     Case: 12-70015      Document: 00513124264         Page: 1    Date Filed: 07/21/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 12-70015                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
JORGE VILLANUEVA,                                                           July 21, 2015
                                                                           Lyle W. Cayce
              Petitioner–Appellant,                                             Clerk

v.

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

              Respondent–Appellee.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:02-CV-4122


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       In this habeas corpus proceeding, Jorge Villanueva, a Texas death-row
inmate, argues that his trial counsel provided ineffective assistance by failing
to investigate and present mitigation evidence during the punishment phase
of his trial. The district court denied relief, and we granted a certificate of
appealability (COA). We now affirm the judgment of the district court.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                        I
     Villanueva was arrested for capital murder in October 1994.             One
attorney was appointed to aid in Villanueva’s defense at that time, and co-
counsel was appointed in May 1995. Villanueva filed grievances against his
initial attorneys, and approximately three weeks before trial was scheduled to
begin, counsel withdrew as a result of these grievances. Jerry Guerinot and
Anthony Osso were appointed to replace them. The court reset the trial date
for September 9, 1996. Guerinot and Osso prevailed on motions to have experts
in psychiatry and criminology funded.
      While still represented by Guerinot and Osso, Villanueva retained a new
attorney, Philip Campa. On August 22, 1996, the court held a hearing on
Campa’s motion for substitution as counsel, during which the trial court
questioned Villanueva on the record. Villanueva confirmed that he was aware
that Campa had not tried a capital case.        The court also discussed the
procedures in a death-penalty case with Villanueva:
      The Court: If you’re convicted of capital murder, there’s a second
      part to the trial. Do you understand that?
      Villanueva: Yes.
      The Court: What is the second part of the trial if you’re convicted
      of a capital murder?
      Villanueva: Well, there are only two things. I get life or the death
      penalty.
      The Court: That’s correct. At that point if you are convicted of
      capital murder, there are certain issues that the jury will answer,
      certain issues that the jury will answer. If your lawyer seeks to
      designate experts, you’re entitled to that. Do you understand that?
      Villanueva: Yes, ma’am.
      The Court: Now that you have retained counsel as opposed to
      having appointed counsel, there are different issues that are going
      to arise including the payment of those experts.           Do you


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      understand that? You have to line up those experts and make
      them available for trial if that’s what your counsel wants.
      Villanueva: But I don’t have no money to pay them.
      The Court: You need to talk to your lawyer. . . . Your lawyer has
      told me that he is ready and I’m not going to grant you any
      continuances for obtaining witnesses at this late date including
      experts.
      On September 11, 1996, voir dire began, and the guilt/innocence phase
of trial commenced on October 1, 1996. The state and defense delivered closing
arguments on October 9, 1996, and the jury found Villanueva guilty of capital
murder that same day.
      The punishment phase began later in the day on October 9. After the
state presented its punishment witnesses, the defense rested without offering
any evidence. Campa then had the following colloquy with Villanueva out of
the presence of the jury:
      Campa: Mr. Villanueva, is it your decision not to have any of your
      family testify at the punishment phase of this case?
      Villanueva: That’s correct.
      Campa: Did you give me the instruction not to call any of your
      family members to the stand?
      Villanueva: That’s true.
      Campa: Did you also give me the instruction not to call any other
      witnesses to the stand at the punishment phase?
      Villanueva: That’s true.
      Campa: Did you also decide not to take the stand during the
      punishment phase of your case?
      Villanueva: That’s true.
On October 10, both sides delivered closing arguments, and that same day, the
jury returned a verdict, answering Texas’s two special issues in a way that




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required the court to sentence Villanueva to death.                 The Texas Court of
Criminal Appeals (TCCA) affirmed Villanueva’s conviction on direct appeal. 1
       In state habeas, Villanueva argued, inter alia, that Campa provided
ineffective assistance of counsel (IAC) because Campa “wholly failed to
investigate or prepare a defense” for the mitigation special issues. Villanueva’s
petition did not address the effect of his instructions to Campa to not call any
mitigation witnesses.
       The state habeas court rejected Villanueva’s mitigation-based IAC claim.
It found that Villanueva failed to demonstrate that Campa “did not investigate
potential punishment evidence or that punishment witnesses were available
and that their testimony would have benefited the defense.” Alternatively, the
court concluded that because Villanueva instructed Campa not to call
mitigation witnesses, he had waived his mitigation-based IAC claim.
Villanueva appealed to the TCCA, which adopted the lower court’s findings
and conclusions and denied relief. 2
       Villanueva then filed a federal habeas petition, which included his
mitigation-based IAC claim. Noting that “Villanueva has not shown a basis to
question his waiver,” the district court concluded that Villanueva’s decision to
prohibit counsel from calling mitigation witnesses precluded his IAC claim.
Additionally, the district court concluded that Villanueva’s claim failed on the
prejudice prong of Strickland because he failed to show what mitigation
evidence should have been presented. The district court denied a COA on all
of Villanueva’s habeas claims.



