     Case: 15-70028      Document: 00513745396         Page: 1    Date Filed: 11/03/2016




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

                                      No. 15-70028                            FILED
                                                                       November 3, 2016
                                                                         Lyle W. Cayce
DAMON ROSHUN MATTHEWS,                                                        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 Southern District of Texas
                             USDC No. 4:12-CV-1939


Before DAVIS, JONES, and HAYNES, Circuit Judges.
PER CURIAM:*
       Petitioner-Appellant Damon Matthews (“Matthews”) seeks a certificate
of appealability (“COA”) to appeal the district court’s denial of habeas relief
and denial of a COA on his petition under 28 U.S.C. § 2254. He claims he was
deprived of his Sixth Amendment right to effective assistance of counsel when
his trial counsel allegedly failed to adequately investigate and present



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-70028
mitigation evidence at the punishment phase of his capital murder trial.
Specifically, he argues that he may suffer from organic brain damage relating
to his mother’s drug and alcohol use while he was in the womb (referred to
variously as Fetal Alcohol/Drug Syndrome or Fetal Alcohol Spectrum Disorder,
hereinafter “FASD”). Matthews’s state habeas counsel failed to raise that claim
in his first state habeas proceeding, so it is procedurally defaulted unless he
can show that his state habeas counsel rendered ineffective assistance in
failing to assert it under Martinez v. Ryan, ––U.S. ––, 132 S. Ct. 1309, 182
L.Ed.2d 272 (2012) (hereinafter Martinez), and Trevino v. Thaler, ––U.S. ––,
133 S. Ct. 1911, 185 L. Ed. 2d 1044 (2013) (hereinafter Trevino).
         The district court found that Matthews failed to satisfy the
Martinez/Trevino exception to the procedural default bar and that even if he
had, he was not entitled to relief on the merits because he failed to show that
his state trial counsel rendered ineffective assistance under either the deficient
performance or prejudice prongs of Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The district court also denied a COA.
Matthews then filed his petition for a COA in this Court. Because we conclude
that no reasonable jurist could debate the district court’s holding that
Matthews failed to satisfy the Martinez/Trevino exception to the procedural
default doctrine, we deny a COA.

I.       FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         In 2004, Matthews was convicted and sentenced to death for the March
6, 2003, murder of Esfandiar Gonzalez near Houston, Texas, and the Texas
Court of Criminal Appeals affirmed on direct appeal. 1 In addition to his direct
appeal, Matthews pursued state habeas relief, asserting a number of claims.


         1   Matthews v. State, No. 74,936, 2006 WL 1752169, at *1–3 (Tex. Crim. App. June 28,
2006).
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Notably, his state habeas counsel did not assert a claim of ineffective-
assistance-of-trial-counsel for his state trial counsels’ failure to present certain
mitigating evidence.
      In his later federal habeas petition, Matthews did assert a claim that his
trial counsel rendered ineffective assistance for failing to investigate and
present mitigation evidence concerning his possible FASD. He admits that he
did not first file that claim in his state habeas proceeding, and the Texas Court
of Criminal Appeals had barred him from asserting it subsequently under the
abuse of the writ doctrine. Ordinarily, such a failure to satisfy state procedural
requirements would have resulted in a procedural default of his federal claim
as well. 2 The district court explained how Matthews intended to get around the
procedural default bar:
      Matthews, however, argues that his state habeas counsel rendered
      ineffective assistance by failing to raise these claims. Citing
      Martinez v. Ryan, 132 S. Ct. 1309 (2012), and Trevino v. Thaler,
      133 S. Ct. 1911 (2013), he argue[s] that such ineffective assistance
      of counsel constitutes cause for his procedural default.
      In Martinez, the Supreme Court carved out a narrow equitable
      exception to the rule that a federal habeas court cannot consider a
      procedurally defaulted claim of ineffective assistance of counsel.
               [W]hen a State requires a prisoner to raise an
               ineffective-assistance-of-trial-counsel claim in a
               collateral proceeding, a prisoner may establish cause
               for a default of an ineffective-assistance claim . . .
               where appointed counsel in the initial-review
               collateral proceeding . . . was ineffective under the
               standards of Strickland v. Washington, 466 U.S. 668
               . . . (1984). To overcome the default, a prisoner must
               also demonstrate that the underlying ineffective-
               assistance-of-trial counsel claim is a substantial one,




      2   See, e.g., Sayre v. Anderson, 238 F.3d 631 (5th Cir. 2001).
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             which is to say that the prisoner must demonstrate
             that the claim has some merit.

