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

                                                                            FILED
                                                                         October 22, 2008

                                       No. 08-70005                   Charles R. Fulbruge III
                                                                              Clerk

YOSVANNIS VALLE

                                                  Petitioner-Appellant
v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

                                                  Respondent-Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                                  4:06-cv-03867




Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Yosvannis Valle was convicted of murder and sentenced to death. The
district court denied his Petition for Writ of Habeas Corpus, denied a certificate
of appealability, and granted respondent Nathaniel Quarterman’s Motion for
Summary Judgment. Valle now seeks a certificate of appealability (“COA”) to
appeal the district court’s denial of habeas relief on three claims: (1) his Sixth


       *
        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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 08-70005

Amendment right to counsel was violated when his trial counsel failed to obtain
a psychological evaluation of him by a mental health professional and present
evidence of his post-traumatic stress disorder (“PTSD”); (2) he was denied due
process by the trial court’s exclusion as inadmissible hearsay of the audio and
transcript of an interview with petitioner’s mother; (3) his Eighth Amendment
rights were violated by Texas’s capital-sentencing statutory scheme, because it
does not assign a burden of proof to the mitigation special issue and does not
afford meaningful appellate review to the special issues of mitigation and future
dangerousness.
                                      I
      Yosvannis Valle seeks habeas corpus relief from his capital conviction for
the murder of Jose “Yogi” Junco. The jury found Valle guilty of capital murder
for intentionally causing Junco’s death while in the course of committing or
attempting to commit robbery.
      At the penalty phase of Valle’s trial, the State presented evidence of Valle’s
previous time in prison, as well as evidence linking Valle to three other murders.
The State demonstrated that Valle was a sergeant in a prison gang called La
Raza Unida and that he had possession of a “shank,” or homemade knife, during
his pretrial detention.
      Valle presented evidence that he had been exposed to several family-risk
factors as a child growing up in Cuba.        Dr. Richard Cervantes, a clinical
psychologist, testified that Valle had witnessed his mother forced in various
sexual acts by multiple partners, and that Valle was himself the victim of
physical abuse and severe poverty that led to his exhibiting aggressive behavior
later in life. Dr. Cervantes relied on his interviews with Valle and tapes of
interviews conducted with Valle’s mother and other relatives in Cuba by Dr.
Cervantes’s research assistant Edurna Imana. Valle offered into evidence a
videotaped interview with those relatives, but the trial court ruled that the


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statements contained on the tape were inadmissible hearsay and ordered the
tape played without sound. Instead, Valle played the video portion of the tape
and Imana narrated its contents for the jury.
        Valle’s brother Gabriel also testified as to the abusive circumstances of
their childhood in Cuba. Gabriel testified that their mother had attempted
suicide several times and that her boyfriends were violent towards her and her
sons.
        The jury unanimously answered affirmatively to the questions of whether
the State proved beyond a reasonable doubt that: (1) Valle actually caused
Junco’s death, intended to kill Junco, or anticipated that human life would be
taken; and (2) Valle would commit future criminal acts of violence constituting
a continuing threat to society. The jury also unanimously concluded that the
mitigating evidence was insufficient to justify a life sentence. The trial court
subsequently sentenced Valle to death.
        The Texas Court of Criminal Appeals affirmed the conviction and sentence
and denied a writ of habeas corpus. Valle timely filed a petition for habeas
corpus in the District Court on 14 claims. Respondent Quarterman moved for
summary judgment. The District Court granted summary judgment, denied the
writ, and denied a COA. Valle now appeals for a COA from this court.
                                               II
        In order to appeal the district court’s denial of habeas relief, Valle must be
granted a COA as a “jurisdictional prerequisite.” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003). A COA issues only if Valle makes a “substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Tennard v. Dretke, 542
U.S. 274, 282 (2004). The district court denied Valle’s constitutional claims on
the merits. Thus, Valle must show that “jurists of reason could disagree with
the district court’s resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement to proceed

