     Case: 12-70029   Document: 00512596812      Page: 1   Date Filed: 04/15/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit

                                                                          FILED
                                 No. 12-70029                         April 15, 2014
                                                                     Lyle W. Cayce
                                                                          Clerk

LICHO ESCAMILLA,

                                          Petitioner-Appellant

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

                                           Respondent-Appellee


                Appeal from the United States District Court
                     for the Northern District of Texas


Before SMITH, DENNIS, and HAYNES, Circuit Judges.
JAMES L. DENNIS, Circuit Judge:
      Licho Escamilla seeks a certificate of appealability (“COA”) to appeal the
district court’s denial of his habeas corpus petition under 28 U.S.C. § 2254,
claiming that he was deprived his Sixth Amendment right to effective
assistance of counsel when his trial attorneys failed to adequately investigate
and present mitigation evidence at the punishment phase of his capital murder
trial. He additionally asserts that Martinez v. Ryan, 132 S. Ct. 1309 (2012)
compels the federal habeas court to consider newly presented evidence that
was never submitted to the state habeas court.
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      For the reasons that follow, we grant a COA as to petitioner’s claim that
trial counsel’s failure to investigate and present adequate mitigating evidence
violated his Sixth Amendment right to effective assistance of counsel, and deny
a COA with regard to the argument that Martinez v. Ryan compelled the
district court to consider new evidence to support his ineffective-assistance-of-
trial-counsel claim.
                                         I.
      The Petitioner, Licho Escamilla (“Licho”) 1 was convicted by a jury of the
capital murder of a Dallas Police Officer, Christopher James. At the guilt /
innocence phase of trial, the State of Texas presented evidence that on
November 24, 2001, Officer James, along with three other Dallas Police
Officers, were working off-duty as security for DMX, a Dallas nightclub. Licho,
who at the time was nineteen years old, was walking towards the valet stand
in the parking lot of DMX when he became involved in a physical confrontation
with three other males. James and another off-duty officer working at the
DMX nightclub responded to the disturbance in the parking lot. As the officers
approached, Licho repeatedly fired gun shots towards the officers, wounding
them both, and causing James to fall to the floor. The officers fired back,
causing Licho to suffer a minor gun-shot wound.
       While attempting to flee the scene, Licho paused where Officer James
had fallen and fired additional close-range, fatal shots aimed at James’ head.
After two other officers continued exchanging fire with Licho, he was
apprehended, arrested, and taken to the hospital to treat his gun-shot wound.
Witnesses testified at trial that in the hospital immediately after the incident,
Licho was laughing and repeatedly boasted about how he shot a “faggot cop.”



      1For ease of reference, petitioner and members of his family who share the same
surname will be referred to by his or her first name.
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      At the punishment proceeding, the State presented evidence regarding
Licho’s past criminal history and juvenile delinquency record. The State also
presented evidence that shortly before the DMX nightclub incident, Licho shot
and killed a man named Michael Torres.
      The defense began by presenting the testimony of Jose Alfonso
Escamilla, Licho’s father. Jose Alfonso testified that their family was close,
and that Licho had a gentle nature and a close and affectionate relationship
with his mother, who passed away a few years before trial. Jose Alfonso
recalled that Licho’s personality changed after his mother’s death, explaining
that “when [Licho] didn’t have his mother [] he also wanted to die.” On cross-
examination, the State elicited that Jose Alfonso did his best to advise Licho
about right from wrong, and encouraged Licho to recognize that his decisions
have consequences. Jose Alfonso testified that he and his wife spoke to Licho
“a lot . . . [and provided] a lot of advice.” He agreed with the prosecution that
Licho failed to heed this advice, despite the fact that Jose Alfonso “did
everything he could” as a father.
      Next, the defense presented the testimony of Brenda Hinjosa, Licho’s
older half-sister that lived in the Escamilla household while Licho was growing
up. Brenda likewise testified to Licho’s strong relationship with his mother
and the effect her death had upon him, recounting that after his mother’s
death, Licho couldn’t sleep, wouldn’t eat, and lost a lot of weight. Brenda
recalled that Licho started drinking more alcohol than he previously had, but
stated that she had “never considered him a drinker.” Additionally, two of
Licho’s former neighbors and Jose Cisneros, an old friend of the Escamillas,
testified for the defense.
      The State’s closing argument at the sentencing phase focused on the
brutal nature of the killing of Officer James, the Michael Torres murder, and—


