2020
                                 No. 18-41150
                                                                       Lyle W. Cayce
                                                                            Clerk

 Irving Magana Garcia,

                                                         Petitioner—Appellant,

                                     versus

 Bobby Lumpkin, Director, Texas Department of
 Criminal Justice, Correctional Institutions Division,

                                                         Respondent—Appellee.


                 Appeal from the United States District Court
                     for the Southern District of Texas
                           USDC No. 7:16-CV-632


 Before Stewart, Clement, and Costa, Circuit Judges.
 Per Curiam:*
        Irving Magana Garcia appeals the denial of his habeas petition. He is
 a Mexican national who speaks only Spanish. But his attorney recommended
 that he not use an English interpreter at his murder trial. At the time, Garcia
 agreed with that advice, and his lawyer told the judge that Garcia did not need


        *
          Pursuant to 5th Circuit Rule 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 opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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                                   No. 18-41150


 an interpreter throughout the trial (there was an interpreter when Garcia
 testified). Garcia now argues that his agreement with his lawyer’s advice
 could not waive the interpreter; he believes that the trial court needed to
 obtain a waiver directly from the defendant. He also contends that counsel
 was ineffective in recommending against an interpreter. Garcia’s first claim
 fails on the merits, as the state court reasonably concluded there was a valid
 waiver. And Garcia’s ineffective-assistance-of-counsel claim is procedurally
 barred. We therefore affirm.
                                        I.
        Garcia shot and killed Cristian De Los Santos Sanchez in McAllen,
 Texas. Garcia admitted he was the shooter. The murder trial came down to
 whether he acted in self-defense. Garcia testified that he shot Sanchez
 because, after a heated conversation, Sanchez reached for “what appeared to
 be a gun.” The jury rejected Garcia’s self-defense theory and convicted him.
 But it found that sudden passion spurred the killing, which resulted in a
 sentence of 20 years.
        Most of the witnesses spoke English. Because his lawyer, Fernando
 Mancias, rejected an interpreter, Garcia did not comprehend this testimony.
 However, Mancias is bilingual and gave Garcia brief summaries of “harmful”
 witness statements.      Spanish-speaking witnesses—including Garcia—
 testified about the key issue: Garcia’s state of mind.
        After sentencing, Garcia retained different counsel and sought a new
 trial. He argued that the judge’s failure to appoint an interpreter “denied his
 rights to understand and confront his accusers and to assist in his own
 defense.” Garcia also claimed that his trial counsel was ineffective for failing
 to request an interpreter.      After the motion was overruled without
 explanation, Garcia appealed. The state court of appeals abated the appeal
 and remanded for a hearing on the motion.




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                                         No. 18-41150


         At the hearing, Garcia conceded that Mancias had informed him of his
 right to have an interpreter but had recommended he not request one. Garcia
 further conceded that he agreed with Mancias’s recommendation but only
 because Mancias had warned that an interpreter “would distract [Mancias]
 and not let him concentrate very well.” Confirming Garcia’s account,
 Mancias explained that he had advised against an interpreter; in his view,
 having one “would be very distracting” for Mancias and the jury.
         The prosecutor also testified. She remembered that during an off-the-
 record bench conference, the trial judge “asked . . . Mancias, are you going
 to want an interpreter? And he said no.”
         The trial judge denied the new-trial motion, finding that:

     • “Garcia was aware of his right to an interpreter and for valid reasons,
         pertaining to trial strategy, did not request an interpreter.”
     • “Garcia waived his right to an interpreter during an unrecorded bench
         conference.”
     • “Mancias[] provided effective assistan[ce] of counsel during a
         difficult case.”
     • “That counsel discussed . . . Garcia’s right to an interpreter and had
         a valid trial strategy in recommending that they not seek the
         appointment of an interpreter.”
 With the motion resolved, the state appellate court reinstated Garcia’s
 appeal and affirmed his conviction.
         Garcia next petitioned the Texas Court of Criminal Appeals for
 review, contending only that he did not waive an interpreter. 1 It affirmed in


         1
            Instead of specifically raising his ineffective-assistance claim, Garcia asked only
 whether “the Court of Appeals err[ed] in overruling each issue raised on appeal about the
 district court . . . denying [his] motion for [a] new trial.”




