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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                      No. 19-70002                      FILED
                                                                 October 24, 2019

JOE MICHAEL LUNA,                                                  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 Western District of Texas
                             USDC No. 5:15-CV-451


Before DENNIS, GRAVES, and COSTA, Circuit Judges.
PER CURIAM:*
       A jury convicted Joe Michael Luna of capital murder and sentenced him
to death. Following denials of his direct appeal and habeas petition in the state
courts, he raised fifteen claims in a federal habeas petition. The district court
denied them all and denied a certificate of appealability (COA). Luna now




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-70002
requests from this court a COA on four of his federal claims. We grant one and
deny three.
                                      I.
      Luna used a crawl space connected to his girlfriend’s apartment to sneak
into Michael Andrade’s apartment in the middle of the night. Intending a
burglary, he thought Andrade’s apartment would be empty. It was not. Luna
found Andrade sitting up in bed, held him at gunpoint, and tied him up. After
collecting items from around the apartment, Luna began to worry that
Andrade would speak to the police, connect the intruder to the crawl space,
and thus connect Luna to the crime. So Luna strangled Andrade to death.
Andrade was in his fourth year as a premed student at St. Mary’s in San
Antonio.
      At the beginning of his trial, Luna pleaded guilty in front of the jury.
The court then held a one-phase trial that included evidence relevant to both
guilt and punishment, followed by an instruction that the jury find Luna guilty
and answer the special issues relevant to the death penalty: whether Luna
would be a danger in the future, and, if so, whether mitigating circumstances
warranted a sentence of life in prison rather than death. See TEX. CODE CRIM.
PROC. art. 37.071.
      Among other things, the state’s evidence included testimony about
Luna’s substantial criminal history, which included car thefts—one of which
involved Luna’s trying to run a police officer over with the car; a carjacking
that ended with Luna and his companions leaving the victim bound with duct
tape in the woods; and multiple home invasions during which Luna tied up
families at gunpoint while he robbed them. There was also evidence that Luna
had been plotting an escape at some point between his arrest and trial.
      When the prosecution rested, and against his counsel’s advice, Luna
testified on his own behalf. He said that he had pleaded guilty because he had
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                                     No. 19-70002
decided to get right with God. He also expressed remorse for his crimes,
particularly the murder. Luna then testified that he wanted the death penalty.
He said that a prior stint in prison had not rehabilitated him, and he expected
that a lifetime in prison would only “make me worse than I am now.”
      The defense called two other witnesses. The first was Margaret Drake,
a clinical social worker and mitigation specialist, who had prepared a
“psychosocial assessment” after talking to Luna and his relatives.                   Her
testimony included potentially mitigating evidence, including that Luna’s
mother moved around a lot, requiring him to frequently change schools; that
his father was largely absent from his young life; that a “number” of Luna’s
relatives were “involved” in substance abuse, and an “unusual number” of them
had criminal histories; that some members of Luna’s family suffered from
“mental difference[s]” ranging from depression or schizophrenia to Down’s
Syndrome or seizure disorders; and that Luna has at least one son, as well as
a “very good relationship” with his former girlfriend’s son. Drake also testified
that one of Luna’s mother’s boyfriends was “quite violent” and that they were
“often very much afraid of him.”
      Dr. Brian Skop, a forensic psychiatrist, also testified.                  He had
interviewed Luna and conducted an intelligence screening test that showed an
IQ of 89, “in the low average range.” The remainder of Skop’s testimony on
direct examination had to do with future dangerousness.                       On cross
examination, the prosecutor asked why Skop “didn’t do the normal thing that
you do where you make diagnoses about—for the different axes.” 1                    Skop
explained that he had been asked to analyze only Luna’s future dangerousness.




