     Case: 12-70015       Document: 00512512685         Page: 1     Date Filed: 01/27/2014




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

                                                                            FILED
                                                                         January 27, 2014

                                       No. 12-70015                        Lyle W. Cayce
                                                                                Clerk

JORGE VILLANUEVA,

                                                  Petitioner–Appellant,
v.

WILLIAM STEPHENS, 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. 4:02-CV-4122


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Jorge Villanueva was convicted and sentenced to death for the murder of
Maria Jova Montiel. He requests a certificate of appealability (COA) to appeal
the district court’s denial of federal habeas relief. The request is denied in part
and granted in part.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                        I
      In January 1995, Villanueva was charged with capital murder during the
course of a burglary and aggravated sexual assault of Montiel in Harris County,
Texas. The trial court appointed Allen C. Isbell and Gilbert Villarreal to
represent Villanueva, and together, they filed multiple motions on Villanueva’s
behalf.   Three weeks before trial, both attorneys requested permission to
withdraw because of false complaints Villanueva had lodged against them with
the Texas State Bar. The court granted the withdrawal, appointed Jerry
Guerinot and Anthony Osso to represent Villanueva, and continued the trial
date to September 1996 in order to give new counsel time to prepare.
      Guerinot and Osso filed a motion to adopt all motions filed by prior counsel
and filed additional motions in preparation. Less than three weeks prior to trial,
Philip M. Campa filed a motion to be substituted as Villanueva’s retained trial
attorney. Concerned that the trial date was so close, the trial court extensively
questioned Villanueva about the change in counsel. This questioning revealed
that Campa had never tried a death penalty case. The court also apprised
Villanueva that death penalty cases have distinct procedures, that paying for
counsel raised the issue of payment for experts, and that the court was unwilling
to grant any further continuances. Despite these considerations, Villanueva
reiterated his choice to have Campa represent him and the court allowed the
substitution of counsel. Thereafter, the State reindicted Villanueva under a new
case number, and trial commenced in October 1996. The trial lasted seven days.
      The trial record shows that on August 28, 1994, Villanueva was drinking
with friends when he told them that he had looked inside Montiel’s window and
saw “her body on the floor with blood all over.” He eventually gave in to his
friends’ urging to call the police and an anonymous 911 call was made. After the
police arrived at Montiel’s home, her neighbor told them to investigate the man
living across the street, referring to Villanueva, because he had been harassing

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                                       No. 12-70015
her. When questioned by the police about various scratches on his face and
body, Villanueva attributed them to a fight with his wife. Villanueva’s wife,
however, denied a fight had occurred. He later claimed his scratches came from
cutting weeds and from his cat.
      Villanueva agreed to accompany the police to their station and consented
to the collection of blood, hair, and saliva samples. A few months later, the DNA
test results connected Villanueva to the crime and he was arrested. After
waiving his rights, Villanueva confessed to the murder. In his statement, he
described how he had raped Montiel, strangled her, and left her dead on the bed.
He also confessed to having stolen a radio from her kitchen, which he gave to a
friend the following day.
      The jury found Villanueva guilty of capital murder.                      During the
punishment phase, Campa did not call any witnesses at Villanueva’s request.
Campa asked Villanueva several questions on the record to demonstrate that
Villanueva had instructed Campa not to call family members or any other
witnesses to testify at this phase. After considering two special issue questions,
the jury sentenced Villanueva to death.
      Villanueva unsuccessfully sought appellate review of his conviction and
sentence1 and subsequently failed in his state habeas application as well.2
Villanueva then filed a federal petition for writ of habeas corpus, which was
denied. Villanueva now seeks a COA from this court raising six ineffective
assistance of counsel claims. He argues his trial counsel was ineffective in: (1)
failing to secure a hearing and rulings on the motions filed by his prior counsel;
(2) failing to interview and procure witnesses for the guilt-innocence phase of
trial; (3) failing to investigate facts relevant to expert testimony and evidence in


      1
          Villanueva v. State, No. 72,612 (Tex. Crim. App. Sept. 23, 1998) (unpublished).
      2
          Ex parte Villanueva, No. 49,591-01 (Tex. Crim. App. Oct. 31, 2001) (unpublished).