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further.” Miller-El, 537 U.S. at 327 (citing Slack v. McDaniel, 529 U.S. 473, 484
(2000)). A COA determination consists of an overview of the habeas claims and
a general assessment of their merits; we do not at this stage fully consider the
factual or legal bases that support the claims. Id. at 336.
      We review the district court’s resolution of Valle’s claims under the
deferential standard of the Antiterrorism and Effective Death Penalty Act
(AEDPA). Tennard, 542 U.S. at 282; Leal v. Dretke, 428 F.3d 543, 548 (5th Cir.
2005). Under the AEDPA, a petitioner is granted relief on any issue adjudicated
in a state court proceeding only if (1) the state court’s decision was “contrary to,
or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court”; or (2) the state court decision 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); see also Reed v. Quarterman,
504 F.3d 465, 471 (2007).
      Finally, “any 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).
                                      A
      Valle first seeks a COA on the issue of whether Valle’s Sixth Amendment
right to counsel was violated by his trial counsel’s failure to obtain a
psychological evaluation of him by a mental health professional and offer
evidence of Valle’s PTSD.
      We evaluate an ineffective-assistance-of-counsel claim under the two-
pronged test set out in Strickland v. Washington, 466 U.S. 668 (1984). First,
Valle must show that his attorney’s performance was deficient. The court
measures deficiency against an objective standard of reasonableness. Id. at
2064. In assessing the performance of trial counsel under Strickland, we accord
deference to the strategic decisions made by counsel, endeavoring to “eliminate

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the distorting effects of hindsight,” Harrison v. Quarterman, 496 F.3d 419, 424
(5th Cir. 2007)(quoting Strickland, 466 U.S. at 690-91), and applying the
presumption that counsel’s performance “falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 689. Second, Valle
must show that the deficient performance prejudiced his defense. Id. at 687.
Prejudice is found when “there is a reasonable probability that, but for the
counsel’s unprofessional errors, the result of the proceedings would have been
different.” Smith v. Quarterman, 515 F.3d 392, 404 (5th Cir. 2008)(citing
Dowthitt v. Johnson, 230 F.3d 733, 743 (5th Cir.2000)). Where the prejudice
inquiry takes place in the context of a capital-sentencing hearing, the relevant
question is whether “there is a reasonable probability that, absent the errors, the
sentencer... would have concluded that the balance of aggravating and
mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695.
       Valle argues that his trial counsel should not have relied solely on the
evidence provided by Dr. Cervantes as to the risk factors affecting his childhood
development and should have obtained a thorough examination of Valle by a
mental health professional. After trial, Valle was evaluated by Dr. Paula
Lundberg-Love, a psychologist who concluded that Valle suffered from PTSD
stemming from his childhood abuse.                 Dr. Lundberg-Love opined that the
symptoms of PTSD would cause Valle to take extreme measures to protect
himself and to lash out at perceived threats. Valle contends that this evidence
would have swayed a jury to find that mitigation to a life sentence was justified.
       Valle’s trial counsel made the judgment not to obtain a psychological
evaluation before trial because of the possibility that the state trial court would
order a state-sponsored psychological examination pursuant to Lagrone v. State,
942 S.W.2d 602 (Tex. Crim. App. 1997). As the state court found,1 and the

       1
          The state appeals court issued a summary order affirming the trial judge’s findings
of fact and conclusions of law as to Valle’s habeas petition. These findings and conclusions did