      Martinez v. Ryan, 132 S. Ct. 1309, 1318-19 (2012). This Court must
      thus determine whether state habeas counsel was ineffective and,
      if so, whether the underlying claims of ineffective assistance of
      trial counsel are substantial.
      To prevail on a claim for ineffective assistance of counsel,
      Petitioner
             must show that . . . counsel made errors so serious that
             counsel was not functioning as the “counsel”
             guaranteed by the Sixth Amendment. Second, the
             [petitioner] 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.

      Strickland v. Washington, 466 U.S. 668, 687 (1984). In order to
      prevail on the first prong of the Strickland test, Petitioner must
      demonstrate that counsel’s representation fell below an objective
      standard of reasonableness. Id. at 687-88. Reasonableness is
      measured against prevailing professional norms, and must be
      viewed under the totality of the circumstances. Id. at 688. Review
      of counsel’s performance is deferential. Id. at 689.
      In the context of a capital sentencing proceeding, “the question is
      whether there is a reasonable probability that, absent the errors,
      the sentence . . . would have concluded that the balance of
      aggravating and mitigating circumstances did not warrant death.”
      Strickland, 465 U.S. at 695. “A reasonable probability is a
      probability sufficient to undermine confidence in the outcome.” Id.
      at 694. 3
      Under the Martinez/Trevino framework, Matthews does not really focus
on his state habeas counsel’s independent ineffective assistance; rather, he
suggests that his underlying ineffective-assistance-of-trial-counsel claim is so
substantial that his state habeas counsel erred by failing to assert it in his first


      3   See Matthews v. Stephens, No. H-12-1939, at 8-11 (Aug. 4, 2015) (hereinafter
“District Court Opinion”).
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                                 No. 15-70028
state habeas proceeding. With respect to his ineffective-assistance-of-trial-
counsel claim, Matthews asserts that his trial counsels’ investigation into
mitigation evidence was deficient under Strickland and Wiggins v. Smith, 539
U.S. 510, 523, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003), discussed below.
      Matthews argues that if his trial counsel had conducted a better
investigation, they would have discovered evidence that his mother’s use of
drugs and alcohol during her pregnancy with Matthews may have caused him
to develop organic brain damage in the form of FASD. He also contends that
information regarding his mother’s drug and alcohol use was available to trial
counsel at the time. Relying on the testimony of experts retained in this federal
habeas proceeding, Matthews claims FASD may have caused psychiatric and
neuropsychiatric problems, and trial counsels’ failure to investigate and
develop evidence of FASD, as well as present it to the jury, prejudiced him.
      Tracking Matthews’s arguments, the district court primarily focused on
whether or not his underlying ineffective-assistance-of-trial-counsel was
substantial. The district court found that Matthews failed to demonstrate
either the performance or prejudice prong of Strickland. On the performance
prong, the district court noted that Matthews’s trial counsel did know of the
factual basis for an FASD claim. In fact, they filed pretrial motions seeking,
inter alia, funding to retain a psychologist and mitigation specialist,
specifically noting the importance of reviewing records relevant to Matthews’s
mental health, possible FASD, and related factors. His trial counsel actually
retained a mental health expert, Dr. Gilda Kessner, and a mitigation
specialist, Gina Vitale, and neither of them ever advised counsel that
neuropsychological testing was advisable. Accordingly, the district court
concluded that the mitigation investigation in this case was entitled to
Strickland deference:


