     Case: 10-70004     Document: 00511665311         Page: 1     Date Filed: 11/14/2011




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

                                                                            FILED
                                                                        November 14, 2011

                                       No. 10-70004                        Lyle W. Cayce
                                                                                Clerk

CARLOS TREVINO,

                                                  Petitioner
v.

RICK THALER, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,

                                                  Respondent



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:01-CV-306


Before DAVIS, SMITH, and DENNIS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge.*
        Petitioner Carlos Trevino was convicted of capital murder in Texas state
court and sentenced to death. The district court denied each of Trevino’s eight
claims for habeas relief, but granted a certificate of appealability (“COA”)
pursuant to 28 U.S.C. § 2253(c) on three of these issues. Trevino now petitions
this court to issue COAs authorizing appeal from the district court’s denial of
habeas corpus relief regarding the five issues on which the district court denied


       *
         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 R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-70004

COA. Because reasonable jurists would not find it debatable that the district
court correctly rejected these five claims, we DENY Trevino’s petition for COA
regarding these issues. We further address the three issues on which the
district court did grant COA. Finding these claims without merit, we AFFIRM
the district court’s denial of relief on these grounds.
                                         I.
                                        A.
      We summarize the key facts and procedural background recited at length
by the district court. United States v. Trevino, 678 F. Supp. 2d 445, 449-55 (W.D.
Tex. 2009). The body of 15-year old Linda Salinas was discovered in Espada
Park in San Antonio Texas on June 10, 1996.               The San Antonio Police
Department began an investigation into Salinas’s death.             Following the
investigation, on April 8, 1997, a Bexar County, Texas grand jury indicted
Trevino on a charge of capital murder for intentionally and knowingly causing
the death of Linda Salinas by cutting and stabbing her with a deadly weapon
while in the course of committing and attempting to commit the aggravated
sexual assault of Salinas. Trevino rejected the state’s subsequent plea offer and
chose to go to trial.
      Testimony at Trevino’s trial established that on the evening of June 9,
1996, he accompanied Santos Cervantes, Bryan Apolinar, Seanido “Sam” Rey,
and Juan Gonzales (Trevino’s cousin), on a trip in Apolinar’s car to a store to buy
beer for a party they had been attending. Cervantes enticed 15-year old Linda
Salinas to get into Apolinar’s car with the assurance Apolinar would take
Salinas to a nearby fast-food restaurant.
      Instead of driving to the restaurant, Apolinar drove the group to Espada
Park, where Cervantes, Apolinar, and Rey sexually assaulted Salinas while she
unsuccessfully struggled to escape. Gonzales testified as the prosecution’s key
witness regarding the following: (1) Gonzales saw Trevino hold Salinas down

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while Rey raped her; (2) at one point, Trevino urged Gonzales to rape Salinas,
but Gonzales refused; (3) Gonzales overheard Apolinar, Cervantes, and Trevino
discuss their mutual desire not to leave any witnesses behind; (4) Gonzales
heard Rey say “we don’t need no witnesses” and heard Cervantes repeat the
same comment, then heard Trevino reply “we’ll do what we have to do”; (5) at
that point, Gonzales returned to the group’s vehicle; (5) when the others
returned, Gonzales noticed that Cervantes and Trevino had blood on their shirts.
      Gonzales further testified that following the incident, during the group’s
ensuing drive away from the scene, Cervantes made a comment that it was
“neat” or “cool” about how Trevino had “snapped” Salinas’s neck, and also made
a comment about a knife. Trevino responded with the comments “I learned how
to kill in prison” and “I learned how to use a knife in prison.” Gonzales also
testified that, after the incident, Trevino told Gonzales not to say anything to the
police. Further, Gonzales testified that when he asked Cervantes why he killed
the girl, Cervantes responded “mind your own business.” Gonzales additionally
testified that while he never saw Trevino or anyone else with a knife at the scene
of the murder, Gonzales had seen Cervantes with a knife a few days before
Salinas’s murder and, two days after the murder, Cervantes told Gonzales he
had broken the knife and thrown it into a river.
      Salinas’s body was discovered in Espada Park the day after the murder.
According to expert testimony at Trevino’s trial, an autopsy revealed (1) Salinas
suffered two stab wounds to the left side of her neck, one of which was fatal; (2)
Salinas sustained soft tissue damage in her vaginal area and at her anal
opening; (3) Salinas sustained no internal injuries to her neck other than those
caused by the two stab wounds, and there was no physical evidence anyone had
attempted to “snap” her neck; and (4) there were scratches on Salinas’s legs and
fresh bruises on her breasts.



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       Other evidence during the guilt/innocence phase of Trevino’s trial included
testimony from forensic and DNA experts establishing (1) the examination of a
pair of blue women’s shorts and a pair of white women’s panties found at the
crime scene, both identified by Linda Salinas’s mother as belonging to Linda,
revealed the presence of polyester and cotton fibers which were consistent with
a pair of slacks owned by Trevino; and (2) a blood stain found on Linda Salinas’s
white panties contained a mixture of the DNA from at least two persons, with
DNA testing eliminating as possible sources of the DNA all but Salinas and
Trevino from among those identified by Gonzales as present at the scene.1
       The jury returned a guilty verdict. During the punishment phase of trial,
the prosecution presented evidence regarding Trevino’s culpability and future
dangerousness, including his former arrests and his admitted membership in a
violent street gang. As mitigating evidence, the defense presented Trevino’s
aunt, who testified generally that she knew Trevino to be a good person and
that he had experienced certain difficulties in his life, including the absence of
his father and his mother’s alcohol problems.
       The jury returned its verdict at the punishment phase of trial, finding (1)
that Trevino would commit criminal acts of violence in the future which would
constitute a continuing threat to society; (2) Trevino actually caused the death
of Linda Salinas or, if he did not actually cause her death, he intended to kill her
or another, or he anticipated a human life would be taken; and (3) there were
insufficient mitigating circumstances to warrant a sentence of life imprisonment.
In accordance with the jury’s verdict, the state trial court imposed a sentence of
death.



       1
        The state’s expert testified that 1 of every 2,684 members of the southwestern United
States Hispanic population has the same DNA profile identified on the panties and that the
DNA evidence did no more than rule out as possible sources of the blood the other individuals
present at the scene except for Trevino and Salinas.

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      Trevino directly appealed his conviction and sentence, asserting 19 claims
for relief. The Texas Court of Criminal Appeals affirmed his conviction and
sentence. Trevino v. State, 991 S.W.2d 849 (Tex. Crim. App. 1999). While his
direct appeal was still pending, Trevino filed an application for state habeas
corpus relief in which he urged 46 grounds for relief. The state habeas trial
court held an evidentiary hearing during which Trevino’s former trial counsel
testified in part that (1) the defense contacted Gonzales prior to trial and knew
what testimony he would give; (2) Trevino never denied participating in the
offense and admitted he was present when Salinas was killed; (3) when defense
counsel pressed Trevino about the facts of the offense, Trevino responded he was
too stoned at the time of the offense to recall details; and (4) Trevino never
denied saying “I learned to kill in prison.” The state habeas trial court denied
the habeas corpus application. The Texas Court of Criminal Appeals adopted
the state habeas trial court’s findings and conclusions and denied Trevino’s state
habeas corpus application. Ex parte Carlos Trevino, WR-48,153-01 (Tex. Crim.
App. April 4, 2001).
      On March 14, 2002, Trevino filed his original petition for federal habeas
corpus relief in the district court, asserting four claims for relief. He
subsequently filed, and the district court granted, an unopposed motion for stay,
seeking leave to return to state court and explore a potential mental retardation
claim, as well as other unexhausted claims.
      Trevino then filed his second state habeas corpus application, asserting
new claims that (1) his trial counsel rendered ineffective assistance by failing to
adequately investigate, develop, and present available mitigating evidence
during the punishment phase of trial; and (2) the Supreme Court’s holding in
Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242 (2002) precludes his execution
because he suffers from fetal alcohol syndrome. The Texas Court of Criminal
Appeals dismissed Trevino’s second state habeas corpus application pursuant

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to the Texas writ-abuse statute in an unpublished, per curiam order. Ex parte
Carlos Trevino, WR-48,153-02, 2005 WL 3119064 (Tex. Crim. App. November 23,
2005).
      Thereafter, Trevino filed, and the district court granted, another motion
for stay in which Trevino sought to return to state court and exhaust a new
claim based on his federal habeas counsel’s discovery in the state’s files of a
written witness statement dated June 12, 1996 given by Rey indicating that
Cervantes, not Trevino, stabbed the victim.
      Trevino then filed a motion for appointment of counsel in state court,
seeking legal representation in connection with this new claim. However, for
over two years the state judicial officers either failed or refused to appoint
counsel for Trevino to pursue this claim, despite entreaties from the district
court. The district court then lifted the stay and federal proceedings resumed.
                                       B.
      On December 8, 2008, Trevino filed his amended petition for federal
habeas corpus relief, in which he asserted eight claims for relief. The district
court denied relief on all claims, but granted COA on three of these claims.
Trevino now appeals the district court’s rejection of those three claims. Trevino
also seeks COAs to authorize appeal of the claims on which the district court
denied COA.
      Trevino’s primary assertion in the current appeal is that prosecutors failed
to disclose Rey’s June 12, 1996 written statement which suggested that Santos
Cervantes stabbed Salinas and that this nondisclosure violated Trevino’s
constitutional rights pursuant to Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194
(1963).
      The record evidence indicates that this June 12, 1996 statement was the
second of three signed, written statements Rey gave to police on June 12 and 13,
1996 during the investigation of Salinas’s death. A report created by Detective

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                                  No. 10-70004

Charles Gresham summarized all of the witness statements made during the
investigation, including Rey’s three statements.
      In his first statement made on June 12, 1996, Rey essentially denied any
involvement in the crime. Gresham’s report accurately summarizes this first
statement. When Gresham confronted Rey with contradictory testimony from
witnesses, Rey made a second statement the same day. In the pertinent part of
this second statement, Rey stated that he and his friends drove with the victim
from the store to Espada Park where Santos Cervantes took the victim into the
woods by himself and then returned alone about 15 minutes later. According to
Gresham’s summary, when Rey asked Santos Cervantes where the girl was,
“Santos told him he killed her.” The full written statement is lengthier and
includes more detail. This second statement forms the basis for Trevino’s Brady
claim on this petition.
      On June 13, 1996, Gresham obtained arrest warrants for Rey and Trevino.
After being taken into custody, Rey made a third signed, written statement to
the police on June 13. This third statement reads in pertinent part as follows:
      This is the third statement I have given to the police. Everything
      I have said in my second statement about how the girl Linda ended
      up in the car is true. . . . We got to the park. Santos [Cervantes] and
      the girl got out of the car and went down the hill. I stayed on the
      top of the hill where we parked the car. Me, Bryan [Apolinar],
      Thate [Gonzales], and Carlos [Trevino] stayed with the car for about
      five minutes. All of use went down to where Santos [Cervantes]
      was. When I got to where Santos [Cervantes] and Linda were Linda
      had he[r] pants down to her ankles and her shirt was up. I could
      see her breasts she did not have her bra on . . . . Santos [Cervantes]
      was having sex with Linda . . . . After Santos [Cervantes] finished,
      I think Carlos [Trevino] had sex with her. Carlos [Trevino] had sex
      with her about ten seconds. I had sex with Linda next. I only went
      about ten seconds. After me Thate [Gonzales] had sex with Linda.
      He went about ten seconds. Bryan [Apolinar] had sex with Linda
      next he went about a minute. Santos [Cervantes] had sex with
      Linda again. Carlos [Trevino] and Bryan [Apolinar] at the same