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significant for purposes of the current proceeding—on Licho’s supportive and
stable upbringing. The prosecutor argued to the jury:
      He was raised in a loving supportive family. Parents that were
      hard working, parents that tried to show him the right way.
      Taught him right from wrong. There was [sic] no disadvantages in
      his background.        He had people that loved him and was
      surrounded by that and what did he do? He threw all that back in
      their face. . . . He’s the one that chose not to be peaceful and law
      abiding, like his parents tried to show—that they wished he would
      have. . . . That’s his background. He doesn’t get any [mitigation]
      credit for that.
On rebuttal, the prosecutor continued this line of argument:
      This case isn’t about events in [Licho’s] life, it’s about choices that
      he’s made. Choices that he’s made. And, please think about this,
      this isn’t a situation that we see so many times and hear about
      where someone becomes a law breaker because, they have had either
      an abusive or no proper upbringing. Think about it. That’s not the
      case here. You listened to his father. You listen to him testify. He
      had loving parents that were role models. I listen to Mr. Escamilla
      and I thought to myself, if I were a parent, what more could he have
      done? He works seven days a week, he repeatedly tried to tell his
      son about right choices to make, about right and wrong and about
      consequences if you don’t do that. As did Licho Escamilla’s mother,
      during her lifetime. Not one time, but according to Mr. Escamilla,
      a number of times. And, he ignored it all. He chose to ignore what
      his parents were telling him over and over.
      During the defense’s closing argument at the punishment phase, counsel
pleaded with the jurors to hold the prosecution to its burden of proof. Defense
counsel also reminded the jurors of how harsh a life sentence is and that the
death penalty in some ways is not the worst punishment available to the jury,
arguing that the jurors themselves “wouldn’t want to be in prison with people
like Licho Escamilla.” With regard to Licho’s background, counsel explained
that “until he was about the age of eleven or so, [Licho] was a pretty normal
kid.” Defense counsel discussed a physical assault Licho suffered at the hands


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of two adult males at the age of eleven 2 and argued that after this incident and
his mother’s death, Licho began to encounter “two ingredients, that there is no
evidence where much was involved in his life before”—weapons and alcohol.
Counsel reminded the jurors that neither “ingredient” would be available to
Licho in prison if he were to serve a life term.
       The jury found that there was a probability beyond a reasonable doubt
that Licho would commit criminal acts of violence that would constitute a
continuing threat to society and that there are insufficient mitigating
circumstances to warrant the imposition of a sentence of life imprisonment
rather than a death sentence. Licho was sentenced to death on October 31,
2002. Licho’s conviction was affirmed on direct appeal by the Texas Court of
Criminal Appeals on June 30, 2004.
       In 2006, Licho filed a state habeas petition asserting, inter alia, an
ineffective-assistance-of-counsel claim based on his trial attorneys’ failure to
investigate and present adequate mitigating evidence. Licho contended that
his defense attorneys relied primarily upon the State’s records, which were
“replete with redactions,” that counsel only met with two of his family
members, and consequently failed to uncover and present evidence that Licho
suffered from a violent and abusive upbringing or that he had untreated
substance abuse problems. Licho additionally contended that because counsel
did not have sufficient information regarding Licho’s familial and social
history, the expert psychiatrist who was consulted during trial was unable to
make a fully informed diagnosis of Licho’s mental health status. Moreover,


       2 Brenda Hinjosa testified for the defense that when Licho was eleven years old, he
was severely physically assaulted by two adult males at a party who mistook Licho for one of
his friends. Licho’s older brother, Jose, Jr., who was fourteen at the time, retaliated against
the adult men by shooting at them with a firearm. One of the men suffered a gunshot wound
and thereafter Jose, Jr. was adjudicated a juvenile delinquent for the assault offense and was
sent to a juvenile detention center for one year.
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because of counsel’s limited knowledge of Licho’s social history, the prosecution
was able to successfully convince the jury that Licho was the “black sheep” of
a stable, loving family and that despite his responsible, hard-working parents
who served as role models, Licho remorselessly chose to engage in a violent life
of crime.
      Licho’s state habeas counsel procured the help of Toni Knox, a mitigation
investigator, who uncovered detailed evidence regarding Licho’s troubled
childhood which was not presented to the jury at his sentencing trial. Attached
to the state habeas was an unredacted version of Licho’s records from a juvenile
detention facility, the Texas Youth Commission (“TYC”)—the redacted version
of which had been provided to trial counsel—revealing the troubling extent of
Licho’s substance abuse problems. Additionally, the state habeas petition
included various affidavits and records that together portrayed a troublesome
social and family history, including evidence that, inter alia: Licho’s father was
an abusive alcoholic, and often hit the children with a belt or punched them
with his bare hands; Licho and his siblings witnessed their father’s physical
abuse of their mother; Licho and his older brothers were involved with a gang
from an early age and all sold and used drugs; as young as age five, Licho
admired his older brother’s gang involvement; Licho regularly and severely
abused alcohol since age nine, he smoked marijuana as a child, and was unable
to access recommended substance abuse treatment; and nearly all male
members of Licho’s immediate and extended family have significant criminal
history records.
      The petition also included evidence of trial counsel’s limited and belated
investigatory efforts. An affidavit from Brook Busbee, one of Licho’s two trial
attorneys, reveals that counsel never obtained an un-redacted copy of the TYC
records. Additionally, several of the individuals interviewed by state habeas


