     Case: 16-70020      Document: 00514006393         Page: 1    Date Filed: 05/24/2017




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

                                      No. 16-70020
                                                                                    Fifth Circuit

                                                                                  FILED
                                                                              May 24, 2017

ROSENDO RODRIGUEZ, III,                                                      Lyle W. Cayce
                                                                                  Clerk
                     Petitioner - Appellant

v.

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

                     Respondent - Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 5:13-CV-233


Before JONES, SMITH, and DENNIS, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
       A jury found Rosendo Rodriguez, III, guilty and sentenced him to death
for murdering a pregnant woman after he sexually assaulted her.                            After
exhausting his state remedies, Rodriguez filed a federal habeas petition under
28 U.S.C. § 2254, raising, inter alia, ineffective assistance of counsel claims.
In a 96-page opinion, the district court denied the petition and dismissed it
with prejudice. Rodriguez now seeks a certificate of appealability (COA) under
28 U.S.C. § 2253(c). For the following reasons, we DENY the COA application.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                             No. 16-70020
                           BACKGROUND
 The district court summarized the facts as follows:
                            I.    Pretrial
       On September 13, 2005, workers using heavy equipment to
 spread and compact garbage in a Lubbock city landfill found the
 body of Summer Baldwin in a suitcase. Baldwin, a prostitute, had
 been a witness in a federal counterfeiting case, which triggered
 FBI involvement in the investigation of her death. Financial
 records obtained via federal grand jury subpoena revealed that
 Rodriguez’s debit card was used to purchase an identical suitcase
 at Walmart the day before. The store’s surveillance video showed
 that Rodriguez matched the description of the man last seen with
 Baldwin alive. Hotel and bank records indicated that Rodriguez’s
 debit card was also used to rent a hotel room in Lubbock under the
 name “Thomas” Rodriguez. Based on the foregoing information,
 Rodriguez was arrested at his parents’ home in San Antonio.
        Rodriguez retained Albert Rodriguez (“Albert”) as counsel.
 Albert is not related to Rodriguez but was an acquaintance of
 Rodriguez’s father, a well-known criminal defense attorney from
 Wichita Falls. Three weeks after his arrest, Rodriguez gave a
 recorded statement to the police, with Albert present, admitting
 that he had engaged in consensual sex with Baldwin but killed her
 in self-defense after she attacked him with a knife. The ongoing
 police investigation also linked Rodriguez to the disappearance of
 16-year-old Joanna Rogers, who had been missing for more than a
 year.
        In the summer of 2006, Rodriguez negotiated a plea bargain
 with the assistance of new counsel, Jeff Blackburn. Rodriguez
 agreed to plead guilty to Baldwin’s murder and disclose his
 involvement in Rogers’s murder. If his information could be
 corroborated by the recovery of Rogers’s body, the State would
 reduce the capital murder charge to murder, offer a sentence of life
 imprisonment, and grant Rodriguez immunity from prosecution
 for Rogers’s murder. Rodriguez confessed to Rogers’s murder, and
 her body, like Baldwin’s, was found in a suitcase in the Lubbock
 city landfill.
       The plea agreement did not go forward as planned, however.
 On the scheduled day in October of 2006, Mr. Blackburn
 regretfully informed the trial court of a bizarre series of events, the
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                           No. 16-70020
 likes of which he had never encountered in his law practice. For
 the preceding twenty-four hours, Rodriguez had maintained that
 he did not understand anything he was being told. Rodriguez told
 the trial judge he did not understand his questions. As a result,
 the plea did not go forward, Mr. Blackburn withdrew from the case,
 and the State gave notice of its intent to seek the death penalty.
 Richard Wardroup and Fred Stangl were appointed as new
 counsel. The trial court granted a change of venue because of
 publicity surrounding the search for Rogers’s body; in March of
 2008, the parties proceeded to trial.
                            II.   Trial
        The prosecution alleged two different theories of capital
 murder: (1) intentionally or knowingly causing Baldwin’s death
 while in the course of committing or attempting to commit
 aggravated sexual assault, and (2) intentionally or knowingly
 causing the death of more than one person in the same criminal
 transaction, specifically, Baldwin and her child in utero. See Tex.
 Penal Code Ann. § 19.03(a)(2), (7). [Footnote omitted.] The State
 presented evidence showing that Rodriguez had been in Lubbock
 for training with the United States Marine Corps Reserve when he
 picked up Baldwin in the early morning hours of September 12,
 2005, and took her to his hotel room where he beat, strangled, and
 sexually assaulted her. He then purchased the suitcase, placed
 her body in it, and threw it in a dumpster. The defense argued
 that the sex was consensual, that Rodriguez had no knowledge of
 the pregnancy, and that his Marine combat instincts took over and
 he killed Baldwin accidentally in self-defense after she wielded a
 knife at him. The jury returned separate guilty verdicts on each
 theory.
       At the punishment phase, the State introduced evidence of
 five other sexual assaults committed by Rodriguez and a
 misdemeanor theft charge for which he had served probation. The
 jurors received evidence connecting Rodriguez to the
 disappearance of Rogers, but they did not receive his confession to
 her murder. The defense introduced evidence and argument that
 Rodriguez could safely serve a life sentence in prison, that
 Rodriguez was a respectful, intelligent person, and that Rodriguez
 grew up in a home with an abusive, domineering, alcoholic father.
 The jury answered two special issues in a way that required a


