                                                                                  United States Court of Appeals
                                                                                           Fifth Circuit
                                                                                         F I L E D
                                                  In the                                   May 24, 2004
                         United States Court of Appeals                              Charles R. Fulbruge III
                                       for the Fifth Circuit                                 Clerk
                                            _______________

                                              m 03-51067
                                            _______________



                                           DAVID MARTINEZ,

                                                               Petitioner-Appellant,

                                                 VERSUS

                                          DOUGLAS DRETKE,
                        DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
                              CORRECTIONAL INSTITUTIONS DIVISION,

                                                               Respondent-Appellee.


                                     _________________________

                             Appeal from the United States District Court
                                  for the Western District of Texas
                                          m A-02-CA-759
                                   _________________________




Before SMITH, DEMOSS, and STEWART,                         David Martinez appeals the denial of his pe-
  Circuit Judges.                                      tition for writ of habeas corpus. Finding no
                                                       error, we affirm.
JERRY E. SMITH, Circuit Judge:*
                                                                             I.
                                                          In October 1998, a jury convicted Martinez
                                                       of the capital murder of Kiersa Paul while at-
   *
    Pursuant to 5TH CIR. R. 47.5, the court has de-    tempting to commit or committing robbery or
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.
aggravated sexual assault.1 During the punish-             viction and sentence through a direct appeal
ment phase of the trial, the defense and pro-              and through a state habeas petition. He filed a
secution presented witnesses regarding Mar-                federal habeas petition pursuant to 28 U.S.C.
tinez’s character, past experiences, and future            § 2254. The district court denied relief on all
dangerousness. The prosecution also offered                seven issues Martinez raised but issued a
the testimony of an expert, Dr. Ferrara, who               Certificate of Appealability (“COA”), pursuant
used the Hare Psychopathy Checklist to argue               to 28 U.S.C. § 2253(c)(2),2 on four issues:
that Martinez posed a future danger to society.
                                                              (1) whether the petitioner was denied the
                                                              effective assistance of counsel when his tri-
   The jury expressly found (1) that a prob-                  al counsel failed to prepare for and
ability existed that Martinez would commit                    adequately argue the results of the Hare
future criminal acts of violence and would rep-               Psychopathy Tests should be excluded, or
resent a continuing threat to society; and (2)                adequately impeach the State’s expert on
that no sufficient mitigating circumstances                   this issue; (2) whether the petitioner’s due
existed to justify a life sentence rather than the            process rights were violated with the
death penalty. Consequently, the court sen-                   admission of the Hare Psychopathy Tests;
tenced Martinez to death.                                     (3) whether the petitioner was denied the
                                                              effective assistance of counsel when his tri-
   Martinez unsuccessfully challenged his con-                al counsel failed to investigate and present
                                                              evidence of the substantial abuse suffered
                                                              by the petitioner at the hands of his mother,
   1                                                          father, and his father’s sado-masochistic
     A jogger found Paul’s body along a trail. Paul
                                                              homosexual lover; and (4) whether the pe-
told her sister the previous night that she intended
to meet an individual named Wolf at that location.            titioner was denied the effective assistance
Her body was covered only by a pair of unbuttoned             of counsel when his trial attorneys failed to
boxer shorts, and her legs were spread open.                  adequately investigate and present
Further investigation revealed injuries consistent            mitigating evidence as well as employ and
with strangulation, blunt force injury to the head            prepare defense experts and cross-examine
and nose, gouge marks on the neck, bruising of                the State’s experts in such a manner as to
both nipples, cuts on her neck, breast, and stom-             provide the jury a true and correct picture
ach, and forceful sexual intercourse.                         of the petitioner’s future dangerousness.

    Martinez, whose nickname was “Wolf,” told              The four grounds do not concern the validity
friends that he intended to meet a girl that evening
along the trail. He returned to his friends’ house
with a bicycle he did not own. After executing a
                                                              2
search warrant, the police determined that Martinez             Section 2253(c)(1) states that a party may not
possessed Paul’s bicycle and bicycle bag. They             appeal “the final order in a habeas corpus proceed-
also seized a Swiss army pocketknife owned by              ing in which the detention complained of arises out
Martinez. Forensic tests determined that hairs             of process issued by a State court” unless a circuit
found on Paul were consistent with Martinez’s hair         justice or judge issues a COA. Section 2253(c)(2)
and that Martinez’s pocketknife contained blood            notes that a COA can issue “only if the applicant
that matched Paul’s DNA. Semen collected from              has made a substantial showing of the denial of a
Paul’s underwear matched Martinez’s DNA.                   constitutional right.”

