     Case: 10-70003     Document: 00511204586          Page: 1    Date Filed: 08/16/2010




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

                                                  FILED
                                                                           August 16, 2010

                                       No. 10-70003                         Lyle W. Cayce
                                                                                 Clerk

VIRGILIO MALDONADO,

                                                   Petitioner - Appellant
v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                   Respondent - Appellee




                    Appeal from the United States District Court
                         for the Southern District of Texas
                            U.S.D.C. Civ. No. H-07-2984


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        We withdraw our prior panel opinion, issued on August 10, 2010, and
substitute the following.
        In 1997, a Texas jury convicted and sentenced to death petitioner–appellee
Virgilio Maldonado for the murder of Cruz Saucedo in the course of a robbery in
1995. State appellate courts affirmed the conviction and sentence and denied
post-conviction relief. Maldonado brought a federal habeas petition under the


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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Aniterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254. The
district court denied relief and denied a certificate of appealability (COA).
Maldonado now seeks a COA for some of the claims he unsuccessfully raised in
the district court. For the reasons explained below, we grant Maldonado’s
application for a COA on the issue of whether he is mentally retarded, rendering
him ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304
(2002). Maldonado’s application for a COA as to all other claims is denied.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      The district court’s exhaustive opinion more than adequately documents
the factual background and procedural development of this case. See Maldonado
v. Thaler, 662 F. Supp. 2d 684, 689–93 (S.D. Tex. 2009). Here, we recite only so
many of the facts and procedure as are necessary to provide a framework for our
grant in part and denial in part of a COA.
      Maldonado, a Mexican national, was tried and convicted of capital murder
in Texas state court in 1997 for the November 1995 robbery and murder of Cruz
Saucedo. Maldonado filed an automatic direct appeal of his conviction with the
Texas Court of Criminal Appeals (TCCA), which affirmed his conviction and
sentence after considering his points of error on the merits. See Maldonado v.
State, 998 S.W.2d 239 (Tex. Crim. App. 1999). While that appeal was pending,
he filed his first application for a writ of habeas corpus. The state habeas trial
court concluded that several of Maldonado’s claims—including a claim that the
State’s failure to inform Maldonado of his rights under the Vienna Convention
on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, caused him to make an
involuntary confession—were procedurally barred under the contemporaneous
objection rule. The state habeas trial court also found that all of the claims
raised in that application failed on the merits. The TCCA adopted the state
habeas trial court’s findings of fact and conclusions of law in their entirety and



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denied the application. Ex parte Maldonado, No. 51,612-01 (Tex. Crim. App.
2002).
         Maldonado then filed a federal habeas petition, which included several
claims that he had not presented to the state courts. See Maldonado v. Cockrell,
No. H-03-CV-811 (S.D. Tex.). The district court dismissed the petition without
prejudice to allow Maldonado to exhaust state remedies.
         Accordingly, Maldonado filed a subsequent state habeas application in the
TCCA. Ex parte Maldonado, No. 51,612-02 (Tex. Crim. App.). In this habeas
application, Maldonado claimed that he was mentally retarded and therefore
ineligible for the death penalty under Atkins; that he was deprived of his Fifth
Amendment right to counsel when the police interrogated him and obtained a
confession without counsel present; and that he was deprived of his Sixth
Amendment right to counsel when trial counsel rendered ineffective assistance
at both the guilt/innocence and punishment phases. The TCCA remanded the
Atkins claim to the state habeas trial court to enter findings of fact and
conclusions of law, but summarily dismissed the Fifth and Sixth Amendment
allegations “as an abuse of the writ” under Texas Code of Criminal Procedure
article 11.071, § 5(a). Ex parte Maldonado, No. 51,612-02 (Tex. Crim. App. Mar.
2, 2003).
         While Maldonado’s Atkins claim was pending before the state habeas trial
court, he filed a second subsequent state habeas application, contending that the
State’s failure to inform him of his rights under the Vienna Convention
prevented him from marshaling additional mitigating evidence during the
punishment phase of his trial. Ex parte Maldonado, No. 51,612-03 (Tex. Crim.
App.).
         The state habeas trial court, after holding a live evidentiary hearing,
entered findings of fact and conclusions of law recommending that relief be
denied on Maldonado’s Atkins claim. The TCCA addressed the Atkins issue from