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counsel and their investigator attested that, despite having knowledge of
mitigating evidence, they were never contacted by Licho’s trial attorneys. The
state habeas petition additionally included a letter report from Dr. Glen
Pearson, addressed to Busbee, and dated November 29, 2002—approximately
one month after Licho was sentenced to death. Pearson’s letter indicates that
he did not examine Licho until jury selection had begun, and was misinformed
about Licho’s familial background and social history.
      In response to Licho’s habeas petition, the State submitted affidavits
from both of Licho’s defense attorneys, C. Wayne Huff and Brook Busbee, as
well as Ms. Busbee’s legal assistant, Virginia McDonald. Busbee and Huff
attested that several unsuccessful attempts were made to speak with both of
Licho’s brothers and other members of the family, that prior to trial, they held
a four-hour meeting with Licho’s father and half-sister in Busbee’s office, and
held two additional meetings with members of the Escamilla family. Both Huff
and Busbee state that even after they specifically asked Licho and his family,
no one mentioned any history of abuse or ever mentioned that Licho’s father
was an alcoholic. Rather, Licho and his family gave counsel the impression
that his father was a responsible man and a good father. Busbee further
attested that while she did not ask the court to appoint a mitigation expert,
she had the help of a defense investigator who researched Licho’s background
on counsel’s behalf, contacting various family members and “any friends and
neighbors he could find.” Busbee additionally hired two experts to assist in the
mitigation    investigation—Dr.     Jay    Crowder        who   performed      an
electroencephalography (“EEG”) to evaluate Licho for organic brain damage,
and Dr. Glen Pearson, who conducted a psychological evaluation consisting of
an interview with Licho and a review of the TYC and medical records. Neither




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expert found an “excuse or explanation” for Licho’s behavior to support
mitigation.
       Substantially adopting the State’s proposed findings of facts, the state
habeas court denied Licho’s petition, finding that he failed to establish that
counsel’s investigation and presentation of mitigation evidence amounted to
deficient performance, or that any deficiency prejudiced the punishment
proceeding.
       On May 2, 2008, represented by new counsel, Licho filed his federal
habeas petition that included new evidence of Licho’s father’s abuse against
Licho’s mother, as well as affidavits from two of the jurors who sentenced Licho
to death, 3 and further evidence of Licho’s extended family’s criminal history.
The district court denied Licho’s petition. Licho then moved for a new trial
pursuant to Martinez v. Ryan, 132 S. Ct. 1309 (2012), seeking an “opportunity
to challenge state habeas counsel’s effectiveness.” Licho argued that under
Martinez, he is entitled to present and have a court consider the evidence
submitted to the federal habeas court which was not before the state habeas
court due to state habeas counsel’s failures. The district court denied Licho’s
motion for a new trial on August 23, 2012, and Licho thereafter, timely moved
for a COA.
                                              II.
       A petitioner is required to seek a COA before an appeal of the district
court’s denial of his § 2254 habeas petition. 28 U.S.C. § 2253(c)(1). To obtain
a COA, a prisoner must make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S.
322, 336 (2003). If a district court has rejected a prisoner’s constitutional claim


       3 Knox, the post-conviction mitigation specialist, interviewed two jurors and obtained
affidavits from them attesting that the jurors would have considered additional family
background information in mitigation had it been presented to them at sentencing.
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on the merits, this court will issue a COA only if the prisoner demonstrates
that jurists of reason could debate whether the district court’s resolution of his
constitutional claims were correct, or could conclude the issues presented are
“adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S.
at 336 (internal quotation marks and citation omitted).         “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. As we have explained, the standard a petitioner must
meet to be granted a COA in a death penalty case is less burdensome than in
a non-capital case. See Clark v. Thaler, 673 F.3d 410, 425 (5th Cir. 2012)
(“While the nature of a capital case is not of itself sufficient to warrant the
issuance of a COA, in a death penalty case any doubts as to whether a COA
should issue must be resolved in the petitioner’s favor.”) (quotation marks and
footnote omitted). Accordingly, where the question is close, “any doubt as to
whether a COA should issue in a death-penalty case must be resolved in favor
of the petitioner.” Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir. 2005).
      “In a habeas corpus appeal, we review the district court’s findings of fact
for clear error and its conclusions of law de novo, applying the same standards
to the state court’s decision as did the district court.” Lewis v. Thaler, 701 F.3d
783, 787 (5th Cir. 2012) (quoting Busby v. Dretke, 359 F.3d 708, 713 (5th Cir.
2004)). Thus, the COA application is governed by the standards set forth in
the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See
Miller v. Thaler, 714 F.3d 897, 901 (5th Cir. 2013). In determining whether a
COA should issue, we “view the petitioner’s arguments through the lens of the
deferential scheme laid out in 28 U.S.C. § 2254(d).” Barrientes v. Johnson, 221
F.3d 741, 772 (5th Cir. 2000); see also Druery v. Thaler, 647 F.3d 535, 538 (5th
Cir. 2011). Under § 2254(d)(1), a state prisoner’s “application for a writ of