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support of the prosecution’s case; (4) failing to conduct competent voir dire of the
venire; (5) failing to effectively direct-examine and cross-examine witnesses, and
committing other evidentiary errors; and (6) failing to present any evidence
during the punishment phase of trial.
                                                II
       Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), a petitioner must obtain a COA before he can appeal a district court’s
denial of requested habeas relief.3 A COA will not issue unless the petitioner
makes a “substantial showing of the denial of a constitutional right.”4 Such a
showing is made by demonstrating that “the issues are debatable among jurists
of reason; that a court could resolve the issues [in a different manner]; or that
the questions are adequate to deserve encouragement to proceed further.”5 Until
a COA has been issued, federal courts lack jurisdiction to rule on the merits of
appeals from habeas petitioners.6
       All six of Villanueva’s issues assert the denial of his constitutional right
to effective assistance of counsel.7 Violations of this right are assessed under the
well-established Strickland v. Washington8 test, which requires the petitioner
to demonstrate that (1) “counsel’s representation fell below an objective standard
of reasonableness,” and that (2) “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been

       3
           28 U.S.C. § 2253(c)(1).
       4
           Id. § 2253(c)(2).
       5
         ShisInday v. Quarterman, 511 F.3d 514, 520 (5th Cir. 2007) (alterations and emphasis
in original).
       6
           Miller-El v. Cockrell, 537 U.S. 322, 335-38 (2003) (citing 28 U.S.C. § 2253(c)(1)).
       7
           U.S. CONST. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right
. . . to have the Assistance of Counsel for his defence.”).
       8
           466 U.S. 668 (1984).

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different.”9 Recognizing that “the purpose of the effective assistance guarantee
. . . is not to improve the quality of legal representation” but instead “to ensure
that criminal defendants receive a fair trial,” the Supreme Court has explained
that “[j]udicial scrutiny of counsel’s performance must be highly deferential.”10


                                             III
      Villanueva first faults Campa for not reurging and litigating the motions
filed by prior counsel. Campa, however, did file a “Motion To Adopt All Motions
Of Prior Appointed Counsel,” which the state trial court granted both orally and
in writing. Based on these facts, the district court denied this claim in summary
fashion without addressing Villanueva’s arguments.                We conclude that
Villanueva failed to demonstrate that reasonable jurists would disagree with the
district court’s denial of this Strickland claim.
      According to Villanueva, Campa was deficient because he failed to
incorporate Villanueva’s original case number within the text of his motion.
While that number was printed at the top of the motion, someone penciled over
it with “730975”—Villanueva’s new case number following his reindictment.
Villanueva therefore contends that this motion must have been filed under
730975 and that all prior motions bearing the original case number were never
considered. Villanueva also cites to Campa’s affidavit, in which Campa states
that it was an “oversight” on his part that the motion did not include the old case
number in order to foreclose the assertion that this was a trial strategy.
      Villanueva’s argument fails to meet his Strickland burden; accordingly,
the district court’s denial was not unreasonable. First, although Campa’s
affidavit admits to an oversight, Villanueva provides the court with no basis


      9
          Strickland, 466 U.S. at 687-88, 694.
      10
           Id. at 689.

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upon which to find that an attorney’s omission of a previous case number within
the text of a motion is objectively unreasonable. Furthermore, even if we were
to hold that Villanueva established deficient performance, he has not shown that
he was prejudiced as a result. Villanueva assumes that Campa’s motion was
separately filed and that the previous motions were never considered—he shows
no evidence that this actually occurred. Nor does he present any evidence to
show that there is a reasonable probability that, but for Campa’s error, the trial
would have had a different result. Accordingly, we deny a COA on this claim.
                                               IV
       Villanueva next claims that Campa failed to investigate his case, both
before and after trial began. While the district court denied this claim as “vague
and speculative,” Villanueva contends that reasonable jurists could find that
Campa’s investigations were inadequate because Campa never interviewed the
police officers or suppression hearing witnesses, and because he failed to hire a
private investigator and criminologist. He further disagrees with the district
court’s rejection of the presumptive-prejudice test from United States v. Cronic,11
which does not inquire into counsel’s actual performance or require the
defendant to show the effect it had on the trial in order to find prejudice in some
circumstances.12
       Under Strickland, an attorney has a duty to make reasonable
investigations,13 but a petitioner “who alleges a failure to investigate on the part

