   Case: 10-70005       Document: 00511266592          Page: 1    Date Filed: 10/18/2010




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

                                                 FILED
                                                                          October 18, 2010
                                       No. 10-70005
                                                                            Lyle W. Cayce
                                                                                 Clerk



RODRIGO HERNANDEZ,

                                                   Petitioner-Appellant,

versus

RICK THALER, Director,
Texas Department of Criminal Justice, Correctional Institutions Division,

                                                   Respondent-Appellee.




                    Appeal from the United States District Court
                         for the Western District of Texas
                                  No. 5:08-CV-391




Before DAVIS, SMITH, and DENNIS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       Rodrigo Hernandez was convicted in 2004 of the rape and capital murder
of Susan Verstegen and sentenced to death. He filed a state application for writ



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                  No. 10-70005

of habeas corpus, claiming he had received ineffective assistance of counsel dur-
ing trial. The trial court held an evidentiary hearing, and the Texas Court of
Criminal Appeals denied all habeas relief. Ex parte Hernandez, No. 69,470-01
(Tex. Crim. App. Apr. 30, 2008) (unpublished). After reviewing the record, the
federal district court denied all habeas relief on the merits and did not grant a
COA.
       Hernandez now seeks a COA on the same issues presented to the district
court. He also moves for a stay of the federal habeas proceeding so he can return
to state court and exhaust a new claim for relief—that because he is mentally re-
tarded, he is ineligible for the death penalty under Atkins v. Virginia, 536 U.S.
304 (2002). We deny a COA and a stay.


                         I. Certificate of Appealability.
                            A. Standard of Review.
       Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), a COA requires “a substantial showing of the denial of a constitu-
tional right.” 28 U.S.C. § 2253(c)(2). The petitioner must “demonstrate that rea-
sonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “[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 peti-
tioner will not prevail.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003). Because
AEDPA forbids a full consideration of the merits, a COA analysis is only a
threshold inquiry of the claim and a general assessment of its merits. Id. at 337.
       Hernandez contends he was denied his Sixth Amendment right to effective
assistance of counsel. The analysis requires a preliminary, not definitive, appli-
cation of the two-pronged test in Strickland v. Washington, 466 U.S. 668 (1984).
See Miller-El, 537 U.S. at 338.

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      Under the first prong, the petitioner must show that counsel’s performance
was deficient, meaning that “counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the [petitioner] by the Sixth Amend-
ment.” Washington, 466 U.S. at 687. The proper measure is whether “the repre-
sentation fell below an objective standard of reasonableness.” Id. at 688. That
standard is highly deferential, and a court must presume that counsel’s conduct
falls within the wide range of prevailing professional norms. Id. at 689. Because
it is easy to denounce an unsuccessful course of action with benefit of hindsight,
courts should evaluate the challenged conduct from counsel’s perspective at that
time. Id. Therefore, unless the conduct was unreasonable as a matter of law,
strategic decisions following a thorough investigation are “virtually unchallenge-
able.” Id. at 690. Decisions after a less-than-thorough investigation may still
be reasonable if supported by reasonable professional judgments. Id. at 691.
      To satisfy the second prong, the petitioner must show that the deficient
performance prejudiced the defense, meaning that “counsel’s errors were so seri-
ous as to deprive the [petitioner] of a fair trial.” Id. at 687. There must be a rea-
sonable probability that but for counsel’s unprofessional errors, the result of the
proceeding would have been different. Id. at 694. A reasonable probability is
one that is sufficient to undermine confidence in the outcome, id., but prejudice
may also occur if “the result of the proceeding was fundamentally unfair or unre-
liable.” Lockhart v. Fretwell, 506 U.S. 364, 369 (1993).
      Not all errors justify setting aside a conviction. The Sixth Amendment
does not guarantee the right to counsel for the sake of having counsel, but rather
to ensure that legal assistance afforded the defendant a fair trial and to justify
reliance on the outcome. Washington, 466 U.S. at 691-92. Thus, if counsel’s er-
rorsSSno matter how unreasonableSSdid not have a prejudicial effect on the de-
fense, they do not rise to the level of a constitutional violation. Id. at 693.
      Both Washington prongs are mixed questions of law and fact. Id. at 698.