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                                       No. 08-70005

district court affirmed, the trial counsel was justifiably concerned that such an
examination would reveal evidence regarding Valle’s violent behavior that would
damage his mitigation case. Valle v. Quarterman, No. H-06-cv-3867, 2008 WL
416241, *11 (S.D. Tex. 2008). Valle’s attorney instead put forth the evidence of
Dr. Cervantes as to Valle’s childhood, much of which was mirrored in Dr. Love’s
findings.    The state court concluded that Dr. Cervantes’s evidence, which
included interviews with Valle’s relatives conducted in Cuba by his research
assistant, was thorough enough to warrant the decision by trial counsel not to
pursue a formal psychiatric evaluation. Valle’s trial counsel’s decision was
reasonable, and does not meet the standard for deficiency under the performance
prong of Strickland.
       The decision by trial counsel not to have Valle examined by a mental
health professional also did not prejudice Valle’s defense.                     Dr. Love’s
examination elicited information about Valle’s childhood in Cuba that for the
most part had already been addressed in Dr. Cervantes’s trial testimony. The
only additional evidence that might have been derived from a pre-trial
psychiatric evaluation is the diagnosis of PTSD, which the district court noted
could just as easily have led the jury to conclude that Valle’s tendencies to lash
out violently constituted an ongoing threat to society. Valle, 2008 WL 416241,
at *13. The utility of the evidence about his mental health disorders is thus
marginal considered in light of the fact that it might have subjected Valle to
cross-examination about his ability to restrain his violent impulses. Valle has
failed to show a reasonable probability that the inclusion of the evidence of his
mental health disorders would have led to a different outcome. The district


not result from an evidentiary hearing but were essentially adopted from the State’s brief;
however, the State submitted an affidavit from Valle’s trial counsel confirming that the
decision not to use psychological evidence was a strategic one in light of Valle’s erratic and
violent tendencies and the State’s expressed desire to examine Valle pursuant to Lagrone. Aff.
of David Cunningham, Tr. R. 128.

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                                   No. 08-70005

court was correct in affirming the state court’s rejection of Valle’s ineffective
assistance of counsel claim. Reasonable jurists could not disagree with the
district court’s resolution of this question.
                                         B
      The trial court excluded as inadmissible hearsay the audio portion of an
interview conducted with Valle’s mother in Cuba. The court also excluded a
transcript of that interview. Valle makes two arguments with respect to the
exclusion of the audio and transcript: one, that they should have been admitted
under an exception to the hearsay rule; and two, that Valle’s constitutional
interest in producing the mitigation evidence outweighed the State’s interest in
enforcing its hearsay rule.
      Valle appears to argue that the interview audio and transcript fall into two
exceptions to the hearsay rule: the “unavailability exception” and the basis-of-
expert-testimony exception. However, we are not in a position to evaluate this
claim as Valle failed to include any citation to relevant authorities or analysis.
See Pet’r’s Br. 20-22. The invocation of the expert-testimony exception appears
once and is not mentioned again in the brief. Because Valle failed to advance
any arguments in support of the issue, we consider the issue abandoned. See
Justiss Oil Co., Inc. v. Kerr-McGee Ref. Corp., 75 F.3d 1057, 1067 (5th Cir. 1996);
see also FED. R. APP. P. 28 (requiring the brief to contain, inter alia, “the
argument, which must contain...appellant’s contentions and the reasons for
them, with citations to the authorities and part of the record on which the
appellant relies. . .”)
      Even if this issue had been properly briefed, Valle would still not succeed
on the merits. The district court reviewed the state habeas findings as to the
basis-of-expert-testimony exception in its opinion. There, Valle argued that the
interview testimony should have been included because Dr. Cervantes relied on

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it for his expert opinion as to the effects of Valle’s childhood.2 The state appeals
court found that the trial court had not committed an abuse of discretion in
excluding the audio and transcript, as there was a substantial risk that the jury
would treat the videotaped hearsay statements as substantive evidence rather
than information relied upon by the expert in formulating his opinion. Valle,
2008 WL 416241, at * 8; Valle v. State, 109 S.W.3d 500, 505-06 (Tex.Crim.App.
2003). The district court found, and we agree, that Valle has not shown that the
state appellate court’s application of the Texas evidentiary rule was incorrect.
       Valle’s discussion of the “unavailability exception” to the hearsay rule
omits any reference to Texas evidence law, and ultimately does not actually
appear to argue that a hearsay exception applies. Instead, the brief states that
the audio and transcript of the interview with Valle’s mother verify other
testimony about Valle’s childhood and that their exclusion “allowed the State to
argue to the jury that there was no credible mitigating evidence produced by
Petitioner.” Pet’r’s Br. 21-22. Valle appears to reiterate the claim he raised
before the district court; namely, that the evidence is admissible under the
“Statement of Personal or Family History” exception found in Texas Rule of
Evidence 804, which requires a showing of unavailability.3                    TEX. R. EVID.