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habeas corpus . . . shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless the adjudication of
the claim . . . resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States.” 28 U.S.C. § 2254(d). Section 2254
creates a “highly deferential standard for evaluating state court rulings, which
demands that state-court decisions be given the benefit of the doubt.”
Woodford v. Visciotti, 537 U.S. 19, 24 (2002). The petitioner has the burden of
showing that “there was no reasonable basis for the state court to deny relief.”
Harrington v. Richter, 131 S. Ct. 770, 784 (2011).
                                      III.
      The Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984),
established the two-step process for assessing a Sixth Amendment claim of
ineffective assistance of counsel:
      First, the defendant must show that counsel’s performance was
      deficient. This requires showing that counsel made errors so
      serious that counsel was not functioning as the “counsel”
      guaranteed the defendant by the Sixth Amendment. Second, the
      defendant must show that the deficient performance prejudiced
      the defense.
Id. at 687. To establish deficiency, the defendant “must show that counsel’s
representation fell below an objective standard of reasonableness.” Id. at 688.
“[A] court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.” Id. (internal
quotation marks omitted).        However, the deference afforded counsel’s
informed, strategic choices, does not eliminate counsel’s duty to “make



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reasonable investigations or to make a reasonable decision that makes
particular investigations unnecessary.” Strickland, 466 U.S. at 690-91.
      Under Strickland’s second prong, a petitioner must establish “that the
deficient performance prejudiced the defense. This requires showing that
counsel’s errors were so serious as to deprive the defendant of a fair trial, a
trial whose result is reliable.” 466 U.S. at 687; Day v. Quarterman, 566 F.3d
527, 536 (5th Cir. 2009). Specifically, a petitioner “must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland,
466 U.S. at 694.
      Applying Strickland’s two-pronged inquiry, the Supreme Court has
found that trial counsel’s failure to adequately investigate available mitigating
evidence—for example, by declining to follow up with possible witnesses,
neglecting to prepare a mitigation defense until one week before trial, and
failing to discover ample available documentary evidence—amounts to
ineffective assistance of counsel. See Williams v. Taylor, 529 U.S. 362, 395
(2000).   In Williams, defense counsel presented only the testimony from
defendant’s mother and two neighbors, one of whom was never previously
interviewed by the attorneys, and simply was in the audience and called to
testify on the spot. Id. at 369. In contrast to the limited mitigation case
presented at trial, the state habeas court was presented with evidence that the
defendant experienced a childhood fraught with mistreatment, neglect, and
abuse, and that he was borderline mentally retarded and possibly had organic
brain damage. Id. at 370. The Court held that counsel’s failure to present this
compelling mitigating evidence could not be “justified by a tactical decision,”
and thus fell below an objective standard of reasonableness. Id. at 395. The


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Court next concluded that the petitioner was entitled to relief because he was
prejudiced by counsel’s failures, regardless of the fact that the evidence did not
directly rebut the prosecution’s evidence. Id. at 397-98. The Court explained
that “mitigating evidence unrelated to dangerousness may alter the jury’s
selection of penalty, even if it does not undermine or rebut the prosecution’s
death-eligibility case.” Id.
      Likewise, in Wiggins v. Smith, 539 U.S. 510 (2003), the Court held that
trial counsel’s inadequate investigation of a capital defendant’s social history
and consequent failure to present mitigating evidence regarding the
defendant’s history of sexual abuse and other traumatic childhood events
amounted to a violation of the defendant’s Sixth Amendment right to effective
assistance of counsel. The Wiggins Court found that counsel unreasonably
relied upon a cursory review of the presentence investigation report and a
social services record, despite indications in available records that Wiggins’
mother was an alcoholic and that he was placed in foster care. Id. at 524-25.
Thus, counsels’ “decision to end their investigation when they did was . . . [not]
reasonable in light of the evidence counsel uncovered in the social services
records—evidence that would have led a reasonably competent attorney to
investigate further.” Id. Finding that the mitigating evidence presented at
habeas proceedings sufficiently established a “reasonable probability that at
least one juror would have struck a different balance,” the Court reversed and
remanded the case. Id. at 537-38.
      Two years after Wiggins was announced, the Court issued Rompilla v.
Beard, 545 U.S. 374 (2005), holding that Rompilla established ineffective
assistance of counsel based on his trial attorneys’ failure to review evidence
provided by the prosecution which contained information that would lead a
reasonable attorney to investigate further.        In Rompilla, relying upon