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                                      No. 10-70004

       time told me and Thate [Gonzales] to go up and look out. Santos
       [Cervantes] was still having sex with Linda. Up to this point I did
       not see anyone hit Linda. No one yelled at her that I know of.
       Thate [Gonzales] and me went back up the hill to the car. Thate
       [Gonzales] and me got in the car. We both got in the back. They
       were down there about five minutes, Santos [Cervantes], Bryan
       [Apolinar] and Carlos [Trevino]. Thate [Gonzales] and me were
       wondering what was taking so long. All three of them came up the
       hill. I asked what happened Carlos [Trevino] said they killed her
       that they cut her throat. Santos [Cervantes] said they cut her
       throat, we killed her[.] I asked how they said we cut her throat.
       Carlos [Trevino] said don’t tell anybody. Carlos [Trevino] started to
       brush his shoes off with his hand, I saw they had blood on them.

(underlined emphasis added). Gresham’s report included an accurate summary
of Rey’s third statement. The summary contained the following description of
the most relevant part of Rey’s third statement:
       Seanido [Rey] stated Santos [Cervantes], Bryan [Apolinar], and
       Carlos [Trevino] then returned to the car and when he asked Carlos
       [Trevino] what had happened he was told they had cut her throat.
       He reported he observed Carlos [Trevino] brushing his shoes off
       with his hand and he could see there was blood on them.2


      2
        According to Gresham’s report, Rey’s third statement was largely consistent with
Apolinar and Cervantes’ statements. Gresham summarized Apolinar’s statement as follows:

       Bryan [Apolinar] reported Carlos [Trevino] started jerking on her and he could
       tell he was trying to break her neck. Bryan [Apolinar] stated at this time he
       couldn’t handle it any more and he walked back to the car. He stated about a
       minute later they all come back up the slope except Linda [Salinas] and he
       could see Carlos [Trevino] had blood all over him that he was wiping off with a
       shirt. Bryan [Apolinar] stated he could also see Carlos [Trevino] had a knife
       that he was also wiping off and that no one else had blood on them.

       Apolinar was convicted of sexually assaulting Salinas. In upholding Apolinar’s
conviction, the Texas Court of Appeals took note of Apolinar’s statement that he witnessed
Trevino “stab the victim.” Apolinar v. Texas, No. 04-99-00644-CR, 2000 WL 1210922, *1 (Tex.
Ct. App. Aug. 16, 2000) (unpublished).

      Cervantes pleaded guilty to Salinas’s murder. Gresham’s summary of Cervantes’s
statement contains a similar description of the crime:


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       Following the trial of this case, Rey pleaded guilty to murder and is
currently serving a 50-year sentence. In connection with his guilty plea, Rey
stipulated to the facts contained in Gresham’s police report and his witness
statements, all three of which were attached to his stipulation. See State v. Rey,
No. 97-CR-1717C (290th Dist. Ct., Bexar County, Tex. Mar. 25, 1998) (factual
stipulations and attached exhibits).3
       At some point during the instant action, Trevino’s federal habeas counsel
discovered Rey’s second June 12, 1996 written statement. The full, signed
statement had been kept in one of the state’s separate files and, thus, had not
been previously turned over to Trevino’s lawyers. Nevertheless, the original
prosecutors in Trevino’s case have provided affidavits in connection with this
action asserting that they provided Trevino’s trial counsel with a copy of


       He reported he then see Carlos [Trevino] grab up Linda and he had her by the neck
       with both arms and was pushing with them. Santos [Cervantes] stated Carlos
       [Trevino] put her down and Sam [Rey] put his foot on her neck and told her ‘don’t move
       bitch.’ Santos [Cervantes] stated he could hear gurgling noises coming from Linda
       while this was going on. He stated he then saw Sam [Rey] move his foot and Carlos
       [Trevino] grabbed Linda [Salinas] up by the hair and stabs her twice.
       3
          This appeal has been complicated by the fact that Trevino’s counsel placed Rey’s
second written statement into the record, but Rey’s third written statement inexplicably does
not appear in the record on appeal. The district court, therefore, did not have the benefit of
reviewing Rey’s third written statement. Nevertheless, all three of Rey’s signed, written
statements appear in the record of Rey’s murder case in Bexar County district court. The
existence and the content of these statements are beyond dispute and, moreover, our review
of Trevino’s Brady claim is de novo. Therefore, we take judicial notice of Rey’s third written
statement. See Brown v. Lippard, 350 F. App’x 879, 883 n.2 (5th Cir. 2009) (taking judicial
notice of state courts records outside the record on appeal). This is consistent with our routine
practice in habeas appeals of taking judicial notice of all related proceedings brought by the
appellant, including state proceedings, “even when the prior state case is not made a part of
the record on appeal.” See Moore v. Estelle, 526 F.2d 690, 694 (5th Cir. 1976). If we failed to
take judicial notice of Rey’s third written statement, the court’s understanding of the record
evidence would be incomplete. See id. (“For a proper understanding of protracted litigation
we may draw upon the records of all the preceding cases.”). Because Trevino has not had an
opportunity to have input into our decision to take judicial notice of documents in the state
court proceedings involving Rey, we afford him the right to raise any objection he may have
by means of a petition for rehearing, which objection we will consider filed before our opinion
issued.

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Gresham’s entire report before trial, including Gresham’s summary of Rey’s
three statements. Trevino’s two trial attorneys, Gus Wilcox and Mario Trevino,
have provided counter-affidavits stating that they do not recall ever seeing
Gresham’s summaries of Rey’s statements.
      However, the record of Trevino’s first state habeas proceeding is
inconsistent with the affidavits of Trevino’s attorneys. During that proceeding,
Wilcox and Mario Trevino both gave testimony strongly suggesting that they had
evaluated the witness statements in Gresham’s report. Mario Trevino testified
that he had been given access to statements of the prosecution’s potential
witnesses, as well as various police reports, and that he was aware of at least
“two guys that gave statements that were pointing the finger to Mr. Trevino.”
Wilcox went further and testified that because he knew that all of the state’s
potential witnesses would inculpate Trevino, Wilcox had adopted a trial strategy
of not calling any witnesses while instead relying on cross-examination in an
attempt to create a reasonable doubt. The potential witness list that prosecutors
provided to Trevino’s attorneys prior to trial included Rey.4


      4
          The following exchange with Wilcox took place at the state habeas proceeding:

      Q. [W]hat theory of or what defensive posture did you decide to take in front of the jury
      at guilt/innocence?
      A. Well, I think what we were hoping to be able to somehow to do, is somehow show
      that he was merely present and did nothing to commit the crime.
      Q. In order to do it through a witness, you would have had to call one of the State’s
      potential witnesses, right?
      A. Well, right. That’s part of the problem. So, I mean, I was going to - - We would try
      and develop that through cross-examination at best, really. That’s what we were going
      to have to do.
      Q. Because, correct me if I’m wrong, but if you would have called any of those
      witnesses, they would have put your client at the scene, right?
      A. That’s right.
      Q. And hence corroborated the witnesses called by the State; correct?
      A. Well, yeah.
      Q. So you made a strategic decision to try to present a case of reasonable doubt
      through the cross examination of the State’s witnesses?
      A. That’s basically it.

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      On this petition, Trevino relies on Rey’s second written statement to argue
that if that statement had been disclosed, the defense could have shown that
Cervantes, rather than Trevino, killed the victim. Trevino asserts that the
alleged nondisclosure of the entire written statement had a prejudicial effect at
both the guilt and sentencing stages of his trial in violation of his rights under
Brady.
      Trevino has also raised various other claims, including a claim that his
trial counsel failed to effectively investigate and present available mitigating
information during the sentencing phase of Trevino’s trial. As discussed further
below on a claim-by-claim basis, the district court rejected each of Trevino’s
claims for relief.
                                         II.


      Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”),
“[b]efore an appeal may be entertained, a prisoner who was denied habeas relief
in the district court must first seek and obtain a COA . . . .” Miller-El v. Cockrell,
537 U.S. 322, 335, 123 S. Ct. 1029, 1039 (2003); 28 U.S.C. § 2253(c)(1). Trevino
is entitled to a COA only if he can make “a substantial showing of the denial of
a constitutional right.” Miller-El, 537 U.S. at 336, 123 S. Ct. at 1039 (citing §
2253(c)(2)). To meet this standard, Trevino 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.”           Id. (internal quotations and
citations omitted); accord Tennard v. Dretke, 542 U.S. 274, 288, 124 S. Ct. 2562,
2572 (2004).




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      In making a COA inquiry, we must consider that AEDPA required the
district court to defer to the state court’s resolution of Trevino’s claims, except
in limited circumstances. Foster v. Quarterman, 466 F.3d 359, 365 (5th Cir.
2006). Under AEDPA, federal courts may not grant habeas relief with respect
to a claim adjudicated on the merits in state court unless that adjudication (1)
resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established federal law, as determined by the Supreme
Court of the United States; or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the
state court proceedings. 28 U.S.C. § 2254(d)(1)-(2); see also Penry v. Johnson,
532 U.S. 782, 792, 121 S. Ct. 1910, 1918 (2001). We “must presume that the state
court’s factual findings are correct unless [Trevino] meets his burden of
rebutting that presumption by clear and convincing evidence.”             Reed v.
Quarterman, 555 F.3d 364, 368 (5th Cir. 2009) (citing 28 U.S.C. § 2254 (e)(1)).
      “[A]bsent special circumstances, a federal habeas petitioner must exhaust
his state remedies by pressing his claims in state court before he may seek
federal habeas relief.” Orman v. Cain, 228 F.3d 616, 619-20 (5th Cir. 2000); 28
U.S.C. § 2254(b)(1). Special circumstances permitting federal courts to review
a claim before it has been exhausted in state court include (1) when there is an
absence of available state corrective process; or (2) when circumstances exist
that render such process ineffective to protect the federal habeas petitioner’s
rights. 28 U.S.C. § 2254(b)(1)(B)(i)-(ii).
      In reviewing an issue on which the district court granted COA, “we review
the district court’s findings of fact for clear error and its conclusions of law de
novo, applying the same standards to the state court’s decision as did the district
court.” Busby v. Dretke, 359 F.3d 708, 713 (5th Cir. 2004).