       2
           Rule 705(d) of the Texas Rules of Evidence provides:

                When the underlying facts or data would be inadmissible in evidence, the court
                shall exclude the underlying facts or data if the danger that they will be used
                for a purpose other than as explanation or support for the expert’s opinion
                outweighs their value as explanation or support or are unfairly prejudicial.
       3
        Texas Rule of Evidence 804(b)(3) states the following as exceptions to the hearsay rule
where the declarant is unavailable as a witness :

       (A) A statement concerning the declarant’s own birth, adoption, marriage, divorce,
       legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact
       of personal or family history even though declarant had no means of acquiring personal
       knowledge of the matter stated; or

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804(b)(3). Valle cannot prevail on this claim. Both the Texas Court of Criminal
Appeals and the district court properly applied Rule 804(b)(3), which only allows
statements about the fact of “birth, adoption, marriage, divorce, legitimacy,
relationship by blood, adoption, or marriage, ancestry,” or other similar facts.
The rule does not cover the interview testimony of Valle’s mother, which dealt
with, among other things, her medical problems, Valle’s childhood abuse, and his
problems with authority. Valle, 2008 WL 416241, at *7. Valle’s claim that a
hearsay exception applies therefore does not merit the grant of a COA.
         As an alternative to his hearsay exception claim, Valle argues that he has
a due process interest in being able to provide evidence and witnesses on his
behalf, and that this interest outweighs the state’s competing interest in
enforcing the hearsay rule. Valle relies primarily upon Chambers v. Mississippi,
410 U.S. 284 (1973), which held that the application of the hearsay rule could
not be applied mechanistically where constitutional rights directly affecting the
determination of guilt are implicated. Id. at 302. The Court extended this
holding to the capital-sentencing context in Green v. Georgia, 442 U.S. 95 (1979),
finding that application of Georgia’s hearsay rule violated due process where the
excluded evidence was “highly relevant to a critical issue in the punishment
phase of the trial... and substantial reasons existed to assume its reliability.” Id.
at 97.
         The district court engaged in a careful analysis that distinguished
Chambers and Green from this case. In both of those cases, there were strong
indicia of reliability, including (1) the existence of corroborating evidence; (2) the



         (B) A statement concerning the foregoing matters, and death also, of another person,
         if the declarant was related to the other by blood, adoption, or marriage or was so
         intimately associated with the other’s family as to be likely to have accurate
         information concerning the matter declared.

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fact that the statements at issue were made spontaneously to close
acquaintances after the murders; and (3) the fact that the statements were
“unquestionably against [the] interest” of the declarants. See Valle, 2008 WL
416241, at * 9 (citing Green, 442 U.S. at 96-97; Chambers, 410 U.S. at 299-300).
No comparable indicia are present here.
      This court has also limited Chambers and Green to their facts and has
interpreted them to mean that “certain egregious evidentiary errors may be
redressed by the due process clause.” Edwards v. Scroggy, 849 F.2d 204, 212
(5th Cir. 1988); see also McGinnis v. Johnson, 181 F.3d 686, 693 (5th Cir. 1999)
(holding that exclusion of hearsay testimony of expert psychologist during
punishment phase of trial was not “unnecessarily limiting, nor did it operate to
render [the] trial fundamentally unfair”). As reasonable jurists would not
disagree that there is nothing “fundamentally unfair” about the exclusion of
Valle’s mother’s hearsay testimony, we must deny a COA on this issue.
                                        C
      Valle also petitions for a COA to appeal the district court’s decision on the
constitutionality of Texas’s death penalty scheme, arguing that the “mitigation
special issue allows the state to introduce evidence that supports an affirmative
finding of future dangerousness without a burden of proof.” Pet’r’s Br. 30. This
is a misstatement, as the mitigation special issue is distinct from the future-
dangerousness special issue. Valle appears to argue that the mitigation special
issue is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000) and
Ring v. Arizona, 536 U.S. 584 (2002) because it does not require the State to
prove beyond a reasonable doubt the absence of those mitigating factors that
would warrant life imprisonment.