       11
            466 U.S. 648 (1984).
       12
          Cronic, 466 U.S. at 659-60 (“Circumstances of that magnitude may be present on
some occasions when although counsel is available to assist the accused during trial, the
likelihood that any lawyer, even a fully competent one, could provide effective assistance is so
small that a presumption of prejudice is appropriate without inquiry into the actual conduct
of the trial.” (citing Powell v. Alabama, 287 U.S. 45, 53 (1932)). Villanueva argues in the
alternative that his defense was prejudiced based on the evidentiary errors Campa made,
which are addressed in Part VII.
       13
            See Strickland, 466 U.S. at 691.

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of his counsel must allege with specificity what the investigation would have
revealed and how it would have altered the outcome of the trial.”14 Although the
presumptive-prejudice test in Cronic does not require inquiry into counsel’s
actual performance, the Supreme Court explicitly limited the scope of this test
to “circumstances that are so likely to prejudice the accused,” such as “the
complete denial of counsel” or where designation of counsel was “either so
indefinite or so close upon the trial as to amount to a denial of effective and
substantial aid in that regard.”15 Neither was true in this case. Villanueva had
assistance from counsel, and while Campa was hired three weeks before trial
was originally scheduled to begin, this substitution occurred at Villanueva’s
request and after extensive questioning by the trial court to ensure that
Villanueva understood the implications.
      Barring Cronic, Villanueva must satisfy the general Strickland burden of
stating with specificity how he was prejudiced by the failure to investigate.
Villanueva’s claim fails to meet this standard. The district court correctly notes
that Villanueva did not identify what information Campa would have gleaned
from interviewing the police officers or what additional investigation would have
revealed that would have helped in the suppression hearing.                   Nor does
Villanueva identify what evidence would have been revealed had Campa used
a private investigator or a criminologist. We deny a COA on this claim.
                                              V
      Villanueva next argues that Campa failed to investigate and utilize the
forensic evidence properly. He asserts that independent DNA testing should
have been conducted both during and after trial, and that Campa should have



      14
         Gregory v. Thaler, 601 F.3d 347, 352 (5th Cir. 2010) (emphasis added) (quoting
United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989)).
      15
           Cronic, 466 U.S. at 658-60.

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retained an expert to assess the State’s protocols given the allegations of
noncompliance with DNA lab procedures.
      Reasonable jurists could not debate the district court’s denial of this
Strickland claim because Villanueva does not demonstrate how Campa’s actions
were objectively unreasonable. He fails to explain why Campa should have
conducted independent DNA testing prior to trial. Additionally, Campa’s cross-
examination of the State’s experts and closing argument were sufficient to
address any alleged noncompliance with lab procedure.16 Accordingly, we also
deny a COA on this claim.
                                             VI
      Villanueva contends that Campa did not competently conduct voir dire
because he failed to pursue potentially disqualifying issues. The district court
held that Villanueva “inadequately briefed this claim in state court” because
while he listed questions that Campa should have asked, Villanueva “did not
link any unasked questions to any purportedly biased juror.” Accordingly, under
Cullen v. Pinholster,17 the district court held that it was foreclosed from
considering Villanueva’s “new” arguments of prejudice in specific jurors since
habeas review is limited to “what a state court knew and did.” We agree.
      In Pinholster, the Supreme Court held that review under § 2254(d)(1) “is
limited to the record that was before the state court that adjudicated the claim
on the merits.”18 AEDPA limits federal court review of state court decisions for
contrary or unreasonable applications of “clearly established Federal law,” which
can only be determined by confronting the facts that were before the state court



      16
        See Harrington v. Richter, 131 S. Ct. 770, 791 (2011) (“In many instances cross-
examination will be sufficient to expose defects in an expert’s presentation.”).
      17
           131 S. Ct. 1388 (2011).
      18
           Pinholster, 131 S. Ct. at 1398.