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defendant’s own description of his childhood as “normal,” trial counsel failed to
thoroughly investigate the defendant’s background and social history and
instead presented a mitigation case consisting of the defendant’s family
pleading with the jurors for sympathy. 4           Id. at 379.     Despite Rompilla’s
statements to the contrary, counsel was in possession of various documents
indicating that Rompilla’s childhood was anything but “normal.” Id. at 382.
The Court explained that there was “room to debate” trial counsel’s obligation
to “follow at least some of these potential lines of enquiry” contained in the
available document, but the Court did not expressly conclude whether
counsel’s inactions in this regard amounted to deficient performance.                 Id.
Instead, the Court resolved the case on one dispositive issue—that counsel
failed to examine the very court file that the prosecutor informed counsel he
would rely upon at sentencing. Id. at 383. The Court held that where capital
defense attorneys have access to the prosecution’s files and are provided notice
that the prosecution will rely upon such information contained within the file
at sentencing, yet neglect to review the file before trial, counsel performs below
an objective standard of reasonableness. Id. at 389 (“No reasonable lawyer
would forgo examination of the file thinking he could do as well by asking the
defendant or family relations”). Thus, regardless of other efforts made to
investigate potential mitigating evidence, counsel was obligated to examine
the prosecution’s evidence in preparation of the punishment trial. See id.
      With regard to Strickland’s second prong, the Rompilla Court explained
that the prison files that counsel failed to examine portrayed the defendant’s
childhood and mental health status much differently than the information


      4  Before trial, Rompilla’s counsel made some investigatory efforts, including
interviews with the defendant and five members of his family, and consultations with three
mental health experts. Rompilla, 545 U.S. at 379. However, none of the mental health
experts were aware of the defendant’s social history. Id. at 392.
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received by the defendant’s family and provided by the mental health experts.
If counsel had reviewed the contents of the prosecutor’s file and other readily
available documents, they likely would have uncovered other mitigating
evidence regarding Rompilla’s parents’ alcoholism and domestic violence
issues, as well as the severe discipline and harsh living conditions he endured
as a child.   Id. at 391-93 (“While [trial counsel] found nothing helpful to
Rompilla’s case, their postconviction counterparts, alerted by information from
school, medical, and prison records that trial counsel never saw, found plenty
of red flags pointing up a need to test further.”) (internal quotation marks,
citation, and alteration omitted). Thus, petitioner established prejudice under
Strickland because “the undiscovered ‘mitigating evidence, taken as a whole,
might well have influenced the jury’s appraisal of [Rompilla’s] culpability, and
[thus] the likelihood of a different result if the evidence had gone in[,] is
sufficient to undermine confidence in the outcome actually reached at
sentencing.” Id. at 393 (quotation marks and citations omitted).
      More recently, in Sears v. Upton, 130 S. Ct. 3259 (2010), the Court
remanded for reconsideration of the prejudice prong, clarifying that when
conducting a prejudice analysis under Strickland in the capital sentencing
context, a habeas court must consider the totality of all mitigation evidence—
evidence presented both at trial and in habeas proceedings—and reweigh it
against the aggravating evidence, regardless of whether trial counsel initially
presented some evidence of mitigation at the punishment proceeding. In Sears,
trial counsel presented mitigating evidence of the petitioner’s stable, loving
upbringing, presumably as an attempt to show the grave impact of the death
penalty upon the petitioner’s family. Sears, 130 S. Ct. at 3261-62. In response,
the prosecution used this depiction of a stable family against the defense,
arguing to the jury that the defendant was “privileged in every way, [and]


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rejected every opportunity that was afforded him.” Id. at 3262. Rather than
the stable, loving upbringing depicted at trial, post-conviction counsel
discovered that the defendant’s parents were actually physically and verbally
abusive, that the defendant was subjected to sexual abuse by a male cousin,
struggled in school with a severe learning disability, and post-conviction
testing revealed that the petitioner had significant brain abnormalities that
were likely a result of head injuries and drug and alcohol abuse as a teen. Id.
Post-conviction counsel additionally unveiled evidence that Petitioner’s
brother was a convicted drug dealer and user, who “introduced Sears to a life
of crime.” Id. at 3263. The Court reasoned that this new information, even
taken together with some adverse evidence uncovered during the post-
conviction investigation, “might not have made Sears any more likeable to the
jury, but might well have helped the jury understand Sears, and his
horrendous acts—especially in light of the purportedly stable upbringing.” Id.
at 3264.
      Applying Strickland, Wiggins, and Rompilla, we have explained that,
“[i]n investigating potential mitigating evidence, counsel must either (1)
undertake a reasonable investigation or (2) make an informed strategic
decision that investigation is unnecessary.” Charles v. Stephens, 736 F.3d 380,
389 (5th Cir. 2013). Thus, “under a Strickland analysis, trial counsel must not
ignore pertinent avenues of investigation, or even a single, particularly
promising investigation lead.” Id. at 390 (internal citations and quotation
marks omitted). Accordingly, we have granted a COA to a petitioner who
demonstrated that despite some efforts by counsel to investigate and present
a mitigation defense, the scope and adequacy of counsel’s mitigation
investigation was debatably unreasonable. Smith v. Dretke, 422 F.3d 269, 280
(5th Cir. 2005).    In Smith, the petitioner argued that counsel failed to


