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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 17-70016                    United States Court of Appeals
                                                                               Fifth Circuit

                                                                             FILED
                                                                      October 18, 2018
ABEL REVILL OCHOA,
                                                                        Lyle W. Cayce
               Petitioner – Appellant,                                       Clerk


v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

               Respondent – Appellee.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:09-CV-2277


Before ELROD, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM:*
       Abel Revill Ochoa was convicted for the murder of his wife and daughter
in Texas state court. After his unsuccessful direct appeal and state habeas
petition, Ochoa filed a federal habeas petition under 28 U.S.C. § 2254 in the
district court, which denied habeas relief and declined to issue a certificate of
appealability (COA).        Ochoa also filed a motion requesting funds for a



       * Pursuant to Fifth Circuit Rule 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should not be published and is not precedent except under the limited circumstances set forth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 Fifth Circuit Rule 47.5.4.
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                                    No. 17-70016
mitigation investigator, which the district court denied. Ochoa now seeks a
COA on three claims for habeas relief and appeals the denial of his funding
motion. We DENY the COA on all three claims and AFFIRM the denial of
Ochoa’s funding motion.
                                           I.
      Ochoa was convicted of capital murder of his wife and daughter in 2003.
The state habeas court found the following: 1
      1. The Court finds that the thirty-year-old Ochoa shot several
         family members after smoking crack cocaine on Sunday, August
         4, 2002. The record reflects that, twenty minutes after smoking
         a ten-dollar rock of crack, Ochoa entered his living room and
         systematically shot his wife Cecilia, their nine-month-old
         daughter (Anahi), Cecilia’s father (Bartolo), and Cecilia’s
         sisters (Alma and Jackie). Ochoa reloaded his .9mm Ruger and
         chased his 7-year-old daughter, Crystal, into the kitchen where
         he shot her four times. Of the six victims, only Alma survived.

      2. The record reflects that, minutes after the shooting, the police
         stopped Ochoa while driving his wife’s Toyota 4Runner. Ochoa
         told the arresting officer that the gun he used was at his house
         on the table, that he could not handle the stress anymore, and
         that he had gotten tired of his life. In a search conducted after
         arrest, the police found a crack pipe, steel wool, and an empty
         clear baggie on Ochoa’s person. Ochoa gave the police a detailed
         written statement recounting his actions in the shootings.

After a trial, the jury found Ochoa guilty and sentenced him to death. On direct
appeal, the Texas Court of Criminal Appeals (CCA) affirmed his conviction and
sentence. Ochoa v. State, No. AP-79,663, 2005 WL 8153976, at *1 (Tex. Crim.
App. Jan. 26, 2005).         Through appointed counsel, Ochoa filed a state
application for habeas corpus on February 11, 2005, to which he added a pro
se supplement. Ochoa then filed an additional pro se application on March 19,


      1  These facts are presumed to be correct and entitled to deference under 28 U.S.C.
§ 2254(e)(1).
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2007, to yet again supplement his previous application. The CCA denied state
habeas relief. Ex parte Ochoa, No. WR-67,495-02, 2009 WL 2525740, at *1
(Tex. Crim. App. Aug 19, 2009). The CCA also rejected Ochoa’s subsequent pro
se application as an abuse of writ under Texas Code of Criminal Procedure
Article 11.071, Section 5. Id.
       Ochoa subsequently filed a federal petition for a writ of habeas corpus
under 28 U.S.C. § 2254. Ochoa presented 21 claims for relief, including the
three claims pertinent to his COA application, all of which the district court
rejected as unexhausted, procedurally defaulted, or meritless. Ochoa alleged
in his federal petition—for the first time—that he was shackled during the
punishment phase of his trial, his right to due process was violated as a result,
and his trial counsel was ineffective for failing to object to shackling. Ochoa
attached an affidavit of his trial mitigation investigator who attended his trial,
stating: 2
       I recall being appalled when I saw Mr. Ochoa, who wore leg
       irons/shackles during his trial, walk to the witness stand. He
       passed by the jurors, who were sitting in the jury box, shuffling his
       feet due to the restraint the leg chains imposed. There could be no
       doubt that Mr. Ochoa was shackled when he walked to the witness
       stand[.]

