     Case: 16-41211      Document: 00514663890         Page: 1    Date Filed: 10/01/2018




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

                                      No. 16-41211                                FILED
                                                                            October 1, 2018
                                                                             Lyle W. Cayce
CHARLES ANTHONY CUEVA, II,                                                        Clerk

              Petitioner - Appellant

v.

LORIE DAVIS, 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. 2:14-CV-417


Before HAYNES, HO, and DUNCAN, Circuit Judges.
PER CURIAM:*
       Charles Anthony Cueva, II, was convicted by a jury of two counts of
sexual assault of a child and one count of indecency with a child. He now
appeals the district court’s denial of his 28 U.S.C. § 2254(d) habeas petition.
For the reasons set forth below, we AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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      Cueva was arrested in 2007 for allegedly sexually assaulting a minor,
A.G. After Cueva waived his Miranda 1 rights, Detective Arturo Gonzalez
interviewed him about the allegations. Cueva admitted on videotape that he
had touched A.G. and had let her touch him, and that he had been sexually
aroused by this activity, but he denied penetration. He stated that he probably
did it because he was molested as a child. After the interview, Detective
Gonzalez realized the video recorder had malfunctioned and Cueva’s
statements had not been recorded. So Detective Gonzalez offered to write down
Cueva’s statement for him because Cueva could not spell well. Cueva agreed.
After Detective Gonzalez was finished, Cueva read the statement and signed
it. The written statement included Cueva’s admission that he had touched
A.G. and had let her touch him, and that he had been sexually aroused. He
again denied penetration and explained that he had been molested as a child.
      The State introduced the written statement at trial and Detective
Gonzalez testified about Cueva’s oral statements. Cueva’s trial counsel, Eric
Perkins, had moved to suppress the written statement but withdrew the
motion before the trial began. At trial, he did not object to Detective Gonzalez’s
testimony about Cueva’s oral statements.
      After his conviction, Cueva filed a motion for a new trial, arguing, inter
alia, that he received ineffective assistance of counsel related to the admission
of his written statement. The state court denied his motion. On appeal, Cueva
renewed his claims regarding admission of his written statement and raised
for the first time that Perkins was ineffective for failing to object to Detective
Gonzalez’s testimony about Cueva’s oral statements. The state appellate court
addressed this argument, concluded it was meritless, and otherwise affirmed
the state trial court.          The Texas Court of Criminal Appeals refused


      1   Miranda v. Arizona, 384 U.S. 436 (1966).
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discretionary review. Cueva then filed a state application for habeas relief.
The trial court denied the application, issuing findings of fact and conclusions
of law, and the Texas Court of Criminal Appeals denied relief without a written
order. Cueva then filed an application for habeas relief under 28 U.S.C. § 2254
in the district court. The district court denied relief, but a judge on this court
granted a certificate of appealability on Cueva’s claims of ineffective assistance
of counsel for failing to challenge the admissibility of his written and oral
statements.
      We “review the district court’s findings of fact for clear error and review
its conclusions of law de novo, applying the same standard of review to the
state court’s decision as the district court.” Ortiz v. Quarterman, 504 F.3d 492,
496 (5th Cir. 2007). The district court applied the deferential standard under
§ 2254, as amended by the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”). Under AEDPA, a federal court may grant habeas relief with
respect to state court claims adjudicated on the merits only if the state court’s
decision
              (1) 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; or (2) resulted in
              a decision that was based on an unreasonable
              determination of the facts in light of the evidence
              presented in the State court proceeding.
28 U.S.C. § 2254(d).       This “precludes federal habeas relief so long as
‘fairminded jurists could disagree’ on the correctness of that decision.”
Harrington v. Richter, 562 U.S. 86, 88 (2011) (quoting Yarborough v. Alvarado,
541 U.S. 652, 664 (2004)).
      Cueva argues the district court erred in applying AEDPA deference to
the state appellate court’s ruling on his oral-statements claim because that