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      death sentence under Texas law. See Tex. Code Crim. Proc. Ann.
      art. 37.071, §§ 2(b)(1) and (e)(1).
                     III.   Post-conviction proceedings
            The trial judge appointed attorney J.R. Wall on direct appeal
      and Paul Mansur as state habeas counsel. Mr. Wall filed a motion
      for new trial that the trial court denied after a live hearing, and
      then filed a brief raising forty-two claims on appeal. The Texas
      Court of Criminal Appeals (“CCA”) affirmed the conviction.
      Rodriguez v. State, No. AP-75901, 2011 WL 1196871, at *1 (Tex.
      Crim. App. May 4, 2011) (not designated for publication), cert.
      denied, 132 S. Ct. 814 (2011).
             Mr. Mansur filed a state habeas application raising twenty-
      one grounds for relief. After a six-day hearing, the convicting court
      made written findings and conclusions recommending that relief
      be denied. The CCA reviewed the record, adopted the lower court’s
      findings and conclusions, and denied habeas relief. Ex parte
      Rodriguez, No. WR-78127-01, 2013 WL 1920737, at *1 (Tex. Crim.
      App. May 8, 2013). Rodriguez then filed his amended federal
      petition raising twenty-six claims for relief. All but one of these
      claims has been adjudicated on the merits in state court.
After a hearing, the district court denied Rodriguez’s petition and dismissed it
with prejudice. The district court also denied Rodriguez’s request for a COA.
Rodriguez now renews his request for a COA in this court.
                            STANDARD OF REVIEW
      As a state prisoner whose habeas petition has been denied by a federal
district court, “[f]ederal law requires that he first obtain a COA from a circuit
justice or judge.”    Buck v. Davis, 137 S. Ct. 759, 773 (2017) (citing
28 U.S.C. § 2253(c)(1)). “A COA may issue ‘only if the applicant has made a
substantial showing of the denial of a constitutional right.’”      Id. (quoting
28 U.S.C. § 2253(c)(2)). Unless and until he secures a COA, this court “may
not rule on the merits of his case.” Id. (citing Miller–El v. Cockrell, 537 U.S.
322, 336 (2003)).



