     Case: 11-70029     Document: 00511969853         Page: 1     Date Filed: 08/27/2012




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

                                                                            FILED
                                                                          August 27, 2012
                                       No. 11-70029
                                                                           Lyle W. Cayce
                                                                                Clerk
ROBERT GENE GARZA,

                                                  Petitioner-Appellant
v.

RICK THALER, 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. 7:09-CV-258


Before JOLLY, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Robert Gene Garza was convicted of murder in Texas state court and
sentenced to death. The district court denied habeas relief and refused to certify
any issues for appeal. Garza is now before this court seeking a certificate of
appealability (COA) for his claim that his trial counsel rendered ineffective
assistance. Because we conclude that reasonable jurists could not find debatable
the district court’s conclusion that the state habeas court did not unreasonably




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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apply Strickland v. Washington, 466 U.S. 668 (1984), to the record before it,
Garza’s request for a COA is DENIED.
               FACTUAL AND PROCEDURAL BACKGROUND
      In 2003, Garza was convicted by a jury of capital murder for his
involvement in the September 2002 shooting death of four women outside
Donna, Texas. After a separate punishment hearing, Garza received a death
sentence. In 2007, the Texas Court of Criminal Appeals affirmed Garza’s
conviction and sentence on direct appeal. Garza applied for state habeas corpus
relief. Following an evidentiary hearing, the state habeas court entered a
448-page opinion recommending Garza’s application be denied. In 2008, the
Court of Criminal Appeals adopted the recommendation and denied relief.
      Garza then sought federal habeas relief. In his petition before the district
court, Garza presented nine claims challenging the validity of his conviction and
sentence. The district court granted summary judgment against Garza on the
merits and held sua sponte that Garza was not entitled to a COA on any issue.
Garza is now before this court requesting a COA on two of the claims he
presented to the district court, both of which assert violations of his
constitutional right to effective trial counsel. Specifically, Garza alleges his trial
counsel rendered ineffective assistance by failing to: (1) challenge aggravating
punishment evidence the State could have offered, but did not, and (2) present
any mitigating evidence at the punishment phase of his trial.
                              LEGAL STANDARDS
      Before appealing a district court’s denial of habeas relief, a state prisoner
must obtain a COA from a circuit justice or judge. 28 U.S.C. § 2253(c)(1). Until
a COA has been issued, federal courts of appeals lack jurisdiction to rule on the
merits of appeals from habeas petitioners. Miller-El v. Cockrell, 537 U.S. 322,
335-36 (2003). To obtain a COA, the petitioner must make “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The

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Supreme Court has stated that “[a] petitioner satisfies this standard by
demonstrating 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 further.” Miller-El,
537 U.S. at 327.
      In determining whether jurists of reason could disagree with the district
court’s resolution of constitutional claims, we “view[ ] the petitioner’s arguments
through the lens of the deferential scheme laid out in 28 U.S.C. § 2254(d).”
Barrientes v. Johnson, 221 F.3d 741, 772 (5th Cir. 2000). “Under § 2254(d),
when reviewing a claim adjudicated by a state court on the merits, we pay
deference to the state court’s decision regarding that claim, unless the decision
[is] contrary to, or involve[s] an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States; or . . .
[is] based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” Id. (alterations in original) (quoting
28 U.S.C. § 2254(d)(1) & (2)). “Factual findings are presumed to be correct, and
a petitioner has the burden of rebutting this presumption with clear and
convincing evidence.” Brown v. Dretke, 419 F.3d 365, 371 (5th Cir. 2005) (citing
28 U.S.C. § 2254(e)(1)).
      Garza’s ineffective-assistance-of-counsel claim is governed by the clearly
established law set forth in Strickland v. Washington, 466 U.S. 668 (1984).
Pursuant to Strickland, to have been entitled to relief from the Texas Court of
Criminal Appeals, Garza had to
      show that counsel’s performance was deficient. This requires
      showing that counsel made errors so serious that counsel was not
      functioning as the “counsel” guaranteed the defendant by the Sixth
      Amendment. Second, the defendant must show that the deficient
      performance prejudiced the defense. This requires showing that
      counsel’s errors were so serious as to deprive the defendant of a fair
      trial, a trial whose result is reliable. Unless a defendant makes

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      both showings, it cannot be said that the conviction or death
      sentence resulted from a breakdown in the adversary process that
      renders the result unreliable.