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when it rendered its decision.19 This circuit further explained that under
Strickland, a petitioner alleging deficient performance during jury selection
must identify “any particular juror [who] was in fact prejudiced” and must
establish that had counsel’s questioning focused on a specific area of bias, the
bias would have been found.20 The petitioner must also show prejudice caused
by the deficiency such that “there is reasonable probability that the result of the
proceedings would have been different.”21 Because Villanueva did not identify
specific examples of bias that failed to be elicited due to deficient questioning or
demonstrate how Campa’s acts during voir dire affected the outcome of his case,
reasonable jurists could not disagree with the district court’s denial of his claim.
We therefore deny a COA.
                                               VII
      Villanueva’s next Strickland claim argues that Campa was inept at direct
examination and cross-examination and committed numerous evidentiary errors
that prejudiced his defense. Villanueva identifies four categories in which
Campa failed to make adequate objections: (1) hearsay objections, (2) leading
questions and narrative answers, (3) chain of custody and authentication, and
(4) speculative and conclusory testimony. In addition, Villanueva asserts that
even if each trial error individually did not amount to Strickland prejudice, the
cumulative effect of the errors did. We deny a COA on all of these claims.
      Villanueva first objects to the district court’s holding that the state habeas
court reasonably found no constitutional error in counsel’s failure to make
hearsay objections.         The district court cited examples to demonstrate the
inconsequential effect of the unobjected-to evidence. Rather than contesting


      19
           Id. at 1398-99 (quoting 28 U.S.C. § 2254(d)(1)).
      20
           See Neville v. Dretke, 423 F.3d 474, 483 (5th Cir. 2005).
      21
           Id.; see also Clark v. Collins, 19 F.3d 959, 965 (5th Cir. 1994).

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these specific examples, Villanueva argues that they are not representative of
Campa’s deficiencies. However, just as with his previous arguments, Villanueva
provides no basis upon which to consider whether reasonable jurists could
disagree. Without particular allegations as to the examples the district court
failed to consider, Villanueva has not established how counsel’s performance was
deficient. Accordingly, we decline to grant a COA on this subclaim.
       Villanueva next asserts that Campa failed to object when the prosecutor
repeatedly led witnesses and allowed “devastating” narrative testimony. This
court has held that the “failure to object to leading questions and the like is
generally a matter of trial strategy as to which [this court] will not second guess
counsel.”22 We have further held that there can be no Strickland claim where
a petitioner fails to “explain how those instances likely would have resulted in
a different trial outcome.”23 Villanueva’s sole argument is that the district court
imposed a higher burden of proof for prejudice in violation of the Supreme
Court’s decision in Berger v. United States,24 in which the Court held that
prejudice to the accused can be presumed where there is prosecutorial
misconduct.25 However, Berger involved a level of misconduct not alleged here.26
Furthermore, Berger concerned government misconduct whereas Villanueva
challenges his retained counsel’s performance.27                     Accordingly, the policies

       22
            Burnett v. Collins, 982 F.2d 922, 930 (5th Cir. 1993).
       23
            See id.
       24
            295 U.S. 78 (1935).
       25
            See Berger, 295 U.S. at 89.
       26
          Id. (“[W]e have not here a case where the misconduct of the prosecuting attorney was
slight or confined to a single instance, but one where such misconduct was pronounced and
persistent, with a probable cumulative effect upon the jury which cannot be disregarded as
inconsequential.”); see also id. at 84 & n.* (prosecutor misstated evidence, deliberately
misunderstood witness statements, assumed prejudicial facts not in evidence, and more).
       27
            Id. at 80.