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The state court’s findings of fact are subject to deference under 28 U.S.C.
§ 2254(d), and the district court’s findings are reviewed under the clearly er-
roneous standard of Federal Rule of Civil Procedure 52(a). Miller-El, 537 U.S.
at 340. Because of the severity and finality of the death sentence, any doubts
should be resolved in favor of the petitioner. Clark v. Johnson, 202 F.3d 760, 763
(5th Cir. 2000).


                                       B. Analysis.
       Hernandez contends that five separate actions and omissions by his at-
torney satisfy the Washington test: (1) failing to call Hernandez to testify during
the hearing on his motion to suppress his confession, and erroneously arguing
that Michigan law should govern the confession’s admissibility; (2) failing to ob-
ject to the prosecutor’s allegedly misleading questions to the medical examiner
regarding the amount of time necessary to cause death from a ligature; (3) fail-
ing to object to the prosecutor’s comments regarding the alleged use of a ligature
to cause death; (4) failing to argue, at the punishment phase, that residual doubt
should mitigate imposition of the death penalty, and failing to raise residual
doubt through cross-examination; and (5) failing to retain a dental expert to ex-
amine the possible bite marks on Verstegen’s body and compare them to Her-
nandez’s teeth. We address each action or omission in turn.


    1. Failing To Call Hernandez To Testify, and Arguing Michigan Law.1

       The state trial court held an evidentiary hearing to determine whether
Hernandez’s written confession should be suppressed. The two officers who in-

       1
         The district court noted that Hernandez did not raise these two arguments in the
state habeas proceeding, and therefore that they should have been dismissed as unexhausted
claims. See Strickler v. Greene, 527 U.S. 263, 281-82 (1999). The state, however, did not as-
sert procedural default, and the court denied habeas relief on the merits under § 2254(b)(2).
We therefore analyze the constitutional violation and not procedural default.

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terviewed Hernandez testified that after he was given his Miranda warnings,
he confessed to his involvement in Verstegen’s death, claiming that he had raped
her but had not intended to kill her. The officers also said that although Her-
nandez agreed to give a written statement, he asked one of them to write it for
him because his hands were shaking too much. According to the detective who
took the statement, Hernandez read it before initialing each page and signing
the last page. Hernandez’s attorney argued that the confession should be sup-
pressed because it did not comply with Michigan law. The state trial court con-
cluded that Texas and not Michigan law applied and that under Texas law the
confession was proper, so it was admissible.
      Hernandez now asserts that it was unreasonable error for his attorney not
to put him on the stand to testify during the hearing. Hernandez contends that
he would have testified that he had signed a blank form and that his initials
were forged. The lawyer testified during the state habeas proceeding, however,
that Hernandez was extremely nervous and had an extensive criminal record,
so his credibility likely could be impeached. It would have been Hernandez’s
word against that of two officers. The attorney did suggest at the proceeding
that the confession may have been forged, but he chose to raise that argument
during cross-examination of the officers.
      Hernandez’s lawyer made a reasonable tactical decision not to call Her-
nandez to testify. The attorney believed it would do more harm than good for
Hernandez to testify and that attacking the authenticity of the statement was
better left to cross-examination of the officers. Had Hernandez testified that the
confession was a forgery, the prosecution would have cross-examined Hernandez
and thus could have argued that it was implausible that a man well versed in
the criminal justice system would never sign a blank witness statement form.
Reasonable jurists could not contest that the attorney’s strategy was objectively
reasonable, and thus this claim does not warrant a COA.