      1 This presumably referred to the then-prevailing categorization of mental disorders
along particular “axes.” See AMERICAN PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL
MANUAL OF MENTAL DISORDERS (4th ed. 2000).
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                                  No. 19-70002
      The defense then rested. The jury answered the special issues in favor
of the death penalty.
                                        II.
      We may authorize an appeal from the denial of a habeas petition “only if
the applicant has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). That means reasonable jurists “could disagree”
with the district court’s analysis or could conclude the issues otherwise
“deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S.
322, 327 (2003). In a capital case, any doubt is resolved in favor of granting a
COA. Hughes v. Dretke, 412 F.3d 582, 588 (5th Cir. 2005).
      For any claim adjudicated on the merits in state court, the COA
“debatability” standard is considered through the lens of deference given by
the Antiterrorism and Effective Death Penalty Act of 1996. Prystash v. Davis,
854 F.3d 830, 835 (5th Cir. 2017). AEDPA allows a federal court to grant
habeas relief only if the state court’s conclusions of law were “contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.”                 28 U.S.C.
§ 2254(d)(1). AEDPA requires deference to the state court’s findings of fact,
too, unless they were unreasonable. Id. § 2254(d)(2).
                                        A.
      Luna’s first claim is that his trial counsel was constitutionally ineffective
for failing to investigate and present additional mitigating evidence.         He
contends (1) that his mother knew of and was willing to testify about sexual
and physical abuse he suffered as a child; and (2) that a thorough examination
of his psychological state would have revealed that he suffers from a variety of
mental health problems, including schizophrenia, depression, and PTSD.
      To prevail on this claim, Luna will ultimately have to show not only that
his counsel’s investigation into his background and mental health was
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                                       No. 19-70002
objectively unreasonable, but also a reasonable probability that at least one
juror would have voted against the death penalty if aware of the mitigating
evidence a reasonable investigation would have turned up. See Wiggins v.
Smith, 539 U.S. 510, 520–21, 537 (2003).                 Counsel is presumed to have
rendered adequate assistance. See Strickland v. Washington, 466 U.S. 668,
690 (1984). That presumption, plus AEDPA deference, means federal courts
are “doubly deferential” when reviewing whether counsel’s assistance was
constitutionally deficient. Cullen v. Pinholster, 563 U.S. 170, 189–90 (2011).
Despite the demanding standard of review, and keeping in mind that any
doubts at the COA stage in a capital case should be resolved in favor of allowing
the appeal, we conclude that reasonable jurists could debate the outcome of
this claim. Accordingly, we grant a COA on the ineffective assistance claim.
                                              B.
       Luna’s second claim raises his due process right to be present at critical
proceedings. See Kentucky v. Stincer, 482 U.S. 730, 745 (1987). He argues that
he should have been in the courtroom when the trial judge excused prospective
jurors before voir dire. 2
       At the threshold, the Director argues that Luna procedurally defaulted
this claim by failing to raise it on direct appeal, as Texas law requires for claims
like this one. See Ex parte Nelson, 137 S.W.3d 666, 667 (Tex. Crim. App. 2004)
(en banc). The state habeas court, 3 in addition to making a merits finding,
denied this claim under that adequate and independent state procedural rule.
See Aguilar v. Dretke, 428 F.3d 526, 535 (5th Cir. 2005). Ordinarily, that would



       2 Luna casts this claim both in terms of due process and in terms of his Sixth
Amendment confrontation right. But there is no confrontation right when there are no
witnesses to confront. United States v. Thomas, 724 F.3d 632, 642 (5th Cir. 2013).
       3 Unless otherwise noted, the Texas Court of Criminal Appeals adopted, in an

unreasoned opinion, the findings and conclusions of the state district court (which we call the
“state habeas court”). Ex parte Luna, 2015 WL 1870305 (Tex. Crim. App. Apr. 22, 2015).
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                                       No. 19-70002
preclude federal habeas relief. Davila v. Davis, 137 S. Ct. 2058, 2064 (2017).
Luna, however, argues that his direct appellate counsel was constitutionally
ineffective by failing to raise this claim. Procedural defaults can be excused,
and one way to excuse a default is to show it resulted from ineffective
assistance. Id. at 2064–65. 4 Whether Luna’s appellate counsel was deficient
is largely bound up with the merits of the underlying claim, so we look to the
merits. See Amador v. Quarterman, 458 F.3d 397, 410–11 (5th Cir. 2006)
(explaining that appellate counsel need only bring “[s]olid, meritorious
arguments”).
       It is not altogether clear what happened as there is no transcript of the
pre-voir dire assembly. But it appears that a fraction of the venire panel was
“excused” at that time. Typically at a “general assembly” venire members are
“qualified on their ability to serve and exemptions and excuses are heard,”
before they are “sent to the individual courts trying the cases.” See Jasper v.
State, 61 S.W.3d 413, 423 (Tex. Crim. App. 2001). The general assembly is not
part of the trial and there is no constitutional right to be present. Moore v.
State, 999 S.W.2d 385, 399 (Tex. Crim. App. 1999).
       But Luna says the process in his cases was not the typical general
assembly because the excused potential jurors had already been assigned to
his case. See Jasper, 61 S.W.3d at 423 (“assum[ing]” that the right to be
present had attached when “the trial judge assigned to preside over appellant’s
trial appears to have functioned as a general assembly judge over prospective
jurors already assigned to [the] appellant’s specific case” (emphasis in
original)). The federal district court rejected that argument. 5



       4Contrary to the Director’s position, Luna preserved this excuse by arguing it on state
habeas. See Hatten v. Quarterman, 570 F.3d 595, 605 (5th Cir. 2009).
      5 We do not discuss the state habeas court’s merits finding on this claim because the