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investigate his “troubled background and abusive upbringing,” failed to review
his prison records that demonstrated his good behavior, and neglected to
present expert testimony regarding his drug and alcohol use. Id. at 277.
Smith’s trial counsel submitted affidavits asserting that they extensively
interviewed Petitioner’s family members and acquaintances. Id. Relying on
Rompilla, we reasoned that regardless of extensive interviews with family
members, counsel had information available to them—here, that Smith had a
history of severe substance abuse and that Smith came from a disadvantaged
background—that would have led a reasonable attorney to investigate further,
and thus the scope of their investigation was unreasonable. Id. at 283-84
(“[E]ven though trial counsel did do some investigating, the question was
whether the investigation conducted could be considered adequate in light of
professional norms.”).   With regard to the prejudice prong, we held that
compared to the evidence actually presented at the punishment proceeding,
“reasonable jurists could debate whether the evidence Smith now proffers
would have convinced a juror that Smith was less morally culpable such that
life imprisonment, rather than the death penalty, was appropriate.” Id. at 284.
                                      IV.
      Licho’s post-conviction counsel presented the state habeas court with
evidence that the sentencing jury never heard, which revealed Licho’s severe
substance abuse problems that began at age nine, his involvement with a gang
from age eight, his father’s abuse, alcoholism, and harsh disciplinary practices,
his family’s substantial involvement with the criminal justice system, and
Licho’s brother’s negative influence on him at an impressionable age. The state
habeas court concluded that despite trial counsel’s failures to uncover and
present this mitigating evidence, trial counsel’s representation did not fall
below an objective standard of reasonableness, nor did the absence of this


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mitigating evidence prejudice Licho. Reasonable jurists could debate that the
state habeas court unreasonably applied Strickland and its progeny when it
concluded that counsel’s limited mitigation investigation and presentation
during sentencing was not deficient despite the available, unpursued “red
flags” regarding Licho’s troubled childhood, and that regardless of any
deficiency Licho could not establish prejudice. Accordingly, we grant Licho a
COA with regard to his ineffective-assistance-of-trial-counsel claim, reserving
a decision on this issue until the matter is fully briefed and submitted.
      A. Deficiency of Mitigation Investigation
      The state habeas court considered counsel’s qualifications, their
meetings with Licho and his family members, as well as their retention and
use of a defense investigator and two medical experts, and concluded that the
State presented affirmative evidence of counsel’s effective representation. The
state habeas court further reasoned that counsel made repeated, yet
unsuccessful, attempts to meet with various members of Licho’s family, who
were difficult to communicate with and expressly denied the existence of some
of the mitigating evidence that post-conviction counsel later uncovered.
Accordingly, the state habeas court found that trial counsel cannot be faulted
for their inability to obtain the mitigating evidence that state habeas counsel
later uncovered—namely, Licho’s father’s physical abuse of his children and
wife, as well as his use of harsh disciplinary methods.
      Reasonable jurists could debate whether in concluding that counsel’s
mitigation investigation amounted to effective representation, the state
habeas court unreasonably applied Strickland and its progeny, which requires
counsel to reasonably pursue investigation of available leads, regardless of a
client’s obstructive behavior or concealment of evidence. See, e.g., Sonnier v.
Quarterman, 476 F.3d 349, 362 (5th Cir. 2007). A number of considerations


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lead us to conclude that a COA is warranted with regard to Licho’s ineffective-
assistance-of-trial-counsel claim. First by counsels’ admission, they neglected
to obtain the unredacted version of Licho’s TYC records or the publicly
available arrest records of Licho’s family members. Second, counsel spent only
a limited amount of time interviewing a select handful of Licho’s family
members and acquaintances, and unreasonably relied upon their description
of Licho’s childhood as stable. Third, counsel declined to hire a mitigation
specialist, failed to obtain a psychological evaluation for their client until after
trial began, and failed to ensure that the expert evaluating Licho was aware of
his family background and social history. Fourth, reasonable jurists could
debate whether counsel failed to conduct a timely mitigation investigation.
These failures debatably amount to deficient performance under Strickland
and its progeny because together, they could reflect a mitigation investigation
that fell below an objective standard of reasonableness. See, e.g., Wiggins, 539
U.S. at 527-28 (finding that in light of the evidence contained in available
records, counsel “abandoned their investigation at an unreasonable juncture,”
and thus the state habeas court unreasonably applied Strickland when it found
that counsel’s investigation was reasonable).
   B. Presentation of Mitigation Defense
      Because counsel’s mitigation investigation was debatably unreasonable,
we now turn to examine whether the state habeas court unreasonably deferred
to counsels’ purportedly strategic choice to present a mitigation theory
premised upon evoking sympathy from the jurors for Licho’s family, despite
available “red flags” indicating Licho’s troubled childhood. The state habeas
court found that counsel was aware of Licho’s history of substance abuse and
his brothers’ criminal histories, yet strategically and reasonably chose not to
present this evidence to the jury, and instead made an informed decision to