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      Hernandez asserts in his brief, without any support, that his attorney
erred in failing to realize that Texas law would apply. It is equally possible,
though, that the attorney, in a desperate attempt to secure exclusion, knew the
confession was admissible under Texas law and thus decided to argue that the
more favorable Michigan law should apply. Although there is no evidence of ei-
ther rationale in the record, we must strongly presume that counsel “made all
significant decisions in the exercise of reasonable professional judgment.” Wash-
ington, 466 U.S. at 690. Therefore, reasonable jurists cannot debate whether the
attorney’s actions were unreasonable. That is enough to deny a COA.
      Additionally, the admission of Hernandez’s confession did not prejudice
the defense, so there was no constitutional violation. In fact, the confession may
have helped the defense, because it was the only evidence (other than putting
Hernandez on the stand at trial) supporting his defense that he accidentally
killed Verstegen and thus should be convicted of only felony murder.
      Hernandez’s attorney testified that if the confession had been suppressed,
his strategy would have been to argue that Verstegen and Hernandez had en-
gaged in consensual sex. But the evidence makes this argument implausible.
Verstegen’s body was found in a garbage can, headfirst and unclothed from the
waste down. In tape-recorded phone conversations with his sister, Hernandez
denied knowing Verstegen, and her body showed evidence of assault and stran-
gulation. Thus, Hernandez would have had to take the stand to lend any credi-
bility to that defense. Either way, if Hernandez had testified that Verstegen’s
death was an accident or that they had engaged in consensual sex, he would
have opened himself to a withering cross-examination raising his prior criminal
history and violence against women. Therefore, because the confession did not
prejudice the defense, reasonable jurists could not debate that a constitutional
violation did not occur.



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        2. Failing To Object During Questioning of Medical Examiner.
      The medical examiner, Dr. Bux, testified at trial that the marks on Verste-
gen’s neck indicated that she was likely strangled by a ligature or a combination
of ligature and hands, although it was possible that only hands were used. At
the end of Bux’s testimony, the following exchange occurred between him and
the prosecutor:
      Q: How long would a person then have to hold Susan Verstegen’s
      neck before she would not come back to consciousness?

      A: That’s a good question. We know that they’ll come back in 100
      seconds. We don’t know what the magic number is after that. It
      would be at least two to three minutes, and it might be longer in
      somebody that’s young and healthy like she was. . . .

      Q: Is it fair to say that the absolute minimum that a person would
      have to hold a ligature on Susan Verstegen’s neck after she lost
      consciousness is two minutes?

      A: Yes, sir. I think that would be very conservative.

Hernandez claims that it was an unreasonable error for his attorney not to ob-
ject to the second question, because it mischaracterized Bux’s earlier testimony
that Verstegen could have been strangled with hands alone.
      The decision not to object falls squarely within the wide range of reason-
able trial tactics. The first question used the phrase “hold Susan Verstegen’s
neck,” which implies using hands alone, whereas the second question used the
phrase “hold a ligature on Susan Verstegen’s neck,” which implies either ligature
alone or hands and ligature. Looking at the line of questioning as a whole makes
it obvious that the prosecutor was using this portion of Bux’s direct examination
to elicit testimony as to the length, not the manner, of the strangulation.
      Had Hernandez’s attorney interrupted the flow of questioning to ask the
prosecutor to clarify a trivial and immaterial point, it could have drawn more at-



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tention than necessary to the strangulation. The decision to raise an objection
is driven largely by trial strategy, and we have no reason to second-guess it.
Further, even though the attorney testified at the state habeas proceeding,
Hernandez failed to question him regarding his motive behind the decision to
object. The threshold is lower for a COA than for habeas relief, yet the petitioner
still has the burden of showing that reasonable jurists might find his lawyer’s
conduct objectively unreasonable at the time of trial. See Washington, 466 U.S.
at 687-91. Hernandez has failed to meet that burden, so reasonable jurists
would defer to the attorney’s strategy. This claim does not warrant a COA.