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                                        No. 15-70028
      Under the Strickland standard, counsel are required to conduct
      reasonable investigation under prevailing professional norms.
      Strickland, 466 U.S. at 688. Counsel are not expected to be experts
      in all fields possibly related to the defense of a criminal defendant.
      As such, counsel can reasonably rely on the advice of those who are
      experts in those fields. See, e.g., McClain v. Hall, 552 F.3d 1245,
      1253 (11th Cir. 2008) (counsel reasonably relied upon expert
      mental health advice, notwithstanding that petitioner later
      obtained a more favorable expert opinion). Keeping in mind
      Strickland’s admonition that “[j]udicial scrutiny of counsel’s
      performance must be highly deferential”, Strickland, 466 U.S. at
      698, this Court cannot conclude that counsel unreasonably failed
      to investigate neuropsychiatric problems when their experts did
      not indicate that such investigation was necessary. 4
      The court concluded that even if Matthews had shown that his counsel
rendered deficient performance, he had failed to show that the deficiency
prejudiced him. It noted that Matthews’s trial counsel presented a great deal
of mitigating evidence, including: his mother’s substance abuse problems and
AIDS-related death; the death of several other family members during his
childhood; the absence of his father; and positive testimony from ministers and
counselors. Dr. Kessner testified that Matthews had several risk factors for
youth violence, that his behavior was affected by childhood traumas and his
not receiving mental health treatment while growing up, and that his
propensity for violence would likely decrease with age, especially given that he
would receive drug, grief, and vocational counseling in prison. In sum,
Matthews’s trial counsel presented a substantial mitigation case.
      The district court found that his trial counsels’ failure to investigate and
introduce evidence of his potential FASD was not prejudicial, in large part
because it would be “double-edged.” Specifically:
      Offering a diagnosis of Fetal Alcohol/Drug Syndrome as a partial
      explanation of Matthews’ violent (and, in this case, deadly)


      4   District Court Opinion at 11-13 (footnote and record citations omitted).
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                                        No. 15-70028
       behavior would inform the jury that Matthews’ violent tendencies
       are at least partially caused by a permanent brain disorder. Such
       evidence might serve to undercut Dr. Kessner’s testimony that
       Matthews is likely to become less violent as he ages, and would
       strengthen the State’s argument that Matthews is likely to commit
       future acts of criminal violence.
       Unlike counsel in Wiggins, who presented no evidence about the
       defendant’s extremely difficult life, see 539 U.S. at 517, Matthews’
       counsel presented extensive mitigating evidence. That evidence
       included information that Matthews’ mother was a substance
       abuser who died of AIDS when Matthews was a child. Topping off
       the information with a formal diagnosis of Fetal Alcohol/Drug
       Syndrome would have added little new information to the
       mitigation case, but would have strengthened the State’s case for
       future dangerousness. Therefore, there is no reasonable
       probability that evidence of Fetal Alcohol/Drug Syndrome would
       have changed the outcome of the sentencing proceeding. 5
       In short, the district court concluded that Matthews failed to
demonstrate under Martinez/Trevino that the underlying ineffective-
assistance-of-trial-counsel claim was substantial under either prong of
Strickland. Thus, the court concluded that the claim remained procedurally
defaulted even under Martinez/Trevino, but even if it were not procedurally
defaulted, the underlying claim had no merit. It therefore dismissed his habeas
petition with prejudice and denied a COA.

II.    APPLICABLE LAW

       A.       JURISDICTION AND STANDARD OF REVIEW

       We have jurisdiction in this application for a COA from the district
court’s denial of habeas relief under 28 U.S.C. § 2254 pursuant to 28 U.S.C. §
1291 and 2253(c)(1)(B).




       5   District Court Opinion at 15-17.
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                                     No. 15-70028
      Under 28 U.S.C. § 2253(c), Matthews may only appeal if he obtains a
certificate of appealability, and he may only obtain one if he makes “a
substantial showing of the denial of a constitutional right,” and the “specific
issue or specific issues” must be indicated in the COA. 6 To meet this standard,
Matthews must demonstrate “that reasonable jurists could debate whether (or,
for that matter, agree that) the petition should have been resolved in a
different manner or that issues presented were adequate to deserve
encouragement proceed further.” 7
      B.     WIGGINS