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Maldonado’s first subsequent habeas application and the Vienna Convention
claim from Maldonado’s second subsequent habeas application in a joint order.
The TCCA adopted the state habeas trial court’s findings of fact and conclusions
of law on the Atkins issue and denied relief. It also concluded that the Vienna
Convention claim “failed to meet one of the exceptions provided for” under article
11.071, § 5(a), and accordingly denied Maldonado’s second subsequent habeas
application. See Ex parte Maldonado, Nos. 51,612-02, 51,612-03, 2007 WL
2660292, at *1 (Tex. Crim. App. Sept. 12, 2007).
      Maldonado then returned to federal district court with an amended habeas
petition. The district court granted summary judgment to the State, dismissed
Maldonado’s petition, and sua sponte denied a COA as to all issues. Maldonado
now seeks as COA as to whether he is mentally retarded under Atkins. He also
seeks a COA as to the district court’s conclusions that his Vienna Convention
and Fifth and Sixth Amendment claims are procedurally defaulted and fail on
the merits. We address each of these issues below.
                       II. STANDARDS OF REVIEW
      Maldonado’s motion is governed by the applicable provisions of AEDPA.
See Lindh v. Murphy, 521 U.S. 320, 335–36 (1997). Under AEDPA, a state
habeas petitioner may appeal a district court’s dismissal of his petition only if
the district court or the court of appeals first issues a COA.           28 U.S.C.
§ 2253(c)(1)(A); see also Miller–El v. Cockrell, 537 U.S. 322, 336 (2003)
(describing a COA as a “jurisdictional prerequisite” without which “federal
courts of appeals lack jurisdiction to rule on the merits of appeals from habeas
petitioners”). In determining whether to grant a petitioner’s application for a
COA, we limit our “examination to a threshold inquiry into the underlying merit
of [the petitioner’s] claims.” Miller–El, 537 U.S. at 327 (citing Slack v. McDaniel,
529 U.S. 473, 481 (2000)).      “This threshold inquiry does not require full



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consideration of the factual or legal bases adduced in support of the claims. In
fact, the statute forbids it.” Id. at 336.
      We will grant an application for a COA “only if the applicant has made a
substantial showing of the denial of a constitutional right.”           28 U.S.C.
§ 2253(c)(2). In order to grant a COA for one of Maldonado’s substantive claims,
we must conclude only that he has demonstrated the threshold showing for that
substantive claim. See Miller–El, 537 U.S. at 327. “Although the issuance of a
COA ‘must not be pro forma or a matter of course,’ the petitioner satisfies the
burden under § 2253(c) ‘by demonstrat[ing] that reasonable jurists would find
the district court’s assessment of the constitutional claims debatable or wrong.’”
Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir. 2005) (alteration in original)
(quoting Miller–El, 537 U.S. at 337–38). “[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.”
Miller–El, 537 U.S. at 338. “[A]ny doubt as to whether a COA should issue in a
death-penalty case must be resolved in favor of the petitioner.” Pippin, 434 F.3d
at 787.
      In determining whether the district court’s denial of Maldonado’s
application for a COA on his claims was debatable, we must keep in mind the
deferential standard of review that AEDPA requires a district court to apply to
the state court’s rulings. See Brown v. Dretke, 419 F.3d 365, 371 (5th Cir. 2005)
(“With respect to the review of factual findings, AEDPA significantly restricts
the scope of federal habeas review.”). Under AEDPA,
      a federal court is not to grant a writ of habeas corpus “with respect
      to any claim that was adjudicated on the merits in State court
      proceedings” unless 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 of the United States.”



