     Case: 14-70019      Document: 00512913791         Page: 1    Date Filed: 01/23/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT



                                      No. 14-70019
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         January 23, 2015
PABLO LUCIO VASQUEZ,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Petitioner-Appellant

v.

WILLIAMS 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. 7:04-CV-143


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Pablo Lucio Vasquez, a Texas death row inmate, appeals the district
court’s denial of his application for a certificate of appealability (“COA”) to
challenge the denial of his petition for a writ of habeas corpus. We DENY
Vasquez’s request for a COA and AFFIRM.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                FACTS AND PROCEDURAL BACKGROUND
      Vasquez was convicted of the murder of 12-year-old David Cardenas on
the night of April 17-18, 1998, in Donna, Texas. An anonymous caller notified
a police officer that Cardenas had been slain during a party that Vasquez
attended. When Cardenas’s body was found, he was missing one of his arms
and part of the other, had no skin on his back, and had a hole in the back of his
head. An autopsy concluded that the cause of death was a major fracture in
the back of Cardenas’s skull caused by blunt force.         The body was also
mutilated after death by a means that caused bones to shatter.
      After recovering Cardenas’s body, police detained Vasquez. He admitted
to hitting Cardenas in the head with a pipe and cutting his throat. He also
stated that he and an accomplice dragged Cardenas’s body to a field for burial.
Fearing that Cardenas was still alive, one of the perpetrators hit Cardenas in
the face with a shovel. Vasquez also took a gold ring and chain from the body.
Cardenas’s sister confirmed that her brother had been wearing a gold ring and
chain that night. Additionally, Vasquez’s cousin testified that Vasquez told
her he had killed the boy because Cardenas did not “give him what he wanted.”
      In December 1998, a district court jury in Hidalgo County convicted
Vasquez of robbing and murdering Cardenas. Based on the jurors’ answers to
the special issues set forth in Article 37.071 of the Texas Code of Criminal
Procedure, the trial court sentenced him to death. On direct appeal in April
2002, the Texas Court of Criminal Appeals affirmed. While that appeal was
pending, Vasquez filed for a writ of habeas corpus in state court. The district
court entered findings of fact and conclusions of law, and recommended that
relief be denied. The Court of Criminal Appeals agreed and denied relief in
May 2002. Shortly thereafter, Vasquez filed a successive state petition raising
thirteen new claims. The Court of Criminal Appeals dismissed all but one of

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the claims as an abuse of the writ after finding that they did not meet any of
the exceptions permitting consideration of claims raised in a subsequent
application. See TEX. CODE CRIM. PROC. art. 11.071 § 5(a). The final claim was
remanded to the district court for consideration, and that court recommended
that relief be denied on the merits. The Court of Criminal Appeals adopted the
recommendation in March 2004.
      In April 2004, Vasquez filed a federal application for a writ of habeas
corpus in the United States District Court for the Southern District of Texas.
In December 2005, a magistrate judge recommended that certain claims raised
by Vasquez, including all of the claims at issue here, be dismissed on the basis
of procedural default.
      Subsequent to this recommendation but before action by the district
court, the Supreme Court recognized a limited exception to the procedural
default rule for claims of ineffective assistance of trial counsel and determined
that this exception applies to Texas capital cases. See Trevino v. Thaler, 133
S. Ct. 1911 (2013); Martinez v. Ryan, 132 S. Ct. 1309 (2012). After receiving
supplemental briefing from the parties regarding the applicability of these
cases, the magistrate judge concluded that Martinez and Trevino are
inapplicable and again recommended that the claims be dismissed as
procedurally barred. In doing so, the magistrate judge also reached the merits
of Vasquez’s ineffective assistance of counsel claims.
      In March 2014, the district court adopted the magistrate judge’s
recommendation and granted the State’s motion for summary judgment. Four
months later, the court denied Vasquez’s request for a COA to appeal five of
the thirteen issues raised in his habeas petition. Vasquez now seeks a COA
from this court on those same five issues.


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                                  No. 14-70019

                                 DISCUSSION
      In order to obtain a COA, a prisoner must make “a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Additionally,
the Supreme Court has held that “when the district court denies a habeas
petition on procedural grounds without reaching the prisoner’s underlying
constitutional claim, a COA should issue . . . if 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.” Slack v. McDaniel, 529 U.S. 473, 478 (2000) (emphasis added). We
conclude that jurists of reason would find no grounds upon which to debate the
district court’s procedural ruling dismissing Vasquez’s claims.