      This COA application involves essentially the same legal issues which
we discussed at length in our recent decision in Trevino v. Davis, 829 F.3d 328
(5th Cir. 2016) (hereinafter Trevino v. Davis), on remand from the Supreme
Court in Trevino. Most relevantly, it concerns the Supreme Court’s analysis of
a claim for failure to investigate and present mitigation evidence in Wiggins. 8
In Wiggins, the petitioner’s trial counsel did not conduct much of an
investigation or put on an actual mitigation case; they merely made a proffer
to the trial court of the type of mitigation case they would have presented if
the trial court had granted a bifurcation motion.
      The petitioner sought state habeas relief, asserting an ineffective-
assistance-of-trial-counsel claim for failure to investigate. In support, he
submitted a social worker’s “extensive social history report detailing severe
physical and sexual abuse by his own father and mother as well as various
foster parents,” as well as testimony regarding his trial attorneys’ failure to
investigate mitigating evidence. His trial counsel had decided to focus on the



      6  28 U.S.C. § 2253(c)(2) and (3).
      7  Miller–El v. Cockrell, 537 U.S. 322, 336, 123 S. Ct. 1029, 1039, 154 L. Ed. 2d 931
(2003) (internal quotations and citations omitted).
       8 See Trevino v. Davis, 829 F.3d at 341-46.

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                                      No. 15-70028
guilt phase of trial rather than punishment, and they did not retain a social
worker to prepare a social history, even though the state had made funds
available for that purpose. The state habeas court denied relief on the ground
that the trial counsels’ decision to focus on the factual case constituted a trial
tactic protected by Strickland’s “heavy measurement of deference.”
       The Supreme Court eventually reversed. First, it explained that a trial
attorney’s decision not to present mitigation evidence is only justified after that
attorney has fulfilled his or her “obligation to conduct a thorough investigation
of the defendant’s background.” 9 The Court emphasized that under Strickland,
courts must objectively review trial counsels’ performance for “reasonableness
under prevailing professional norms, which includes a context-dependent
consideration of the challenged conduct as seen from counsel’s perspective at
the time.” 10
       The Court explained that not only was the trial counsels’ extremely
limited-scope investigation deficient on its own, but even that deficient
investigation disclosed facts which would have led a reasonable attorney to
investigate further, including his mother’s alcoholism, his time in various
foster homes, his apparent emotional difficulties, and his poor treatment at the
hands of caretakers. 11 The Court emphasized that the trial counsels’ decision
not to put on a mitigation case was inexcusable because the attorneys had
simply failed to conduct any reasonable investigation. 12 It summed up:
       In finding that [the trial counsels’] investigation did not meet
       Strickland’s performance standards, we emphasize that
       Strickland does not require counsel to investigate every
       conceivable line of mitigating evidence no matter how unlikely the


       9 Wiggins, 539 U.S. at 522 (citing Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495,
146 L. Ed. 2d 389, 396 (2000), and Strickland, 466 U.S. at 690-91).
       10 Id. at 523 (internal quotation marks and citations omitted).
       11 Id. at 523-25.
       12 Id. at 525.

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                                            No. 15-70028
         effort would be to assist the defendant at sentencing. Nor does
         Strickland require defense counsel to present mitigating evidence
         at sentencing in every case. Both conclusions would interfere with
         the “constitutionally protected independence of counsel” at the
         heart of Strickland. We base our conclusion on the much more
         limited principle that “strategic choices made after less than
         complete investigation are reasonable” only to the extent that
         “reasonable professional judgments support the limitations on
         investigation.” A decision not to investigate thus “must be directly
         assessed for reasonableness in all the circumstances.” 13
         The Supreme Court also concluded that his trial counsels’ deficient
performance also prejudiced him because the mitigation evidence they failed
to uncover was “powerful.” It showed a history of severe abuse, starting with
his “alcoholic, absentee mother” and continuing through an unbroken series of
extreme hardships—“the kind of troubled history we have declared relevant to
assessing a defendant’s moral culpability.” 14 Because Wiggins had satisfied
both prongs of Strickland, the Supreme Court reversed and remanded.