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                                 No. 08-70005

      Under TEX. CODE CRIM. PROC. ANN. art. 30.071 §2(e), the jury is asked to
answer the following mitigation special issue:
      Whether, taking into consideration all of the evidence, including the
      circumstances of the offense, the defendant’s character and background,
      and the personal moral culpability of the defendant, there is a sufficient
      mitigating circumstance or circumstances to warrant that a sentence of
      life imprisonment without parole rather than a death sentence be
      imposed.

      See TEX. CODE CRIM. PROC. ANN. art. 37.071 § 2(e)(1) (Vernon 1999). If the
jury answers the special issue in the negative, the trial court must sentence the
defendant to death. If the jury answers in the affirmative or is unable to answer
the issue, the statute requires the trial court to sentence the defendant to
“confinement in the institutional division of the Texas Department of Criminal
Justice for life imprisonment without parole.” See id. § 2(g) (Vernon 1999).
Valle argues that this scheme means that the State can increase the defendant’s
authorized punishment from life imprisonment to death “contingent on” a
negative answer to the mitigation special issue and is thus required by Apprendi
and Ring to prove the absence of mitigating factors beyond a reasonable doubt.
      The Texas Court of Criminal Appeals denied Valle’s claim on the basis of
Prystash v. State, 3 S.W.3d 522, 535-36 (Tex. Crim. App. 1999), which held that
the lack of burden of proof requirement in the mitigation special issue was
constitutional, as it does not lessen the State’s burden to prove the elements of
the capital offense and any aggravating circumstances. While Valle raised a
slightly different issue before the district court– focusing on the use of victim
impact evidence to rebut mitigation evidence offered by the defendant– the
district court found the arguments foreclosed by our precedent.
      In Rowell v. Dretke, 398 F.3d 370 (5th Cir. 2005), we held that “no
Supreme Court or Circuit precedent constitutionally requires that Texas’s

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                                  No. 08-70005

mitigation special issue be assigned a burden of proof.” Id. at 378. “Reasonable
jurists would not debate the district court’s dismissal of this claim as it has been
previously rejected in both state and federal court, and is not supported by
Supreme Court authority.” Scheanette v. Quarterman, 482 F.3d 815, 828 (5th
Cir. 2007); see also Granados v. Quarterman, 455 F.3d 529, 536-37 (5th Cir.
2006), cert. denied, 127 S.Ct. 732 (2006). We therefore may not grant a COA to
Valle on this issue.
      Valle also appears to claim that the mitigation issue and future-
dangerousness special issues are unconstitutional because they are not subject
to meaningful appellate review.       The district court properly rejected both
arguments. Valle’s claim that the mitigation special issue is unconstitutional is
foreclosed by this court’s holding in Moore v. Johnson, 225 F.3d 495 (5th Cir.
2000) that Texas’s special mitigation issue complies with Supreme Court
precedent stating that sentencers are to be given “unbridled discretion” in
considering mitigating factors. Id. at 506-07 (quoting Tuilaepa v. California, 512
U.S. 967, 979-80 (1994)). The argument that the future dangerousness issue
cannot be meaningfully reviewed also holds no water. The district court pointed
to several factors that are the basis for an appellate court to review a jury’s
consideration of the future-dangerousness issue. Valle, 2008 WL 416241, at *
16 (citing Keeton v. State, 724 S.W.2d 58, 61 (Tex.Crim.App. 1987).
      For the foregoing reasons, Valle’s petition for a Certificate of Appealability
is DENIED.




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