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court refused to consider evidence first presented during the hearing on his
motion for a new trial. 2
       Cueva’s argument fails.            AEDPA deference applies to any claim
adjudicated on the merits. 28 U.S.C. § 2254(d). Here, the state court offered
two substantive reasons why Perkins’s conduct was reasonable under
Strickland, 3 and Cueva does not argue that the state court rejected his oral-
statements claim on procedural grounds. See Harrington, 562 U.S. at 103
(noting a different standard applies to claims rejected on procedural grounds).
Additionally, “review under § 2254(d)(1) is limited to the record that was before
the state court that adjudicated the claim on the merits.” Cullen v. Pinholster,
563 U.S. 170, 181 (2011).             Accordingly, Cueva’s argument that AEDPA
deference should not apply to the state court’s rejection of his oral-statements
claim is without merit.
       Accordingly, we now evaluate the merits of his arguments through the
filter of AEDPA deference. First, Cueva argues that Perkins was ineffective
because he failed to investigate Cueva’s background and therefore failed to
discover evidence of “multiple psychological deficits” that rendered his written
statement involuntary. He further alleges that because the statement was
involuntary, Perkins’s failure to pursue the motion to suppress was deficient.
Applying Strickland, the state court of appeals disagreed with Cueva. The
court concluded that Perkins’s explanation that, after meeting with Cueva and



       2 Ordinarily, AEDPA review applies to the “last state court [decision] to decide a
prisoner’s federal claim.” Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). But when that
decision lacks reasoning, the reviewing “federal court should ‘look through’ the unexplained
decision to the last related state-court decision that does provide a relevant rationale . . .
[and] presume that the unexplained decision adopted the same reasoning.” Id. Here, the
Texas Court of Criminal Appeals’s decision provided no reasoning and the state appellate
court’s decision on Cueva’s motion for a new trial was the last state court to consider his
written-statement claim. Thus, the district court “looked through” to this decision.
       3   Strickland v. Washington, 466 U.S. 668 (1984).
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his family, he saw no reason to investigate Cueva’s mental state was
reasonable. Cueva v. State, 339 S.W.3d 839, 847 (Tex. App.—Corpus Christi
2011, pet. ref’d).   The court also found implausible expert testimony that
Cueva’s “emotional disturbance in combination with certain personality
characteristics” led him to sign the written statement without fully reading or
understanding it, thereby rendering it involuntary. Id. Thus, the court agreed
that Perkins was not deficient for failing to investigate Cueva’s mental health
or for withdrawing the motion to suppress. Id.
      To establish ineffective assistance of counsel, a defendant must show
that counsel performed deficiently and that he was prejudiced by counsel’s
performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). Under the
first prong, a defendant must show that “counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” Id. Under the second prong, a defendant must show that
“counsel’s errors were so serious as to deprive the defendant of a fair trial.” Id.
This is a “highly deferential” standard. Id. at 689.
      When combined with AEDPA review, the standard is “doubly”
deferential. Harrington, 562 U.S. at 105 (quoting Knowles v. Mirzayance, 556
U.S. 111, 123 (2009)). We do not undertake a Strickland analysis ourselves
but instead ask only whether “the state court’s application of the Strickland
standard was unreasonable.” Id. at 101. That is, we determine only “whether
there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.” Id. at 105.
      The state court did not unreasonably apply Strickland. Perkins testified
that neither Cueva nor his family informed him of any academic, intellectual,
or emotional problems Cueva suffered. Cueva’s claim that Perkins should have
known of a mental health issue is undermined by (1) Cueva’s testimony at trial
regarding his work history and (2) Cueva’s mother’s testimony that Cueva
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graduated from high school and was able to communicate effectively and
supervise others at work. Under Strickland, “counsel has a duty to make
reasonable investigations or to make a reasonable decision that makes
particular investigations unnecessary.” Strickland, 466 U.S. at 691. It is not
unreasonable that the state court determined Perkins was not deficient for
failing to investigate Cueva’s background, given he had no indication Cueva
allegedly suffered from a mental handicap. Cf. Roberts v. Dretke, 381 F.3d 491,
489–99 (5th Cir. 2004) (noting that counsel has a duty to investigate “when he
has reason to believe that the defendant suffers from mental health problems”).
      Cueva claims Perkins should have pursued a motion to suppress Cueva’s
written statement because the statement was involuntary. But because Cueva
did not demonstrate that Perkins should have discovered a basis on which to
conclude Cueva’s statement was involuntary, his claim that Perkins was
ineffective for failing to pursue a motion to suppress fails.     See Wood v.
Quarterman, 503 F.3d 408, 413 (5th Cir. 2007) (noting that counsel has no duty
to raise legally meritless arguments).     Thus, the state court reasonably
concluded that Perkins was not deficient under Strickland for withdrawing the
motion to suppress.
      Second, Cueva argues the state court unreasonably applied Strickland
by concluding Perkins was not deficient for failing to object to Detective
Gonzalez’s testimony about Cueva’s oral statements.        At the hearing on
Cueva’s motion for a new trial, Perkins testified that after concluding Cueva’s
written statement was made voluntarily, he decided it would be more effective
to “allow the jury to see how the police procedure had potentially damaged
evidence in the case.” The state court accepted Perkins’s proffered strategy as
a reasonable explanation for his failure to object to Defendant Gonzalez’s