Id. at 687.
       “[T]he proper standard for attorney performance is that of reasonably
effective assistance.” Id.   Thus, “the defendant must show that counsel’s
representation fell below an objective standard of reasonableness.” Id. at 688.
“Strategic choices” by counsel, however, “after thorough investigation of law and
facts relevant to plausible options[,] are virtually unchallengeable.” Id. at 690.
And “the failure to present a particular line of argument or evidence is presumed
to have been the result of strategic choice.” Taylor v. Maggio, 727 F.2d 341, 347
(5th Cir. 1984).
      To demonstrate prejudice, petitioner “must show . . . 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. And the
“likelihood of a different result must be substantial, not just conceivable.”
Harrington v. Richter, 131 S. Ct. 770, 792 (2011) (citation omitted).
      Lastly,“[t]he pivotal question” for federal court review is “whether the
state court’s application of the Strickland standard was unreasonable. This
[question] is different from asking whether defense counsel’s performance fell
below Strickland’s standard.” Id. at 785. Thus, we will only issue a COA if
jurists of reason could disagree with the district court’s conclusion that the state
court’s application of Strickland was reasonable.
                                  DISCUSSION
      Garza first contends his trial counsel rendered ineffective assistance by
failing to challenge aggravating punishment evidence the State could have
offered but ultimately did not. Included in the State’s notice of offenses it
planned to introduce at trial was Garza’s apparent involvement in the January


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                                  No. 11-70029

2003, gang-related murder of six people in Edinburg, Texas, known locally as the
“Edinburg massacre.” While under interrogation for the Edinburg crime, Garza
made statements to police indicating that he had been involved in the murders.
Garza maintains that before he made the statements, police had ignored his
invocation of his right to counsel. Though at Garza’s trial for the murders in
nearby Donna the State did not mention the Edinburg massacre or Garza’s
statements about his involvement, Garza contends his trial counsel should have
investigated the voluntariness of the statements and filed a motion in limine to
prevent their admission.
      The district court held that the state habeas court’s conclusion that Garza
had not effectively invoked his right to counsel during the interrogation was
reasonable. Accordingly, because Garza’s trial counsel had no valid basis to
challenge the statements’ admissibility, the district court found that counsel’s
performance was not deficient. The district court also held that Garza was not
prejudiced because he had not shown that a successful attack on his confession
would have prevented the State from proving his involvement in the Edinburg
crime.
      Based on our review, we conclude that Garza has not demonstrated that
reasonable jurists would find debateable the district court’s decision about
prejudice. Therefore, we need not address any other part of the analysis.
Although Garza clearly was not prejudiced by the Edinburg confession itself
because it never came before the jury, he may be attempting to allege that the
potential of its admission had a chilling effect on his evidence presentation.
Even were that his argument, he has not shown that his statements were the
only evidence the State could have introduced to show his involvement in the
Edinburg murders. The district court found, and Garza does not challenge on
appeal, that the record left open the possibility that Garza’s participation in the
Edinburg crimes could have been shown through eyewitness testimony.

