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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-70006                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
RAMIRO F. GONZALES,                                                         April 10, 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 Western District of Texas
                             USDC No. 5:10-CV-165


Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM:*
       Ramiro Gonzales seeks a certificate of appealability (“COA”) to appeal
the district court’s denial of his federal habeas corpus petition, filed pursuant
to 28 U.S.C. § 2254, challenging his state criminal conviction for capital murder
and sentence of death. For the reasons that follow, we DENY his request.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                               BACKGROUND
      The facts surrounding Gonzales’s underlying crime are not in dispute.
On January 15, 2001, Gonzales went to the home of his drug supplier, hoping
to steal cocaine. Only his supplier’s girlfriend, Bridget Townsend, was at the
home, so he tied her up and stole what cash he could find, but did not find any
drugs. He then carried the bound Townsend to his pickup truck, drove her out
to the large ranch on which he lived, retrieved a hunting rifle, and marched
Townsend out into the deserted brush. When he started loading the rifle,
Townsend told Gonzales that she would give him money, drugs, or sex if he
would spare her life.    In response, Gonzales unloaded the rifle and took
Townsend back to his truck, where he had sex with her. After she dressed, he
reloaded the rifle, walked her back into the brush, and shot her. He left her
body where it fell. Gonzales eventually confessed to his crimes.
      At trial, a jury found Gonzales guilty of capital murder as charged.
During the punishment phase, the prosecution called various witnesses in an
effort to show that Gonzales did not feel remorse for his crime, had a history of
bad conduct, did not suffer from mental illnesses, and would likely continue to
be violent in prison. Among other witnesses, the prosecution called a woman
whom Gonzales had abducted at knifepoint, brutally raped, and locked in a
closet on the same ranch where he had earlier killed Townsend. It was while
he was in custody for those crimes that Gonzales confessed to having murdered
Townsend.     The prosecution also called Dr. Edward Gripon, a forensic
psychiatrist, who testified that there was a serious risk Gonzales would
continue to commit acts of violence in the prison setting.          Dr. Gripon
acknowledged that predictions of future dangerousness were highly
controversial and that the American Psychiatric Association had taken the
position that such predictions are unscientific and unreliable, but maintained


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                                 No. 14-70006
that forensic psychiatrists as a whole believed that they were qualified to make
such predictions.
      The defense called a number of witnesses during the punishment phase
as well, focusing primarily on Gonzales’s family history and upbringing.
Various witnesses testified that Gonzales was effectively abandoned by his
mother and was left on a large ranch to be raised by his maternal
grandparents, who often provided inadequate or no supervision throughout his
childhood. Several of Gonzales’s relatives testified that Gonzales’s mother
frequently drank alcohol, huffed spray paint, and abused drugs throughout her
pregnancy and twice attempted to abort Gonzales. Numerous witnesses also
detailed the physical and sexual abuse that Gonzales suffered throughout his
childhood, including being kicked by his mother’s boyfriend, being sexually
abused by an older male cousin, and having a sexual relationship with an
eighteen-year-old woman when he was twelve or fourteen years old.
      The defense also called Dr. Daneen Milam, a neuropsychologist and sex
offender treatment provider, to testify as to Gonzales’s mental health. Dr.
Milam explained that she had conducted a ten-hour neuropsychological
examination of Gonzales; reviewed “literally stacks of records,” including
school records, probation records, and incident reports; went to the ranch on
which Gonzales grew up, where she spoke with his grandparents, his cousin,
and the ranch manager; and reviewed all of the interviews conducted by the
defense team’s mitigation investigator. Dr. Milam testified that from her
evaluation, she found no evidence of brain damage, “none whatsoever.” She
said that Gonzales’s IQ and brain were within normal limits, in spite of all of
his and his mother’s drug use. Dr. Milam stated that educational records
indicated Gonzales was developmentally delayed but that he started off with a
normal brain. She opined that Gonzales “basically raised himself,” which led
him to have the emotional maturity of someone who is thirteen or fourteen
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years old. Dr. Milam also testified that some of the tests she attempted to
conduct on Gonzales were invalid because he clearly tried to come across as
mentally ill. She was able to conclude, however, that while Gonzales exhibited
some schizotypal and antisocial personality features, his primary diagnosis
was “reactive attachment disorder.”           Dr. Milam explained that reactive
attachment disorder is due entirely to environmental factors wherein a young
child was not able to form a stable, emotional bond with any adult and leads
to being immature, insecure, solitary, and manipulative later in life.             Dr.