                                                       2
of the verdict but only address questions               deficiency prejudiced him.” Hopkins v. Cock-
surrounding the punishment phase of the trial.3         rell, 325 F.3d 579, 586 (5th Cir.) (citing
The district court did not err in denying               Washington, 466 U.S. at 687)), cert. denied,
Martinez’s habeas petition on these four                124 S. Ct. 430 (2003). “To establish deficient
matters.                                                performance, a petitioner must demonstrate
                                                        that counsel’s representation ‘fell below an ob-
                       II.                              jective standard of reasonableness.’” Wiggins
    “In a habeas corpus appeal, we review the           v. Smith, 539 U.S. 510, ___, 123 S. Ct. 2527,
district court’s findings of fact for clear error       2535 (2003) (quoting Washington, 466 U.S. at
and its conclusions of law de novo, applying            688). If counsel performed deficiently, “the
the same standards to the state court’s                 defendant must show that there is a reasonable
decision as did the district court.” Busby v.           probability that, but for counsel’s un-
Dretke, 359 F.3d 708, 713 (5th Cir. 2004)               professional errors, the result of the
(citing Martinez v. Johnson, 255 F.3d 229,              proceeding would have been different.
237 (5th Cir. 2001)). “[W]e must defer to the
state habeas court unless its decision ‘was                  A reasonable probability is a probability
contrary to, or involved an unreasonable                sufficient to undermine confidence in the out-
application of clearly established Federal law,         come.” Haynes, 298 F.3d at 380 (quoting
as determined by the Supreme Court of the               Washington, 466 U.S. at 694). With respect
United States.’ . . . .” Haynes v. Cain, 298            to investigations, we do not focus on the
F.3d 375, 379 (5th Cir.) (en banc) (quoting 28          purported matters the counsel should have
U.S.C. § 2254(d)(1)), cert. denied, 537 U.S.            found or on the final decision to pursue a
1072 (2002).          Additionally, “[f]actual          particular course but rather “whether the
determinations by state courts are presumed             investigation supporting [a particular] decision
correct absent clear and convincing evidence            . . . was itself reasonable.” Wiggins, 539 U.S.
to the contrary.” Miller-El v. Cockrell, 537            at ___, 123 S. Ct. at 2536 (emphasis in orig-
U.S. 322, 339 (2003) (citing 28 U.S.C. §                inal).
2254(e)(1)).
                                                           Martinez’s trial counsel4 did not act in an
                      III.                              objectively deficient manner or below an ob-
   Three of the questions on which the district         jective standard of reasonableness. Rather,
court granted a COA center on the                       counsel thoroughly investigated and
effectiveness of Martinez’s appointed trial             interviewed a variety of witnesses as part of
counsel. More specifically, they question               their effort to spare their client from the death
counsel’s     constitutional effectiveness in           penalty.
investigating three separate matters.
                                                           First, Martinez maintains that his counsel
   Under Strickland v. Washington, 466 U.S.             did not adequately prepare themselves and did
668 (1984), a defendant “must show that his             not sufficiently argue to exclude the Hare Psy-
counsel’s assistance was deficient and that the         chopathy Test, which measures behavior


   3                                                       4
     Martinez has not appealed the denial of any             Different appointed counsel represented Mar-
other grounds for a COA.                                tinez in his trial and in his habeas proceedings.