                                        III.


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                                        No. 10-70004

       We first address the five issues on which the district court denied COA.
                                               A.
       Trevino first argues that the state violated his constitutional rights under
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963) by failing to disclose Rey’s
second written statement dated June 12, 1996. He contends that had the state
properly disclosed this statement, he likely could have established reasonable
doubt regarding his guilt.
       Because the state courts never effectively addressed the merits of this
issue or dismissed it as procedurally defaulted, the district court reviewed this
claim de novo pursuant to 28 U.S.C. § 2254(b)(1).5 The district court determined
that unresolved questions of fact exist as to whether the government suppressed
or properly disclosed Rey’s statement, but concluded that the statement did not
meet Brady’s materiality requirement with regard to the guilt/innocence phase
of the trial. On our own de novo review, we agree with the district court
regarding the statement’s lack of materiality.
       There are three basic elements to a Brady claim: (1) the evidence must be
favorable to the accused, either because it is exculpatory or because it may be
used as impeachment evidence; (2) the evidence must have been suppressed by
the state; and (3) the evidence must be “material.” Banks v. Dretke, 540 U.S.
668, 691, 124 S. Ct. 1256, 1272 (2004). Evidence is “material,” i.e., prejudicial,
when there exists a “reasonable probability” that had the evidence been
disclosed the result at trial would have been different. Banks, 540 U.S. at 698-

       5
          The district court explained that when Trevino’s federal habeas counsel discovered
Rey’s statements, the district court stayed its proceedings to allow Trevino to pursue the
Brady claim in state court. The state authorities, however, failed or refused to appoint counsel
for Trevino, despite explicit entreaties from the district court. The district court held that the
state’s failure or refusal to appoint counsel rendered the state process “ineffective” to protect
Trevino’s constitutional rights, pursuant to 28 U.S.C. § 2254(b)(1), thus permitting the district
court to review the claim without it having first been adjudicated in state court. See Trevino,
678 F. Supp. 2d at 458. We agree that, under the circumstances, the district court was
authorized under 28 U.S.C. § 2254(b)(1) to review the claim de novo.

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99, 124 S. Ct. 1276; see also Miller v. Dretke, 404 F.3d 908, 913-16 (5th Cir.
2005).
                                              1.
       As an initial matter, although the district court did not resolve the factual
issues surrounding whether the state suppressed Rey’s second written
statement, the record evidence strongly indicates that the prosecution did not
suppress the statement.6 Given the evidence discussed above indicating that the
prosecution disclosed Gresham’s accurate summary of Rey’s three statements to
Trevino’s attorneys prior to trial, this should have put defense counsel on notice
that Rey had made one statement to police suggesting that Cervantes stabbed
the victim. The onus was then on Trevino’s lawyers to request a copy of the full
statement. See generally Rector v. Johnson, 120 F.3d 551, 558 (5th Cir. 1997)
(failure to discover material evidence must not be the result of the lack of due
diligence). Regardless, even assuming that the state failed to properly disclose
Rey’s second written statement, this statement does not meet the requisite
standard of materiality for the following reasons.
                                              2.
       In light of Rey’s third written statement to the police inculpating Trevino
in Salinas’s murder, it is indisputable that Rey’s second written statement was
immaterial to Trevino’s case. If Trevino’s lawyers had been successful in
introducing Rey’s second statement7 to suggest that Cervantes was solely


       6
          The state argued that Rey’s written statement was available to the defense under the
state’s “open-file” policy. The district court held that it need not resolve the factual issues
regarding whether the state had suppressed the statement given the district court’s conclusion
that the statement was not material.
       7
          Rey’s second written statement would likely have been inadmissible hearsay. See
FED. R. EVID. 801(c); TEX. R. EVID. 801(d). In this circuit, inadmissible evidence may be
material under Brady if it somehow leads to other exculpatory evidence; the key is still
“whether the disclosure of the evidence would have created a reasonable probability that the
result of the proceeding would have been different.” Felder v. Johnson, 180 F.3d 206, 212 (5th

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                                      No. 10-70004

responsible for Salinas’s murder, the prosecution undoubtedly would have
introduced Rey’s third statement.8 Introduction of Rey’s third statement would
have destroyed any benefit Trevino would have otherwise gained from the
second statement. Not only does Rey’s third statement expressly retract his
second statement’s assertion that Cervantes took Salinas to the woods by
himself, Rey’s third statement plainly describes Trevino’s active participation in
Salinas’s rape and murder.          Rey’s third statement contains the following
testimony: (1) Trevino raped Salinas; (2) Trevino, Cervantes, and Apolinar were
present when Salinas was killed; (3) when Trevino, Cervantes, and Apolinar
returned to the car without Salinas, Rey “asked what happened [and] Carlos
[Trevino] said they killed her that they cut her throat”; (4) Trevino had blood on
his shoes; and (5) Trevino said “don’t tell anybody.”
       In the extremely unlikely event that Rey had attempted to testify at
Trevino’s trial to the facts contained in his second statement, the prosecution
would have undoubtedly impeached Rey with his third statement to the police.
Accordingly, it is very clear that even if Trevino’s counsel had been permitted
to use Rey’s second written statement at trial, this would have failed to benefit
Trevino. To the contrary, admission of Rey’s written statements would have
been extremely damaging to Trevino’s interests.
       Under these circumstances, Rey’s second written statement cannot be
considered material because there is not a “reasonable probability” that the
outcome of Trevino’s trial would have been different if the full statement had




Cir. 1999).
       8
        See, e.g., FED. R. EVID. 806 (“When a hearsay statement . . . has been admitted in
evidence, the credibility of the declarant may be attacked, and if attacked may be supported,
by any evidence which would be admissible for those purposes if declarant had testified as a
witness . . . .); accord TEX. R. EVID. 806

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                                       No. 10-70004

been disclosed. In fact, quite the opposite is true—it is almost certain that the
outcome would have been the same.
                                             3.
       Additionally, we note our agreement with the district court that the
evidence presented at Trevino’s trial supports the jury’s verdict of conviction
under Texas’s law of the parties.9 As explained, Rey’s written statements cast
no doubt on the substantial, uncontroverted evidence presented during the
guilt/innocence phase of the trial supporting the conclusion that Trevino acted
with intent to commit the offense and aided or attempted to aid other members
of the group in commission of Salinas’s murder. Rey’s third written statement
is consistent with the trial evidence. There is no reasonable probability that but
for the alleged failure of the prosecution to disclose Rey’s second written
statement, the jury would have found Trevino not guilty of capital murder under
Texas’s law of the parties.
       Jurists of reason cannot find the district court’s denial of Trevino’s Brady
claim on these grounds debatable. See Miller, 404 F.3d at 916 (denying COA in
capital murder case regarding suppression of evidence that defendant had not
shot the victim because “uncontroverted, overwhelming evidence” showed that
defendant participated in the crime and was, thus, guilty under Texas’s law of


       9
         Such law, according to the instruction given to the jury, provides, inter alia, the
following:

       [A] person is criminally responsible as a party to an offense if the offense is
       committed by his own conduct, or by the conduct of another for which he is
       criminally responsible, or both. Each party to an offense may be charged with
       commission of the offense. . . A person is criminally responsible for an offense
       committed by the conduct of another if acting with intent to promote or assist
       the commission of the offense he solicits, encourages, directs, aids or attempts
       to aid the other person to commit the offense.

See Trevino, 678 F. Supp. 2d 445 (quoting and explaining the instructions given to the jury
regarding Texas’s law of parties); see also TEX. PENAL CODE § 7.02 (2011).

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                                    No. 10-70004

the parties). We, therefore, affirm the district court’s denial of a COA on this
issue.

                                          B.

         We next turn to Trevino’s request for COA regarding the district court’s
denial of       his claim for ineffective assistance of counsel during the
guilt/innocence phase of trial based on his counsel’s failure to discover Rey’s
second written statement. It is clear that this argument fails for the same
reasons described above.
         To prove ineffective assistance of counsel, Trevino must generally show (1)
that his counsel’s performance was deficient; and (2) that this deficiency
prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.
Ct. 2052, 2059 (1984). Trevino cannot show prejudice based on his counsel’s
failure to uncover Rey’s second written statement for the same reasons that he
cannot show that the statement was material under Brady. The record evidence
suggests, moreover, that because Trevino’s attorneys had access to Gresham’s
accurate summaries of all three of Rey’s witness statements, they appreciated
the import of Rey’s third statement. The record demonstrates that Trevino’s
attorneys reasonably believed all of the state’s potential witnesses—including
Rey—would inculpate Trevino if called to testify.           This is why Trevino’s
attorneys did not attempt to call Rey or any other witnesses. Nothing in the
record remotely suggests that disclosure of the full text of Rey’s second written
statement would have changed this strategic calculation made by Trevino’s
attorneys, particularly in light of Rey’s third statement. Jurists of reason cannot
debate the district court’s conclusion on this issue. Therefore, we affirm the
district court’s denial of a COA regarding this issue.

                                          C.



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                                  No. 10-70004

      We next consider Trevino’s argument that a COA should issue regarding
the district court’s rejection of Trevino’s claim that his trial counsel failed to
investigate and develop mitigating evidence during the sentencing phase of trial.
The district court held that this claim was procedurally defaulted because
Trevino failed to raise it during his first state habeas proceeding, which resulted
in dismissal by the Texas Court of Criminal Appeals on the basis of Texas’s
“abuse of the writ” doctrine when Trevino presented the issue in his second state
habeas suit. See TEXAS CODE OF CRIM. P. ANN. ART. 11.071 § 5(c) (2011).
      A claim is procedurally defaulted when a state court clearly and expressly
bases its dismissal of a claim on a state procedural rule and that rule provides
an independent and adequate ground for dismissal. Coleman v. Thompson, 501
U.S. 722, 729, 111 S. Ct. 2546, 2253-54 (1991). When such a dismissal based on
independent and adequate state law grounds has occurred, we do not reach the
merits of the federal habeas claim. Id.
      The district court rightly observed that we have expressly held “Texas’s
abuse of the writ doctrine is a valid state procedural bar foreclosing federal
habeas review.” Coleman v. Quarterman, 456 F.3d 537, 542 (5th Cir. 2005);
accord Hughes v. Quarterman, 530 F.3d 336, 342 (5th Cir. 2008). Moreover, we
recently addressed a “perfunctory” dismissal order by the Texas Court of
Criminal Appeals—similar to the order dismissing Trevino’s second state habeas
petition—that cited Article 11.071, Section 5 of the Texas Code of Criminal
Procedure in dismissing a claim for ineffective assistance of counsel, without
further explanation. Balentine v. Thaler, 626 F.3d 842, 849-57 (5th Cir. 2010)
(panel rehearing). We held that this dismissal order could not be read as having
reached the merits of the federal claim, but rather must be viewed as resting on
independent and adequate state law grounds for purposes of procedural default.
Id. Accordingly, we agree with the district court that Trevino’s claim for
ineffective assistance of counsel, which the Texas Court of Criminal Appeals

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                                      No. 10-70004

dismissed on abuse-of-writ grounds under Section 5 of Article 11.071 of the
Texas Code of Criminal Procedure, was dismissed on independent and adequate
state grounds and is, thus, procedurally defaulted. Reasonable jurists cannot
disagree with the district court’s procedural ruling in this regard. We, therefore,
affirm the district court’s denial of COA for this claim.10

                                            D.