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                                 No. 16-70020
      The COA inquiry is “limited” and “not coextensive with a merits
analysis.” Id. at 773–74. “[T]he only question is whether the applicant has
shown that ‘jurists of reason could disagree with the district court’s resolution
of his constitutional claims or that jurists could conclude the issues presented
are adequate to deserve encouragement to proceed further.’”          Id. at 773
(quoting Miller–El, 537 U.S. at 327). Put otherwise, at this stage, the court
must make only “an initial determination whether a claim is reasonably
debatable” and nothing more. Id. at 774. That determination must be made
without “full consideration of the factual or legal bases adduced in support of
the claims.” Id. at 773 (quoting Miller–El, 537 U.S. at 336). In conducting the
inquiry, this court “must be mindful of the deferential standard of review the
district court applied to [the habeas petition] as required by the AEDPA.”
Williams v. Stephens, 761 F.3d 561, 566 (5th Cir. 2014) (quoting Miniel v.
Cockrell, 339 F.3d 331, 336 (5th Cir. 2003)) (alteration in original).      That
standard required Rodriguez to prove that the state court’s adjudication
“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 “resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in
the State court proceeding.” Id. (quoting 28 U.S.C. § 2254(d)). Finally, “any
doubt as to whether a COA should issue in a death-penalty case must be
resolved in favor of the petitioner.” Pippin v. Dretke, 434 F.3d 782, 787 (5th
Cir. 2005).
                                DISCUSSION
      Rodriguez advances four claims for relief.      Each claim asserts that
Rodriguez’s counsel was ineffective, although one claim includes additional
constitutional violation allegations and another involves procedural default.
Because ineffective assistance of counsel claims comprise most of Rodriguez’s
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                                 No. 16-70020
appeal, we set out the principles governing these claims before addressing each
claim in turn.
I. Ineffective Assistance of Counsel
      To establish that he was denied constitutionally effective assistance of
counsel, Rodriguez must show that (1) his counsel rendered deficient
performance, and (2) his counsel’s actions resulted in prejudice.              E.g.,
Strickland v. Washington, 466 U.S. 668, 687–88 (1984). Rodriguez must prove
both prongs, and the failure to prove either one will defeat the claim. Id. “In
determining whether counsel’s performance was deficient, courts must
‘indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.’”          Williams v. Stephens,
761 F.3d 561, 567 (5th Cir. 2014) (quoting Strickland, 466 U.S. at 689)).
Judicial scrutiny of counsel’s conduct “must be highly deferential” and avoid
“the distorting effect of hindsight.” Id. (quoting Strickland, 466 U.S. at 689–
90). As to prejudice, Rodriguez must show “a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. (quoting Strickland, 466 U.S. at 694). “A reasonable
probability      is    a      probability      sufficient       to      undermine
confidence in the outcome.”      Hinton v. Alabama, 134 S. Ct. 1081, 1089
(2014) (quoting Strickland, 466 at 694). “The likelihood of a different result
must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86,
112 (2011). And the deferential Strickland standard is more deferential still—
indeed, “‘doubly’ so”—when it is applied, as in this case, in tandem with section
2254(d). Id. at 105 (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)).