                                                    3
based on twenty characteristics to determine               court allowed the jury to consider the Hare
whether the subject meets that test’s definition           Test, the attorneys introduced evidence to
of a psychopath. Upon learning that Ferrara                argue that Martinez’s propensity for violence
intended to use the Hare Test in his testimony,            would decrease over time and that a life
defense counsel objected and obtained a delay              sentence would ensure that he would no
in the punishment phase so as to investigate               longer endanger society. Such an approach
and challenge5 the validity of the test.                   allowed Martinez to challenge the test, to
                                                           respond to the graphic evidence, and to offer
   During the three days in which the court                a plausible reason not to order the death
stayed its proceedings, counsel contacted their            penalty. Martinez’s counsel did not act in an
experts and located ample reference materials              objectively unreasonable manner.
with which to cross-examine Ferrara. The
challenge to the test and the cross-examination                Seco ndly, Martinez challenges his
of Ferrara lasted half a day. Although the                 attorneys’ investigation and presentation of
challenge did not succeed, counsel prepared so             alleged abuse that occurred at the hands of
well that the trial judge complimented them on             Martinez’s parents and his father’s sado-
their efforts.                                             masochistic lover. Martinez offers that a more
                                                           thorough investigation would have uncovered
   The attorneys’ efforts did not fall below any           witnesses who would have more affirmatively
standard of reasonableness. Instead, when                  testified as to the abuse that Martinez
faced with an adverse clinical test, the                   suffered.7
attorneys responded as well as could any
reasonably competent attorney.6 Once the                      As the district court discussed and as the
                                                           state habeas court noted, defense trial counsel
                                                           introduced evidence to indicate that Martinez
   5
     The challenge followed the approach of Dau-           suffered physical and emotional abuse at the
bert v. Merrell Dow Pharm., 509 U.S. 579 (1993).
   6
     Our review of the record causes us to agree
with the assessment of the district court:                    6
                                                               (...continued)
                                                              Ferrara during the Daubert hearing and in the
   There is no evidence that Martinez’s attorneys             presence of the jury. They also submitted
   performed objectively unreasonably under the               expert testimony that Martinez was not at risk
   [Washington] standard. To the contrary, Mar-               for future dangerousness because his propensity
   tinez’s counsel timely objected to Dr. Ferrara’s           for violence will decrease over time. Over all,
   testimony and articulated several reasons for              Martinez’s attorneys responded to the Hare
   their objections. Their repeated and fervent ob-           testimony in a professional reasonable manner.
   jections persuaded the trial judge to continue
                                                              7
   the trial from a Thursday to a Monday morn-                  Martinez proffers that Jessica Scott, a high
   ing, even though the judge stated he wanted to          school friend, would have testified that Martinez
   move the trial along. During this continuance,          was being pushed to engage in sexual acts with his
   the attorneys consulted with their experts and          father and the sado-masochistic lover. Scott also
   collected materials regarding the Hare test and         would have testified, at the punishment phase, that
   prepared a respectable cross-examination of Dr.         she learned that Martinez’s father sexually abused
                                      (continued...)       Martinez.

                                                       4
hands of his mother.8 The counsel, for                      masochism.       John Reynolds, Martinez’s
strategic reasons, chose not to attack the                  father’s prior partner, indicated that Martinez
mother directly while on the stand.9 In light of            and the father dressed and acted “weirder”
the fact that “[w]e will not find inadequate                after the change in partners. Petitioner asserts
representation merely because, with the benefit             that Jessica Scott, Mary Ellen Felps, and
of hindsight, we disagree with counsel’s                    William Zachary would have testified that
strategic choices,” Martinez’s trial counsel did            Martinez suffered abuse at the hands of his
not perform below any objective standard of                 father and his father’s partner.
reasonableness. Green v. Johnson, 116 F.3d
1115, 1122 (5th Cir. 1997).10                                   The evidence available for trial, however,
                                                            did not establish exactly what took place in
   With respect to alleged abuse from the fa-               Martinez’s father’s home. Martinez’s counsel
ther and his sado-masochistic lover, various                could not reach Martinez’s father and failed in
witnesses gave differing accounts of what took              serving an out-of-state subpoena on him. Ad-
place in Martinez’s home.11 Defense witnesses               ditionally, Martinez gave contradictory state-
suggested that something changed after                      ments to various people regarding possible
Martinez’s father became involved with a new                abuse.12 Because Martinez’s trial counsel
partner who had an interest in sado-                        could not compel Martinez’s father to testify,
                                                            and because scant direct evidence existed to
                                                            support the claim of sexual abuse, the
   8
     Mary Felps, a social worker who visited Mar-           attorneys had to make a decision.
tinez’s childhood home, testified that the home
smelled, was covered with bird feces, and was one                Given the mixture of available evidence,
of the worst homes she had seen. She indicated              Martinez’s attorneys adopted an approach that
that she believed the mother abused and neglected           emphasized the difficult circumstances that
Martinez. Laura Walker, Martinez’s probation of-            Martinez faced but did not highlight possible
ficer for an earlier offense, testified that Martinez
                                                            sexual abuse. Trial counsel described their
moved into his father’s home because his mother
had physically and emotionally abused him.
                                                            strategy in an affidavit they provided to the
                                                            state habeas court: “David Martinez had good
   9
     In quoting an affidavit from Martinez’s trial          relationships with his mother, his friends, his
counsel, the district court noted that “[w]hile the         teachers[,] was mistreated by his mother, and
defense called Martinez’s mother to the stand ‘to           . . . he had difficulty because his father was in
give the jurors an idea of what kind of person she          an openly homosexual relationship and in the
was,’ ‘for strategic reasons, [they] did not try to         business of making homosexual sex toys.”
annihilate her.’”
   10
      See also Washington, 466 U.S. at 701
                                                               12
(“Counsel’s strategy choice was well within the                  Although Martinez told his probation officer
range of professionally reasonable judgments, and           that his mother had abused him, he denied any
the decision not to seek more character or psy-             abuse at the hands of his father. When Martinez
chological evidence than was already in hand was            met with another psychiatrist while awaiting the
likewise reasonable.”).                                     capital trial, he denied that any abuse from either
                                                            parent had occurred. Additionally, Martinez told
   11
      During the time Martinez lived with his fath-         Felps that he loved his father and that nothing was
er, the father changed partners.                            wrong.