       We also affirm the district court’s denial of COA regarding Trevino’s claim
that the factors in Texas’s capital sentencing scheme—such as “future
dangerousness”—are vaguely defined and fail to properly channel the jury’s
discretion.    As the district court correctly held, we have repeatedly rejected
similar arguments. See, e.g., Leal v. Dretke, 428 F.3d 543, 553 (5th Cir. 2005)
(citing numerous cases rejecting vagueness challenges to the terms of Texas’s
capital sentencing scheme). Because jurists of reason cannot debate that the
district court correctly held that this claim has no merit under binding
precedent, we affirm the district court’s denial of a COA.

                                            E.

       Finally, we affirm the district court’s denial of a COA regarding Trevino’s
argument that Texas procedure unconstitutionally prevented the trial court from
informing the jury of the effect of a hung jury during Trevino’s sentencing. The
district court noted first that Trevino raised this same claim during his direct
appeal in state court and during his first state habeas proceeding; the Texas
courts rejected the claim. The district court also correctly explained that the
Supreme Court and this court have rejected similar claims numerous times. See
Jones v. United States, 527 U.S. 373, 382, 119 S. Ct. 2090, 2098 (1999) (holding

       10
         The district court granted COA on the issue of whether Trevino could meet the
“fundamental miscarriage of justice” exception to the procedural default of his ineffective-
assistance claim, and we will address that issue separately below.

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                                      No. 10-70004

that the Eighth Amendment does not require a capital sentencing jury to be
instructed regarding the effect of a “breakdown in the deliberative process”).11
Reasonable jurists cannot debate the district court’s disposition of this issue.
Thus, we affirm the district court’s denial of a COA on this ground.
                                            IV.
       We next consider the three claims on which the district court granted
COA.
                                             A.
       The district court granted COA on Trevino’s Brady claim regarding the
prosecution’s alleged suppression of Rey’s second written statement during the
punishment phase of his trial. Trevino argues that had the prosecution disclosed
Rey’s second written statement, it is reasonably probable that the jury would not
have sentenced him to death. For substantially the same reasons that we reject
this claim with regard to the guilt/innocence phase of trial, we hold that the
government’s alleged suppression of Rey’s second written statement was not
material to the punishment phase of Rey’s trial under Brady.
       Admission of Rey’s written statements at the sentencing phase of trial
would not have tended to prove that Trevino lacked culpability in the stabbing
death of Salinas. As explained, Rey contradicted all of the salient facts of his
second written statement in the third written statement he made to the police
after his arrest.      Subsequently, Rey pleaded guilty to Salinas’s murder,
stipulating to the truth of his third statement. Whatever probative value the
second written statement may have had, therefore, was negated by Rey’s third




       11
           See also Turner v. Quarterman, 481 F.3d 292, 300 (5th Cir. 2007) (recognizing that
precedent precludes any argument that the Eighth Amendment or the Due Process clause of
the Fourteenth Amendment requires a Texas capital sentencing jury to be informed of the
effect of failure to reach a unanimous verdict).

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                                  No. 10-70004

statement and, later, by his guilty plea. As such, a reasonable jury could not
have given Rey’s second statement any credence during sentencing.
      Accordingly, Rey’s second written statement was not material to Trevino’s
sentence because there is no “reasonable probability” that the prosecution’s
disclosure of the statement would have changed the outcome of the sentencing
phase of Trevino’s trial.
                                        B.
      The district court granted COA regarding Trevino’s claim that he received
ineffective assistance of counsel based on his trial attorneys’ failure to discover
and present Rey’s second written statement during the sentencing phase of trial.
Trevino argues that such failure meets the standard for prejudice established by
the Supreme Court. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. This
claim has no merit for the reasons stated above. The record evidence clearly
shows that Rey’s second statement had no materiality and that, accordingly,
Trevino’s attorneys’ alleged failure to seek out the full statement and attempt
to present it to the jury did not prejudice Trevino’s interests during sentencing
under the meaning of Strickland.
                                        C.
      Finally, the district court granted COA regarding Trevino’s claim that it
would be a “fundamental miscarriage of justice” if Trevino were not permitted
to pursue his claim that his trial counsel failed to investigate and present
compelling mitigating evidence at the sentencing phase of trial. As explained
above, we agree with the district court that Trevino’s ineffective-assistance claim
regarding his counsel’s alleged failure to discover and use “new,” potentially
mitigating evidence is procedurally barred under Texas’s abuse-of-writ doctrine.
Thus, the only issue on which the district court granted COA is whether
Trevino’s claim qualifies for the narrow exception to the prohibition on habeas
review of procedurally barred claims when there exists a “fundamental

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                                  No. 10-70004

miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 749-50, 111 S. Ct.
2546, 2564-65 (1991).
      To satisfy the “miscarriage of justice” test, a petitioner must supplement
his constitutional claim with a colorable showing of “actual innocence.” Sawyer
v. Whitley, 505 U.S. 333, 335-36, 112 S. Ct. 2514, 2519 (1992). In the context of
the sentencing phase of a capital murder trial, the Supreme Court has held that
a showing of actual innocence is made when a petitioner shows by clear and
convincing evidence that, but for constitutional error, no reasonable juror would
have found petitioner eligible for the death penalty under applicable law. Id. at
346-48, 112 S. Ct. at 2523. This “actual innocence” inquiry, thus, must be
carefully focused on mitigating evidence related to the legal factors that render
a capital defendant eligible for a death sentence. Rocha v. Thaler, 619 F.3d 387,
405 (5th Cir. 2010). We recently explained this actual-innocence inquiry at
length:
      When a claim of actual innocence contests a sentence of death, the
      habeas petitioner’s claim must tend to negate not just the jury’s
      discretion to impose a death sentence but the petitioner’s very
      eligibility for that punishment. That is, a habeas petitioner who is
      unquestionably eligible for the sentence received can never be
      actually innocent of the death penalty. This is so because
      late-arriving constitutional error that impacted only a jury’s
      sentencing discretion is not sufficiently fundamental as to excuse
      the failure to raise it timely in prior state and federal proceedings.
      The actual innocence requirement must, then, focus on those
      elements that render a defendant eligible for the death penalty, and
      not on additional mitigating evidence that was prevented from being
      introduced as a result of a claimed constitutional error.
Id. at 405 (internal quotations and citations omitted). Thus, if a defendant is
eligible for the death penalty, the actual-innocence inquiry does not take into
account the entire universe of potential mitigating evidence that a defendant




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                                        No. 10-70004

may seek to present that could have affected a jury’s discretion to impose the
death penalty. Id.12
       The “new” mitigating evidence on which Trevino relies relates primarily
to his difficult, abusive childhood and his struggles with alcohol and illegal
substances.13 The subject matter of this evidence is somewhat cumulative of the
testimony of Trevino’s aunt, who testified that Trevino had experienced
difficulties involving the absence of his father and his mother’s alcohol problems.
But the volume of new evidence identified by Trevino is much greater than what
was presented by his trial attorneys. Notwithstanding the volume of this
potentially mitigating evidence or the effect it might have had on the jury’s
sympathies, this evidence does not satisfy the demanding standard of “actual
innocence” because it bears no relationship to Trevino’s eligibility for the death
penalty.


       12
         See also Haynes v. Quarterman, 526 F.3d 189, 195 (5th Cir. 2008) (“The ‘actual
innocence’ requirement must focus on those elements that render a defendant eligible for the
death penalty, and not on additional mitigating evidence that was prevented from being
introduced as a result of claim of constitutional error.”).
       13
         As described by the district court, this “new” mitigating evidence can be summarized
as follows:

       (1) the petitioner’s mother was an emotionally unstable, physically abusive
       alcoholic who abused alcohol throughout her pregnancy with petitioner; (2)
       petitioner weighed only four pounds at birth and required considerable hospital
       care during his first few weeks of life; (3) for the rest of his life, petitioner
       suffered from the deleterious effects of Fetal Alcohol Syndrome, as well as his
       mother’s physical and emotional abuse; (4) petitioner suffered numerous serious
       head injuries as a child for which he received little or no medical care due to the
       neglect of his mother and the absence of his father; (5) petitioner was exposed
       to alcohol and drug abuse from an early age and began abusing both alcohol and
       marijuana himself before he reached age twelve; (6) petitioner became involved
       in street gangs and street crime by age twelve; (7) petitioner experienced a
       lifetime of adversity, disadvantage, and disability; (8) petitioner attended school
       irregularly and performed poorly in school; and (9) petitioner suffers from
       impaired cognitive abilities.

Trevino, 678 F. Supp. 2d at 467.

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                                       No. 10-70004

       The evidence presented during the guilt/innocence phase of trial, combined
with the evidence presented during the sentencing phase, rendered Trevino
legally eligible for the death penalty. Trevino became eligible for the death
penalty during the sentencing phase on the jury’s affirmative answer to the
special question asking whether Trevino represented a continuing threat to
society. See TEX . CODE CRIM. P.          ART.   37.071 § 2(b) (2011).14 The potential
mitigating evidence Trevino discusses would have had no appreciable effect on
the jury’s decision regarding this future dangerousness question.
       Ample evidence was presented during the guilt/innocence phase of trial
entitling the jury to determine that Trevino represented a continuing threat to
society.    Much of the testimony arrayed against Trevino indicated future
dangerousness, including Gonzales’s testimony that Trevino made callous,
menacing comments following Salinas’s murder such as “I learned how to use a
knife” and “I learned how to kill in prison.” The prosecution also presented
additional evidence regarding Trevino’s future dangerousness such as Trevino’s
past convictions for various crimes, including unlawful possession of a handgun;
his membership in a notorious street gang; and tattoos indicating that he closely
identified himself with this gang.
       None of the new mitigating evidence Trevino discusses—which relates
primarily to the circumstances of his childhood—would have been relevant to the
jury’s consideration of Trevino’s future threat to society. As the district court
pointed out, if anything, this type of mitigating evidence is “double-edged,” in
that it could just as easily be interpreted to support the conclusion that Trevino




       14
          A criminal defendant’s eligibility for the death penalty requires the jury to “convict
the defendant of murder and find one ‘aggravating circumstance’ (or its equivalent) at either
the guilt or penalty phase.” Tuilaepa v. California, 512 U.S. 967, 972, 114 S. Ct. 26300, 2634-
35 (1994) (internal citation omitted).