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testimony about Cueva’s oral statements. 4 Cueva, 339 S.W.3d at 879. 5 Cueva
argues this is an unreasonable application of Strickland because he believes
Perkins’s strategy was unsound and unpursued.
       The state court did not unreasonably apply Strickland in this regard.
Counsel has wide latitude in making tactical decisions, Strickland, 466 U.S. at
689, including formulating “a strategy that was reasonable at the time,”
Harrington, 562 U.S. at 107. The Supreme Court has previously held that it
is a reasonable trial strategy for counsel “to try to cast pervasive suspicion of
doubt [rather] than to strive to prove a certainty that exonerates.” Id. at 109.
Here, the state court determined it was a reasonable trial strategy “to
challenge the credibility of the police and, by extension, the credibility of all
those responsible for gathering and presenting evidence against [Cueva].”
Cueva, 339 S.W.3d at 880–81.             Moreover, “it is all too easy for a court,
examining counsel’s defense after it has proved unsuccessful, to conclude that
a particular act or omission of counsel was unreasonable. A fair assessment of
attorney performance requires that every effort be made to eliminate the
distorting effects of hindsight.” Strickland, 466 U.S. at 689 (internal citation
omitted). Thus, we cannot say that the state court unreasonably applied
Strickland in concluding Perkins was not deficient for failing to object to
Detective Gonzalez’s testimony about Cueva’s oral statements.



       4Cueva argued Perkins was ineffective for failing to object to testimony about his oral
statements because those statements were not recorded and were thus inadmissible. It is
undisputed that the oral statements were not recorded and that in Texas, subject to certain
exceptions, oral statements made during a custodial interrogation are inadmissible unless
recorded. TEX. CODE CRIM. PROC. ANN. art. 38.22 § 3(a)(1).
       5  The state court also reasoned that the oral statements were cumulative of Cueva’s
written statement and that failure to object to cumulative evidence would not support an
ineffective assistance of counsel claim. Cueva, 339 S.W.3d at 879. Because we conclude the
state court did not unreasonably apply Strickland regarding its determination of Perkins’s
trial strategy, we do not reach its cumulative-evidence explanation. See Premo v. Moore, 562
U.S. 115, 124 (2011).
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       Cueva fails to show that the state court’s ruling denying relief on his
claims of ineffective assistance of counsel “was so lacking in justification that
there was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103.
Thus, the district court did not err in denying Cueva relief under § 2254. 6
       The judgment of the district court is AFFIRMED.




       6 Because Cueva failed to show the state court erred in applying the deficiency prong
of Strickland, we need not reach Cueva’s arguments regarding the prejudice prong. See
Strickland, 466 U.S. at 697.
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