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                                         No. 18-41150


 a divided opinion. Garcia v. State, 429 S.W.3d 604 (Tex. Crim. App. 2014).
 The majority concluded that Mancias told Garcia “that he had a right to an
 interpreter,” that Garcia “agreed with counsel not to request an interpreter,
 and that [Garcia] and counsel communicated their desire not to have an
 interpreter to the trial judge.” 2 Id. at 609.
         Garcia then sought state habeas relief, alleging ineffective assistance
 of appellate, but not trial, counsel. After that application was denied, he filed
 a second application, this time alleging ineffective assistance of trial counsel
 relating to the interpreter decision.             The Court of Criminal Appeals
 dismissed it as an abuse of the writ, meaning he should have pursued it
 earlier.
         Out of state options, Garcia went to federal court. He filed this habeas
 action, asserting that Mancias was ineffective for recommending against an
 interpreter and that the trial judge’s failure to appoint one resulted in several
 constitutional violations. Concluding that Garcia “failed to demonstrate he
 was prejudiced by [any] constitutional error,” the district court dismissed his
 petition with prejudice. But the court also concluded that Garcia never
 validly waived his right to an interpreter. He was therefore denied that right
 and, consequently, “could not confront the evidence presented against him
 or assist in his own defense.” In the district court’s view, reasonable jurists
 could debate whether those deprivations amounted to “structural” error
 requiring automatic reversal, so it issued a certificate of appealability and
 appointed counsel for Garcia.




         2
           The opinion indicates that Garcia personally waived an interpreter in a colloquy
 with the trial judge. Id. at 609. But the parties seem to agree (and the record supports) that
 Garcia was not present when Mancias told the trial judge that an interpreter was not
 needed, though Garcia had agreed with that position.




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                                         II.
                                         A.
        Garcia’s first claim is that the Texas Court of Criminal Appeals erred
 in determining that he waived an interpreter. Because the state court rejected
 this claim on the merits, Garcia must show not just that it made a mistake—
 three dissenting justices of the state court thought that was the case—but
 that it unreasonably applied clearly established law “as determined by the
 Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).
        According to Garcia, waiver of an interpreter requires (1) a personal
 waiver by the defendant (not just his counsel) that is (2) supervised by the
 trial court. In other words, Garcia contends that waiving an interpreter
 requires the same constitutional protections that apply to waiving counsel or
 pleading guilty. See Johnson v. Zerbst, 304 U.S. 458, 465 (1938) (right to
 counsel); Brookhart v. Janis, 384 U.S. 1, 7–8 (1966) (right to plead not guilty).
 Other rights, however, often those involving “the conduct of the trial” such
 as whether to object to evidence, may be waived by the attorney without “the
 fully informed and publicly acknowledged consent” of the defendant. New
 York v. Hill, 528 U.S. 110, 115 (2000) (quoting Taylor v. Illinois, 484 U.S. 400,
 418 (1988)).
        Garcia argues that the right to an interpreter, which he frames as a
 corollary of the right to be present at trial, is the kind that must be personally
 waived by the defendant. The problem is that the Supreme Court has never
 said that (in fact, it has never discussed a constitutional right to an interpreter
 in any context). He correctly points out that unlike the “contrary to”
 standard of section 2254(d), the “unreasonable application of” standard
 does not require a Supreme Court decision directly on point. Panetti v.
 Quarterman, 551 U.S. 930, 953 (2007) (explaining that section 2254(d)(1)
 does not require an “identical factual pattern before a legal rule must be




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                                        No. 18-41150


 applied” (quoting Carey v. Musladin, 549 U.S. 70, 81 (2006) (Kennedy, J.,
 concurring))); Lockyer v. Andrade, 538 U.S. 63, 76 (2003) (acknowledging
 that section 2254(d)(1) “permits a federal court to grant habeas relief based
 on the application of a governing legal principle to a set of facts different from
 those of the case in which the principle was announced”).
         But while habeas relief is available when a rule previously established
 by the Supreme Court is unreasonably applied to new facts, it is not available
 when a state court declines to extend a legal principle. White v. Woodall, 572
 U.S. 415, 426 (2014). As the Supreme Court has recognized, the line
 between application and extension of its precedent “is not always clear.” Id.
 at 427 (quoting Yarborough v. Alvarado, 541 U.S. 652, 666 (2004)). Even so,
 we readily conclude that this falls on the extension side. The constitutional
 requirements for waiver of an interpreter are uncharted territory. It is not
 just that the Supreme Court has not adopted Garcia’s view that there needs
 to be a personal, judge-supervised waiver; he fails to identify a single court
 that has. 3     Because no clearly established federal law addresses the
 constitutional procedures for waiving an interpreter, the state court did not
 unreasonably apply Supreme Court precedent in concluding it was enough
 that Garcia consented to the waiver his lawyer communicated. See Wright v.
 Van Patten, 552 U.S. 120, 126 (2008) (per curiam) (“Because our cases give
 no clear answer to the question presented, let alone one in Van Patten’s favor,




         3
            Federal prosecutions would be unlikely to address the constitutional dimensions
 of the interpreter issue because a federal statute addresses the issue. See 28 U.S.C. § 1827.
 The statute does require a personal waiver from the defendant once the court determines,
 or the defendant points out, that English is not his primary language. Id. § 1827(d), (f)(1);
 see also generally United States v. Tapia, 631 F.2d 1207 (5th Cir. 1980) (applying section
 1827).