The district court rejected Ochoa’s due process claim as unexhausted and
procedurally defaulted. The district court alternatively rejected this claim
onthe merits, because “[t]he record [did] not reflect that Ochoa was even
shackled, much less a reasonable probability that the jury was aware of it.” As
to the shackling-based ineffective assistance of trial counsel (IATC) claim, the




       2Without deciding the propriety of considering the affidavit, we note that 28 U.S.C.
§ 2254(e)(2) “restricts the discretion of federal habeas courts to consider new evidence when
deciding claims that were not adjudicated on the merits in state court.” Cullen v. Pinholster,
563 U.S. 170, 186 (2011).
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                                 No. 17-70016
district court concluded that it was unexhausted, procedurally defaulted, and
meritless.
      Ochoa also alleged that, during voir dire, the trial court limited his trial
counsel’s ability to question the jurors whether they could fairly consider all
mitigating evidence, and his trial counsel was ineffective for failing to timely
object to such limitations. Ochoa claimed that, because of this error, the jurors
were biased against him. Ochoa noted that, three days before jury selection
was complete, one of the seated jurors was excused from service after
remembering learning through pre-trial publicity that Ochoa shot his entire
family and telling the court that she could not be fair and impartial. The
district court rejected the voir dire-based IATC claim because it was
unexhausted and procedurally defaulted.        Alternatively, the district court
concluded that this claim was meritless because the trial court dismissed the
sole juror who had actual bias, and Ochoa merely speculated that the other
jurors were biased. After denying relief, the district court declined to issue a
COA for any claim.
      Along with his § 2254 petition, Ochoa also filed a motion for funds for a
mitigation investigator under 18 U.S.C. § 3599 to pursue a Wiggins claim based
on his trial counsel’s alleged failure to investigate mitigation evidence.
See Wiggins v. Smith, 539 U.S. 510, 534–35 (2003) (concluding that counsel’s
failure to investigate and discover mitigation evidence can be prejudicial). The
district court denied this motion because “Ochoa [did] not complain that trial
counsel did not know about the poverty, alcoholism or abuse to be investigated,
and [did] not indicate how further investigation of these matters will
substantially improve his chances of success.”
      Ochoa now seeks a COA for the three claims based on alleged shackling
and voir dire, and appeals the denial of funds under § 3599. Ochoa has not
sought a COA for the Wiggins claim and concedes that the funding request is
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                                 No. 17-70016
entirely unrelated to the three claims for which he seeks a COA in this
proceeding.
                                       II.
      Under the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), a federal habeas petitioner must obtain a COA before appealing the
denial of habeas relief. 28 U.S.C. § 2253(b), (c)(1); United States v. Williams,
897 F.3d 660, 661 (5th Cir. 2018). “A COA may issue ‘only if the applicant has
made a substantial showing of the denial of a constitutional right.’ ” Buck v.
Davis, 137 S. Ct. 759, 773 (2017) (quoting 28 U.S.C. § 2253(c)(2)). Because the
COA is a jurisdictional requirement, “[u]ntil the prisoner secures a COA, the
[c]ourt of [a]ppeals may not rule on the merits of his case.” Id.
      “The COA inquiry . . . is not coextensive with a merits analysis.” Id. The
only question at this stage is whether “jurists of reason could disagree with the
district court’s resolution of [the petitioner’s] constitutional claims or
. . . conclude the issues presented are adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 337 (2003). “[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. Nevertheless, “when a court of appeals properly
applies the COA standard and determines that a prisoner’s claim is not even
debatable, that necessarily means the prisoner has failed to show that his
claim is meritorious.” Buck, 137 S. Ct. at 774.
      If the district court denies relief on a procedural ground, petitioner must
additionally show “that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Gonzalez v. Thaler, 565
U.S. 134, 140–41 (2012) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).




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                                          III.
      Ochoa contends that reasonable jurists could disagree with the district
court’s resolution of his shackling-based and voir dire-based claims. 3 For the
following reasons, we hold that the district court’s conclusions are not
debatable.
                                          A.
      Ochoa argues that the district court’s resolution of his due process claim
based on alleged shackling is debatable. Because of its inherently prejudicial
nature, “[s]hackling a defendant is prohibited unless ‘justified by an essential
state interest such as the interest of courtroom security.’ ”               Hatten v.
Quarterman, 570 F.3d 595, 603 (5th Cir. 2009) (quoting Deck v. Missouri, 544
U.S. 622, 624 (2005)). If a court erroneously shackles a defendant during the
punishment phase of a capital trial, the defendant’s appearance in shackles
“almost inevitably implies to a jury, as a matter of common sense, that court
authorities consider the offender a danger to the community” and “undermines
the jury’s ability to weigh accurately all relevant considerations . . . .” Deck,
544 U.S. at 633. Thus, ordinarily, the state must prove “beyond a reasonable
doubt that the [shackling] error complained of did not contribute to the verdict
obtained.” Id. at 635 (alteration in original) (quoting Chapman v. California,
386 U.S. 18, 24 (1967)). On collateral review, however, a federal court grants
relief only if the shackling error had a “substantial and injurious effect or
influence in determining the jury’s verdict.” Hatten, 570 F.3d at 604 (quoting
Fry v. Pliler, 551 U.S. 112, 121–22 (2007)).