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present Licho and his family as sympathetic figures, arguing that Licho
changed after his mother died. As Busbee explained, she “believed then and
believes now that the best mitigation strategy was to focus on the tragedy it
would be for Escamilla’s father to lose both his wife and then his son.”
      Generally, counsel’s strategic decisions are afforded deference so long as
they are based on counsel’s “professional judgment.” Strickland, 466 U.S. at
680. However, if a purportedly tactical decision is not preceded by a reasonable
investigation, then it is not sufficiently informed and not entitled to the
deference typically afforded counsel’s choices. See Sears, 130 S. Ct. at 3265
(“We reject[] any suggestion that a decision to focus on one potentially
reasonable trial strategy. . . . [i]s ‘justified by a tactical decision’ when ‘counsel
did not fulfill their obligation to conduct a thorough investigation of the
defendant's background’”); see also Smith, 422 F.3d at 284 (“If trial counsel's
investigation was unreasonable then making a fully informed decision with
respect to sentencing strategy was impossible”).              Accordingly, because
counsel’s investigation debatably fell below a reasonable standard of
performance, reasonable jurists would in turn debate whether the “state
habeas court’s decision to give deference to trial counsel’s strategic decision [is]
also . . . objectively unreasonable.” Smith, 422 F.3d at 284.
   C. Prejudice
      Next, reasonable jurists could debate whether the state habeas court
unreasonably applied federal law when it rejected Licho’s argument that but
for counsel’s failures, there was a reasonable probability of a different outcome
that undermines confidence in the imposition of the death sentence.
Strickland, 466 U.S. at 694. The jury that sentenced Licho to death was
presented with evidence that Licho was a “pretty normal” kid until age eleven.




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       The state habeas court found that trial counsel did present a reasonable
mitigation case to the jurors. However, reasonable jurists would debate
whether trial counsel’s efforts were unreasonably inadequate when compared
to   “their   postconviction   counterparts,   [who,]   alerted   by   information
from . . . records that trial counsel never saw, found plenty of red flags,” and as
a result, discovered evidence that trial counsel failed to uncover and present to
the jury. Rompilla, 545 U.S. at 391-93. Moreover, the evidence presented to
the state habeas court that the jury never heard directly rebutted the
prosecution’s theory during punishment that Licho was “raised in a loving
supportive family,” and that there were “no disadvantages in his background.”
The prosecution urged the jury to disregard any potential mitigating value of
the defense’s evidence because the testimony during the punishment
proceeding established that Licho was a privileged child, with loving, hard-
working parents, who simply made “choices” to break the law and inexplicably
choose to kill. The defense failed to rebut this allegation and never presented
the jury with information regarding the disadvantages, instability, and trauma
that Licho actually experienced as a child.
       Further, the state habeas court reasoned that the evidence regarding
Licho’s father’s abuse and alcoholism was not sufficient in quality or quantity
to evoke much sympathy from the jury. With regard to the evidence of Licho’s
severe substance abuse problems as well as the evidence that Licho was
influenced by his brother Jose, Jr., the state habeas court found that this
evidence was unlikely to “tip the scales” in Licho’s favor, and cites to Busbee’s
declaration that she felt the “evidence of the murder of Officer James and the
previous murder that he was wanted for when he killed Officer James was too
powerful to overcome.” However, this court has found that counsel’s failure to
present the true nature of the petitioner’s disadvantaged upbringing debatably