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Moreover, there was DNA evidence that placed Garza at the scene in Edinburg
as revealed in a co-defendant’s case.
      Garza needed to convince the state habeas court that, but for counsel’s
alleged failure to investigate the voluntariness of his statements or challenge
their admission, that the “likelihood of a different result was substantial.” We
conclude that fairminded jurists would not find debatable the district court’s
holding that the state habeas court was not unreasonable in denying relief on
this basis under Strickland.
      Garza next contends his trial counsel rendered ineffective assistance by
failing to present any mitigating evidence at the punishment phase of his trial.
Garza contends that in the light of the overwhelming aggravating evidence
presented by the State – e.g., Garza was a member of a street gang, had an
extensive juvenile record, and had attempted to escape custody during his trial
– trial counsel should have, at a minimum, called to testify two psychologists
who had examined Garza and whose appointment trial counsel had requested
for preparing a mitigation defense. Garza asserts that presenting no evidence
on mitigation cannot be considered a “strategic decision” exempt from challenge
under Strickland.
      The district court construed Garza’s claim as contending only that counsel
was ineffective for failing to present mitigating evidence, not that counsel failed
to conduct a sufficient investigation for mitigation evidence. Relying on the
“well-developed record,” particularly affidavits and testimony from Garza’s trial
counsel before the state habeas court, the court rejected Garza’s claim.
According to Garza’s trial counsel, once the State rested its case without
presenting evidence of Garza’s extensive criminal history or his stated
involvement in the Edinburg massacre, counsel decided, with Garza’s consent,
not to offer any mitigation evidence. The decision was made out of fear that the
State would use cross-examination to bring the more egregious crimes before the

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jury. Also, in addition to discovering potentially mitigating evidence, Garza’s
psychologists had identified offenses and bad acts – e.g., sexual assault and
murder as a youth – that had not been included in the State’s notice of offenses
for introduction at trial. Accordingly, the district court concluded that “the state
habeas court reasonably found that trial counsel made a well-supported strategic
decision to forgo the presentation of mitigation evidence.”
      We conclude that fairminded jurists could not take issue with the court’s
assessment of this claim. First, we think proper, and Garza does not dispute,
the district court’s treatment of his claim as one for failure to present mitigating
evidence, rather than failure to investigate mitigating evidence. The record
demonstrates that trial counsel conducted a thorough investigation for
mitigating evidence, including interviewing several family members and
successfully moving for the appointment of two psychologists to assist in
developing a mitigation defense. We also find correct the district court’s reliance
on the affidavits and testimony from Garza’s trial counsel to find that
considerable thought and discussion went into the decision not to present
mitigating evidence. Although Garza now faults his trial counsel’s decision not
to present evidence on mitigation, he does not dispute that the decision was
made after his trial counsel considered the issue.
      Finally, reasonable jurists would not debate the district court’s conclusion
that trial counsel’s decision not to present mitigating evidence was a strategic
choice unchallengeable under Strickland. Strickland does not “require defense
counsel to present mitigating evidence at sentencing in every case.” Wiggins v.
Smith, 539 U.S. 510, 533 (2003); Smith v. Quarterman, 515 F.3d 392, 405 (5th
Cir. 2008) (“Trial counsel’s failure to present mitigating evidence during the
penalty phase is not per se ineffective assistance.”). Rather, “failure to present
mitigating evidence, if based on an informed and reasoned practical judgment,
is well within the range of practical choices not to be second-guessed” under

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Strickland. Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th Cir. 1992) (quotation
marks and citation omitted). Garza’s trial counsel held a legitimate fear that
offering mitigating evidence could result in the jury being presented with
evidence of, among other things, Garza’s stated involvement with the Edinburg
massacre. And Garza does not dispute the likeliness of this occurring had trial
counsel decided to offer mitigating evidence. As we have held, “a tactical
decision not to pursue and present potential mitigating evidence on the grounds
that it is double-edged in nature is objectively reasonable, and therefore does not
amount to deficient performance.” Rector v. Johnson, 120 F.3d 551, 564 (5th Cir.
1997); see, e.g., St. Aubin v. Quarterman, 470 F.3d 1096, 1102-03 (5th Cir. 2006)
(in life-imprisonment case, counsel’s not presenting evidence of mental-health
history as mitigating evidence was reasonable because it would have opened
door to numerous violent incidents not previously introduced); Riley v. Dretke,
362 F.3d 302, 306 (5th Cir. 2004) (in capital case, counsel’s not presenting
evidence of mental retardation as mitigating evidence was reasonable to prevent
negative jury finding on issue of future dangerousness).
      Because we conclude that reasonable jurists could not find debatable the
district court’s conclusion that the state court did not unreasonably apply
Strickland to Garza’s ineffective-assistance-of-counsel claims, Garza’s request
for a COA is DENIED.




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