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                                  No. 16-70020
II. Rodriguez’s Claims
      A. Failure to Investigate and Present Mitigating Evidence
      Rodriguez’s “core contention” is that “trial counsel were ineffective for
failing to: 1) conduct a more thorough mitigation investigation; 2) present
additional mitigation evidence relating to incidents of abuse, violence and
dysfunction in the Rodriguez family; 3) investigate his father’s medical and
mental-health records; and 4) present non-family witnesses who would
corroborate the Rodriguez family’s testimony about his father’s abuse,
alcoholism, and mental health issues.” The district court found that the state
court did not unreasonably apply Strickland in rejecting these arguments.
      In his request for a COA, Rodriguez proffers several purported
“dimensions of debatability” regarding the district court’s conclusion that the
state court did not unreasonably apply Strickland. First, he says that the
district court’s conclusion is debatable because the court incorrectly applied the
law. He emphasizes the district court’s statement that his claim came down to
“matters of degree: Did counsel talk to enough witnesses about abuse? Did
counsel   interview   the   family   members     enough    times    under   ideal
circumstances?     Did counsel extract enough details of the defendant’s
upbringing?” In his view, the court’s statement improperly “avers that the fact
that Rodriguez’s defense team adduced some mitigation evidence pretermits
the inquiry as to whether or not the investigation was sufficient.” Cf. Sears v.
Upton, 561 U.S. 945, 955 (2010) (“We certainly have never held that counsel’s
effort to present some mitigation evidence should foreclose an inquiry into
whether a facially deficient mitigation investigation might have prejudiced the
defendant.”).
      Rodriguez’s argument is puzzling in several respects. To begin with, he
complains of how the district court characterized his claim, but the court’s
characterization hewed closely to this court’s precedents. Courts “must be
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                                  No. 16-70020
particularly wary of ‘argument[s] [that] essentially come[] down to a matter of
degrees.     Did counsel investigate enough?      Did counsel present enough
mitigating evidence? Those questions are even less susceptible to judicial
second-guessing.’” Dowthitt v. Johnson, 230 F.3d 733, 743 (5th Cir. 2000)
(quoting Kitchens v. Johnson, 190 F.3d 698, 703 (5th Cir. 1999)) (alterations in
original).    Rodriguez’s demands for a “more thorough investigation,”
“additional mitigation evidence,” and corroborating testimony are all
arguments that come down to matters of degree—arguments that courts “must
be particularly wary” of entertaining. In addition, Rodriguez quotes only the
district court’s summation of its 12-page analysis of trial counsel’s
comprehensive mitigation case. The district court carefully assessed each of
Rodriguez’s arguments and explained why the state court did not unreasonably
conclude that Rodriguez failed to overcome the presumption of his counsel’s
competence.     Notably, Rodriguez does not explain how the district court’s
rejection of any particular argument is debatable; instead, he summarily states
that there were “crucial failures by counsel in their investigation.” In light of
the district court’s faithfulness to Fifth Circuit precedent and detailed analysis
of the mitigation case, reasonable jurists could not debate the district court’s
conclusion.
      Second, Rodriguez argues that reasonable jurists could debate the
district court’s conclusion because the district court itself noted that there was
conflicting evidence.    But Rodriguez mischaracterizes the district court’s
statements. The court indeed stated that “the details of abuse and the family
history conflicted in many ways” and that “the testimony among the habeas
witnesses is rife with conflict[.]” In context, however, the district court made
those observations in its prejudice analysis to show how unpersuasive and
potentially harmful the proposed additional evidence would be, not to show
that the issue of prejudice was debatable. In the court’s words, the state court
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                                  No. 16-70020
reasonably found no prejudice because “[t]he new mitigating evidence would
barely have altered the ‘sentencing profile’ presented to the jury and may have
even been harmful.” Rodriguez does not attack this specific conclusion in the
prejudice analysis, nor could reasonable jurists debate it.
      Finally, in a one-sentence argument, Rodriguez asserts that, “[a]cross
the country, courts have found insufficient mitigation investigations into
abusive family lives in circumstances less egregious that [sic] Rodriguez
suffered.” But, of the cases that Rodriguez cites in support of that statement,
only one is from this circuit and all concerned obviously deficient mitigation
work. See Escamilla v. Stephens, 749 F.3d 380, 392–93 (5th Cir. 2014) (among
other deficiencies, counsel failed to hire a mitigation specialist, failed to
apprise the defense expert of the petitioner’s background and social history,
and “never presented the jury with information regarding the disadvantages,
instability, and trauma that [the petitioner] actually experienced as a child”);
Cauthern v. Colson, 736 F.3d 465, 483–87 (6th Cir. 2013) (counsel failed to
investigate and present evidence of family abuse); Hooks v. Workman, 689 F.3d
1148, 1203–04 (10th Cir. 2012) (among other deficiencies, counsel “made no
attempt” to put on evidence of the petitioner’s “life circumstances and his
tragic, chaotic upbringing”).
      In contrast, Rodriguez’s counsel’s mitigation case contained none of those
deficiencies. The district court thoroughly canvassed the mitigation effort,
which included the following: counsel retained a mitigation specialist and
worked with a neuropsychologist, a psychiatrist, and a forensic pathologist.
The mitigation specialist interviewed Rodriguez’s father, mother, and two
sisters, and all four family members testified at trial. The mitigation specialist
also interviewed Rodriguez’s preschool teacher, four college acquaintances, a
high school coach, detention officers, a jail librarian, and a Naval Academy
contact.   The mitigation specialist’s report catalogued Rodriguez’s family’s
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                                  No. 16-70020
history of depression, and his father’s bipolar disorder, tyrannical behavior,
and alcohol and pain-medication abuse. As the district court noted, “[t]his is
not a case where trial counsel overlooked abusive conduct, mental illness, and
alcoholism in [Rodriguez’s father].” Indeed, counsel presented evidence that
his father was “an abusive alcoholic,” and counsel “argued those facts in
mitigation.”   This case, therefore, is quite different from the cases that
Rodriguez cites, and, other than the sentence quoted above, he makes no
argument to the contrary.
      Reasonable jurists could not debate the district court’s conclusion that
the state court did not unreasonably apply Strickland in finding no deficiency
or prejudice in counsel’s mitigation effort.
      B. Unconstitutionally Obtained Confession
      In his second issue, Rodriguez makes two claims regarding whether his
confession was unconstitutionally obtained. First, he generally asserts that he
did not confess freely, knowingly, intelligently, or voluntarily in violation of his
rights under the Fifth, Sixth, and Fourteenth Amendments. Second, he asserts
that his initial counsel, Albert, provided ineffective assistance by not
thoroughly investigating the evidence in his case before allowing Rodriguez to
confess. The arguments are interrelated, however, because his first argument
rests on the idea that “if a defendant is denied counsel during a subsequent
police interrogation, any confession is presumed involuntary.” His theory is
that Albert provided ineffective assistance of counsel, which effectively denied
him counsel before and during his confession which, in turn, rendered his
confession involuntary. For that reason, Rodriguez hinges both of his claims
on whether “Albert’s representation in this regard is deemed to be ineffective.”
The district court held that the state court reasonably found that counsel was
not ineffective and that, as a corollary, Rodriguez confessed freely, knowingly,
intelligently, and voluntarily.
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                                  No. 16-70020
      Reasonable jurists could not debate the district court’s conclusion that
the state court reasonably found no deficiency or prejudice under Strickland.
As to deficiency, Strickland makes clear that “[t]he reasonableness of counsel’s
actions may be determined or substantially influenced by the defendant’s own
statements or actions.” 466 U.S. at 691. Indeed, counsel’s actions are “usually
based” on “information supplied by the defendant,” and “what investigation
decisions are reasonable depends critically on such information.” Id. Here, the
record shows that Rodriguez was adamant about speaking to the police. In his
initial meetings with Albert, Rodriguez demanded to speak to the police to
establish that he acted in self-defense. He also asked Albert to give to the
police knives that Rodriguez had taken from Baldwin to prove he acted in self-
defense.   Albert warned Rodriguez that the police also suspected his
involvement in the Rogers disappearance, yet Rodriguez persisted and Albert
acquiesced. Moreover, in the interview itself, Rodriguez confirmed no fewer
than five times that he had wanted to speak with the police and that he was
doing so “completely of [his] own volition.” For his part, Albert knew that the
police had a strong case against Rodriguez because he had interviewed several
witnesses, met with the lead detective, visited the hotel where the crime
occurred, and viewed the police reports and surveillance footage. He knew the
importance of raising a self-defense theory sooner rather than later. And he
knew that Rodriguez had some bruises and a scratch, which at least facially
corroborated Rodriguez’s self-defense story. Finally, the fact that police offered
Rodriguez a plea deal—from which he later backed out—demonstrates the
reasonableness of Albert’s strategy. In light of these circumstances, reasonable
jurists could not debate the district court’s conclusion that the state court
reasonably found that Albert’s assistance and investigation were not deficient
and that the confession was constitutionally obtained.