Milam next discussed Gonzales’s mother’s drug use while pregnant with
Gonzales and the abuse Gonzales suffered as a child. Dr. Milam testified that
Gonzales was probably in the top 10% of emotionally damaged children and
now likely could be diagnosed with antisocial personality disorder, but stated
that Gonzales was not mentally ill, had a normal IQ, and was not mentally
retarded.
      In their closing argument during the punishment phase, defense counsel
focused on the evidence that Gonzales essentially raised himself; was exposed
to alcohol, marijuana, and paint fumes in utero; was sexually abused by a
cousin starting at the age of four or six; started drinking and doing drugs at
eleven; was sexually abused by an older woman at twelve or thirteen; and was
sentenced to life in prison at just eighteen 1. In its rebuttal argument, the
prosecution referenced Dr. Gripon’s testimony as to future dangerousness and
suggested that Gonzales’s mother’s use of drugs while pregnant with Gonzales
was meaningless because there was no evidence that it affected him.




      1  After murdering Townsend but before being charged with the murder, Gonzales
kidnapped and raped another woman. He was sentenced to life in prison for his crimes
against the second woman and confessed to having murdered Townsend while he was serving
that sentence.
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      The jury unanimously made the findings required for capital
punishment in Texas, and the judge entered a sentence of death. On direct
appeal, Gonzales argued that the prosecution’s expert should not have been
permitted to give an opinion as to future dangerousness. Gonzales did not
argue that trial counsel should have called more expert witnesses. The Texas
Court of Criminal Appeals (“CCA”) affirmed the conviction and sentence,
Gonzales v. State, No. AP-75540, 2009 WL 1684699, at *1-3 (Tex. Crim. App.
June 17, 2009), and the United States Supreme Court denied certiorari,
Gonzales v. Texas, 559 U.S. 942 (2010).
      In his first state habeas corpus application, Gonzales filed an eight-page
petition raising four claims, none of which is now before this Court. The CCA
denied relief. Ex parte Gonzales, No. WR-70969-01, 2009 WL 3042409, at *1
(Tex. Crim. App. Sept. 23, 2009). Gonzales next filed a federal habeas petition,
but soon obtained a stay and abeyance so that he might first exhaust additional
claims in state court. In his second state habeas petition, Gonzales raised six
issues, including that his trial counsel were ineffective for failing to obtain
experts to present mitigating evidence that Gonzales suffered from Fetal
Alcohol Spectrum Disorder (“FASD”) and the effects of “sexual, emotional,
physical, and biological abuse,” as well as that the trial court erred in allowing
expert testimony as to Gonzales’s future dangerousness. The CCA dismissed
the petition as an abuse of the writ and dismissed a motion for funding of
expert assistance. Ex parte Gonzales, No. WR-70969-01, 2012 WL 340407, at
*1 (Tex. Crim. App. Feb. 1, 2012).
      Gonzales then filed an amended federal habeas petition in district court,
raising nine numbered claims. The district court denied all claims and denied
a COA. The district court determined that Gonzales’s ineffective assistance of
counsel claims were procedurally defaulted, but also concluded that they would
fail on the merits.
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                                  No. 14-70006
                          STANDARD OF REVIEW
      In a habeas corpus appeal, this Court “review[s] the district court’s
findings of fact for clear error and its conclusions of law de novo, applying the
same standards to the state court’s decision as did the district court.” Lewis v.
Thaler, 701 F.3d 783, 787 (5th Cir. 2012) (quoting Busby v. Dretke, 359 F.3d
708, 713 (5th Cir. 2004)).     Gonzales is entitled to a COA if he makes “a
substantial showing of the denial of a constitutional right.”           28 U.S.C.
§ 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). If the district court
denies constitutional claims on the merits, “[t]he petitioner must demonstrate
that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong” or “that the issues presented were
adequate to deserve encouragement to proceed further.” Slack v. McDaniel,
529 U.S. 473, 484 (2000) (internal quotation marks omitted).            “When the
district court denies a habeas petition on procedural grounds without reaching
the prisoner’s underlying constitutional claim, a COA should issue when the
prisoner shows, at least, that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district court was correct
in its procedural ruling.” Id. “Each component . . . is part of a threshold
inquiry, and a court may find that it can dispose of the application in a fair and
prompt manner if it proceeds first to resolve the issue whose answer is more
apparent from the record and arguments.” Id. at 485. “[A]ny doubt as to
whether a COA should issue in a death-penalty case must be resolved in favor
of the petitioner.” Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir. 2005).