      3 As Ochoa’s counsel conceded during oral argument, we can rule on the COA issues
regardless of how we decide the funding issue because the two are completely unrelated.
Oral    Argument    at    6:54–7:32;  10:18–43,    Ochoa     v.  Davis    (No.17-70016),
http://www.ca5.uscourts.gov/oral-argument-information/oral-argument-recordings.
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      Ochoa has presented a highly unusual shackling claim, because, as the
district court noted, the record does not show whether Ochoa was even
shackled during his trial. If Ochoa was not even shackled, no reasonable jurist
can debate whether shackling violated his right to due process.
      Assuming arguendo that Ochoa was, in fact, shackled, he is still not
entitled to a COA. Federal courts may not grant habeas relief on unexhausted
and procedurally defaulted claims.       28 U.S.C. § 2254(b)(1)(A); Norman v.
Stephens, 817 F.3d 226, 231–32 (5th Cir. 2016).             “If a claim is merely
unexhausted but not procedurally defaulted, then, absent waiver by the state,
a district court must either dismiss the federal petition or stay the federal
proceeding while the petitioner exhausts the unexhausted claim in state
court.”   Norman, 817 F.3d at 231 n.1.             Unexhausted claims become
procedurally defaulted if “the state court to which the prisoner would have to
present his claims in order to exhaust them would find the claims procedurally
barred . . . .” Kittelson v. Dretke, 426 F.3d 306, 315 (5th Cir. 2005). The district
court concluded that Ochoa’s unexhausted claim would be barred in state court
under Article 11.071, Section 5. Ochoa concedes that “[t]his claim was not
raised in state court and, thus, was unexhausted and likely defaulted . . . .”
Appellant’s Br. 36; see also id. at 42 n.5 (“[T]he [IATC] claim, as well as the
underlying due process claim, were defaulted . . . .”).           Accordingly, no
reasonable jurist would debate whether this claim is unexhausted and
procedurally defaulted.
                                        B.
      Next, Ochoa argues that the district court’s resolution of his shackling-
based IATC claim is debatable. Again, Ochoa concedes that this IATC claim is
both unexhausted and procedurally defaulted. Therefore, it is not debatable
that this IATC claim is procedurally defaulted.


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      Nevertheless, a federal court may review the merits of a procedurally
barred claim if the petitioner can “demonstrate cause for the default and actual
prejudice as a result of the alleged violation of federal law . . . .” Coleman v.
Thompson, 501 U.S. 722, 750 (1991). Under the Martinez/Trevino exception,
the petitioner may establish cause “by showing that (1) his state habeas
counsel was constitutionally deficient in failing to include the claim in his first
state habeas application; and (2) the underlying ineffective-assistance-of-trial-
counsel claim is ‘substantial.’ ” Reed v. Stephens, 739 F.3d 753, 774 (5th Cir.
2014) (quoting Martinez v. Ryan, 566 U.S. 1, 14 (2012)); see also Trevino v.
Thaler, 569 U.S. 413, 428–29 (2013) (applying Martinez to Texas). A claim is
“insubstantial” if it “does not have any merit” or “is wholly without factual
support.” Martinez, 566 U.S. at 16.
      Reasonable jurists would not disagree that Ochoa cannot overcome the
procedural default, because Ochoa’s underlying shackling-based IATC claim is
insubstantial. See id. To establish an IATC claim, the petitioner must show
“both that counsel performed deficiently and that counsel’s deficient
performance caused him prejudice.” Buck, 137 S. Ct. at 775; see also Strickland
v. Washington, 466 U.S. 668, 687 (1984). To prove deficiency, the petitioner
“must overcome a ‘strong presumption’ that the representation did fall ‘within
the wide range of reasonable professional assistance.’ ” Beatty v. Stephens, 759
F.3d 455, 463 (5th Cir. 2014) (quoting Strickland, 466 U.S. at 689).            To
establish prejudice, the petitioner must show “a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id.
      The district court rejected this IATC claim because the underlying due
process claim was meritless. It persuasively explained:
      Ochoa has not provided the information needed on federal habeas
      review to show that any shackling, if it indeed occurred, would

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                                  No. 17-70016
      have been unjustified under Deck, that an objection at trial would
      have prevailed, or that a point of error on appeal would have been
      sustained. Ochoa has not established that the due process
      complaint [based on shackling] . . . has merit, much less that his
      counsel was ineffective for failing to assert it in an objection.