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       Even assuming deficiency, however, the same would be true of the
prejudice analysis. The district court recounted some of the strong evidence
against Rodriguez even without his confession: proof that he rented the hotel
room where Baldwin’s blood was found; security camera footage showing him
purchasing gloves and a suitcase and placing them in his rental truck; his
internet searches about Baldwin’s murder following the crime; and evidence
matching his DNA to that found on Baldwin.                      Further, if anything, the
admission of his confession helped, rather than hurt, him. As the district court
noted, “the complained-of police statement allowed Rodriguez to argue the
following facts to the jury without having to testify: (1) Baldwin used a knife;
(2) he acted in self-defense; (3) he was unaware of Baldwin’s pregnancy; (4) the
sex was consensual; and (5) (in conjunction with the autopsy report) Baldwin
used crack cocaine.” Reasonable jurists thus could not debate the district
court’s ruling that the state court reasonably found that Albert’s assistance did
not prejudice Rodriguez.
       C. Failure to Object to Evidence on Relevance Grounds
       Rodriguez asserts that his trial counsel was ineffective for not objecting
on relevance grounds to two photographs of Summer Baldwin’s unborn child.
As with the other claims, the district court held that the state court reasonably
applied Strickland in rejecting this claim.
       As explained above, one of the State’s capital-murder theories was that
Rodriguez had committed a double-murder.                          See Tex. Penal Code
§ 19.03(a)(7)(A) (defining capital murder in part as murder where “the person
murders more than one person . . . during the same criminal transaction”). 1 At