                                 DISCUSSION
                  I.     Ineffective Assistance of Counsel
      Gonzales argues that his trial counsel were ineffective for failing to
obtain proper experts to present mitigation evidence of FASD and of sexual,
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                                      No. 14-70006
emotional, physical, and biological abuse. 2 Gonzales raised his ineffective
assistance of trial counsel claims for the first time in his second state habeas
petition and the CCA denied them as an abuse of the writ under Article 11.071
of the Texas Code of Criminal Procedure. We have consistently held that the
Texas abuse-of-the-writ statute is a valid state-law procedural ground that
forecloses federal habeas review where, as here, there is no indication that the
CCA’s order relied on federal law in dismissing the petition. See McGowen v.
Thaler, 675 F.3d 482, 499 (5th Cir. 2012); Coleman v. Quarterman, 456 F.3d
537, 542 (5th Cir. 2006).        Even so, the Supreme Court has held that “a
procedural default will not bar a federal habeas court from hearing a
substantial claim of ineffective assistance at trial if, in the initial-review
collateral proceeding, there was no counsel or counsel in that proceeding was
ineffective.” Martinez v. Ryan, 132 S. Ct. 1309, 1320 (2012). The Supreme
Court later made clear that this rule applies to habeas petitions stemming from
Texas-court convictions. Trevino v. Thaler, 133 S. Ct. 1911, 1921 (2013).
       Applying Martinez in the COA context, this Court has said that “to
succeed in establishing cause, the petitioner must show (1) that his claim of
ineffective assistance of counsel at trial is substantial—i.e., has some merit—
and (2) that habeas counsel was ineffective in failing to present those claims
in his first state habeas proceeding.” Garza v. Stephens, 738 F.3d 669, 676 (5th
Cir. 2013) (citing Martinez, 132 S. Ct. at 1318). As discussed below, Gonzales
has failed to raise a substantial claim of ineffective assistance of trial counsel
and therefore cannot show that his procedural default is excused.




       2In his application for a COA before the district court, Gonzales also stated that he
was denied effective assistance of trial counsel when his trial counsel provided the
prosecution with unspecified “privileged work product.” This argument is not included in
Gonzales’s brief on appeal and is therefore abandoned. See United States v. Olano, 507 U.S.
725, 731 (1993).
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                                  No. 14-70006
      As set out in Strickland v. Washington, 466 U.S. 668 (1984), a petitioner
establishes ineffective assistance of counsel if he can show that his counsel’s
performance was “deficient,” meaning that counsel’s “representation fell below
an objective standard of reasonableness,” and that counsel’s “deficient
performance prejudiced the defense.” Id. at 687-88. “[S]trategic choices made
after thorough investigation of law and facts relevant to plausible options are
virtually unchallengeable; and strategic choices made after less than complete
investigation are reasonable precisely to the extent that reasonable
professional judgments support the limitations on investigation.” Id. at 690-
91. There is no strategic decision with respect to sentencing strategy, however,
where counsel choose to abandon their investigation at an unreasonable
juncture. See Wiggins v. Smith, 539 U.S. 510, 527-28 (2003). “In investigating
potential mitigating evidence, counsel must either (1) undertake a reasonable
investigation or (2) make an informed strategic decision that investigation is
unnecessary.” Charles v. Stephens, 736 F.3d 380, 389 (5th Cir. 2013) (per
curiam).    “[U]nder a Strickland analysis, trial counsel must not ignore
pertinent avenues of investigation, or even a single, particularly promising
investigation lead.”   Id. at 390 (internal quotation marks and citations
omitted).
      There is no evidence suggesting that Gonzales’s trial counsel conducted
less than a reasonable investigation. The record makes clear that Gonzales’s
trial counsel obtained the services of a mitigation specialist, an investigator, a
neuropsychologist, and a prison expert.          These experts and specialists
conducted numerous interviews with Gonzales, his family members and
acquaintances, performed psychological evaluations, and reviewed substantial
records, such as school, probation, police, and jail records. The defense team
conferred with each other and coordinated their findings. The evidence that
Gonzales suffered emotional, physical, and sexual abuse, as well as that his
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mother drank alcohol and used drugs while pregnant with him, was
extensively presented to the jury by both lay and expert witnesses.