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                                      No. 10-70004

represents a future danger as it could be interpreted to undermine such a
conclusion.
       Furthermore, Trevino’s argument that this new mitigating evidence would
have rendered him ineligible for the death penalty pursuant to the jury’s second
special question at the sentencing phase is without merit. In Texas’s capital
sentencing scheme, the second special question permits the jury to make an
individualized determination of the defendant’s moral culpability by considering
the circumstances of his offense as well as his character and background. See
TEX. CODE CRIM. P. ART. 37.071 § 2(e)-(f) (2011). This question implicates the
jury’s discretion to impose the death penalty and, thus, is viewed as a “selection”
issue rather than an “eligibility” issue in the parlance of the Supreme Court’s
death-penalty jurisprudence. See Tuilaepa, 512 U.S. at 971-73, 114 S. Ct. at
2634-35.    As with other “actual innocence” claims that we have rejected,
Trevino’s argument simply “reduces to an assertion that mitigating evidence
could have influenced the jury’s discretion in considering a sentence of death; he
does not argue that this evidence would have rendered him ineligible for the
death penalty.” Rocha, 619 F.3d at 405.15
       Accordingly, Trevino fails to satisfy the actual-innocence standard. The
“fundamental miscarriage of justice” exception to the prohibition against habeas
review of procedurally barred claims, therefore, does not apply to Trevino’s claim
regarding ineffective assistance of counsel.

                                            V.

       For the foregoing reasons, we conclude that a COA is not warranted for
any of the five issues that Trevino has raised on this petition; moreover, the



       15
        See also Haynes, 526 F.3d at 195 (“The evidence that was allegedly not presented
during Haynes’s sentencing deals exclusively with mitigating evidence and this evidence does
not show that Haynes was actually innocent of a death-eligible offense.”).

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                                 No. 10-70004

district court correctly denied relief on the three claims on which the district
court granted COA. Accordingly, we AFFIRM the district court’s order denying
habeas relief to Trevino.




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                                  No. 10-70004

DENNIS, Circuit Judge, dissenting.
      Sam Rey, an accomplice to the rape and murder of Linda Salinas on
June 9, 1996, gave a detailed, sworn, written statement to police on June 12,
1996, which completely exculpated Carlos Trevino. This statement by Rey
contradicted the testimony of Juan Gonzales, the state’s chief prosecution
witness, who said that Trevino participated in the rape and shortly after the
crime, Trevino made statements to Rey, Gonzales, and others inculpating
himself in Salinas’ murder. In his federal habeas petition, Trevino contends that
the state failed to disclose Rey’s June 12th written statement in violation of
Brady v. Maryland, 373 U.S. 83 (1963); and that if the statement had been
disclosed and available, his attorneys failed to discover and use it, rendering
their assistance ineffective in violation of Strickland v. Washington, 466 U.S. 668
(1984). The majority concludes that Trevino is not entitled to habeas relief
because Rey’s June 12th statement is not “material” under Brady and
Strickland. The majority reasons that Rey’s statement is not material because
the prosecutor in Trevino’s trial would have used a subsequent, June 13th,
written statement by Rey, which inculpated Trevino, to contradict Rey’s earlier
June 12th statement. However, that later statement does not appear anywhere
in the record before the district court in this case; indeed, the majority has
produced it sua sponte by going outside of the record in this case, to a record of
another state court case to which Trevino was not a party. Neither the state nor
Trevino had ever before mentioned Rey’s June 13th statement, let alone litigated
the significance of it—for all we know, neither Trevino nor the state’s attorneys
in Trevino’s criminal trial, nor the state’s attorneys in Trevino’s habeas
proceedings, has ever seen or heard of this statement before the majority sua
sponte obtained a copy of it after this appeal was fully briefed.
      I respectfully disagree with the majority’s course in taking judicial notice
of Rey’s June 13th written statement and using it to resolve this case on its

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                                    No. 10-70004

merits. The majority provides no authority that permits us, without request or
agreement of the parties, to go outside of the record before the district court, to
a state court record of a different case, of a different defendant, to find a
statement by a non-party witness who did not testify at the petitioner’s trial.
Moreover, the majority makes a determination that Rey’s June 13th statement
is more truthful than his June 12th statement, and therefore is a retraction of
it; however, such a credibility determination is not a kind of fact that may be
judicially noticed, viz., a fact “not subject to reasonable dispute in that it is either
(1) generally known within the territorial jurisdiction of the trial court or (2)
capable of accurate and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.” Fed. R. Evid. 201(b). Rather than using
judicial notice to improperly supersede Rey’s June 12th statement with his
June 13th statement that was not part of the district court’s record, we should
vacate the district court’s judgment and remand the case for an evidentiary
hearing or stipulations of the parties as to the context and circumstances
surrounding Rey’s June 12th and 13th statements and for decisions upon the
issues arising out of them. I do not share the majority’s confidence in their
ability as appellate judges with nothing but a paper record to neatly reconstruct
the likely outcome of this case had all of Rey’s statements been disclosed to
defense counsel before trial, since Rey’s third statement, upon which the
majority so heavily relies in affirming the death penalty, has never been
introduced or subjected to any trial court adversary proceedings in this case.
Accordingly, I respectfully dissent.
                                           I.
      Carlos Trevino was convicted by a Texas jury of the June 9, 1996, sexual
assault and murder of Linda Salinas in San Antonio, and sentenced to death.
The state’s case at the guilt-innocence phase of Trevino’s trial hinged on the
testimony of Juan Gonzales. He testified that Trevino and three other young

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                                       No. 10-70004

men, Santos Cervantes, Sienido (Sam) Rey, and Bryan Apolinar picked up
Salinas at a gas station and drove her to Espada Park where they sexually
assaulted her; that Cervantes alone had lured Salinas into the car; that
Gonzales had seen Cervantes with a knife before Salinas’ murder and Cervantes
told Gonzales that he had disposed of the knife after Salinas’ murder; that
Gonzales heard Cervantes say something about a knife in the car after Salinas
was killed; and that Gonzales believed Cervantes killed Salinas. Gonzales also
testified that after the sexual assault, he heard Cervantes and Apolinar say, “we
don’t need no witnesses,” and Trevino say, “we’ll do what we have to do”; that he
left before Salinas was stabbed, but shortly afterwards, he saw blood on Trevino
and Cervantes; and that as the five men drove away from the park, Cervantes
said it was “cool” or “neat” how Trevino had “snapped” Salinas’ neck, and
Trevino responded that he had “learned how to kill in prison.” The prosecutor
relied heavily on Gonzales’ testimony about Trevino’s statement in the car to
argue to the jury that Trevino was the actual killer. At the sentencing phase of
the trial, the state again rested its case heavily on Gonzales’ testimony that after
Salinas’ murder Trevino said that he had “learned how to kill in prison.”
       On March 25, 1998—nearly nine months after Trevino’s conviction—Rey
pleaded guilty to murder and received a fifty-year sentence.1 On May 5, 1998,
Cervantes pleaded guilty to capital murder and received a life sentence.2
Apolinar went to trial and was convicted of aggravated sexual assault.3

       1
        See State v. Rey, No. 97-CR-1717C (290th Dist. Ct., Bexar Cnty., Tex. Mar. 25, 1998)
(criminal docket sheet entry); see also Tex. Pen. Code § 19.02.
       2
         See State v. Cervantes, No. 97-CR-1717B (290th Dist. Ct., Bexar Cnty., Tex. May 5,
1998) (criminal docket sheet entry); see also Texas Pen. Code § 12.31 (“An individual adjudged
guilty of a capital felony in a case in which the state does not seek the death penalty shall be
punished by imprisonment in the Texas Department of Criminal Justice for . . . life without
parole.”).
       3
         See Apolinar v. State, No. 04-99-00644-CR, 2000 WL 1210922 (Tex. Crim. App.
Aug. 16, 2000) (unpublished); see also Tex. Pen. Code § 19.03.

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                                       No. 10-70004

Gonzales, the only one of the group who testified against Trevino, was not
charged.
       During his federal habeas proceedings, Trevino’s counsel uncovered a
sworn, written statement that Sam Rey gave to Detective Barry Gresham, the
lead detective investigating Salinas’ murder, on June 12, 1996, three days after
Salinas was killed. That statement, which is attached to Trevino’s federal
habeas petition, reads in its entirety4:
       My name is Seanido Rey I was born on 07-29-75. I am 20 years old.
       I live at 1131 San Fernando with my sister the phone number is
       226-0391.
       I have already given Det. Gresham a statement, but I would now
       like to tell the truth of what really happened on last Sunday night.
       Everything I said was true about what happened up to the part
       when we were at the Pic Nic. While we were there I saw a girl
       talking on the telephone. Santos was talking to her. Det. Gresham
       showed me a picture of a girl and this was the same girl I saw on the
       telephone. I signed and dated this photograph. When I went to the
       car the girl Det. Gresham told me was named Linda came also she
       was with Santos. We all got in the car with Linda. Linda was in the
       front right seat sitting in Santo’s lap. [Bryan5] was driving the car
       and I was sitting in the back of the car in the middle. Carlos was
       sitting to the right of me and [Juan6] was on my left. When we left
       the store Linda and Santos was kissing. [Bryan] went to Mission Rd.
       and went towards Military Hwy. We then went by a park called
       Espada. Before we got to the park I saw Santos throw a bra to
       [Bryan] that Linda had taken off. [Bryan] threw the bra out of the


       4
         The statement is quoted as it appears in the record, including any orthographic
irregularities.
       5
         Rey referred to the owner of the car as “Jason” in his first statement to Det. Gresham
and in this statement. In a later statement he “stated [that] he had been confused about the
name of the driver of the car and remembered now the driver’s name is Bryan not Jason.” In
order to avoid confusion, I have changed “Jason” in Rey’s quoted statement to “[Bryan].”
       6
        In several of the suspects’ statements, Juan Gonzales was referred to as “Thatie” or
“Tati.” See Trevino v. Thaler, 678 F. Supp. 2d 445, 460 (W.D. Tex. 2009). Again, to avoid
confusion, I have changed “Thatie” in Rey’s quoted statement to “[Juan].”

