                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                      UNITED STATES COURT OF APPEALS                 May 2, 2014
                                                                 Elisabeth A. Shumaker
                                    TENTH CIRCUIT                    Clerk of Court


 LEO L. DURAN,

          Petitioner - Appellant,
                                                         No. 13-2072
 v.
                                             (D.C. No. 1:11-CV-00816-JB-GBW)
                                                          (D.N.M.)
 ATTORNEY GENERAL OF THE
 STATE OF NEW MEXICO,

          Respondent - Appellee.


                             ORDER AND JUDGMENT *


Before LUCERO, GORSUCH, and MATHESON, Circuit Judges.


      After his conviction for aggravated battery under state law was affirmed on

direct appeal, Leo Duran filed a habeas petition in state court. In it Mr. Duran

argued that he received constitutionally ineffective assistance of counsel at his

trial because his lawyer failed to raise any argument about his sanity or mental

health. Though Mr. Duran asked for an evidentiary hearing, the trial court

concluded one wasn’t necessary and dismissed his petition. The New Mexico

Supreme Court declined to review the result.


      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      Mr. Duran then renewed his complaint in federal court, filing a habeas

petition pursuant to 28 U.S.C. § 2254(d). For its part, the district court granted

Mr. Duran’s request for an evidentiary hearing but ultimately denied relief. The

bases for its decision are detailed extensively in a 26-page magistrate judge’s

report and a 24-page opinion by the district judge. Though Mr. Duran sought and

obtained a certificate of appealability to appeal, at the end of the day we can find

no lawful basis to reverse.

      Federal courts generally cannot overturn a state court decision that denies

habeas relief after an “adjudication on the merits” unless “the adjudication of the

claim — (1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established federal law . . . [or] (2) resulted

in a decision that was based on an unreasonable determination of the facts. . . .”

28 U.S.C. § 2254(d). Of course, a state court’s disposition of a claim warrants

such deference only if it “adjudicated” the petitioner’s claim “on the merits.”

Otherwise, our review is typically de novo. See Hain v. Gibson, 287 F.3d 1224,

1229 (10th Cir. 2002).

      We note all this because the parties wrangle extensively over the standard

of review they wish us to apply to this case. Mr. Duran says we should review his

Sixth Amendment claim de novo because it was never adjudicated on the merits

by the state trial court. It wasn’t adjudicated on the merits, he says, because the

state trial court refused his request for an evidentiary hearing and failed to

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consider an important piece of evidence — a psychologist’s report written by

Dr. Richard Fink suggesting that Mr. Duran was not on antipsychotic medication

at the time of the assault, “might meet the minimum standards for an insanity

defense,” and “might not have been able to form specific intent,” though the

report also went on to find Mr. Duran competent to stand trial. In support of his

arguments for de novo review, Mr. Duran points us to Wilson v. Workman, 577

F.3d 1284 (10th Cir. 2009) (en banc).

      New Mexico, meanwhile, insists the state trial court did consider Dr. Fink’s

report. At the same time, the State disputes the idea that an “adjudication on the

merits” depends on whether an evidentiary hearing is held or whether a state court

happens to consider this or that piece of evidence. In support of its arguments for

a more deferential standard of review, New Mexico points us to Lott v. Trammell,

705 F.3d 1167, 1211-14 (10th Cir. 2013), as well as Johnson v. Williams, 133 S.

Ct. 1088 (2013) and Harrington v. Richter, 131 S. Ct. 770 (2011). See also

Wilson v. Trammell, 706 F.3d 1286 (10th Cir. 2013).

      Ultimately, however, the parties’ dispute over the standard of review

doesn’t make a difference. Even if we review Mr. Duran’s claim de novo and

consider all the evidence he amassed in the federal evidentiary hearing, he still

cannot prevail. The magistrate judge’s and the district court’s extensive opinions

already do much to explain why this is so, leaving us here to offer only a couple

supplementary points.

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      To establish a Sixth Amendment claim, a petitioner must overcome a

“strong presumption” that counsel’s conduct falls within the wide range of

reasonable professional assistance. See Strickland v. Washington, 466 U.S. 668,

689 (1984). Absent such a showing, “it cannot be said that the conviction . . .

resulted from a breakdown in the adversary process that renders the result

unreliable.” Id. at 687.

      And that leads to our first point. Counsel’s performance in the state

aggravated battery trial may not have been ideal, but neither can we say it

amounted to a breakdown of the adversary process. Mr. Duran notes that his trial

counsel candidly admitted at the federal evidentiary hearing that he might not

have read the report from Dr. Fink that he (counsel) had commissioned. And it is

this, Mr. Duran says, that amounts to deficient performance: in his view, counsel

should have spent more time and effort investigating a potential mental health

defense. The problem is, the extensive record prepared by the district court

reveals a good many facts that support counsel’s decision not to pursue a mental

health defense in this particular case.

      Here is a sample of those facts. As it turns out, the public defender in Mr.