       1 Villanueva v. State, No. 72,612 (Tex. Crim. App. Sept. 23, 1998) (not designated for
publication).
       2 Ex parte Villanueva, No. WR-49,591-01 (Tex. Crim. App. Oct. 31, 2001) (not
designated for publication).


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       In his application for a COA, Villanueva reurged his mitigation-based
IAC claim, contending that his waiver of mitigation evidence was invalid
because it was not “informed and knowing,” such that he could pursue the
underlying IAC claim. 3 This court granted a COA on the mitigation-based IAC
claim but denied a COA on Villanueva’s other claims. 4
                                                  II
       Villanueva’s appeal of the denial of his habeas petition is governed by
the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 5 If a
claim has been “adjudicated on the merits in State court proceedings,” 28
U.S.C. § 2254(d)’s deferential standard applies. Section 2254(d) precludes a
federal court from granting habeas relief unless the state court’s adjudication
of a claim was “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court,” or was “based
on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 6 An adjudication is “contrary to”
clearly established federal law when the state court decision differs from how
the Supreme Court decided a case on a set of materially indistinguishable
facts. 7     Federal law is “unreasonabl[y] appli[ed]” when “the state court
correctly divined a legal principle from the Supreme Court’s jurisprudence but
misapplied that principle to the facts.” 8



       3   Villanueva v. Stephens, 555 F. App’x 300, 308-09 (5th Cir. 2014).
       4   Id. at 309.
       5   Pub. L. No. 104-132, 100 Stat. 1214.
       6   28 U.S.C. § 2254(d).
       7Kittelson v. Dretke, 426 F.3d 306, 318 (5th Cir. 2005) (citing Williams v. Taylor, 529
U.S. 362, 412-13 (2000)).
       8   Id.


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       When a merits adjudication has occurred, a federal court’s review is
limited to “the evidence presented in the State court proceeding.” 9
Additionally, even if no merits adjudication has occurred, a state court’s factual
findings are “presumed to be correct. The applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing evidence.” 10
                                               III
       We analyze IAC claims under § 2254(d)(1) as mixed questions of fact and
law. 11 To establish an IAC claim under the standard articulated in Strickland
v. Washington, a petitioner must prove (1) counsel’s performance was deficient
and (2) the deficient performance prejudiced the defense. 12 The state court
adjudicated both prongs of Villanueva’s IAC claim on the merits; therefore,
Villanueva must prove that the state court’s decision “was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 13 Villanueva’s IAC
claim founders on Strickland’s prejudice prong.
                                                A
       The Supreme Court addressed a similar scenario in Schriro v.
Landrigan. 14        Landrigan repeatedly blocked his trial counsel’s efforts to
present mitigation evidence. 15 In state postconviction proceedings, Landrigan


       928 U.S.C. § 2254(d)(2); Cullen v. Pinholster, 131 S. Ct. 1388, 1398-99 (2011) (limiting
review under § 2254(d)(1) to the record before the state court that adjudicated the claim on
the merits).
       10   28 U.S.C. § 2254(e)(1).
       11   Gregory v. Thaler, 601 F.3d 347, 351 (5th Cir. 2010).
       12   466 U.S. 668, 687 (1984).
       13   28 U.S.C. § 2254(d)(1).
       14   550 U.S. 465 (2007).
       15   Id. at 469-70.