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Pippin, 434 F.3d at 787 (quoting 28 U.S.C. § 2254(d)(1)).           Moreover, a
“‘determination of a factual issue made by a State court shall be presumed to be
correct’ unless the petitioner rebuts the presumption ‘by clear and convincing
evidence.’” Id. at 788 (quoting 28 U.S.C. § 2254(e)(1)). “This presumption of
correctness attaches not only to explicit findings of fact, but also to
‘unarticulated findings which are necessary to the state court’s conclusions of
mixed law and fact.’” Id. (quoting Pondexter v. Dretke, 346 F.3d 142, 148 (5th
Cir. 2003)).
                               III.   ANALYSIS
        Maldonado seeks a COA as to whether he is a mentally retarded offender
whose execution is barred under Atkins. Maldonado also seeks a COA as to the
district court’s conclusions that his claims relating to the Vienna Convention and
the Fifth and Sixth Amendments were procedurally defaulted and failed on the
merits. Each of these issues is discussed below.
A.      The Atkins Claim
        Maldonado seeks a COA as to whether he is mentally retarded and
therefore ineligible for execution under Atkins. Maldonado argues that the
district court’s conclusion to the contrary is at least debatable because that
conclusion relied, in part, on the testimony of the State’s expert witness, Dr.
George Denkowski, who evaluated Maldonado in 2005 in connection with his
state habeas application.
        Dr. Denkowski’s methodology and credibility are currently a subject of
scrutiny in Texas. In another habeas case, Ex parte Plata, No. AP-75820, 2008
WL 151296, at *1 (Tex. Crim. App. Jan. 16, 2008), the TCCA accepted the state
habeas trial court’s recommendation that Dr. Denkowski’s testimony not be
credited, due to what the state habeas trial court found were pervasive errors in
Denkowski’s administration and scoring of Plata’s IQ and adaptive deficit tests.
See id.; Ex parte Plata, No. 693143-B (Tex. 351st Dist. Sept. 28, 2007). The

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Texas State Board of Examiners of Psychologists subsequently filed a complaint
against Dr. Denkowski with the State Office of Administrative Hearings
(SOAH), attaching the state habeas trial court’s findings in Plata and seeking
to sanction him for intentionally misapplying psychiatric testing methods in that
case. See SOAH Docket No. 520-09-2882. The Board’s complaint also alleges
that Dr. Denkowski similarly “intentionally misused or abused psychological
testing . . . in connection with [his] forensic assessments of . . . Maldonado.”
Proceedings before the SOAH are pending.
      The district court was aware of the allegations and proceedings against Dr.
Denkowski but held, after extensively considering Dr. Denkowski’s testimony
and the testimony of Maldonado’s experts, that the state habeas court was not
unreasonable in concluding that Maldonado had not met his burden of
establishing mental retardation. See Maldonado v. Thaler, 662 F. Supp. 2d at
702–735.
      Maldonado argues that Dr. Denkowski’s performance was deficient in the
following respects:
      1.    As in Plata, Dr. Denkowski improperly applied “cultural
            factors” to raise Maldonado’s raw IQ score;
      2.    Dr. Denkowski failed to take the “Flynn Effect” into account
            when calculating Maldonado’s IQ score;
      3.    As in Plata, Dr. Denkowski applied “idiosyncratic” protocols
            to raise Maldonado’s adaptive deficit score, improperly
            adjusting the score upward to account for ethnic, social, and
            cultural factors;
      4.    Dr. Denkowski improperly relied on a translator, who lacked
            prior experience in psychology or psychological test-taking, to
            administer Maldonado’s IQ and adaptive deficit tests.
Maldonado contends that the state habeas court’s finding that he had not met
his burden of proving mental retardation relied “almost entirely” on Dr.
Denkowski’s testimony, and argues that the district court, in assessing the