                                 1.    FASD
      As regards FASD specifically, defense counsel presented substantial
evidence at trial that Gonzales’s mother abused alcohol, marijuana, and
inhalants while pregnant with Gonzales, which was known to trial counsel and
Dr. Milam, the neuropsychologist that defense counsel secured. Nevertheless,
based on her evaluation of Gonzales and her extensive record review, Dr.
Milam concluded that “[t]here was no brain damage; none whatsoever,” that
Gonzales started out with a normal brain despite school records showing that
he was developmentally delayed, and that “[h]is IQ is within normal limits; his
brain is within normal limits, in spite of all the drugs.” Now, Gonzales argues
that his trial counsel were ineffective because the tests that Dr. Milam
conducted were “suboptimal” and the scope of her inquiry was “less than
adequate,” and therefore counsel should have secured an FASD expert.
Gonzales’s habeas counsel obtained an FASD expert who preliminarily
concluded that “FASD should be HIGHLY SUSPECTED and that a thorough
diagnostic evaluation to address this should be undertaken.” Importantly,
Gonzales does not present evidence that he actually suffers from FASD.
Instead, he presents an expert declaration concluding that “there is basis for
further evaluation to determine definitively whether FASD is present or not”
and argues that several additional tests should be conducted. The district and
state courts denied Gonzales’s various requests for funding to have those
additional tests run, and so Gonzales is left only with an affidavit indicating
that he may have FASD.
      “To prevail on an ineffective assistance claim based upon uncalled
witnesses, an applicant must name the witness, demonstrate that the witness
would have testified, set out the content of the witness’s proposed testimony,
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and show that the testimony would have been favorable.” Gregory v. Thaler,
601 F.3d 347, 352 (5th Cir. 2010).       A petitioner “who alleges a failure to
investigate on the part of his counsel must allege with specificity what the
investigation would have revealed and how it would have altered the outcome
of the trial.”   Id. (quotation marks and citation omitted).       Since there is
insufficient persuasive evidence that Gonzales actually suffers from FASD, his
argument is that he has made a substantial showing of ineffective assistance
of trial counsel because his trial attorneys did not seek out an expert who would
have testified that Gonzales may have FASD. Inconclusive new evidence that
a petitioner may or may not suffer from some sort of cognitive dysfunction does
not generally establish an ineffective assistance of counsel claim. See Smith v.
Quarterman, 515 F.3d 392, 405 (5th Cir. 2008).
      Trial counsel chose to offer the testimony of a qualified neuropsychologist
who, after extensive testing, concluded that Gonzales had no brain damage but
exhibited some schizotypal and antisocial personality features and suffered
from reactive attachment disorder. There is no evidence that trial counsel’s
reliance on Dr. Milam was unreasonable. See Harrington v. Richter, 562 U.S.
86, 107 (2011) (“Counsel was entitled to formulate a strategy that was
reasonable at the time and to balance limited resources in accord with effective
trial tactics and strategies.”); Couch v. Booker, 632 F.3d 241, 246 (6th Cir. 2011)
(“Trial counsel may rely on an expert’s opinion on a matter within his expertise
when counsel is formulating a trial strategy.”). Gonzales has not made a
substantial showing that his counsel were ineffective for failing to secure an
FASD expert.
                                  2.     Abuse
      Gonzales next claims that his trial counsel were ineffective for failing to
secure an abuse expert. He states that “[n]o expert addressed the synergy of
the effects of [his] sexual victimization, emotional and physical abuse, neglect
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                                 No. 14-70006
and rejection by his mother and caregivers, exposure to alcohol and other drugs
in utero, and his own substance abuse problem with the fact that he was only
72 days past his 18th birthday at the time of the offense in this case.” Gonzales
does not identify an expert that trial counsel should have called or specify
precisely how such an expert’s testimony would have differed substantially
from that provided by Dr. Milam at trial.       Gonzales’s claim of ineffective
assistance of trial counsel for failure to call a particular witness requires a
showing of what that witness would have testified to if called. See Gregory,
601 F.3d at 352-53. Gonzales has made no such showing.
      Additionally, Gonzales does not argue that the jury did not hear about
his “sexual, emotional, physical, biological abuse,” instead claiming that trial
counsel should have called an expert to inform the jury “how the presence of
all of these issues impacted” Gonzales.       Counsel did call an expert—Dr.
