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

                                No. 17-10652
                                                                     Fifth Circuit

                                                                   FILED
                                                               April 25, 2018

ROBERTO SANCHEZ,                                              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


O R D E R:
      After a heated exchange Roberto Sanchez stabbed Sergio Gonzalez in the
chest, killing him. The jury convicted Sanchez of murder and sentenced him
to 70 years in prison. In both his state and federal habeas petitions, Sanchez
claimed his trial counsel was ineffective (1) for failing to object when the
prosecution asked a witness whether Sanchez was legally present in the
United States, which he wasn’t, and (2) for failing to present evidence to
support theories of self-defense, defense of third persons, and necessity. The
district court held that Sanchez was not entitled to habeas relief and denied a
certificate of appealability (COA). Sanchez now seeks a COA on those two
issues.
                                  No. 17-10652

                                     I.
      To obtain a COA Sanchez must make “a substantial showing of the
denial of a constitutional right.”    28 U.S.C. § 2253(c)(2); see Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003). That standard is satisfied if Sanchez shows
“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 327. Whether
there is room for disagreement over the district court’s ruling is viewed through
the lens of AEDPA deference that a federal habeas court must apply to claims
rejected on the merits in state court. Id. at 341 (asking “whether the District
Court’s application of AEDPA deference . . . was debatable amongst jurists of
reason”). That deference requires a habeas petitioner to establish that the
state court decision was an unreasonable application of clearly established
Supreme Court law.      28 U.S.C. § 2254(d)(1).      So a COA should issue if
reasonable federal judges could disagree over whether the state court acted
unreasonably.
      For claims challenging the effectiveness of counsel, there is another layer
of deference. The first part of establishing a Sixth Amendment violation is to
show that representation “fell below an objective standard of reasonableness.”
Strickland v. Washington, 466 U.S. 668, 687–88 (1984). In assessing counsel’s
actions, courts must take account of the difficult strategic choices defense
lawyers have to make in the pressure cooker of trial. Id. at 689. Applying
AEDPA on top of the deference already built into Strickland’s effectiveness
inquiry means that the review is “doubly deferential.” Cullen v. Pinholster,
563 U.S. 170, 190 (2011). If a petitioner can overcome these obstacles and show
that counsel’s performance fell below constitutional standards, he must then
show that there is a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
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Strickland, 466 U.S. at 694. There is no double deference for this prejudice
inquiry, but AEDPA’s single layer of deference still poses a formidable obstacle.
                                       II.
      Sanchez maintains that trial counsel should have objected when the
prosecution asked his cousin whether Sanchez was in the country “legally or
illegally.” Her response was, “Well, illegal, he doesn’t have papers.” In the
federal habeas proceeding, defense counsel explained that he did not object
because “if [Sanchez] testified he would, on his own, offer” information
regarding his immigration status with the hope of appearing credible to the
jury. Counsel added that he planned to object if the issue had been raised
again, so that Sanchez’s unlawful status could “not be used to appeal to any
prejudice.”
      But trial counsel’s purported strategy based on the possibility that
Sanchez would testify was suspect. Given the uncertainty that almost always
exists about whether a defendant will testify, why not keep Sanchez’s
immigration status out of the trial until the point of no return when he takes
the stand? In the event he ends up testifying, it is a tried-and-true tactic to
take the sting out of damaging cross-examination by first presenting the
impeachment evidence during the friendly terrain of direct examination. See,
e.g., United States v. Montani, 204 F.3d 761, 765 (7th Cir. 2000); United States
v. Gignac, 119 F.3d 67, 70 (1st Cir. 1997) (both discussing this strategy). If he
elects not to testify, which turned out to be the case, the jury never hears the
prejudicial information. It does not make sense to let the cat out of the bag
before the decision to testify is made, especially when a tool remains to mitigate
the surprise of any cross-examination focusing on his unlawful status.
      The more fundamental problem is that even if Sanchez had ended up
testifying, his immigration status was not admissible under Texas law.
Although federal evidence law allows questioning on collateral instances of
                                    3
                                       No. 17-10652