Duran’s state court aggravated battery case was already familiar with Mr. Duran

thanks to his representation of Mr. Duran in other cases where he had already

investigated Mr. Duran’s mental health. Indeed, the same lawyer had only

recently persuaded the government to accept in another case a plea of guilty but

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mentally ill. Meanwhile, counsel had found that definitive psychological

evaluations of Mr. Duran had “always come back competent.” 1 And after

carefully reviewing the facts associated with this new charge, the lawyer found

that it provided a poor candidate for a mental health defense — and worried that

such a defense could alienate jurors. He came to this conclusion because he

thought the facts here showed pretty clearly that the attack was deliberate and

calculated. The facts showed that Mr. Duran and another inmate were in court for

arraignment where Mr. Duran learned the other man faced charges of sexually

assaulting a child. Later, after the pair were transported to a jail facility,

Mr. Duran punched the other man once in the face, telling him “[t]hat’s what

happens to baby molesters.” The whole episode was captured on videotape.

Finally, counsel explained that he thought these facts suggested a different much

more promising line of defense — an argument that a single punch doesn’t rise to

the level of “aggravated” battery under New Mexico law.

      In light of this fuller view of the facts, we cannot say Mr. Duran’s counsel

lacked reasonable grounds for declining to investigate an insanity or mental

health defense in this case. Mr. Duran’s lawyer made his decision based on past

      1
         We recognize, of course, that competence and sanity are different things,
and that a defendant who is found competent to stand trial may also have been
insane (or unable to form specific intent) at the time he committed the crime. See
Medina v. California, 505 U.S. 437, 448-49 (1992). At the same time, the two are
no doubt related, as a defendant’s ability to understand the nature of the
proceedings against him and assist his attorney may speak to his overall mental
health.

                                         -5-
familiarity with the defendant’s mental health history. He made it based on a

reasoned judgment that contesting Mr. Duran’s sanity or ability to form specific

intent wasn’t likely to succeed given the particular facts of the case and could

backfire with jurors. He made it based on an assessment, too, that other more

promising lines of investigation existed.

      The Sixth Amendment does not require an attorney to investigate every

possible avenue of research to the ends of the Earth. Instead, it requires an

attorney “to make a reasonable investigation in preparing his defense,” and that

“includ[es] reasonably deciding when to cut off further investigation.” Winfield

v. Roper, 460 F.3d 1026, 1034 (8th Cir. 2006); see Strickland, 466 U.S. at 690-91.

That’s what happened here. Defense counsel made a reasoned judgment about the

most promising lines of avenue he should pursue in an effort to secure an

acquittal. Like any such tactical judgment, this one might be questioned in

hindsight but that does not mean it is necessarily unreasoned or unreasonable.

See generally United States v. Ringer, 200 F. App’x 820, 822 (10th Cir. 2006).

      Mr. Duran replies by directing us to Bouchillon v. Collins, 907 F.2d 589

(5th Cir. 1990). But that case stands for the proposition that an attorney can’t

abandon his client’s only plausible defense if he conducts no investigation

whatsoever into that line of argument, especially when he is on notice it might be

a fruitful one and he has little reason to think it would fail. Id. at 597. Here, by

contrast, Mr. Duran’s attorney was aware of his client’s mental problems and the

                                         -6-
evidence he could have used to prove them. Further, counsel didn’t abandon what

he thought was his client’s only viable defense; he believed he had another, better

argument and that a mental health defense could prove counterproductive given

the facts of the case at hand. Simply put, Bouchillon bears no meaningful

resemblance to our case.

      That takes us to our second observation. To succeed on a Sixth

Amendment claim a petitioner must show not only deficient performance. He

must also show that but for that deficient performance a reasonable probability

exists that the result of his trial would’ve been different. Strickland, 466 U.S. at

691-96. And that requirement too poses a problem for Mr. Duran. Mr. Duran

says his lawyer should’ve investigated further a possible insanity or mental health

defense. Yet it was his burden at the federal evidentiary hearing to show what a

proper investigation would have yielded and how it was reasonably probable to

have made a difference at his trial. See, e.g., United States v. Rivera, 900 F.2d

1462, 1472-73 (10th Cir. 1990) (“[T]he defendant bears the burden of proving

that his counsel’s performance was . . . prejudicial within the meaning of

Strickland.”). This he has not done.

      Before this court Mr. Duran has not attempted to show what a “proper”

investigation into his mental health would’ve yielded besides Dr. Fink’s report.

Put differently, the only thing Mr. Duran argues an adequate investigation

would’ve yielded is a thorough review by trial counsel of Dr. Fink’s report. Yet

                                         -7-
that report indicated Mr. Duran was competent and only might have a mental

health defense — what Mr. Duran’s state court counsel not unreasonably

described as a “wishy-washy” conclusion. Missing here is any evidence that a

proper investigation would have yielded more than Dr. Fink’s equivocations, let

alone an expert willing to testify that Mr. Duran was insane or unable to form the

requisite mens rea for the crime with which he was charged. Given that omission,

we cannot say Mr. Duran has carried his burden of establishing a reasonable

probability that the outcome of his battery trial would have been different even if

counsel had studied Dr. Fink’s report in depth. See United States v. Rushin, 642

F.3d 1299, 1310 (10th Cir. 2011).

      The district court’s judgment is affirmed.



                                      ENTERED FOR THE COURT


                                      Neil M. Gorsuch
                                      Circuit Judge




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