Indeed, “[u]nsupported allegations and pleas for presumptive prejudice are not
the stuff that Strickland is made of.” Sawyer v. Butler, 848 F.2d 582, 589 (5th
Cir. 1988), reh’g, 881 F.2d 1273 (1989), aff’d sub nom. Sawyer v. Smith, 497
U.S. 227 (1990). Thus, no reasonable jurist would disagree that Ochoa cannot
overcome the procedural default.
                                       C.
      Ochoa also asserts that the district court’s resolution of his voir dire-
based IATC claim is debatable. Because Ochoa concedes his failure to present
this IATC claim in state court, reasonable jurists would not disagree that this
claim is unexhausted and procedurally defaulted.
      Nor would reasonable jurists debate whether Ochoa can overcome the
procedural default. This IATC claim is insubstantial. See Martinez, 566 U.S.
at 16. As the district court noted, Ochoa cannot establish prejudice. See
Strickland, 466 U.S. at 687. In Garza v. Stephens, this court rejected a habeas
petitioner’s contention that his trial counsel failed to question the jurors about
their views relating to the death penalty and the murder of a police officer. 738
F.3d 669, 675 (5th Cir. 2013). There, the petitioner’s claim “rel[ied] solely on
speculation” that “the jurors may not have been fair and impartial.” Id. at 676.
The petitioner “[did] not even argue that, without the alleged errors, there is a
reasonable probability that the jury would not have answered the special
issues in the state’s favor.” Id. Here, as in Garza, Ochoa’s contention is wholly
insufficient. Although the trial court removed one juror because she professed
her inability to be fair and impartial, Ochoa has provided no reason—other


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                                    No. 17-70016
than his speculation—why other jurors also may not have been fair and
impartial.
      In addition to his failure to establish prejudice under Strickland, Ochoa
failed to show his trial counsel’s deficiency. 466 U.S. at 687. By his own
account, Ochoa’s trial counsel objected not once, but twice. After the trial court
removed the biased juror, Ochoa’s trial counsel sought to question the
remaining jurors. Id. In doing so, “[c]ounsel made a lengthy objection during
which he referenced an earlier defense request to question the jurors about the
accurate aggravating facts of the case but had been prohibited from doing so
by the court.” Id. (emphasis added). Ochoa’s contention that his trial counsel
should have objected sooner cannot overcome a strong presumption that the
representation fell within the wide range of reasonable professional assistance.
See Beatty, 759 F.3d at 463. Accordingly, no reasonable jurist would debate
that this claim is procedurally barred.
      Because no reasonable jurist would disagree with the district court’s
resolution of these three habeas claims, a COA is unwarranted.
                                         IV.
      We now turn to Ochoa’s appeal of the denial of his 18 U.S.C. § 3599
motion for funds to pursue his unexhausted Wiggins claim. 4 We review a
denial of a funding motion under a highly deferential abuse of discretion
standard. Crutsinger v. Davis, 898 F.3d 584, 586 (5th Cir. 2018). “Section
3599(a) authorizes federal courts to provide funding to a party who is facing
the prospect of a death sentence and is ‘financially unable to obtain adequate
representation or investigative, expert, or other reasonably necessary