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brought an IAC claim alleging that his attorney had failed to investigate
certain mitigation evidence. 16 The state court denied this claim, concluding
that Landrigan’s instructions to counsel to not present mitigation evidence
precluded Landrigan from complaining in habeas that counsel should have
presented other mitigation evidence. 17
       Section 2254(d)(1) applied to Landrigan’s IAC claim, so the federal courts
were precluded from granting habeas relief unless the “state court’s
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.’” 18 The Supreme Court
examined its own decisions on counsel’s failure to investigate and present
mitigation evidence. 19         Although these cases addressed counsel’s duty to
investigate, they proved insufficient to surmount § 2254(d)(1)’s deferential
standard because the Court “ha[d] never addressed a situation” in which a
defendant had “interfere[d] with counsel’s efforts to present mitigating
evidence to a sentencing court.” 20 Accordingly, the Court concluded that “it
was not objectively unreasonable for [the state postconviction] court to
conclude that a defendant who refused to allow the presentation of any
mitigating evidence could not establish Strickland prejudice based on his
counsel’s failure to investigate further possible mitigating evidence.” 21



       16   Id. at 471.
       17   Id.
       18   Id. at 473 (emphasis added) (quoting 28 U.S.C. § 2254(d)(1)).
        Id. at 478 (citing Rompilla v. Beard, 545 U.S. 374 (2005), Wiggins v. Smith, 539 U.S.
       19

510 (2003), and Strickland v. Washington, 466 U.S. 668 (1984)).
       20   Id.
       21   Id.


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       In this respect, Villanueva’s IAC claim based on his counsel’s failure to
present mitigating evidence is similar to Landrigan. The Texas state habeas
court concluded that because Villanueva “instructed defense counsel not to call
any witnesses . . . during the punishment phase of trial,” Villanueva had
waived his mitigation-based IAC claim.                     Section 2254(d)(1)’s “clearly
established” law requirement refers to the Supreme Court’s decisions “as of the
time of the relevant state-court decision.” 22 The TCCA adopted the state
habeas court’s findings of fact and conclusions of law in Villanueva’s case on
October 31, 2001.           Landrigan was decided almost six years later 23 and
discussed Supreme Court decisions issued as late as 2005. 24 To be certain, the
legal theory that the Court addressed in Landrigan is not exactly the same as
the legal theory employed by the Texas courts in denying Villanueva relief.
The state court in Landrigan concluded that a defendant who refused to allow
mitigation evidence to be introduced could not later show prejudice 25 whereas
the Texas courts treated Villanueva’s refusal to allow mitigation evidence as a
“waiver” of his IAC claim. But Villanueva cannot avoid the fact that, at the
time the Texas courts adjudicated his IAC claim, the Supreme Court had
“never addressed” a similar situation. 26 Accordingly, the Texas habeas courts
did not act “contrary to” or “unreasonabl[y] appl[y]” Supreme Court precedent




       22Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (quoting Williams v. Taylor, 529 U.S.
362, 412 (2000)) (internal quotation marks omitted).
       23See 550 U.S. at 465 (issued May 14, 2007); cf. Loden v. McCarty, 778 F.3d 484, 499-
500 (5th Cir. 2015) (addressing the Mississippi Supreme Court’s application of Landrigan).
       24   See Landrigan, 550 U.S. at 478 (citing Rompilla, 545 U.S. at 381).
       25   Id.
       26   Id.


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in concluding that a defendant waives his mitigation-based IAC claim when he
instructs counsel not to call any mitigation witnesses.            27


                                                 B
       On appeal, Villanueva attempts to sidestep this unfavorable parallel to
Landrigan by challenging the validity of his waiver.                      Indeed, Landrigan
himself attempted to argue that his decision not to present mitigation evidence
was invalid because it was not “informed and knowing.” 28 The Supreme Court
noted that it had “never imposed an ‘informed and knowing’ requirement upon
a defendant’s decision not to introduce evidence.” 29 Assuming arguendo that
such a requirement existed, the Court concluded that Landrigan’s waiver
would have been valid. 30
       The State argues that Villanueva has forfeited the argument that his
waiver was not informed and knowing because he failed to raise this issue in
the district court. We agree. “[A] contention not raised by a habeas petitioner
in the district court cannot be considered for the first time on appeal from that
court’s denial of habeas relief.” 31 Although the district court observed that
“Villanueva has not shown a basis to question his waiver of the right to present
mitigating evidence,” this is the first time in the record that the validity of
Villanueva’s waiver is mentioned. Villanueva’s own efforts to invalidate his
waiver came for the first time in his COA application in this court; his filings