                 3. Failing to object during closing argument.
      During closing arguments, the prosecutor summarized Bux’s testimony
and said that “some type of ligature was usedSSeither ligature alone or ligature
and hands.” Hernandez argues that it was an unreasonable error for his attor-
ney to fail to object to that mischaracterization of Bux’s testimony. Hernandez
asserts that the prosecutor put forth a “more vicious version of the facts” when
he said that some type of ligature had been used. Hernandez also contends that
the prosecutor’s statements called into doubt his written confession, which stat-
ed that he had accidentally strangled Verstegen with only his hands.
      There is no apparent reason why one method of strangulation is more vi-
cious than the other. Arguably, some might believe that strangling someone
with, as the idiom goes, “your bare hands” is more vicious than using a ligature,
which would make the task easier. When weighing the harm caused by drawing
attention to the fact that Hernandez may have strangled Verstegen with only his
hands, against the benefit of bolstering the credibility of the written confession,
it is reasonable to decide that making an objection was not in the defense’s best
interest.
      Again, Hernandez did not question his trial attorney during the state ha-

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beas proceeding as to his reasoning for choosing not to object. Instead, he only
argues that “there can be no strategy for failing [to object].” Because Hernandez
has put forth no reason to second-guess his lawyer’s decision, reasonable jurists
must presume that the trial tactic was sound, and the claim does not warrant
a COA.


                     4. Failing To Argue Residual Doubt.
       Hernandez contends that his attorney “should have attacked through addi-
tional evidence, vigorous objections, and closing argument the serious lack of
proof as to [Hernandez’s] guilt of the capital murder.” By failing adequately to
raise residual doubt in the minds of jurors, Hernandez argues, his attorney’s per-
formance was deficient and prejudiced the punishment phase of trial.
       Despite vigorously denouncing his attorney’s performance, Hernandez does
not provide the court with any additional exculpatory evidence to consider. Nor
does Hernandez describe any objections that counsel should have raised, other
than those that the state habeas court, the district court, and this court found
meritless. Moreover, Hernandez does not identify the alleged flaws in counsel’s
closing arguments. The only two issues that Hernandez does raise in support
are that his lawyer (1) did not attack with enough force the prosecution’s reli-
ance on “mere science” and the three-page confession, when pointing out that
there were no eye-witnesses, and (2) should have mentioned that the police ques-
tioned other individuals and asked them to submit to polygraph and DNA test-
ing.
       The attorney testified at the state habeas proceeding that in cases where
the defendant’s DNA links him to the victim and there is a signed confession, ar-
guing residual doubt is of little use. Counsel believed that by finding Hernandez
guilty of capital murder, the jury had plainly rejected the felony-murder defense,
so arguing residual doubt would be harmful. The defense’s strategy was thus to

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convince the jury that because of Hernandez’s growing maturity and peaceful
prison record, he would not pose a future threat if sentenced to life without
parole.
      We defer to the state habeas court’s factual finding that counsel conducted
a thorough investigation of the law and facts before settling on that strategy.
Such trial decisions are “virtually unchallengeable,” and Hernandez has given
us no evidence to doubt that decision’s reasonableness. See Washington, 466
U.S. at 690. Conclusional arguments and assertions such as those Hernandez
provides are insufficient. Mallard v. Cain, 515 F.3d 379, 383 (5th Cir. 2008). No
reasonable jurist could debate whether the strategy was reasonable. This claim
does not warrant a COA.


                     5. Failing To Retain a Dental Expert.
      At trial, one of the investigating detectives testified that another detective,
from looking at autopsy photos and not the autopsy report, believed that one of
the marks on Verstegen’s body was possibly a bite mark; he consulted a forensic
dental expert, who said that he would need dental impressions to compare to the
photograph. The search warrant authorized detectives to take dental impres-
sions of Hernandez, which they did. Other than the detective’s brief testimony
on the issue, the only other mention of bite marks at trial was the testimony of
Bux, who stated that he did not mention bite marks in the autopsy report be-
cause he could not determine whether the marks in question were in fact bite
marks.
      Hernandez claims that it was unreasonable error for his attorney to fail
to retain a dental expert to compare his dental impressions against the marks
in the autopsy photos. Hernandez again makes a broad conclusional statement
without any evidence in support.
      The autopsy report did not include any mention of bite marks, and Her-