       1 The Texas Penal Code defines “person” in part as “an individual” and, in turn, defines
“individual” as “a human being who is alive, including an unborn child at every stage of
gestation from fertilization until birth.” Tex. Penal Code § 1.07(a)(26), (38). It also defines
“[d]eath” as including, “for an individual who is an unborn child, the failure to be born alive.”
Id. § 1.07(a)(49).
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the time of Rodriguez’s trial, CCA precedent held that the “transferred intent”
doctrine applied to multiple-murder capital prosecutions where an unintended
victim and the intended victim are both killed. See Norris v. State, 902 S.W.2d
428, 437–39 (Tex. Crim. App. 1995). Thus, although there was no evidence
that Rodriguez knew Baldwin was pregnant (and he claimed he did not know),
Rodriguez could be liable under the double-murder capital theory so long as he
intended to kill Baldwin. The State offered two photographs of Baldwin’s child
in utero in support of the double-murder capital theory. Rodriguez’s counsel
vigorously objected under Texas Rule of Evidence 403 that the photographs
were prejudicial and inflammatory; the district court voiced concerns about the
photographs but overruled the objections.
        After Rodriguez’s trial, however, the CCA reversed course and held that
the “transferred intent” doctrine may be used in the multiple-murder context
“only if there is proof of intent to kill the same number of persons who actually
died[.]” See Roberts v. State, 273 S.W.3d 322, 331 (Tex. Crim. App. 2008).
Absent evidence that Rodriguez was aware that Baldwin was pregnant, there
could be no evidence that he had formed the requisite intent to kill two persons.
As a result, he could not be convicted under the double-murder capital theory
after Roberts. The State conceded as much when it abandoned its defense of
that theory on Rodriguez’s direct appeal. See Rodriguez, 2011 WL 1196871, at
*5.
        Highlighting Roberts, Rodriguez now argues that his trial counsel was
ineffective for not objecting to the photographs on relevance grounds.
According to Rodriguez, “[i]t is totally counterintuitive for counsel to object at
trial to both the unconstitutionality of the fetus murder count and the highly
prejudicial nature of the autopsy photographs under Rule 403, but to then fail
to raise an objection as to what relevance the photographs had to either the
guilt/innocence or punishment trial.”       Contrary to Rodriguez’s suggestion,
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                                  No. 16-70020
however, it would have been counterintuitive for Rodriguez’s counsel to object
to the relevancy of the photographs. Under pre-Roberts law, those photographs
were not only relevant but were also essential to the State’s double-murder
capital theory. Rodriguez essentially proposes that his counsel’s assistance be
deemed deficient and prejudicial for counsel’s “failure” to lodge a then-frivolous
objection and anticipate a change in the law.      Reasonable jurists could not
debate the district court’s conclusion that the state court did not unreasonably
apply Strickland in rejecting Rodriguez’s proposals. See, e.g., United States v.
Fields, 565 F.3d 290, 294 (5th Cir. 2009) (stating that defense counsel has no
general duty to anticipate changes in the law); Koch v. Puckett, 907 F.2d 524,
527 (5th Cir. 1990) (“This Court has made clear that counsel is not required to
make futile motions or objections.”).
      D. Failure to Challenge Whether a Trash Compactor, Not
      Rodriguez, Caused Baldwin’s Blunt-Force Injuries
      Rodriguez asserts that his trial counsel was ineffective for failing to
challenge whether Rodriguez was the source of Baldwin’s blunt-force injuries.
      As an initial matter, Rodriguez concedes that, because his state habeas
counsel did not raise this claim, the claim is procedurally defaulted unless he
can establish cause to excuse the default under Martinez v. Ryan, 566 U.S. 1
(2012) and Trevino v. Thaler, 133 S. Ct. 1911 (2013). A prisoner may establish
cause for a default of an ineffective assistance claim where (1) the state courts
did not appoint counsel in the initial-review collateral proceeding for a claim
of ineffective assistance at trial, or (2) appointed counsel in the initial-review
collateral proceeding, where the claim should have been raised, was ineffective
under Strickland. Martinez, 566 U.S. at 14. Further, “[t]o overcome the
default, a prisoner must also demonstrate that the underlying ineffective-
assistance-of-trial-counsel claim is a substantial one, which is to say that the
prisoner must demonstrate that the claim has some merit.” Id. In Trevino,