misconduct that go to credibility (but not the introduction of extrinsic evidence;
the examiner is stuck with the witness’s answer), 1 Texas does not. Compare
FED. R. EVID. 608(b) (providing that “the court may, on cross-examination,
allow [specific instances of the witness’s conduct] to be inquired into if they are
probative of the character for truthfulness or untruthfulness”), with TEX. R.
EVID. 608(b) (“Except for a criminal conviction under Rule 609 a party may not
inquire into or offer extrinsic evidence to prove specific instances of the
witness’s conduct in order to attack or support the witness’s character for
truthfulness.”). In accord with the Texas rule prohibiting inquiry into this type
of collateral matter, Texas courts bar the introduction of a party’s immigration
status when that information is “not relevant to proving a material issue in the
case.” TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 241–42 (Tex. 2010) (quoting
Poole v. State, 974 S.W.2d 892, 905 (Tex. App. —Austin 1998, pet. ref’d)). Texas
caselaw also recognizes the prejudicial impact of such testimony, with one
court noting that it is an “inappropriate focal point for argument by the
prosecution, particularly in light of the times.” Riascos v. State, 792 S.W.2d
754, 756, 758 (Tex. App.—Houston 1990) (finding ineffective assistance when,
among other things, counsel failed to object to the prosecution’s remark during
opening statements that the jury would hear from an officer “specializ[ing] in
murder by Colombian illegal aliens”). In the quarter century since a state court
of appeals made that observation, illegal immigration has only become a more


       1 Even with Rule 608(b)’s leeway to impeach on certain collateral matters (subject,
like all evidence, to Rule 403 balancing), federal courts have held that evidence of
immigration status is not admissible to attack credibility. See, e.g., Mischalski v. Ford Motor
Co., 935 F. Supp. 203, 207–08 (E.D.N.Y. 1996) (“Ford has cited no authority, and the court is
aware of none, to support the conclusion that the status of being an illegal alien impugns
one’s credibility. Thus, by itself, such evidence is not admissible for impeachment
purposes.”); Carvahe v. I.N.S., 911 F. Supp. 843, 852 (E.D. Pa. 1995) (“An individual’s status
as an alien, legal or otherwise, however, does not entitle the Board to brand him a liar.”);
First Am. Bank v. W. DuPage Landscaping, Inc., 2005 WL 2284265, at *1 (N.D. Ill. Sept. 19,
2005) (noting that impeachment based on undocumented status is not permitted).
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                                      No. 17-10652

“highly charged” issue. Republic Waste Servs., Ltd. v. Martinez, 335 S.W.3d
401, 409 (Tex. App.—Houston 2011) (noting that because immigration is a
“highly charged area of political debate,” trial courts should carefully weigh
evidence of “illegal immigrant status against [its] probative value”). 2
       Indeed, a defendant’s illegal status is considered so inflammatory that it
is often the subject of motions in limine, the point of which is to ensure that
testimony is not revealed to the jury that is so prejudicial that even a
subsequent instruction to disregard cannot undo the damage. Charles Alan
Wright & Kenneth W. Graham, Jr., FED. PRAC. & PROC. § 5037.10 (explaining
that the prophylactic motion in limine, the only kind Texas recognizes, is a
pretrial mechanism to prevent the introduction of evidence that is “so likely to
prejudice the jury that the damage will be difficult or impossible to cure by
means short of a mistrial); see also Romero v. Prindle Hill Constr., LLC, 2017
WL 3390242, at *4 (D. Conn. Aug. 7, 2017) (granting a motion in limine to
preclude evidence of plaintiff’s immigration status because that evidence
would be unduly prejudicial even if relevant); Guel-Rivas v. Thaler, 2012 WL
12838532, at *5 (W.D. Tex. Jan. 19, 2012) (referring to a granted motion in
limine precluding the state from alluding to defendant’s immigration status);
cf. United States v. Gutierrez-Alvarez, 2014 WL 2481873, at *1 (S.D. Tex. June
3, 2014) (noting that the court had previously granted a mistrial in the case



       2 Texas is not the only state that views undocumented immigration status as highly
prejudicial. See Salas v. Hi-Tech Erectors, 168 Wash. 2d 664, 671–72 (2010) (noting in the
civil case at hand that the risk of unfair prejudice from admitting evidence of plaintiff’s
immigration status was “too great” and that state courts in the criminal context had
recognized “admitting immigration status is prejudicial” and often designed to appeal to jury
passions and prejudices); Maldonado v. Allstate Ins. Co., 789 So.2d 464, 466, 470 (Fla. Ct.
App. 2001) (reversing a verdict because the limited probative value of a party’s immigration
status “was thoroughly outweighed by unfair prejudice, confusion of the issues, and
misleading the jury”); Clemente v. State, 707 P.2d 818, 829 (Cal. 1985) (holding that the
admission of immigration status, “even if marginally relevant [regarding damages], was
highly prejudicial”).
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                                   No. 17-10652