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reasonableness of the state habeas court’s finding, improperly discounted the
deficiencies in that testimony.
        This is not the first case in which we have been asked to consider whether
the issues cited in Plata rendered a district court’s decision based in part upon
Dr. Denkowski’s testimony debatable or wrong. In Pierce v. Thaler, 355 F. App’x
784 (5th Cir. 2009) (per curiam), we concluded, after considering similar
contentions as to Dr. Denkowski’s testimony and the weight that testimony
carried in the state habeas court’s decision, that “[t]he district court arguably
erred in concluding that none of these issues merited habeas relief.” Id. at 794.
As we did in Pierce, we grant a COA as to Maldonado’s Atkins claim.
B.      The Vienna Convention Claims
        Maldonado also seeks a COA relating to his Vienna Convention claims.
He alleged in his initial state habeas application that the State’s failure to notify
him of his rights under the Vienna Convention harmed him during interrogation
because without counsel (which the Mexican consulate could have supplied) he
provided an involuntary confession. He alleged in his second subsequent state
habeas application that the State’s failure prevented him from marshaling
mitigating evidence for the punishment phase of trial. The district concluded
that both issues were procedurally defaulted, and that even if not, these claims
failed on the merits because there was no clearly-established Supreme Court law
establishing that the Vienna Convention creates individually enforceable rights.
        We need not address the district court’s procedural default conclusions
because its conclusion as to the merits is obviously correct. As the district court
recognized, and Maldonado does not dispute, the Supreme Court has not yet
decided whether the Vienna Convention creates rights enforceable by
individuals. See, e.g., Medellín v. Texas, 552 U.S. 491, 506 n.4 (2008) (declining
to decide whether the Vienna Convention creates individually enforceable
rights). Under AEDPA, we may only disturb a state court judgment if it was

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“contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States.”
§ 2254(d)(1).    Furthermore, this court has affirmatively concluded that the
Vienna Convention “does not create an individually enforceable right.” Leal
Garcia v. Quarterman, 573 F.3d 214, 218 n.19 (5th Cir. 2009) (internal quotation
marks omitted). Because the Court has not yet decided whether an individually
enforceable right exists, and because we are bound by our circuit precedent, the
district court’s conclusion that Maldonado cannot seek to enforce such a right
under AEDPA is not debatable or wrong. Maldonado’s application for a COA on
his Vienna Convention claims is denied.
C.      The Fifth and Sixth Amendment Claims
        Maldonado also seeks a COA as to his claims that he was denied his Fifth
Amendment right to counsel during interrogation and that he was denied his
Sixth Amendment right to effective assistance of counsel. The TCCA concluded,
succinctly, that these claims, which were raised in his first subsequent habeas
application, should be dismissed under Texas’s abuse of the writ statute, Texas
Code of Criminal Procedure article 11.071, § 5(a). The TCCA ordered:
        Remand to the trial court under Article 11.071, Sec. 5(a), V.A.C.C.P.
        ([Atkins claim] only) and dismiss [the Fifth and Sixth Amendment
        allegations] as an abuse of the writ.
Ex parte Maldonado, No. 51,612-02 (Tex. Crim. App. Mar. 3, 2003). The district
court concluded that these claims were procedurally defaulted because they were
dismissed on adequate and independent state procedural grounds. It concluded
in the alternative that these claims failed on the merits. Maldonado v. Thaler,
622 F. Supp. 2d at 737, 743–46, 749–50. Maldonado contends that the district
court’s conclusion as to procedural default is debatable because the TCCA’s basis
for dismissal was not clear.




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      We review de novo the district court’s conclusion that a claim is
procedurally defaulted. Kittelson v. Dretke, 426 F.3d 306, 315 (5th Cir. 2005)
(per curiam). A federal habeas claim is procedurally defaulted when the state
court has based its rejection of the claim on a state procedural rule that provides
an adequate basis for relief, independent of the merits of the claim. Coleman v.
Thompson, 501 U.S. 722, 729–32 (1991). The adequate and independent state
procedural basis must be clear. Where, by contrast, the decision “fairly appears
to rest primarily on federal law, or to be interwoven with the federal law,” or
where “the adequacy and independence of any possible state law ground is not
clear from the face of the [state court] opinion,” we must apply the presumption
that “the state court decided the case the way it did because it believed that
federal law required it to do so.” Id. at 733 (internal quotation marks omitted).
      The Texas abuse of the writ statute, article 11.071, § 5(a), provides, in
relevant part, that the TCCA may not consider a subsequent habeas application
unless a petitioner can show that the application meets one of three statutory
exceptions:
      (a) If a subsequent application for a writ of habeas corpus is filed
      after filing an initial application, a court may not consider the
      merits of or grant relief based on the subsequent application unless
      the application contains sufficient specific facts establishing that:
              (1) the current claims and issues have not been and could not
              have been presented previously in a timely initial application
              or in a previously considered application filed under this
              article . . . because the factual or legal basis for the claim was
              unavailable on the date the applicant filed the previous
              application;
              (2) by a preponderance of the evidence, but for a violation of
              the United States Constitution no rational juror could have
              found the applicant guilty beyond a reasonable doubt; or
              (3) by clear and convincing evidence, but for a violation of the
              United States Constitution no rational juror would have