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                                  No. 16-70020
the Supreme Court held that “the Martinez exception applies in [the Texas]
procedural regime.” 133 S. Ct. at 1915.
      The district court held that because Rodriguez did not satisfy the
Martinez exception, the claim is procedurally defaulted. Because the district
court rejected this claim on procedural grounds, this court must consider
whether “jurists of reason would find it debatable whether the petition states
a valid claim of the denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was correct in its procedural
ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
      Rodriguez claims that his state habeas counsel and trial counsel were
both ineffective for failing to challenge “whether Rodriguez simply chocked
[sic] Baldwin during a struggle, in which he claimed he acted in self-defense,
or instead brutally and repeatedly beat her prior to dumping her body.”
Rodriguez says trial counsel’s “failure” to argue that a trash compactor caused
Baldwin’s injuries “all but gutted his self defense case[.]”        In his view,
“[c]ounsel’s failure to shed light on the possibility that Rodriguez chocked [sic]
Baldwin in self-defense, and thereby letting the jury presume that her multiple
trauma injuries were inflicted over the course of a long and horrific beating,
most certainly prejudiced the outcome of this case.” He also contends that
“[s]tate habeas counsel’s failure to spot and develop this instance of ineffective
assistance of trial counsel defaulted this claim and prejudiced the outcome of
this case contrary to the Martinez holding.”
      Reasonable jurists could not debate the district court’s holding that
Rodriguez did not establish cause to excuse the default and demonstrate that
his underlying claim has “some merit.” Martinez, 566 U.S. at 14. Beginning
with Rodriguez’s trial counsel, Rodriguez’s argument that counsel effectively
gutted his self-defense claim appears to have a serious flaw: he had no self-
defense claim as to the capital murder charge involving aggravated sexual
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                                  No. 16-70020
assault on which the jury convicted him. The jury charge, which Rodriguez
never challenged, plainly states, “You are not to consider the law of self-defense
as to capital murder. The law of self-defense applies only to the offense of
murder as to this charge.” This explains why, when arguing in closing against
the capital theory involving aggravated sexual assault, Rodriguez’s trial
counsel pressed his only real defense to this charge, that Rodriguez and
Baldwin engaged in consensual sex, which would not constitute aggravated
sexual assault. See Tex. Penal Code § 22.021(a)(1)(A)(i)–(iii) (requiring the
absence of consent). Rodriguez does not explain how his counsel could be
ineffective for allegedly gutting a defense that did not exist as to the capital
charge on which he was convicted, especially when counsel advanced the
defense that did exist.
      Beyond that problem, there were obvious reasons why attempting to
blame a trash compactor for Baldwin’s blunt-force injuries was inadvisable. To
begin with, that argument would not explain all of Baldwin’s horrific injuries.
Rodriguez’s counsel retained a pathologist who reported that the “very good”
forensic work on Baldwin’s injuries showed it could not “reasonably be argued
that there wasn’t sexual assault” or that Rodriguez acted in self-defense. Thus,
that a trash compactor caused the blunt-force injuries would not explain the
internal sexual assault injuries that the pathologist confirmed.
      Second, if Rodriguez’s counsel argued that a trash compactor caused the
blunt-force injuries, he would effectively concede that Baldwin had been buried
and compacted alive. This follows from expert testimony at trial that humans
must have “continued cardiac output” to produce bruises like the bruises found
on Baldwin’s body. If the trash compactor caused the bruises, then it would
have done so while she was alive.           That concession would contradict
Rodriguez’s statement in his confession that Baldwin had no pulse before he
placed her in the suitcase. It would also contradict his general position that
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                                 No. 16-70020
he killed her in self-defense. Finally it would exacerbate the already-gruesome
nature of Baldwin’s death.
      As the district court stated, even if Rodriguez acted in self-defense at
some point, there is “no question that Rodriguez left her in the trash dumpster,
the foreseeable and perhaps intended result of which was that she would be
compacted like trash.” There was no prejudice from counsel’s approach. In
sum, reasonable jurists could not debate the district court’s conclusion that
Rodriguez failed to show “some merit” to his underlying claim that his trial
counsel’s assistance was deficient and prejudicial under Strickland for not
pursuing the trash-compactor argument.
      In the same vein and for the same reasons, reasonable jurists could not
debate the district court’s holding that Rodriguez did not establish cause in the
form of state habeas counsel’s ineffectiveness for the purported failure to
uncover and pursue the trash-compactor argument. Perhaps more notable
here, however, is the incredible effort that state habeas counsel put into
Rodriguez’s state habeas petition: arguments and exhibits supporting 21
grounds for relief contained in 235 pages and tested and supplemented during
a 6-day evidentiary hearing. Given the problems with advancing a trash-
compactor argument and the massive state habeas effort, reasonable jurists
could not debate the district court’s conclusion that Rodriguez did not show
cause—i.e., that state habeas counsel was ineffective—to overcome the
procedural default on this ineffective assistance claim.
      For all of these reasons, reasonable jurists could not debate the district
court’s ruling that this ineffective assistance claim is procedurally barred.
                                CONCLUSION
      For the foregoing reasons, Rodriguez’s COA request is DENIED.




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