III.     ANALYSIS

         Matthews continues to focus on whether his underlying ineffective-
assistance-of-trial-counsel claim is “substantial” without really addressing
whether his state habeas counsel was ineffective for failing to assert the claim
in the initial state habeas proceeding. Those are two different inquiries, as our
recent opinion in Trevino v. Davis illustrates. A procedural default is not
excused under Martinez/Trevino simply because the ineffective-assistance-of-
trial-counsel claim is “substantial”; a petitioner must show that his state
habeas counsel was ineffective for failing to bring it.
         In Trevino v. Davis, we noted that although much of Trevino’s second
amended habeas petition was devoted to his ineffective-assistance-of-trial-


         13   Id. at 533 (citations omitted).
         14   Id. at 534-35.
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                                         No. 15-70028
counsel claim (i.e., to whether or not that claim was substantial), it also
specifically argued that his state habeas counsel was ineffective because “there
was an immense amount of material not included in the record indicating that
trial counsel had indeed been ineffective at the punishment phase of trial,” and
his state habeas counsel had violated his independent “duty and obligation to
undertake an investigation to determine whether such a claim was a viable
one.” 15
       The crux of the petitioner’s claim in Trevino v. Davis concerning his state
habeas counsel’s independent ineffective assistance was the fact that his trial
counsel’s mitigation investigation was “facially deficient” and thus would have
a put a reasonably competent state habeas attorney on notice as to the
possibility of an ineffective-assistance-of-trial-counsel claim. We agreed:
       In this case, Trevino’s state trial counsel presented only one
       mitigation witness and no other evidence during the punishment
       phase. The deficiency in that investigation would have been
       evident to any reasonably competent habeas attorney. Thus, we
       conclude that reasonable jurists not only could debate the
       correctness of the district court’s conclusion on the
       Martinez/Trevino issue, but would agree that the district court
       reached the wrong conclusion. 16
       Trevino v. Davis illustrates that the issue of state habeas counsel’s
performance is separate from the issue of state trial counsels’ performance
under Martinez/Trevino. It also illustrates the type of deficiency in a mitigation
record that might put state habeas counsel on notice to investigate a Wiggins
claim. In Trevino v. Davis, we concluded that the state habeas counsel should
have known to investigate the possible basis of an ineffective-assistance-of-
trial-counsel claim because trial counsel had put on only a single lay witness,
Trevino’s aunt, and even that brief testimony (approximately five pages)


       15   829 F.3d at 348 (quoting habeas petition).
       16   Id. at 349.
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indicated that additional investigation might have turned up more fruitful
mitigating evidence. The state habeas attorney should have been on notice of
a possible claim largely because of the paucity of mitigating evidence
presented.
         Simply put, the mitigation case investigated and presented by
Matthews’s trial counsel was infinitely better than the mitigation case in
Trevino v. Davis. The record in this case shows an abundance of mitigating
evidence, presented in multiple volumes of punishment phase transcripts.
Trial counsel retained a mitigation specialist and clinical psychologist, and
that psychologist testified, along with Matthews’s family members, as to his
social history, including his mother’s substance abuse, his difficult life, and
virtually all of the other factors highlighted in Wiggins as being relevant to a
good mitigation defense. Indeed, the mitigation case presented here sounds
precisely like “the kind of troubled history we have declared relevant to
assessing a defendant’s moral culpability.” 17
         Examining the record as it would have appeared at the time of the first
state habeas proceeding, we conclude that no reasonable jurist would debate
whether Matthews’s state habeas counsel rendered ineffective assistance for
failing to assert an ineffective-assistance-of-trial-counsel claim for failure to
conduct a constitutionally sufficient mitigation investigation. The mitigation
evidence presented at trial, in terms of both quantity and quality, would not
suggest to a reasonable habeas attorney that Matthews’s trial counsel
rendered ineffective assistance. Strickland does not require a perfect defense,
only a constitutionally sufficient defense, and the investigation and evidence
presented are a far cry from the facts of Wiggins, Trevino v. Davis, and similar
cases.


         17   Wiggins, 539 U.S. at 534-35.
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                                 No. 15-70028
      We conclude that no reasonable jurist would debate the district court’s
resolution of the question of whether Matthews’s state habeas counsel
rendered ineffective assistance by failing to bring an insubstantial ineffective-
assistance-of-trial-counsel claim pertaining to Matthews’s possible FASD.
Consequently, no reasonable jurist would debate whether he can overcome the
procedural default bar under Martinez/Trevino. Accordingly, Matthews is not
entitled to a COA.
      COA DENIED.




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