                                                        5
The attorneys attempted to use Felps’s                     district court correctly noted that she had the
testimony to suggest that the parents abused               opportunity to present the testimony that she
Martinez, but they could not “substantiate any             now wishes she had given.15 Though Zacha-
sexual activity between David and David’s                  ry’s testimony might have undermined Yoder’s
father or David’s father’s lover, Evan.” Again,            statements to some degree, it would not have
an unsuccessful strategy does not necessarily              contradicted the knife incident or any specific
indicate constitutionally deficient counsel.               incident in which Martinez might have
                                                           engaged in inappropriate sexual behavior.
   Thirdly, Martinez asserts that his trial coun-
sel failed to investigate and prepare witnesses               Thus, Martinez’s trial attorneys did not per-
to present sufficient mitigating evidence so as            form in a manner that fell below any objective
to give a more favorable image of Martinez’s               standard of reasonableness. They conducted
future dangerousness. Martinez offers a                    investigations and located numerous witnesses
number of witnesses, including those listed                to help their client avoid the death penalty. In
previously, who allegedly would have offered               the course of the punishment phase, they had
more mitigating information. Felps indicates               to make strategic decisions based on the
that greater preparation on the part of the                available evidence and on the predicted effect
defense attorneys would have enabled her to                a certain approach might have on the jury.
testify in a more composed manner and to                   Martinez has not satisfied the first prong of
connect with the jury. Felps also wishes that              Washington. Thus, his claims with respect to
she could have testified more directly as to               the first, third, and fourth issues on which he
possible abuse from Martinez’s father.                     requested a COA are denied.
William Zachary allegedly would have
undermined some of the testimony of Sarah                                         IV.
Yoder, a prosecution witness.13                               Martinez asserts that the introduction of the
                                                           Hare Psychopathy Test violated his due
   Counsel’s failure to offer these individuals’           process rights. As we have indicated, the test
and any other parties’ testimony did not render            considers twenty factors in determining wheth-
their performance deficient. Trial counsel pre-            er a person meets the definition of a psy-
sented numerous witnesses who testified to                 chopath. Ferrara test ified on behalf of the
Mart inez’s positive character traits.14                   prosecution and concluded that Martinez was
Although Felps wished that she could have                  a psychopath. Although Martinez’s counsel
given a more persuasive form of testimony, the             challenged the validity of the test in front of
                                                           the jury, the court allowed the jury to consider
   13
      Yoder testified that Martinez often forced her
into uncomfortable and unwanted sexual situations
                                                              15
and that Martinez once held a hunting knife to her                As the district court stated, “Thus, while in
throat. Zachary would have testified that Yoder            the perfect trial, Felps might have been more pre-
consented to light bondage and enjoyed the                 pared, she did have the opportunity at trial to give
practice.                                                  the testimony she now states she wishes she would
                                                           have given, and in fact did give some of that
   14
     Such witnesses included Martinez’s eighth-            testimony. Whether or not she had a connection
grade teacher, ninth-grade teachers, high-school           with the jury is not Martinez’s counsel’s respon-
counsel, and high-school theater director.                 sibility.”

                                                       6
it in its punishment determination.

   Martinez argues that the test has significant
weaknesses and inadequacies and that Ferrara
did not follow the test’s actual procedures.
We agree with the district court that the trial
court’s decision to admit the test did not vio-
late “clearly established Federal law, as
determined by the Supreme Court of the
United States.” 28 U.S.C. § 2254(d)(1). The
test itself does not involve any constitutionally
suspect factors such as race or ethnicity.16 The
jury had the opportunity to listen to defense
counsel’s articulation of the test’s weaknesses
and to the cross-examination of Ferrara. Be-
cause the jury considered a number of pieces
of evidence regarding Martinez’s future dan-
gerousness, and because Martinez’s counsel
challenged the merits of the Hare Test’s pro-
cedures, the court did not violate Martinez’s
due process rights by allowing the test and
Ferrara’s testimony into evidence.

  The judgment denying habeas relief is
AFFIRMED.




   16
      See, e.g., McCleskey v. Kemp, 481 U.S. 279,
309 n.30 (1987) (“The Constitution prohibits ra-
cially biased prosecutorial arguments.”).

                                                    7