      4As noted above, the funding issue is completely unrelated to the COA issues, and
Ochoa has not sought a COA on the Wiggins claim.
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services.’ ”   Ayestas v. Davis, 138 S. Ct. 1080, 1092 (2018) (quoting
18 U.S.C. § 3599(a)).
      If the requested services are “reasonably necessary,” then a court “may
authorize the [applicant’s] attorneys to obtain such services on [his]
behalf . . . .” 18 U.S.C. § 3599(f). Rejecting this court’s “substantial need” test,
the Supreme Court explained that “[a] natural consideration informing the
exercise of that discretion is the likelihood that the contemplated services will
help the applicant win relief.” Ayestas, 138 S. Ct. at 1094. “Proper application
of the ‘reasonably necessary’ standard thus requires courts to consider the
potential merit of the claims that the applicant wants to pursue, the likelihood
that the services will generate useful and admissible evidence, and the
prospect that the applicant will be able to clear any procedural hurdles
standing in the way.” Id. “[T]he touchstone of the inquiry is ‘the likely utility
of the services requested’ and that ‘§ 3599(f) cannot be read to guarantee that
an applicant will have enough money to turn over every stone.’ ” Crutsinger,
898 F.3d at 586 (quoting Ayestas, 138 S. Ct. at 1094).
      The district court denied Ochoa’s funding motion under the prior
“substantial need” standard before Ayestas was decided. Ochoa asks us to
remand so the district court may consider his motion under the correct
standard. While we have twice remanded funding denials after Ayestas, in
other cases, we have decided that remand was unnecessary.                 Compare
Robertson v. Davis, 729 F. App’x 361, 362 (5th Cir. 2018) (remanding to the
district court), and Sorto v. Davis, 716 F. App’x 366, 366 (5th Cir. 2018) (same),
with Crutsinger, 898 F.3d at 586–87 (deciding the funding issue without
remanding), and Mamou v. Davis, No. 17-70001, 2018 WL 3492821, at *3–*5
(5th Cir. July 19, 2018) (same).
      Here, remand is unnecessary, because “the reasons the district court
gave for its ruling remain sound after Ayestas . . . .” Mamou, 2018 WL 3492821,
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at *3. The requested funds cannot help Ochoa win relief on his unexhausted,
procedurally defaulted, and meritless Wiggins claim.
      Ochoa concedes that his Wiggins claim is unexhausted and procedurally
defaulted.     As the district court determined, Ochoa cannot overcome the
procedural default because he “has not shown a lack of diligence by his original
state habeas counsel in those proceedings, but even if he had, such counsel
could not be found ineffective for the purpose of the Martinez exception for
failing to present a meritless claim.” See also Reed, 739 F.3d at 774. It is
unlikely that Ochoa will clear these procedural hurdles. See Ayestas, 138 S.
Ct. at 1094.
      As to the merits, the district court astutely observed:
      In the instant case, even if the claim comes within the exception to
      procedural bar, the alternative merits analysis is correct. Ochoa’s
      motion focuses on his complaint that trial counsel was ineffective
      for failing to investigate and present mitigating evidence at his
      trial. Ochoa does not complain that trial counsel did not present
      evidence of his background, but merely that he did not present
      enough of it. But this was not a case where an abusive background
      could help to explain a long criminal history or other pattern of
      misbehavior that inexorably led to the crime. This was a case
      where the defendant was a hard-working, family man who did not
      have as much as a traffic ticket before the afternoon when he
      murdered five people, including his wife, her family members and
      their children. Trial counsel chose to focus on the power of Ochoa’s
      cocaine addiction to explain this sudden anomaly that occurred
      after his wife refused to buy him more drugs.

      At trial, counsel presented evidence from multiple expert and lay
      witnesses touching on Ochoa’s life, background, character,
      culpability, potential for rehabilitation, and projected conditions of
      confinement if sentenced to life. Ochoa’s complaint does not
      identify an area or subject that was not generally covered by the
      evidence trial counsel presented to the jury. Instead, he points to
      additional evidence of Ochoa’s background that may have been
      cumulative of what was already presented or less relevant than
      the evidence actually presented. For example, he argues that
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      additional evidence should have been presented regarding his
      early life in Mexico. Ochoa’s father testified about their poor living
      conditions there, but Ochoa testified at trial that his earliest
      memories were living on a farm in Texas. Ochoa also now argues
      that additional testimony should have been provided regarding
      Ochoa’s father, specifically regarding his alcoholism and abuse of
      Ochoa’s family. But Ochoa and his brother testified that their
      father was an alcoholic that would beat their mother, requiring the
      assistance of Ochoa and his brothers to get their father off of her,
      and that this upset Ochoa greatly. Ochoa’s father also testified
      about the history of alcohol abuse in their family, and that he used
      [to] get drunk and beat his family, but that he stopped after he had
      an accident while driving intoxicated. Defense expert Dr. Edward
      Nace also testified about the addiction problem in Ochoa’s family,
      including his father’s alcoholism and its impact on Ochoa.

      Not only is this allegation insufficient to warrant habeas relief, it
      would be insufficient to grant investigative funding.

      We agree with this persuasive analysis. Because extensive mitigation
evidence was available to Ochoa’s defense and later presented to the jury, it is
unlikely that the contemplated services will help Ochoa win relief on the
Wiggins claim. See Ayestas, 138 S. Ct. at 1094. Moreover, Ochoa has not
explained how further investigation would yield evidence that is different from
what was available at the time of his trial. Instead, Ochoa is simply seeking
to “turn over every stone,” and § 3599 does not entitle him to do so. Id. The
district court did not abuse its discretion in denying funding as the funding is
not reasonably necessary.
                                       V.
      For the foregoing reasons, we DENY Ochoa’s application for a COA and
AFFIRM the denial of funds under § 3599(f).




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