     Case: 16-70016      Document: 00513750057         Page: 1    Date Filed: 11/07/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                          United States Court of Appeals

                                      No. 16-70016
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                          November 7, 2016

IVAN ABNER CANTU,                                                           Lyle W. Cayce
                                                                                 Clerk
              Petitioner - Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

              Respondent - Appellee




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 2:06-CV-166


Before CLEMENT, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Ivan Cantu requests a certificate of appealability (“COA”) to appeal the
district court’s dismissal of his petition for habeas corpus relief. Cantu brought
a procedurally defaulted claim that his trial counsel was ineffective for failing
to investigate and present evidence of his actual innocence. The district court




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                    No. 16-70016
held that Cantu did not establish cause to excuse the procedural default. We
deny a COA.
                                          I.
          Cantu is on death row in Texas. He was convicted and sentenced to death
in Texas state court for capital murder. 1 The Texas Court of Criminal Appeals
affirmed his conviction and sentence and subsequently denied post-conviction
relief.
          Cantu sought habeas corpus relief in federal district court, raising for
the first time a claim that trial counsel was ineffective for failing to investigate
and present evidence of his actual innocence. The district court dismissed
Cantu’s petition, holding that this claim was procedurally defaulted. Cantu v.
Quarterman, No. 2:06cv166, 2009 WL 728577, at *3-13 (E.D. Tex. Mar. 17,
2009) (denying six claims and dismissing seven others as procedurally
defaulted). This court affirmed. Cantu v. Thaler, 632 F.3d 157, 166-67 (5th Cir.
2011). The Supreme Court vacated and remanded for consideration of Martinez
v. Ryan, 132 S. Ct. 1309 (2012), which was issued after this court’s decision.
See Cantu v. Thaler, 132 S. Ct. 1791 (2012). Martinez 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.” 132 S. Ct.
at 1320. In Trevino v. Thaler, 133 S. Ct. 1911, 1921 (2013), the Supreme Court
extended Martinez to Texas cases. This court remanded to the district court to
decide in the first instance the effect of Martinez on Cantu’s contention that he
had cause for the procedural default. See Cantu v. Thaler, 682 F.3d 1053, 1054
(5th Cir. 2012).



         For a summary of the factual background, see our detailed opinion in Cantu v.
          1

Thaler, 632 F.3d 157 (5th Cir. 2011), vacated, 132 S. Ct. 1791 (2012).
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                                   No. 16-70016
         On remand, the district court applied Martinez and held that Cantu
failed to show cause to excuse the procedural default because he did not set
forth a substantial claim of ineffective assistance of trial counsel or
demonstrate that state habeas counsel was ineffective. See Cantu v. TDCJ-
CID, No. 2:06-CV-166, 2016 WL 3277246, at *6-9 (E.D. Tex. June 15, 2016).
The district court also denied a COA. Id. at *10. Cantu seeks a COA from this
court.
                                         II.
         “[W]hen a habeas corpus petitioner seeks to initiate an appeal of the
dismissal of a habeas corpus petition . . ., the right to appeal is governed by the
certificate of appealability (COA) requirements . . . .” Slack v. McDaniel, 529
U.S. 473, 478 (2000). An “appeal may not be taken” from a final order in a
habeas corpus proceeding without a COA. 28 U.S.C. § 2253(c)(1). A COA may
issue “only if the applicant has made a substantial showing of the denial of a
constitutional right.” Id. § 2253(c)(2). When a claim is dismissed as
procedurally defaulted, the petitioner must show “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, 529 U.S. at 484.
At the COA stage, “we only conduct a threshold inquiry into the merits of the
claims” raised in the habeas petition. Reed v. Stephens, 739 F.3d 753, 764 (5th
Cir. 2014).
                                        III.
         Cantu requests a COA on the following issues: “(1) [w]hether the district
court erred in dismissing Cantu’s claims as procedurally defaulted; and (2)
[w]hether the district court erred by dismissing Cantu’s claims without
conducting an evidentiary hearing.”


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                                 No. 16-70016
                                       A.
       Federal merits review of a procedurally defaulted claim is permitted
when the petitioner is able to “demonstrate cause for the default and actual
prejudice as a result of the alleged violation of federal law.” Hughes v.
Quarterman, 530 F.3d 336, 341 (5th Cir. 2008). Applying Martinez in the COA
context, we have held 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). To establish ineffective assistance of counsel, a petitioner must show
that counsel’s performance was deficient and that the petitioner was
prejudiced by the deficient performance. Strickland v. Washington, 466 U.S.
668, 687 (1984). “The likelihood of a different result must be substantial, not
just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011).
       Here, the district court properly held that Cantu failed to make either
required showing under Martinez. First, as to trial counsel, the district court
reviewed the record and determined that Cantu failed to show that his claim
is substantial. As the district court found, given the overwhelming evidence of
Cantu’s guilt, trial counsel “set out a detailed, reasonable, and informed trial
strategy of focusing on the future dangerousness special issue.” 2016 WL
3277246, at *7. Under Strickland’s deficient performance prong, Cantu cannot
overcome the strong presumption that counsel’s strategy fell within the “wide
range of reasonable professional assistance.” 466 U.S. at 689.
       Second, as to state habeas counsel, the district court noted that counsel
had access to the state court record—which “revealed that the evidence of guilt
was    overwhelming”—and      determined     that   counsel,   after   exercising
professional judgment, was not required to raise every frivolous or futile
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                                 No. 16-70016
argument requested by Cantu. 2016 WL 3277246, at *8-9. On appeal, Cantu
extensively points to Texas “statutory and professional requirements”
regarding investigation into state habeas claims. But on federal habeas review,
the issue is whether state habeas counsel was constitutionally ineffective
under an objective reasonableness standard. See Bobby v. Van Hook, 130 S. Ct.
13, 16-17 (2009). As the district court determined, Cantu fails to meet that
standard.
      Based on our threshold inquiry, we conclude that reasonable jurists
would not find it debatable that the district court was correct in holding that
Cantu failed to establish cause to excuse the procedural default. As such, we
must deny a COA. See Slack, 529 U.S. at 484.
                                       B.
      With respect to the denial of an evidentiary hearing, we have declined to
hold that Martinez requires an opportunity for additional fact finding in
support of cause and prejudice. Segundo v. Davis, 831 F.3d 345, 351 (5th Cir.
2016). Cantu’s claims are based on the existing record, and the district court
analyzed that record in reaching its decision. It is not debatable that the
district court was within its discretion in declining to hold a hearing. See
Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (“[I]f the record refutes the
applicant’s factual allegations or otherwise precludes habeas relief, a district
court is not required to hold an evidentiary hearing.”).
                                      IV.
      The COA is denied.




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