I. The District Court’s Procedural Ruling
      Vasquez argues that he has made the requisite showing for a COA as to
five of the claims raised in his habeas petition. The Texas Court of Criminal
Appeals dismissed these claims as an abuse of the writ because they did not
meet any of the exceptions permitting consideration of claims raised in a
subsequent habeas application. See TEX. CODE CRIM. PROC. art. 11.071 § 5(a).
As a result, the district court dismissed these claims as procedurally defaulted
when Vasquez raised them in his federal habeas petition.
      Procedural default occurs when “the state judgment rests on
independent and adequate state procedural grounds.” Coleman v. Thompson,
501 U.S. 722, 730 (1991).      In Texas, subsequently raised claims may be
dismissed unless: (1) “the factual or legal basis for the claim was unavailable
on the date the applicant filed the previous application,” (2) “no rational juror
could have found the applicant guilty beyond a reasonable doubt,” or (3) “no

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rational juror would have answered in the state’s favor one or more of the
special issues that were submitted to the jury . . . .” TEX. CODE CRIM. PROC.
art. 11.071 § 5(a)(1)-(3). This rule is an independent and adequate procedural
ground upon which to base a procedural default ruling. See Rocha v. Thaler,
626 F.3d 815, 830 n.70 (5th Cir. 2010) (collecting cases). We except from this
treatment, however, dismissals in which the Court of Criminal Appeals
determines that the prisoner’s claims were previously unavailable pursuant to
Section 5(a)(1) but nevertheless denies the claims on the merits. Id. at 838.
      In this case, the Court of Criminal Appeals said simply that Vasquez’s
claims “are dismissed as an abuse of the writ because they do not contain
sufficient facts establishing an exception allowing for consideration in a
subsequent application.” When faced with such a “boilerplate dismissal,” this
court does “not presume that there [are] no independent and adequate state-
law grounds for a state court’s decision unless we first determine that it fairly
appears that the state court addressed the merits of the prisoner’s federal
constitutional claims for habeas relief.” Id. (citation and internal quotations
omitted).   Importantly for purposes of determining what “fairly appears” in
the Court of Criminal Appeals decision, that court did not state that the claims
were previously unavailable but unmeritorious.        Instead, its holding was
limited to the language we have quoted. Accordingly, we conclude that the
state court’s decision was based on adequate and independent state grounds
and that jurists of reason would find no basis upon which to debate the district
court’s dismissal of Vasquez’s claims as procedurally barred.


II. The Supreme Court’s Martinez and Trevino Decisions
      The district court concluded that the Supreme Court’s recent decisions
in Martinez and Trevino did not undermine this adequate and independent

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                                     No. 14-70019

procedural ruling. In Martinez, the Supreme Court held that a prisoner may
bring a procedurally defaulted ineffective assistance of trial counsel claim in
federal habeas proceedings when post-conviction counsel’s ineffectiveness in
initial-review collateral proceedings caused the default. See 132 S. Ct. at 1315.
In Trevino, the Court concluded that this exception to the procedural default
rule applies in Texas capital cases. See 133 S. Ct. at 1915. In order to overcome
the default, however, the prisoner must first demonstrate that post-conviction
counsel, by failing to raise the ineffective assistance claims, both performed
deficiently and prejudiced the prisoner’s defense. See Martinez, 132 S. Ct. at
1318; Strickland v. Washington, 466 U.S. 668, 687 (1984). Next, the prisoner
must demonstrate that jurists of reason could disagree about whether the
underlying ineffective assistance claims have some merit. See Martinez, 132
S. Ct. at 1318; Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
      Two of Vasquez’s claims do not pertain to the effectiveness of counsel. Of
the three remaining claims, two are ineffective assistance of trial counsel
claims and one relates to post-conviction counsel’s alleged ineffectiveness for
failing to raise those ineffective assistance claims. 1 We review these issues
separately.


      a. First Ineffective Assistance of Trial Counsel Claim
      Vasquez contends that his trial counsel should have objected to the trial
judge’s momentary absences during voir dire. Although the nature of the
absences is unclear, it appears the judge left the courtroom on several occasions
to get glasses of water for prospective jurors and perhaps for other purposes.
According to Vasquez, these episodes conveyed the message that “the


      1  Vasquez also asserts other grounds for post-conviction counsel’s ineffectiveness.
These claims remain procedurally barred.
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proceedings were not sufficiently important to merit [the judge’s] presence.”
Additionally, Vasquez notes several occasions in which the judge “overruled
defense objection[s] . . . he had not heard.” By this he seems to mean only that
the judge did not hear the original articulation of some objections, since
counsel fully explained each of them upon the judge’s return. Finally, Vasquez
argues, without further explanation, that he may not have been convicted or
sentenced to death had the judge been present for the entirety of voir dire.
      In considering Vasquez’s ineffective assistance claim, we “must indulge
a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance . . . .” Strickland, 466 U.S. at 689. To
overcome this presumption, Vasquez must demonstrate that his trial counsel’s
performance “fell below an objective standard of reasonableness.” Id. at 688.
A mere failure to object is insufficient, because “counsel is not required to make
futile motions or objections.” Koch v. Puckett, 907 F.2d 524, 527 (5th Cir. 1990)
(citation omitted). In this case, there is nothing to suggest that counsel’s
actions were unreasonable. Vasquez makes no argument that the judge’s
absences affected the proceedings other than that jurors might have gotten the
impression that the judge considered voir dire to be unimportant. Whatever
jurors perceived from the absences, we cannot say that counsel acted
unreasonably by failing to object.
      Moreover, Vasquez has not demonstrated that his trial counsel’s failure
to object resulted in prejudice. To demonstrate prejudice, a defendant must
show “that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. Vasquez has not met this standard.