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nandez gives no reason why counsel should not have relied on that report in con-
ducting the investigation. The only mention of bite marks was in the search
warrant, and there is no evidence that the dental impressions were ever used.
In fact, Hernandez does not even argue that the bite marks do not match his.
      Hernandez cannot assert merely that his attorney should have investi-
gated some matter; he must make an “affirmative showing of what the missing
evidence or testimony would have been” and explain why it would have made a
difference during trial. Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994).
Without such a showing, “a habeas court cannot even begin to apply [Washing-
ton’s] standards.” Id. (quoting United States ex rel. Partee v. Lane, 926 F.2d 694,
701 (7th Cir. 1991)) (internal quotation marks omitted). No reasonable jurist
could debate whether counsel’s conduct was reasonable, and therefore no COA
should issue.


                               II. Motion for Stay.
      A federal court may not grant habeas relief unless the petitioner has ex-
hausted all available state court remedies, including state habeas review. 28
U.S.C. 2254(b)(1)(A). If presented with an application with both exhausted and
unexhausted claims, a court may stay and abate the federal proceeding to allow
the defendant to return to state court to exhaust the necessary claims. A stay
allows the petitioner to return to federal court once the state court has adjudi-
cated the claims, and such a stay tolls AEDPA’s one-year statute of limitations.
Rhines v. Weber, 544 U.S. 269 (2005).
      Hernandez intends to raise an Atkins claim in the state habeas court and
thus moves for a stay. A court may issue a stay, but only in limited circumstanc-
es so as not to undermine AEDPA’s objectives of reducing delay, particularly in
capital cases. See id. at 276-77. First, there must be good cause for the failure
to exhaust. Second, a district court should not grant a stay where the unex-

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hausted claims are plainly meritless. Third, there should be reasonable time
limits on the petitioner’s trip to state court and back. And finally, a court should
not grant a stay if the petitioner engages in abusive litigation tactics or inten-
tional delay. We deny a stay, because the unexhausted claim is meritless.
       Under 28 U.S.C. § 2444(d)(1)(A), a petitioner must bring his federal claim
within one year from the date on which judgment became final by the conclusion
of direct review or from the expiration of the time for seeking such review. The
period is tolled while state post-conviction or collateral review is pending.
§ 2444(d)(2). Atkins claims are not exempt from the limitations period and may
be time-barred. In re Lewis, 484 F.3d 793, 796 (5th Cir. 2007). Because Hernan-
dez’s limitations period expired on April 30, 2009, the future Atkins claim would
be time-barred.
       The limitations period may be subject to equitable tolling, which is applied
restrictively and only in “rare and extraordinary circumstances” where strict ap-
plication of the statute of limitations would be inequitable. In re Wilson, 442
F.3d 872, 878 (5th Cir. 2006); see Fierro v. Cockrell, 294 F.3d 674, 682 (5th Cir.
2002). Equitable tolling usually applies where the petitioner is prevented in
some extraordinary way from asserting his rights.2 Hernandez argues that ex-
traordinary circumstances exist here, because his attorney failed to file the claim
timely, and he “has no [other] vehicle in which to raise this mental retardation
issue.”
       First, if failure to file timely were deemed to be rare or extraordinary, the
exception would swallow the rule. “Excusable neglect” does not justify equitable
tolling. Fierro, 294 F.3d at 682. Second, although Hernandez’s Atkins claim is
time-barred, that bar does not foreclose the possibility that he could bring a Ford


       2
        See Fierro, 294 F.3d at 682. For example, lack of counsel and constraint by the Texas
two-forum rule qualify as extraordinary circumstances. See In re Wilson, 442 F.3d 872; In re
Hearn, 389 F.3d 122 (5th Cir. 2004) (on petition for rehearing).

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claim once an execution date is set.3 Because Hernandez’s Atkins claim is time-
barred and he has not met the restrictive standard for equitable tolling, the
claim is meritless. We deny the motion to stay proceedings.
       The application for a COA is DENIED. The motion for stay is DENIED.




       3
        See Panetti v. Quarterman, 551 U.S. 930 (2007); see also Ford v. Wainwright, 477 U.S.
399 (1986). We express no view on the merits of any such claim, which is not before us.

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