Milam—to explain the cumulative effect of the abuse and neglect that Gonzales
suffered throughout his life. Trial counsel explained to the jury that “[a]t the
very end of [the testimony of the defense’s] witnesses it will all be wrapped up
together and tied together by an expert in the field of psychology.”          As
promised, after eliciting first-hand testimony about Gonzales’s deeply troubled
upbringing, trial counsel called Dr. Milam to give her expert opinion as to the
psychological consequences of the neglect, abuse, and drug use on Gonzales.
Dr. Milam testified that Gonzales (a) basically raised himself; (b) was
developmentally delayed; (c) is immature; (d) is paranoid; (e) suffers from
reactive attachment disorder; (f) has antisocial personality features; (g) has
schizotypal personality features; (h) abused drugs from a young age; and (i)
was probably in the top 10% of emotionally damaged children. Dr. Milam
testified that many, if not all, of these issues were connected with his mother’s
use of drugs while pregnant, his severely neglected childhood, and the
pervasive emotional, physical, and sexual abuse he suffered throughout his
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childhood. Beyond Dr. Milam’s extensive testimony, additional testimony by
an abuse expert would most likely have been cumulative, and Gonzales does
not show otherwise. See Coble v. Quarterman, 496 F.3d 430, 436 (5th Cir.
2007) (“Counsel’s decision not to present cumulative testimony does not
constitute ineffective assistance.”). Accordingly, Gonzales has not presented a
substantial claim that his trial counsel were constitutionally ineffective. As a
result, Gonzales’s state habeas attorney was not ineffective for failing to argue
ineffective assistance of trial counsel, and Gonzales therefore cannot overcome
the procedural default of his ineffective assistance of trial counsel claim. See
Garza, 738 F.3d at 676.
                II.    Testimony as to Future Dangerousness
       Gonzales maintains that he is also entitled to a COA because the district
court improperly permitted the prosecution to present expert witness
testimony from Dr. Gripon as to future dangerousness during the mitigation
phase of his trial. Gonzales argues that the State failed to establish that Dr.
Gripon’s testimony was sufficiently reliable to be admissible as required by
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). 3 Gonzales
properly raised his Daubert claim before the CCA on direct appeal and the CCA
rejected the claim on the merits. Due to binding precedent, Gonzales cannot
show that jurists of reason would debate whether the state court’s denial of his
claim was unreasonable.
       In Barefoot v. Estelle, 463 U.S. 880 (1983), the Supreme Court held that
psychiatric testimony predicting a capital defendant’s future dangerousness is
not per se improper. Id. at 898-99. Gonzales’s arguments to the contrary
notwithstanding, our court has consistently held that Daubert did not overrule


       3Although the State discerned five separate points of error raised by Gonzales as to
expert testimony regarding future dangerousness, all of Gonzales’s arguments focus
exclusively on the reliability of Dr. Gripon’s future dangerousness testimony under Daubert.
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Barefoot for the proposition that expert testimony regarding future
dangerousness is permissible. See, e.g., Williams v. Stephens, 761 F.3d 561,
571 (5th Cir. 2014) (maintaining that expert future dangerousness testimony
is permissible under Barefoot and stating that petitioner’s “contention that the
Supreme Court may overrule Barefoot in light of Daubert is completely
speculative”); Roberts v. Thaler, 681 F.3d 597, 608-09 (5th Cir. 2012) (“Barefoot
stands for the proposition that expert testimony predicting a defendant’s
future dangerousness is not per se inadmissible.”); Flores v. Johnson, 210 F.3d
456, 456 n.1 (5th Cir. 2000) (per curiam). Because expert evidence predicting
a capital defendant’s future dangerousness is permissible under Barefoot,
jurists of reason would not debate whether the CCA reasonably determined
that Dr. Gripon’s testimony was properly allowed.
                                CONCLUSION
      For the foregoing reasons, Gonzales has not made the showing required
to obtain a COA and his motion for a COA is therefore DENIED.




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