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       b. Second Ineffective Assistance of Trial Counsel Claim
       Vasquez contends that his trial counsel should have objected to the trial
court’s excusal of twenty-six prospective jurors who were opposed to the death
penalty but, he says, were “qualified to serve as jurors.” He further contends
that trial counsel should have attempted to rehabilitate the excused jurors.
Had counsel done either, he argues, “at least some of the jurors would have
been different” and he may not have been convicted or sentenced to death.
       A juror may not be excused “for cause based on his views about capital
punishment unless those views would prevent or substantially impair the
performance of his duties as a juror in accordance with his instructions and his
oath.” Adams v. Texas, 448 U.S. 38, 45 (1980). Nevertheless, a juror “must be
willing not only to accept that in certain circumstances death is an acceptable
penalty but also to answer the statutory questions without conscious distortion
or bias.” Id. at 46.
       Trial counsel’s failure to object to the dismissal of jurors in this case did
not constitute deficient performance. The excluded jurors in question listed in
their juror questionnaires that they could never return a verdict requiring the
assessment of the death penalty “under any circumstances.” Before dismissing
these jurors for cause, the trial judge questioned them and confirmed that they
felt strongly about their objections to capital punishment and would not be able
to assess the case fairly as a result. 2 In other words, the judge did not merely
dismiss the jurors for their views about capital punishment; he dismissed them
because they were not willing to impose the death penalty and could not


       2  Vasquez identifies two jurors who did not categorically object to capital punishment.
One testified that she would be willing to consider the death penalty but would have a
difficult time imposing it. Another testified that she supported the death penalty but would
not impose it herself. In both instances the jurors expressed serious doubts about their ability
to fairly assess the case in light of their views.
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analyze the case without distortion or bias. This approach was in accord with
Supreme Court precedent, and trial counsel therefore had no reason to object
to the dismissals.       Additionally, trial counsel’s decision not to attempt to
rehabilitate potential jurors who were “unequivocal in their feelings against
the death penalty” does not constitute ineffective assistance of counsel. Bridge
v. Lynaugh, 838 F.2d 770, 776 (5th Cir. 1988).
       Vasquez has also failed to demonstrate a reasonable probability that,
had his trial counsel objected or attempted rehabilitation, the result of the
proceedings would have been different. To demonstrate the impartiality of the
excluded jurors via objection or rehabilitation, counsel would have been
required to argue that the jurors testified untruthfully by attesting that they
would not impose the death penalty under any circumstances and/or could not
view the case fairly. There is little to suggest that such efforts would have
succeeded. Even if they had, the jurors may have been excused for cause on
the basis of inferred bias due to their dishonesty. Cf. United States v. Scott,
854 F.2d 697, 699 (5th Cir. 1988); Burton v. Johnson, 948 F.2d 1150, 1159 (10th
Cir. 1991).


       c. Ineffectiveness of Post-Conviction Counsel Claim
       Vasquez’s post-conviction counsel filed a 40-page brief in support of his
state habeas application and asserted three ineffective assistance of trial
counsel claims, but did not include the two ineffective assistance claims
Vasquez now presents. 3           Vasquez argues that this omission constituted



       3 It appears that post-conviction counsel may, in fact, have attempted to assert
Vasquez’s second ineffective assistance of trial counsel claim but failed to brief it adequately.
Nevertheless, because we conclude that this claim is meritless, counsel’s conduct was not
prejudicial.
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ineffective assistance. The Supreme Court has held, however, that “appellate
counsel who files a merits brief need not (and should not) raise every
nonfrivolous claim, but rather may select from among them in order to
maximize the likelihood of success on appeal.” Smith v. Robbins, 528 U.S. 259,
288 (2000).   In order to prove ineffective assistance, the defendant must
demonstrate that “a particular nonfrivolous issue was clearly stronger than
issues that counsel did present.” Id. Moreover, “[c]ounsel cannot be deficient
for failing to press a frivolous point.” Sones v. Hargett, 61 F.3d 410, 415 n.5
(5th Cir. 1995); see also Koch, 907 F.2d at 527.
      Vasquez has not attempted to demonstrate that his ineffective assistance
of trial counsel claims were “clearly stronger” than the claims raised by his
post-conviction counsel. Additionally, as already discussed, the ineffective
assistance claims that post-conviction counsel now asserts should have been
raised are without merit. Accordingly, counsel did not perform deficiently by
failing to raise those claims.
      We DENY Vasquez’s request for a COA and AFFIRM.




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