because the prosecution inquired into a defendant’s immigration status in
violation of the court’s order).
      Because Texas law would not have allowed the prosecution to ask
Sanchez about his immigration status even if he had testified, trial counsel’s
failure to object seems wrongheaded. It is difficult to conceive that a defense
lawyer with full awareness of Texas evidentiary law would have “allowed [this
question to be asked] in the interests of trial strategy.” Riascos, 792 S.W.2d at
758. Even with the two-tiers of deference that Strickland and AEDPA combine
to afford counsel’s performance, at some point trial strategy becomes trial
stupidity. At the COA stage, a petitioner does not have to prove that counsel’s
performance crossed that line.      It is enough that, even viewed through a
deferential lens, counsel’s performance gets close to it.     The state court’s
resolution of the first Strickland inquiry is debatable.
      The state court also rejected this Sixth Amendment claim on the ground
that the single reference to Sanchez’s unlawful status did not establish
prejudice. A COA should issue if this alternative ground for dismissing the
petition is also debatable when viewed through the AEDPA lens. Courts have
found Strickland prejudice when counsel’s errors allowed the jury to hear
multiple mentions of the defendant’s unlawful status. See Ramirez v. State, 65
S.W.3d 156, 160 (Tex. App.—Amarillo 2001) (finding ineffective assistance
when counsel failed to object to the prosecution repeatedly calling defendant’s
neighborhood a “campito” and wrongly stating during closing that counsel
called his client a “drunk Mexican”); Riascos, 792 S.W.2d at 758 (holding the
“cumulative effect” of counsel’s errors, including the failure to object to the
prosecution mentioning defendant’s immigration status, was “outrageous”). In
contrast, another Texas court found no prejudice when there was only “a very
brief reference [] made to appellant being born in Mexico” and that reference
was only made at the sentencing phase (so it could not have influenced the
                                   6
                                       No. 17-10652

finding of guilt). Gonzalez v. State, 2016 WL 2854288, at *9 (Tex. App.—
Corpus Christi July 6, 2016).
       As in Gonzalez, only one statement referred to Sanchez’s unlawful
status. But his case has something that case did not: a jury note showing that
Sanchez’s unlawful status was a topic during deliberations. The jury asked
the trial court during the sentencing phase if Sanchez would “remain in our
country, or . . . be deported back to Honduras” in the event he is released on
parole.    The court responded that it was “not able to supply additional
information.” It did not instruct the jury that Sanchez’s immigration status
should not be considered even though the note showed that is exactly what the
jury was doing. This note eliminates some of the guesswork that is usually all
we have in evaluating prejudice. There is actual evidence that the jury was
thinking about it, at least during sentencing if not during both deliberations.
Also relevant to the prejudice analysis is the caselaw already cited showing
that courts often view immigration status as the type of inflammatory
information that justifies a motion in limine. And when a pretrial motion does
not effectively exclude mention of illegal status in front of the jury, the remedy
may be a mistrial. See, e.g., Gutierrez-Alvarez, 2014 WL 2481873, at *1. The
limine and mistrial cases recognize that the introduction of even a single
impermissible mention of a defendant’s immigration status is often a highly
prejudicial bell that cannot be unrung.
       The jury note indicating that Sanchez’s unlawful status was on the jury’s
mind combined with what numerous courts have recognized is the highly
prejudicial impact of such information is enough to raise a colorable argument
that the state court’s finding of no prejudice was unreasonable. 3



       3The substantial evidence of guilt means Sanchez will likely have a harder time
showing the state court’s ruling was unreasonable as to his conviction than as to his sentence.
                                              7
                                  No. 17-10652

      A COA is therefore GRANTED as to the Strickland claim focused on
counsel’s failure to object when a witness was asked whether Sanchez was here
“illegally.”
                                      III.
      Sanchez also contends trial counsel was ineffective because he failed to
present sufficient evidence to support theories of self-defense, defense of third
persons, and necessity. But counsel did say during opening statements that
Sanchez “reacted in self-defense because he was being overpowered by two
individuals.” And he requested jury instructions as to all three defenses.
Counsel also informed Sanchez that the most effective way to communicate
those defenses was to testify, but Sanchez refused to testify in recognition that
it would likely be counterproductive because “he was never scared or afraid of
the victim, or the situation.” So counsel attacked the credibility of the state’s
witnesses and argued that the evidence failed to show Sanchez committed the
crime beyond a reasonable doubt. Jurists would not find debatable the state
court’s conclusion that counsel’s performance on these matters fell within the
wide range of sensible conduct.
      A COA is DENIED as to this request.




                                     ______________________________________
                                     GREGG J. COSTA
                                     UNITED STATES CIRCUIT JUDGE




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