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            answered in the state’s favor one or more of the special issues
            that were submitted to the jury in the applicant’s trial . . . .
T EX. C ODE C RIM. P ROC. A NN. art. 11.071. The TCCA subsequently has held that
to meet the exception under § 5(a)(1), “1) the factual or legal basis for an
applicant’s current claims must have been unavailable as to all of his previous
applications; and 2) the specific facts alleged, if established, would constitute a
constitutional violation that would likely require relief from either the conviction
or sentence.” Ex parte Campbell, 226 S.W.3d 418, 421 (Tex. Crim. App. 2007).
      Maldonado argues that because the TCCA dismissed his application
without specifying whether it was doing so because the claims were not
previously unavailable (state procedural default) or because the facts alleged
could not constitute a constitutional violation that would likely require relief
(federal merits), we must presume that dismissal was premised on the merits.
In support, he cites Ruiz v. Quarterman, 504 F.3d 523 (5th Cir. 2007), in which
we concluded that no adequate and independent state procedural basis for
dismissal could be discerned from the TCCA’s “boilerplate” dismissal under
§ 5(a). Ruiz, however, is distinguishable. There, it was plain that an assessment
of the merits played a significant role in the dismissal. One TCCA panelist filed
a concurring opinion concluding that Ruiz did not allege a meritorious Sixth
Amendment claim. Two other panelists filed a dissent from the dismissal,
urging the merits of the Sixth Amendment claim. Id. at 528.
      As the district court recognized, the facts of this case are much more like
those that we addressed in Hughes v. Quarterman, 530 F.3d 336 (5th Cir. 2008),
where, as here, the TCCA dismissed under § 5(a) without specifying the basis for
dismissal. We concluded that an adequate and independent state procedural
basis for dismissal was evident because it was plain that the factual and legal
bases for the petitioner’s claims were available well before he filed his
subsequent habeas application, and because there was “nothing in [the TCCA’s


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perfunctory dismissal of the claims that suggest[ed] that it actually considered
or ruled on the merits.” Id. at 342. Maldonado has never, in this court or before
the district court, contended that the factual or legal bases for these Fifth and
Sixth Amendment claims were unavailable when he filed his initial habeas
petition, and there is no basis in the record to conclude that they were. See
Maldonado v. Thaler, 662 F. Supp. at 745 (“[T]he factual basis for Maldonado’s
barred claims were obviously available well before he filed his successive state
habeas proceeding.”). Nor has Maldonado asserted that he could meet the
heightened merits thresholds imposed by the exceptions in §§ 5(a)(2), (3). And
there is no basis in the TCCA’s terse dismissal to infer that the court considered
or ruled on the federal merits.
      Accordingly, we conclude that the dismissal of Maldonado’s subsequent
habeas application was premised on an adequate and independent state
procedural ground. Cf. Coleman, 501 U.S. at 737, 739–40 (“In those cases in
which it does not fairly appear that the state court rested its decision primarily
on federal grounds, it is simply not true that the ‘most reasonable explanation’
is that the state judgment rested on federal grounds.” “In the absence of a clear
indication that a state court rested its decision on federal law, a federal court’s
task will not be difficult.”). Maldonado’s application for a COA on these issues
is denied.
                             IV.    CONCLUSION
      For the reasons discussed above, we GRANT Maldonado’s application for
a COA on the issue of whether he is mentally retarded, rendering him ineligible
for the death penalty under Atkins.          The parties are directed to submit
supplemental briefing on this issue in advance of oral argument on a schedule
to be established by the Clerk. Maldonado’s application for a COA as to all other
claims is DENIED.



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