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 it cannot be said that the state court ‘unreasonabl[y] appli[ed]’ clearly
 established Federal law.” (alterations in original) (quotations omitted)). 4
                                              B.
         Even when counsel can waive a right and has done so, that decision—
 like others a lawyer makes in a criminal case—must meet the constitutional
 standard for effective representation. See Hill, 528 U.S. at 115 (noting, when
 discussing a right that counsel could waive, that “[a]bsent a demonstration
 of ineffectiveness, counsel’s word on such matters is the last”). Garcia’s
 second claim is that Mancias’s recommendation to waive the interpreter
 deprived him of this Sixth Amendment right to effective representation.
         This claim runs into a common pitfall of federal habeas law:
 procedural default. When an adequate and independent state procedural rule
 barred the federal constitutional claim in state court, the claim cannot be the
 basis for federal habeas relief. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
 Although Garcia developed a trial court record for his ineffective-assistance
 claim before his direct appeal, he did not assert the claim in the Court of
 Criminal Appeals. Garcia, 429 S.W.3d at 606 n.3 (observing that Garcia’s
 ineffective-assistance claim “is not before us”). That means Garcia did not
 exhaust the claim on direct appeal. See Beazley v. Johnson, 242 F.3d 248, 263
 (5th Cir. 2001) (citing Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993)).
 Nor did he raise the claim in his first state habeas application. When he did
 raise ineffectiveness in his second habeas petition, the Court of Criminal



         4  We thus need not reach the question the district court grappled with: whether
 the failure to provide an interpreter is structural error as opposed to the more common type
 that is subject to harmless-error review. We note, however, that harmless-error analysis
 generally applies even to the “fundamental right[]” to be present at trial, which Garcia
 identifies as the source of the interpreter right. Rushen v. Spain, 464 U.S. 114, 117–18 & n.2
 (1983) (per curiam).




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 Appeals dismissed it under its abuse-of-the-writ rule, which prevents
 successive habeas claims when the factual basis for the claim was previously
 available. See TEX. CODE CRIM. PROC. art. 11.07, § 4(a)–(c); Ford v.
 Davis, 910 F.3d 232, 234 (5th Cir. 2018) (“Texas law prohibits its courts from
 considering a successive habeas petition unless the factual basis of the claim
 was unascertainable through the exercise of reasonable diligence before the
 filing of the first application.”).
        Garcia can overcome this procedural bar only if he “demonstrate[s]
 cause for the default and actual prejudice as a result of” Mancias’s allegedly
 deficient performance. Coleman, 501 U.S. at 750. Garcia suggests that he can
 show cause under Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler,
 569 U.S. 413 (2013), arguing that his pro se status in his first habeas
 application excuses his failure to raise the ineffectiveness claim then. But
 while it is “virtually impossible” in Texas to raise claims of ineffective trial
 counsel on direct appeal, this case requires the “virtually” qualification.
 Trevino, 569 U.S. at 417, 423. Garcia had new counsel for his direct appeal.
 That eliminated the conflict that often prevents the raising of a Strickland
 claim on direct appeal. See Martinez, 566 U.S. at 11–12. Garcia and his new
 counsel also managed to overcome another typical obstacle to direct review
 of ineffective-assistance claims: the trial court developed a full evidentiary
 record that allowed the claim challenging trial counsel’s performance to be
 pursued on direct appeal (as it was in the intermediate appellate court). See
 Trevino, 569 U.S. at 425–26. Because this was the unusual case in which state
 habeas was not “the ‘initial’ review proceeding in respect to the ‘ineffective-
 assistance-of-trial-counsel claim,’” Trevino does not apply.         Id. at 423
 (announcing a rule that applies only when, among other things, “the state
 collateral review proceeding was the ‘initial’ review proceeding” for the
 claim alleging ineffective assistance at trial).




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                                     No. 18-41150


        Long before Martinez and Trevino, ineffective assistance of counsel on
 direct appeal could excuse a procedural default, see Coleman, 501 U.S. at 753–
 54, but Garcia does not allege that here. Nothing in the record indicates why
 Garcia chose not to pursue all the way to the Court of Criminal Appeals his
 claim challenging the advice counsel gave him to waive the interpreter. As a
 result, he has not demonstrated cause to overcome the procedural default of
 his ineffective-assistance claim.
                                        ***
        The judgment is AFFIRMED.




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