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                                  No. 10-70004

      car before we stopped. [Bryan] then parked the car in a parking lot.
      The whole time we were driving out there Santos and Linda were
      making out. When we stopped the car Santos and Linda got out. I
      saw they were holding hands. I knew that he was going to have sex
      with her. I saw them walking towards the woods. I saw they walked
      down toward the creek. We all got out and was standing against the
      car listening to the radio. I never heard any noise coming from the
      creek. About ten or fifteen minutes later Santos came back from the
      creek. I think when all this was happening was about 10:30 or so at
      night but I didn’t look at a watch. When Santos comes back up the
      creek I asked him where the girl was at. He told me “Fuck that
      bitch, she didn’t want to give it up so I stabbed her”. I asked him
      why he did that and I don’t remember what he said. Everybody else
      was close when he said this and I think they heard him also. We
      then just all get back into the car and leave. We then went to
      Santo’s friends house. On the way everbody was quiet and was not
      talking about what happened. Santo’s friends house is on S. Flores
      street somewhere but I’m not sure where. When we get to the house
      Santos tells us to just be quiet about what had happened. I was just
      in shock about what had happened and didn’t say anything. The
      house is gang house and there was alot of guys and girls there just
      hanging out. We just drank beer and hung out. We stayed there to
      about 3:00 in the morning and then [Bryan] took me [Juan] and
      Carlos back to Carlos’s house. [Bryan] and Santos then left they
      didn’t say where they were going. I don’t know Santos last name but
      I have agreed to take you to the house that we picked him up at.
      This guy named [Bryan] is a friend of [Juan] I don’t know his last
      name or where he lives.
      I have read the above statement and It’s true and correct.
      Also attached to Trevino’s federal habeas petition are affidavits from
Trevino’s two trial attorneys in which they swore that they had never seen this
written statement by Rey before Trevino’s trial. One of the attorneys swore that
Rey’s statement “was never produced or shown to us” before Trevino’s trial; and
the other attorney swore, “I do not recall seeing . . . the June 12, 1996 statement
of Seanido Rey prior to 2006, and certainly never saw [it] prior to trial in
June 1997.”



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      The habeas record in this case also includes a report by Det. Gresham,
dated a little more than a month after the crime.             The report details
Det. Gresham’s investigation of Salinas’ murder, and includes a summary of
three purported statements by Rey. Det. Gresham’s summary of Rey’s purported
first statement says that Rey “read the statement he had given me and signed
it,” indicating that a separate written statement existed. The summary of Rey’s
purported second statement provides a brief recapitulation of the sworn, written
statement reproduced above, but does not include the rich detail of Rey’s written
statement. For instance, Det. Gresham’s summary leaves out critical facts, such
as Rey’s statement that “[o]n the way [to Santos’ friend’s house] ever[y]body was
quiet and was not talking about what happened,” which contradicts Gonzales’
testimony that Trevino had made incriminating statements during that car ride.
There is also nothing in Det. Gresham’s report that suggests that Rey swore to,
and signed a separate, full written statement—as opposed to simply giving
Det. Gresham an oral statement. Det. Gresham’s summary of Rey’s purported
third statement contradicts parts of Rey’s second statement and includes
inculpatory allegations against Trevino. As with Det. Gresham’s summary of
Rey’s purported second statement, the summary of Rey’s purported third
statement in no way indicates that a separate, written statement existed.
Attached to Trevino’s federal habeas petition are affidavits from Trevino’s trial
attorneys in which they swore that they could not remember having seen
Det. Gresham’s report before Trevino’s trial.
      Trevino raised two claims for habeas relief based on Rey’s second written
statement: (1) The state’s failure to disclose this statement violated Brady; and,
(2) if the state did not in fact suppress this statement, Trevino’s trial counsel’s
failure to uncover it and utilize it violated Trevino’s right to the effective
assistance of counsel under Strickland.       These two contentions share an
overlapping element: materiality of the evidence. See Brady, 373 U.S. at 87

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                                  No. 10-70004

(suppressed evidence must be “material”); Strickland, 466 U.S. at 694
(explaining that a claim of ineffective assistance of counsel requires a showing
of “prejudice,” and that “the appropriate test for prejudice finds its roots in the
test for materiality of exculpatory information not disclosed to the defense by the
prosecution”); see also Youngblood v. West Virginia, 547 U.S. 867, 869-70 (2006).
In United States v. Bagley, the Supreme Court expressly adopted “the Strickland
formulation of the . . . test for materiality” for Brady claims. 473 U.S. 667, 682
(1985) (opinion of Blackmun, J.); see Cone v. Bell, 129 S. Ct. 1769, 1783 (2009).
Therefore, Trevino must make the same showing of the materiality of Rey’s
second statement for his Brady claim and for his Strickland claim. That is,
Trevino must show that Rey’s statement “could reasonably be taken to put the
whole case in such a different light as to undermine confidence in the verdict.”
Kyles v. Whitley, 514 U.S. 419, 435 (1995).
      The district court concluded that Trevino failed to show that Rey’s
statement was material and therefore denied habeas relief for both phases of
Trevino’s trial without reaching the other component of either the Brady or
Strickland claims—whether the statement was suppressed under Brady or
whether Trevino’s trial counsel’s performance was objectively unreasonable
under Strickland. Therefore, the only issue before us on Trevino’s Brady and
Strickland claims is whether Rey’s statement is material.
      After this appeal was fully briefed, the majority, sua sponte, requested the
state court record for Rey’s murder conviction. That record contains three
written statements by Rey, the second of which forms the basis of Trevino’s
claims in this case, and is the only written statement by Rey that was introduced
into the habeas record before the district court. The other two statements do not
appear in the district court record in this case and have never been addressed
or litigated by the parties. Nonetheless, the majority now reasons that it can
take judicial notice of Rey’s third (June 13th) statement, and give credit to it in

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                                 No. 10-70004

lieu of Rey’s second (June 12th) statement. In my view, that course is not
supported by precedent or authority.
                                       II.
      To conclude that Rey’s second statement is not material, the majority
takes judicial notice of a third written statement by Rey, which the majority has
produced sua sponte from a state court record for a different case to which
Trevino was not a party. The majority reasons that “[i]f Trevino’s lawyers had
been successful in introducing Rey’s second statement” to question Trevino’s
guilt, then “the prosecution undoubtedly would have introduced Rey’s third
statement” to undermine that defense; and, likewise, that if “Rey had attempted
to testify at Trevino’s trial to the facts contained in his second statement, the
prosecution would have undoubtedly impeached Rey with his third statement to
the police.” Majority Op. 14-15. The majority’s reliance on Rey’s third statement
is a significant error because (A) the parties have never had an opportunity to
litigate the significance or veracity of that statement; (B) the credibility
determinations that the majority draws from that statement are not the proper
subject of judicial notice; and (C) even assuming arguendo that we could take
judicial notice of Rey’s third statement, it would not necessarily prevent the
defense counsel in a hypothetical retrial from effectively using Rey’s second
statement as tending to exculpate Trevino and challenge the credibility of the
state’s witnesses against him in the guilt and penalty phases of his capital
murder trial.
                                       A.
      The majority sua sponte produced Rey’s third written statement, without
any request or agreement by the parties, from a state court record of a different
case to which Trevino was not a party. It was not part of the record before the
district court, as the majority acknowledges, Majority Op. 9 n.3, nor was it ever
once mentioned by the parties below or on appeal. For all we know, neither

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                                  No. 10-70004

Trevino nor the state’s attorneys in Trevino’s criminal trial nor in his habeas
proceedings has even seen or been informed of this statement. It certainly
stands to reason that if the state’s attorneys in Trevino’s case had been aware
of this statement, as the majority’s argument presupposes, then they would have
relied upon it in responding to Trevino’s habeas petition; but they did not. As
such, the parties have never litigated the admissibility or relevance of that
statement to Trevino’s Brady and Strickland claims.
                                        B.
      The majority contends that we can sua sponte take judicial notice of the
statement. Majority Op. 9 n.3. However, that is not allowed by Federal Rule of
Evidence 201, which governs judicial notice in the district courts as well as in
the courts of appeals. See Fed. R. Evid. 201(f) (“Judicial notice may be taken at
any stage of the proceeding.”); see also 21B Charles Alan Wright & Kenneth W.
Graham, Jr., Federal Practice and Procedure § 5110.1, at 299 (2d ed. 2005)
(“Rule 201(f) does not distinguish between taking judicial notice on appeal and
appellate review of the trial court judicial notice. . . . [It] places the appellate
court under the same limitations as the trial judge whether the appellate court
is reviewing trial court notice or noticing facts for the first time.”); 1 Jack B.
Weinstein, Weinstein’s Federal Evidence § 201.32 (2011) (“Because Rule 201
authorizes the taking of judicial notice ‘at any stage of the proceeding,’ judicial
notice may be taken by an appellate court. . . . However, appellate courts are
still subject to the limitations imposed by Rule 201 on the types of facts that may
be judicially noticed and the procedures for noticing them.”).
      Rule 201 provides, in relevant part:
            (a) Scope of rule. This rule governs only judicial notice of
      adjudicative facts.
            (b) Kinds of facts. A judicially noticed fact must be one not
      subject to reasonable dispute in that it is either (1) generally known
      within the territorial jurisdiction of the trial court or (2) capable of


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                                  No. 10-70004

      accurate and ready determination by resort to sources whose
      accuracy cannot reasonably be questioned.
            (c) When discretionary. A court may take judicial notice,
      whether requested or not.
            (d) When mandatory. A court shall take judicial notice if
      requested by a party and supplied with the necessary information.
            (e) Opportunity to be heard. A party is entitled upon
      timely request to an opportunity to be heard as to the propriety of
      taking judicial notice and the tenor of the matter noticed. In the
      absence of prior notification, the request may be made after judicial
      notice has been taken.
            (f) Time of taking notice. Judicial notice may be taken at
      any stage of the proceeding.
      The majority’s taking judicial notice of Rey’s third written statement in
order to conclude that it retracts and makes immaterial Rey’s second statement,
is not authorized by law; it judicially notices a kind of adjudicative fact that
courts may not take notice of under Federal Rule of Evidence 201.             The
majority’s contention is that the prosecutors would have used Rey’s third
statement to undermine any beneficial use defense counsel could have made of
Rey’s second written statement, and thus, that the second statement is
immaterial. To reach this conclusion requires the majority to take notice of the
following facts: that Rey made a third written statement; that he made it before
Trevino’s trial; that the prosecutors in Trevino’s case were aware of the existence
of that written statement at the time of Trevino’s trial; that the prosecutors in
Trevino’s trial would have used that statement if defense counsel had called Rey
as a witness or used his second written statement to attack the state’s case; and
that the jury would have given credit to Rey’s third written statement in lieu of
his second written statement.
      However, these facts are “subject to reasonable dispute” and are not
“capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned.” Therefore, they are not the “kinds
of facts” of which Rule 201 allows a court to take judicial notice. Based on the

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                                        No. 10-70004

record before the district court, supplemented by the record from Rey’s state
court criminal proceeding, we cannot properly know or judicially notice whether
the state’s attorneys in Trevino’s criminal trial were aware of Rey’s third
statement. (The prosecutor in Rey’s case was not the same as in Trevino’s case.)
It is not at all certain that the state’s attorneys would have known of or resorted
to using Rey’s third statement at trial, because they did not use it or even
mention it in Trevino’s federal habeas proceedings. Moreover, the majority’s
argument rests on an improper determination of the relative truthfulness of one
statement by Rey vis-à-vis another by him. However, the truth of a statement
is not a proper matter for judicial notice. See Wright & Graham, supra, § 5106.4,
at 231-36 (“It seems clear that a court cannot notice pleadings or testimony [in
court records] as true simply because these statements are filed with the court.
. . . [A] court cannot take judicial notice of the truth of a document simply
because someone put it in the court’s files . . . . [Courts] can notice [that an]
assertion was made, but not that it was true . . . .”).
       The majority’s sua sponte course of taking judicial notice here also conflicts
with Rule 201’s requirement that the parties be heard on the court’s taking
judicial notice, and it will not prevent another round of litigation regarding Rey’s
third statement. Instead, as the majority concedes, see Majority Op. 9 n.3, it will
put the parties in the untenable position of litigating an issue of fact in a petition
for rehearing in an appellate court.7 Rule 201 entitles the parties “upon timely
request to an opportunity to be heard as to the propriety of taking judicial notice
and the tenor of the matter noticed.” Fed. R. Evid. 201(e); see also id. advisory

       7
         The majority offers the following placebo: “[W]e afford [Trevino] the right to raise any
objections he may have by means of a petition for rehearing, which objections we will consider
filed before our opinion issued.” Majority Op. 9 n.3. I fail to understand what effect this has
as Trevino unquestionably has the right to raise “each point of law or fact that [he] believes
the court has overlooked or misapprehended” in a petition for rehearing. Fed. R. App. P. 40.
This does not alleviate, however, the problem of litigating a fact issue for the first time in a
petition for rehearing in an appellate court.