       27   See 28 U.S.C. § 2254(d)(1).
       28   See Landrigan, 550 U.S. at 478-79.
       29   Id. at 479.
       30   See id. at 479-80.
       31 Pierce v. Thaler, 604 F.3d 197, 215 (5th Cir. 2010) (quoting Goodrum v. Quarterman,
547 F.3d 249, 259 n.49 (5th Cir. 2008)) (internal quotation marks omitted); accord Bower v.
Quarterman, 497 F.3d 459, 475 (5th Cir. 2007); see also Miller v. Turner, 658 F.2d 348, 350
(5th Cir. Unit B Oct. 1981) (holding a new constitutional challenge not raised in district court
was not properly before court of appeals).
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in the state and federal district courts are silent on the issue. Moreover,
Villanueva has failed to explain why our normal forfeiture rule should not
apply to this issue, despite the fact that the State raised forfeiture in its
opposition to Villanueva’s COA application as well as in its brief on appeal. We
conclude that Villanueva has forfeited his effort to invalidate his waiver.
Accordingly, we cannot disturb the state courts’ conclusion that Villanueva’s
instruction to counsel not to call mitigation witnesses waived his mitigation-
based IAC claim.
                                                C
       In any event, Villanueva’s IAC claim fails because he has not introduced
sufficient evidence to satisfy Strickland’s prejudice prong.                     To establish
prejudice based on counsel’s failure to investigate, the petitioner “must allege
with specificity what the investigation would have revealed and how it would
have altered the outcome of the trial.” 32 Likewise, in a claim based on uncalled
witnesses, the petitioner “must name the witness, demonstrate that the
witness would have testified, set out the content of the witness’s proposed
testimony, and show that the testimony would have been favorable.” 33
       Villanueva acknowledges that the state habeas record contains little to
no evidence that should have been introduced in the punishment phase of his
trial. Instead, he points to evidence of his good character and drug and alcohol
problems introduced during the guilt/innocence phase of trial and contends
that more mitigation evidence must be discoverable. He also notes that his
counsel before Campa had secured experts for the punishment phase, but the
record fails to specify their anticipated testimony. Because of the lack of



       32Gregory v. Thaler, 601 F.3d 347, 352 (5th Cir. 2010) (quoting United States v. Green,
882 F.2d 999, 1003 (5th Cir. 1989)) (internal quotation marks omitted).
       33   Id. (citing Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985)).
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                                           No. 12-70015
evidence in the state habeas record in support of the prejudice prong,
Villanueva seeks an excuse from showing prejudice or an avenue to introduce
new evidence in federal habeas.
       Villanueva first contends the court should follow United States v. Cronic,
which affords a petitioner a presumption of prejudice in certain situations. 34
However, Cronic only applies when an attorney’s failure to subject the
prosecution’s case to adversarial testing is “complete.” 35 During punishment,
Campa cross-examined the state’s witnesses and argued for a life sentence.
Therefore, Cronic’s presumption of prejudice does not apply, and Villanueva
must demonstrate prejudice under Strickland, namely that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” 36
       Section 2254(d) prevents Villanueva from introducing new evidence
supporting his mitigation-based IAC claim in federal court. 37                  Villanueva
argues that his state habeas counsel’s “failure to submit more thorough
supporting evidence” on his IAC claim was itself ineffective, such that the
Supreme Court’s decisions in Martinez v. Ryan 38 and Trevino v. Thaler 39
permit this court to remand for an evidentiary hearing in the district court.
But this court has held that “Martinez does not apply to claims that were fully



       34   466 U.S. 648, 658-59 (1984).
       35   Bell v. Cone, 535 U.S. 685, 697 (2002).
       36   Strickland v. Washington, 466 U.S. 668, 694 (1984).
       37 See Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (“[R]eview under § 2254(d)(1)
is limited to the record that was before the state court that adjudicated the claim on the
merits.”); see also 28 U.S.C. § 2254(d)(2) (also limiting federal review to “the evidence
presented in the State court proceeding”).
       38   132 S. Ct. 1309 (2012).
       39   133 S. Ct. 1911 (2013).


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adjudicated on the merits by the state habeas court because those claims are,
by definition, not procedurally defaulted.” 40 The Texas courts adjudicated
Villanueva’s IAC claim on the merits, and thus, Martinez and Trevino are
inapposite. 41
      In sum, because there is no evidence in the state habeas record that
shows that Villanueva was prejudiced by Campa’s performance and because
Villanueva does not have a right to introduce new evidence in federal court,
Villanueva’s mitigation-based IAC claim does not satisfy Strickland’s prejudice
prong.
                                      *        *         *
      For the foregoing reasons, we AFFIRM the judgment of the district court.




      40   Escamilla v. Stephens, 749 F.3d 380, 394 (5th Cir. 2014).
      41   See id. at 395.
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