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establishes prejudice even when the petitioner was convicted of committing a
series of senseless murders.      Smith, 422 F.3d at 271-72 (detailing the
petitioner’s “week-long crime spree” and ultimately granting a COA on his
ineffective-assistance-of-trial-counsel claim). Thus, the disturbing facts of the
crime alone do not defeat Licho’s prejudice argument.
      Reasonable jurists would debate whether the state habeas court’s
conclusion that Licho failed to establish a reasonable probability of a different
outcome is an unreasonable application of Strickland and its progeny.
Accordingly, his ineffective-assistance-of-counsel claim based upon trial
counsel’s failures to investigate and present a mitigation defense deserves
encouragement to proceed further. We therefore grant a COA on that issue.
                                       V.
      Turning to Licho’s second argument on appeal, we conclude that he has
not made the requisite showing to warrant a COA regarding his claim that
under Martinez v. Ryan, 132 S. Ct. 1309 (2012), the district court should have
considered newly presented evidence that state habeas counsel neglected to
present to the state habeas court. Less than one week before the district court
denied Licho’s federal habeas petition, the Supreme Court issued its opinion
in Martinez v. Ryan, ruling that “[w]here, under state law, claims of ineffective
assistance of trial counsel must be raised in an initial-review collateral
proceeding, a procedural default will not bar a federal habeas court from
hearing a substantial claim of ineffective assistance at trial if, in the initial-
review collateral proceeding, there was no counsel or counsel in that
proceeding was ineffective.” Id. at 1320. Martinez addressed the Arizona state
law system of collateral review, but in 2013, the Court applied the Martinez
rule to petitioners raising defaulted ineffective-assistance-of-trial-counsel
claims in Texas. Trevino v. Thaler, 133 S. Ct. 1911, 1915 (2013). Thus, if a


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petitioner in Texas establishes that he has a “substantial” claim of ineffective-
assistance-of-trial-counsel, which is otherwise procedurally barred due to the
ineffective assistance of his state habeas counsel, he can establish cause to cure
the procedural defect. Id. at 1921.
      Prior to Martinez and Trevino, in Cullen v. Pinholster, 131 S.Ct. 1388
(2011), the Court held that once a claim has been adjudicated on the merits in
a state habeas court, additional evidence submitted to the federal habeas court
“has no bearing” on the federal habeas court’s decision. Id. at 1400. Rather,
“a federal habeas petitioner must [establish that the state court’s decision was
contrary to, or involved an unreasonable application of, clearly established
Federal law] on the record that was before the state court.” Id.; see also Clark
v. Thaler, 673 F. 3d 410, 417 (2012) (applying Pinholster and concluding that
the federal court must “consider only the record that was before the state
habeas court”).
      After Licho’s federal habeas petition was denied, he filed a motion for a
new trial and for oral argument, asserting that in light of Martinez, he is
entitled to argue his state habeas counsel’s ineffectiveness, and contending
that the federal habeas court should have considered all of the evidence
presented during the federal proceedings, inclusive of any evidence not made
part of the state habeas court record, because any “evidentiary shortcomings”
in his state habeas petitioner were a result of state habeas counsel’s
ineffectiveness, and thus “do not preclude [the federal habeas court] from
considering the extensive affidavit testimony provided by Petitioner’s
witnesses.”
      In Martinez, the Court held that an otherwise procedurally defaulted
claim of ineffective assistance of counsel may be heard by a federal habeas
court where it was not properly raised in the state habeas court on initial


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review due to state habeas counsel’s ineffective representation. We conclude
that Martinez does not apply to claims that were fully adjudicated on the
merits by the state habeas court because those claims are, by definition, not
procedurally defaulted. See, e.g., Moore v. Mitchell, 708 F.3d 760, 784-85 (6th
Cir.), cert. denied, 134 S. Ct. 693 (2013); c.f. Dickens v. Ryan, 740 F.3d 1302,
1320 (9th Cir. 2014) (allowing the federal habeas court to consider new
evidence that “fundamentally altered” the previously asserted claim of
ineffective-assistance-of-trial-counsel, explaining that the Pinholster Court’s
prohibition applies “only to claims ‘previously adjudicated on the merits in
State court proceedings’”). Thus, once a claim is considered and denied on the
merits by the state habeas court, Martinez is inapplicable, and may not
function as an exception to Pinholster’s rule that bars a federal habeas court
from considering evidence not presented to the state habeas court. See Gallow
v. Cooper, 505 F. App’x 285, 291 (5th Cir. 2012), cert. denied, 133 S. Ct. 2730
(2013); Ross v. Thaler, 511 F. App’x 293, 305 (5th Cir.), cert. denied, 134 S. Ct.
23 (2013).
      Here, Licho’s ineffective-assistance-of-trial-counsel claim based on his
attorneys’ failure to investigate and present mitigating evidence was
considered and denied by the state habeas court. The new evidence presented
to the district court did not “fundamentally alter” his claim, Dickens, 740 F.3d
at 1320, but merely provided additional evidentiary support for his claim that
was already presented and adjudicated in the state court proceedings. Thus,
Martinez is inapplicable, and Pinholster bars Licho from presenting new
evidence to the federal habeas court with regard to this already-adjudicated
claim. Clark, 673 F.3d at 417.
                                 CONCLUSION




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      We hold that Licho has made the requisite showing to warrant a COA
with regard to his ineffective-assistance-of-trial-counsel claim, and grant a
COA as to that issue. However, we deny a COA with regard to Licho’s
arguments under Martinez v. Ryan and therefore limit his arguments on
appeal to those arising from and supported by the record presented to the state
habeas court.
      Accordingly, Licho’s application for a COA is GRANTED in part and
DENIED in part.




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