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                                   No. 10-70004

committee note (1972) (“Basic considerations of procedural fairness demand an
opportunity to be heard on the propriety of taking judicial notice and the tenor
of the matter noticed.”). This rule applies in the appellate courts as much as it
does in the district courts. See Wright & Graham, supra, § 5110.1, at 299-300
(“[T]he appellate court must follow the procedures in Rule 201(e) in giving the
parties an opportunity to be heard.”); Weinstein, supra (“[A]ppellate courts are
still subject to the limitations imposed by Rule 201 on the types of facts that may
be judicially noticed and the procedures for noticing them. . . . An appellate
court contemplating original judicial notice should notify the parties so that the
propriety of taking notice and the tenor of the matter to be noticed can be
argued. If oral argument has already been completed, the court should, at a
minimum, afford the parties an opportunity to submit supplemental briefs.”
(footnote omitted) (quoting Massachusetts v. Westcott, 431 U.S. 322, 323 n.2
(1977), as saying, “The parties were given an opportunity to comment on the
propriety of our taking notice of the license, and both sides agreed that we could
properly do so.”)).    Rule 201 also provides that “[i]n the absence of prior
notification, the request may be made after judicial notice has been taken.” Fed.
R. Evid. 201(e). The majority has not given the parties an opportunity to be
heard as to the propriety of taking judicial notice and the tenor of the matter
noticed, and therefore, they will be forced to litigate this issue for the first time
in a petition for rehearing.
      Finally, the majority’s only supporting authorities for taking judicial notice
of Rey’s third statement are inapposite. The majority cites Brown v. Lippard,
350 F. App’x 879 (5th Cir. 2009) (unpublished), but Brown is nothing like this
case. There, we took judicial notice merely of a “docket entry establishing the
existence of the 2001 transcript” of a court proceeding. Id. at 882 n.2. Here, the
majority takes judicial notice of facts that are subject to reasonable dispute, and
are not analogous to the fact that a court docket entry exists. Nor is the

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majority’s reliance on Moore v. Estelle, 526 F.2d 690 (5th Cir. 1976), any more
persuasive. There, we said quite plainly that we will “take judicial notice of
prior habeas proceedings brought by this appellant in connection with the same
conviction.” Id. at 694 (emphasis added). Of course, Sam Rey’s state court
criminal proceedings are not “prior habeas proceedings brought by [Carlos
Trevino] in connection with [Trevino’s] conviction.” Id. Indeed, the majority
concedes this point when it describes “our routine practice in habeas appeals” as
“taking judicial notice of all related proceedings brought by the appellant,
including state proceedings, even when the prior state case is not made a part
of the record on appeal.”      Majority Op. 9 n.3 (emphasis added) (internal
quotation marks omitted). Therefore, the majority has provided no relevant
authority for its sua sponte decision to take judicial notice of facts outside of the
record on appeal in this case and contained in a record in a state court
proceeding for a different case of a different defendant.
                                         C.
      Assuming arguendo that the majority lawfully could take judicial notice
of Rey’s third statement, the existence of that statement does not prevent
defense counsel from arguing that the state’s suppression of Rey’s second written
statement casts a different light on Trevino’s capital murder trials so as to
undermine confidence in those proceedings. Rey’s third written statement shows
that Rey was not even present when Salinas was killed and, therefore, could not
credibly say who stabbed Salinas. Nor it does it contradict the portion of Rey’s
second statement in which he said that nobody, including Trevino, said anything
in the car following Salinas’ murder. See Majority Op. 7-8 (quoting Rey’s third
written statement).       Therefore, Rey’s second statement would stand
unchallenged in contradicting the critical aspect of Gonzales’ testimony that in
the car after Salinas’ murder, Cervantes said it was “cool” or “neat” how Trevino



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                                  No. 10-70004

had “snapped” Salinas’ neck, and that Trevino responded that he had “learned
how to kill in prison.”
                                       III.
      For these reasons, the fair and proper course would be for the majority to
vacate the judgment and remand this case to the district court to consider all of
Rey’s statements and any additional evidence relevant thereto, and to determine
whether all of that evidence undermines confidence in Trevino’s capital murder
guilt and penalty trials. It is clear that on the record before the district court,
Rey’s second statement is material—otherwise, the majority would not have
found it necessary to commit serious legal error by sua sponte going outside of
the district court’s record to take notice of facts not judicially noticeable under
Federal Rule of Evidence 201 in order to reach the contrary conclusion.
Moreover, as I explain infra in Part IV.A, Trevino’s trial attorneys could have
put Rey’s second statement to good use to cast doubt on his guilt, and the record
before us is insufficiently developed for us to decide whether Rey’s third
statement actually would have eviscerated defense counsel’s every use of Rey’s
second statement in Trevino’s guilt and death penalty trials. Therefore, in my
view, it is necessary to remand this case because now that Rey’s third statement
has been produced, the parties should be allowed an opportunity to litigate the
significance of that statement, specifically, whether it undermines the
materiality of Rey’s second statement, and the district court should reconsider
this case in light of those arguments and all of the available relevant evidence.
      When the Eleventh Circuit was confronted with a similar situation—i.e.,
whether to consider extrarecord evidence that may have been significant in
resolving the habeas petitioner’s claim—that court remanded to the district
court to first find the necessary facts. See Ross v. Kemp, 785 F.2d 1467, 1477
(11th Cir. 1986). In contrast, the majority simply assumes the facts that it
thinks the district court would have found after a full and fair hearing, providing

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                                  No. 10-70004

no authority for its course of action, and plainly stepping beyond the bounds of
its limited authority to judicially notice certain kinds of facts under Federal Rule
of Evidence 201. The majority’s course is unfair for the resolution of a highly
controversial issue based on uncertain evidence from murky and questionable,
self-interested recollections of death penalty defendants. I would instead follow
the course taken by the Eleventh Circuit and remand this case to the district
court to allow the parties to litigate the issues given rise to by the state’s
apparent suppression of Rey’s second and third statements.
                                        IV.
      In concluding that Rey’s second statement was not material the majority
also errs, in my view, by (A) reasoning that Rey’s second statement “would likely
have been inadmissible,” and ignoring the substantial use that Trevino’s trial
attorneys could have made of that statement even without admitting it into
evidence; (B) purporting to make a factual finding that the state did not
suppress Rey’s statement, a finding which is the subject of a factual dispute that
the district court expressly left unresolved; (C) concluding that Rey’s statement
was not material because “the evidence presented at Trevino’s trial supports the
jury’s verdict of conviction under Texas’s law of the parties.” Majority Op. 14-17.
                                        A.
      The majority mistakenly asserts that “Rey’s [second] written statement
would likely have been inadmissible.” Majority Op. 14 n.7. This is perplexing
considering that the majority expressly acknowledges that “inadmissible
evidence may be material under Brady.” Spence v. Johnson, 80 F.3d 989, 1005
n.14 (5th Cir. 1996) (citing Sellers v. Estelle, 651 F.2d 1074, 1077 n.6 (5th Cir.
1981)); see Majority Op. 14 n.7 (citing Felder v. Johnson, 180 F.3d 206, 212 (5th
Cir. 1999)). Indeed, this court has often “reaffirm[ed] that ‘inadmissible evidence
may be material under Brady.’ Thus, we ask only the general question whether
the disclosure of the evidence would have created a reasonable probability that

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                                  No. 10-70004

the result of the proceeding would have been different.” Felder, 180 F.3d at 212
(citations omitted) (quoting Spence, 80 F.3d at 1005 n.14); see also United States
v. Brown, 650 F.3d 581, 2011 WL 3524412, at *5 & n.12 (5th Cir. 2011) (“The
suppressed evidence need not be admissible to be material under Brady; but it
must, somehow, create a reasonable probability that the result of the proceeding
would be different.” (citing Felder, 180 F.3d at 212)); Spence, 80 F.3d at 998,
1005 n.14 (same); Sellers, 651 F.2d at 1077 n.6 (same); Martinez v. Wainwright,
621 F.2d 184, 188 (5th Cir. 1980) (holding that evidence was material even if it
“were held to be hearsay and not admissible” because “it at least would have
provided the defense the ability to contact the appropriate” people to gather the
evidence in admissible form). Moreover, in Wiggins v. Smith, 539 U.S. 510
(2003), the majority of the Supreme Court squarely rejected Justice Scalia’s
dissenting view that because undiscovered mitigation evidence was likely
inadmissible under state law during the punishment phase of a capital murder
trial, it was not material under Strickland. See 539 U.S. at 536; id. at 554-57
(Scalia, J., dissenting).   Writing for seven members of the Court, Justice
O’Connor explained, “had the jury been confronted with this considerable
mitigating evidence, there is a reasonable probability that it would have
returned with a different sentence. In reaching this conclusion[]”—that the
evidence was material under Strickland—“we need not, as the dissent suggests,
make the state-law evidentiary findings that would have been at issue at
sentencing.” Id. at 536 (majority opinion) (emphasis added) (citation omitted).
      In Sellers, under extremely similar circumstances as this case, we also
rejected the contention that evidence must be admissible to be material under
the Brady-Strickland standard. 651 F.2d at 1077 n.6. There, the suppressed
police reports included a written statement of a friend of Santos Cantera, which
alleged that Cantera had told him that Cantera was the actual killer. Id. at
1075-77. The lower court held that the evidence was immaterial in part because