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underlying Berger do not apply here.28 Because Villanueva presents no basis
from which reasonable jurists could find prejudice, we deny a COA on this
subclaim.
       Villanueva next argues that Campa should have objected to the
introduction of State’s Exhibits 56 and 85 through 89 since they were not
properly authenticated. Although the district court denied this claim because
Villanueva did not establish gaps in the chain of custody, Villanueva asserts that
the “issue is not that Campa failed to object to evidence where there was a ‘gap
in chain of custody’” but that “Campa failed to object to evidence that had not
been properly authenticated.” However, Villanueva failed to identify with
specificity how these exhibits were improperly authenticated or, that even if they
were not, that these exhibits could not have possibly been authenticated.29
Because reasonable jurists could not disagree that Villanueva failed to show
deficiency or prejudice, we deny a COA on this subclaim.
       Villanueva next contends that Campa failed to object to conclusory and
speculative statements made by witnesses. As stated previously, this court has
held that the “failure to object to leading questions and the like is generally a
matter of trial strategy as to which [this court] will not second guess counsel.”30
This case bears no resemblance to cases where federal courts have considered




       28
         See id. at 88 (“The United States Attorney is the representative not of an ordinary
party to a controversy, but of a sovereignty whose obligation to govern impartially is as
compelling as its obligation to govern at all; and whose interest, therefore, in a criminal
prosecution is not that it shall win a case, but that justice shall be done. . . . Consequently,
improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt
to carry much weight against the accused when they should properly carry none.”).
       29
         In his application, Villanueva specifies state evidentiary rule violations that were not
presented in his state habeas application. Accordingly, we are precluded from considering
these “new” arguments. See supra note 19 and accompanying text.
       30
            E.g., Burnett v. Collins, 982 F.2d 922, 930 (5th Cir. 1993).

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evidentiary errors despite an asserted trial strategy.31 Accordingly, we also
decline to grant a COA on this subclaim.
       Lastly, Villanueva argues that the cumulative effect of Campa’s failures
to object prejudiced the outcome of his case. The district court held that even if
Campa had made each of the objections Villanueva argues he should have made,
the objections would not have lessened the impact of the other evidence in this
case. In any event, as explained above, the lack of objections were either
determined to be reasonable strategy or to not be errors at all.                      Because
Villanueva failed to show that Campa was ineffective, there is nothing to
cumulate.32 We therefore deny a COA on this subclaim.
                                             VIII
       In his final Strickland claim, Villanueva asserts that Campa failed to
present mitigating evidence during the punishment phase of his trial. Because
Villanueva instructed Campa not to call any mitigating witnesses, he would
ordinarily be precluded from bringing a Strickland claim under Schriro v.
Landrigan.33 He argues, however, that his waiver was invalid because Campa
inadequately advised him regarding the importance of mitigating evidence and

       31
            See supra notes 26-28 and accompanying text.
       32
         E.g., United States v. Hall, 455 F.3d 508, 520 (5th Cir. 2006) (“Our clear precedent
indicates that ineffective assistance of counsel cannot be created from the accumulation of
acceptable decisions and actions.”).
       33
          550 U.S. 465, 478 (2007) (“[I]t [i]s not objectively unreasonable for [a] court to
conclude that a defendant who refuse[s] to allow the presentation of any mitigating evidence
could not establish Strickland prejudice . . . .”); Sonnier v. Quarterman, 476 F.3d 349, 362 (5th
Cir. 2007) (“[W]hen a defendant blocks his attorney’s efforts to defend him, including
forbidding his attorney from interviewing his family members for purposes of soliciting their
testimony as mitigating evidence during the punishment phase of the trial, he cannot later
claim ineffective assistance of counsel.”); see also Clark v. Thaler, 673 F.3d 410, 418-19 (5th
Cir. 2012) (“When a petitioner argues that his attorney failed to investigate mitigation
evidence, the Supreme Court has said the proper inquiry is ‘not whether counsel should have
presented a mitigation case,’ but ‘whether the investigation supporting counsel’s decision not
to introduce mitigating evidence of [the defendant’s] background was itself reasonable.’”
(alterations in original) (quoting Wiggins v. Smith, 539 U.S. 510, 523 (2003))).

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because his waiver was not “informed and knowing.”34 The State contends that
no “informed and knowing” requirement exists for waiver of the right to present
mitigating evidence, and that Villanueva’s claim is indistinguishable in its
operative facts from the claim rejected by the Supreme Court in Landrigan.
Questions as to this claim are adequate to deserve encouragement to proceed
further. We therefore grant a COA on his final claim.
                                         *        *         *
      For the foregoing reasons, we DENY in part and GRANT in part the
petition for a COA.




      34
           See Clark, 673 F.3d at 422.

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