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                                  No. 10-70004

this statement was inadmissible. Id. at 1076, 1077 n.6. We held that “[s]uch a
conclusion [was] unwarranted,” and explained why the written statement of
Cantera’s friend, although apparently inadmissible, was still material: “First, by
enabling the defense to examine [the suppressed evidence], Sellers may have
been able to produce witnesses whose testimony or written statements may have
been admissible. Martinez v. Wainwright, 621 F.2d 184 (5th Cir. 1980). Second,
the evidence . . . suppressed was material to the preparation of [Sellers] defense,
regardless of whether it was intended to be admitted into evidence or not.”
Sellers, 651 F.2d at 1077 n.6; see also Spence, 80 F.3d at 998 (“The district court
concluded that the undisclosed evidence was not material because under Texas
law it would not have been admissible at trial. The Fifth Circuit has expressly
found otherwise in Sellers v. Estelle,” 651 F.2d 1074 (5th Cir. 1981).).
      For substantially similar reasons, Rey’s second statement would have been
extremely useful to Trevino’s trial attorneys regardless of whether it was
admissible. First, Rey’s second statement may have led Trevino’s counsel to call
Rey to testify in contradiction to Gonzales’ testimony, particularly his testimony
about the statements Trevino allegedly made in the car after Salinas was killed.
See Kyles, 514 U.S. at 445-46 (discussing the possibility of defense counsel
calling “as an adverse witness” an alternative suspect whose statements had
been suppressed); Sellers, 651 F.2d at 1077 n.6; Martinez, 621 F.2d at 188 (“If
the [suppressed] rap sheet were held to be hearsay and not admissible to prove
the [state’s witness’s] prior convictions, it at least would have provided the
defense the ability to contact the appropriate penal facilities to acquire an
official record which would have been admissible.”). This, in fact, is exactly what
Trevino’s trial counsel swore that he would have done with Rey’s written
statement: “I would have definitely used it . . . to further discredit Juan Gonzales
. . . .” Thus, the majority is simply mistaken that “[n]othing in the record
remotely suggests that disclosure of the full text of Rey’s second statement would

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                                        No. 10-70004

have changed th[e] strategic calculation made by Trevino’s attorneys.” Majority
Op. 17. The majority’s only reason for why this does not make Rey’s second
statement material is based on its mistaken reliance on Rey’s third statement.8
       Second, Rey’s second statement was important to the preparation of
Trevino’s defense, regardless of whether it was intended to be admitted into
evidence or not. See Sellers, 651 F.2d at 1077 n.6. As the Court explained in
Kyles, competent counsel “could have examined [Det. Gresham] to good effect on
[his] knowledge of [Rey’s out-of-court] statement[] and so have attacked the
reliability of the investigation.” 514 U.S. at 446.9 That is, competent counsel
could have used Rey’s second statement to cast particular aspersion on
Cervantes as the only person culpable for Salinas’ murder, and to show that
Det. Gresham’s investigation focused on Trevino, despite Rey’s statement
exculpating Trevino; and that Det. Gresham never pursued a more rigorous
investigation of Cervantes, despite Rey’s statement that inculpated only
Cervantes. Again, Trevino’s trial counsel swore he would have used Rey’s
statement for this exact purpose, “in the cross-examination of [D]etective



       8
          The majority concludes that “[i]n the extremely unlikely event that Rey had attempted
to testify at Trevino’s trial to the facts contained in his second statement, the prosecution
would have undoubtedly impeached Rey with his third statement,” Majority Op. 15; by which
the majority seems to mean that in their view, the jury would have certainly believed the
contents of Rey’s third statement and not his live testimony to the contrary. However, as I
explained in Part II.B, this credibility determination is based on taking judicial notice of Rey’s
third statement, and such a credibility determination is not a kind of fact that may be
judicially noticed. See Fed. R. Evid. 201(b) (Providing for judicial notice of a fact “not subject
to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction
of the trial court or (2) capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned.”).
       9
        There would be no hearsay problem in using Rey’s statement to attack the credibility
of Det. Gresham’s investigation since “‘[h]earsay’ is a statement . . . offered in evidence to
prove the truth of the matter asserted.” Tex. R. Evid. 801(d). Rey’s statement would not have
been offered into evidence, and it would not have been used to prove the truth of the matter
asserted in the statement, but to show that Det. Gresham’s investigation was unreliable
because it was not thorough, impartial and objective.

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                                       No. 10-70004

Gresham to show the jury that Santos Cervantes and not . . . Trevino[] stabbed
and killed [Salinas]”; which again contradicts the majority’s assertion that
“[n]othing in the record remotely suggests that disclosure of the full text of Rey’s
second statement would have changed th[e] strategic calculation made by
Trevino’s attorneys.” Majority Op. 17. The majority does not address the impact
that undermining the investigation would have had on the jury’s assessment of
the evidence.
       “In any event, contrary to the [majority’s] assertion, it appears that [Rey’s
second statement] may have been admissible under [Texas] law.” Wiggins, 539
U.S. at 536. If Det. Gresham had used Rey’s second statement to refresh his
memory before testifying at Trevino’s trial then Trevino would have been
“entitled . . . to introduce in evidence those portions which relate to the
testimony of the witness.” Tex. R. Evid. 612. Of course, Trevino’s attorneys
were unable to ask Det. Gresham whether he had used Rey’s second written
statement to refresh his memory because they were unaware of its existence.
Therefore, the majority is mistaken that Rey’s second statement was
inadmissible.
                                              B.
       The majority also mistakenly contends that “the record evidence strongly
indicates that the prosecution did not suppress [Rey’s second] statement.”
Majority Op. 14. However, as the majority admits, whether the state suppressed
the statement turns on a factual dispute that the district court did not resolve.
Majority Op. 14 n.6.10 Also, the majority fails to appreciate that in addition to


       10
          See Trevino, 678 F. Supp. 2d at 459-60 (“There are many unresolved factual disputes
before this Court concerning precisely what documentation was made available to [Trevino’s]
trial counsel by the prosecution before and during [Trevino’s] capital murder trial. More
specifically, there appears to be a genuine issue of material fact regarding whether . . . Rey’s
statement, which indicated Cervantes admitted to Rey that he stabbed Salinas, was ever made
available to [Trevino’s] trial counsel. It is unnecessary to resolve these disputes because,
having reviewed the evidence from both phases of [Trevino’s] trial, this Court concludes Rey’s

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                                       No. 10-70004

a Brady claim, Trevino has raised a Strickland claim based on Rey’s second
statement, viz., if the statement was not suppressed, then his attorneys were
constitutionally ineffective in failing to discover the statement. Therefore, even
if Rey’s second statement was not suppressed, there still exists another
unresolved factual question of whether Trevino’s attorneys’ failure to discover
the statement rendered their performance constitutionally deficient.
       Moreover, in resolving this factual dispute, the majority seriously errs in
its assessment of the evidence regarding the state’s suppression of Rey’s second
statement: (1) The majority ignores the record evidence that Trevino’s trial
attorneys swore in affidavits that Rey’s second statement “was never produced
or shown to us” before Trevino’s trial, and that, “I . . . certainly never saw [Rey’s
statement] prior to trial in June 1997.” (2) The majority is mistaken that
Det. Gresham’s report “should have put defense counsel on notice that Rey had
made [a] statement to police to police suggesting that Cervantes stabbed the
victim” and that “[t]he onus was then on Trevino’s lawyers to request a copy of
the full statement.” Majority Op. 14. Nothing in Det. Gresham’s report suggests
that there was a separate, written and signed statement by Rey exculpating
Trevino.     If anything, Det. Gresham’s report suggests just the opposite:
Det. Gresham’s report includes a summary of Rey’s first statement, and notes
that Rey “signed the statement.” (R. at 385). However, there is no such
indication in the report that Rey signed his second statement, the statement that
is at the heart of this appeal. Nothing in Det. Gresham’s report should have
alerted Trevino’s attorney to the existence of a second, written statement. (3)
The state does not even contend that it disclosed Rey’s second statement. See
Resp’t Br. 26 (Rey’s second “statement itself may not have been in the State’s file



statement does not satisfy the ‘materiality’ prong for purposes of Brady analysis.”); see also
id. at 466-67 (addressing only the prejudice prong of Trevino’s Strickland claim).

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                                        No. 10-70004

. . . .”). In sum, if anything, the record evidence indicates that the prosecution
suppressed Rey’s second statement.
                                               C.
      Finally, the majority errs by concluding that Rey’s second statement was
not material because “the evidence presented at Trevino’s trial supports the
jury’s verdict of conviction under Texas’s law of the parties.” Majority Op. 16.11
The majority reasons that “Rey’s written statements cast no doubt on the
substantial, uncontroverted evidence presented during the guilt/innocence phase
of the trial supporting the conclusion that Trevino acted with intent to commit
the offense and aided or attempted to aid other members of the group in
commission of Salinas’s murder.” Majority Op. 16. This is clearly incorrect.
Rey’s second statement fully exculpates Trevino of any involvement in the rape
and murder of Salinas, and thus absolves Trevino of criminal responsibility for
her killing, even under Texas’ law of the parties. Moreover, Rey’s second
statement casts doubt on Gonzales’ crucial testimony that Trevino made
incriminating statements after Salinas’ murder, which would have been
significant for the jury’s determination of whether Trevino was guilty under
Texas’ law of the parties, that is, whether he “intended to kill [Salinas] or
anticipated that a human life would be taken.”
      This case is distinguishable from Miller v. Dretke, 404 F.3d 908 (5th Cir.
2005), another case charged under Texas’ law of the parties cited by the
majority. Majority Op. 16. In Miller, there was “uncontroverted, overwhelming
evidence of [the defendant’s] involvement in th[e] conspiracy [to commit a
robbery] and the nature of the robbery” and the alleged Brady evidence merely
suggested that the other participant in the robbery, and not the defendant,
actually shot the victims. 404 F.3d at 916. Here, by contrast, there was


      11
           Texas’ law of the parties doctrine is codified in Texas Penal Code § 7.02.

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                                  No. 10-70004

disputed and weak circumstantial evidence that Trevino participated in the
assault on Salinas, and the Brady evidence indicates that Trevino did not
participate in any aspect of the crime, not just that someone other than Trevino
committed the murder. Therefore, even under Texas’ law of the parties, Rey’s
second statement would have been critical to defense counsel to cast doubt on
Trevino’s culpability.
                                        V.
      In my view, the majority has fallen into error by taking judicial notice of
Rey’s third statement and unproven facts related to that statement; and
improperly assessing the credibility and weight of those statements, without
their surrounding facts and circumstances, and other evidence in this case, in
order to render judgment in favor of the state. Now that Rey’s third statement
has been produced, I would remand this case to the district court to allow the
parties an opportunity to litigate the significance of that statement, and consider
all of Rey’s statements and additional evidence relevant thereto to determine
whether all of that evidence undermines confidence in Trevino’s capital murder
trials. For these reasons, I respectfully dissent.




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