Texas Court of Criminal Appeals vacated it. Luna, 2015 WL 1870305.
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                                 No. 19-70002
      We need not delve into whether the excused jurors had been technically
assigned to Luna’s case. The due process question is whether Luna’s presence
at the proceeding would have been helpful to his defense. See United States v.
Gagnon, 470 U.S. 522, 526 (1985) (“[The] presence of a defendant is a condition
of due process to the extent that a fair and just hearing would be thwarted by
his absence, and to that extent only.” (quoting Snyder v. Massachusetts, 291
U.S. 97, 107–08 (1934)). And that inquiry turns on the reasons the prospective
jurors were dismissed. Defendants have the right to be present at voir dire,
for instance, because they can help decide what questions to ask prospective
jurors or how to exercise peremptory challenges. United States v. Curtis, 635
F.3d 704, 715 (5th Cir. 2011); United States v. Gordon, 829 F.2d 119, 124 (D.C.
Cir. 1987).
      What evidence there is indicates that the prospective jurors dismissed
before voir dire were dismissed for reasons having nothing to do with Luna’s
case. The trial judge’s first remark, once the remaining prospective jurors were
gathered with Luna and counsel, was that one prospective juror had “been
working for like two days straight” but “really didn’t want to be excused.” The
judge then announced the case, introduced the parties, and described in detail
how capital trials work in Texas, as well as the questionnaires the jurors would
be asked to fill out. If the judge had already excused jurors for case-specific
reasons, he would already have provided them that information.            By all
appearances, the jurors were excused for hardships and possibly statutory
exemptions or disqualifications. See TEX. CODE CRIM. PROC. art. 35.03.
      Unlike the role defendants and their counsel have in exercising
peremptory strikes during voir dire, judges determine whether jurors are
excused for hardships or exemptions (sometimes these exemptions are granted
before venire members show up for jury duty). Id. So the defendant’s presence,
or lack thereof, when the judge considers jurors’ requests to be excused would
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                                      No. 19-70002
seem to make no difference.           Cf. Gagnon, 470 U.S. at 527 (holding that
defendants had no right to be present during judge’s in-chambers questioning
of a juror during which defendants “could have done nothing had they been”
present). 6
       So we doubt that Luna has a due process claim because he was absent
from the pre-voir dire proceeding.           But we need not decide whether that
question meets the COA threshold because it is beyond debate that any error
was harmless.       See Brecht v. Abrahamson, 507 U.S. 619, 637–38 (1993)
(explaining that on federal habeas review, nonstructural errors in a state trial
are harmless unless they “had substantial and injurious effect or influence in
determining the jury’s verdict”).          There is no indication that an excused
potential juror was more favorable to Luna than those who ultimately sat.
Neither is there any indication that a juror was excused improperly. See
Jasper, 61 S.W.3d at 424 (describing trial court’s “broad discretion to excuse
prospective jurors for good reason”). And even if there were reason to think
that a favorable potential juror was excused improperly, Luna’s presence
would not have put that person on the jury. As we have already explained,
unlike with voir dire, the defendant has no role to play in excusing prospective
jurors for hardships, exemptions, or disqualifications.




       6 To be clear, the defendant’s presence may be helpful, and the defendant may thus
have a right to be present, during some pre-voir dire hearings on juror dismissals. But that
is only when the potential dismissals are for reasons particular to the defendant, as when
prospective jurors are excused because they are “friends or supporters” of the defendant. See
United States v. Bordallo, 857 F.2d 519, 522–23 (9th Cir. 1988). During those types of
proceedings, the defendant can offer insight into the facts potentially warranting dismissal.
Not so during proceedings on requests to be excused, which are granted or denied without
regard to the case a prospective juror is assigned to. United States v. Greer, 285 F.3d 158,
167–68 (2d Cir. 2002); see also Cohen v. Senkowski, 290 F.3d 485, 489–90 (2d Cir. 2002)
(distinguishing examination of prospective jurors about exposure to the defendant’s case,
during which the defendant has a right to be present, from examination of prospective jurors
about excusals for hardships).
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                                  No. 19-70002
      Perhaps recognizing that he cannot show the decision to excuse jurors
impacted the outcome of his case, Luna’s only response is that the error was
structural and thus not subject to the harmless error rule. But there is a
wealth of precedent going the other way. See Rushen v. Spain, 464 U.S. 114,
117–18, 121 (1983) (holding that defendant’s absence during judge’s
communication with juror was harmless). This court and others have held that
absence during voir dire can be harmless. United States v. Alikpo, 944 F.2d
206, 209–10 (5th Cir. 1991) (conducting harmless error analysis but holding
that defendant’s absence was not harmless); see also United States v. Rivera-
Rodriguez, 617 F.3d 581, 604 (1st Cir. 2010); United States v. Riddle, 249 F.3d
529, 535 (6th Cir. 2001). If absence from voir dire can be harmless, then
absence from pre-voir dire excusals certainly can. Indeed, the two cases on
which Luna most relies for this claim held that the defendant’s absence when
jurors were dismissed was harmless beyond a reasonable doubt. Bordallo, 857
F.2d at 523; Jasper, 61 S.W.3d at 423–24.
      Any possible error, which again we doubt existed in the first place, was
harmless. We thus deny a COA on this claim.
                                       C.
      Luna’s third claim argues that the trial court erroneously concluded that
a juror’s views on the death penalty warranted striking the juror for cause. See
Witherspoon v. Illinois, 391 U.S. 510, 521–22 (1968). As with his previous
claim, Texas law required Luna to bring this one on direct appeal. See Nelson,
137 S.W.3d at 667; Aguilar, 428 F.3d at 535. In addition to denying this claim
on the merits, both the state habeas court and the district court ruled that
Luna procedurally defaulted on this claim by failing to raise it on direct appeal.
      But unlike on the previous claim, Luna makes no attempt on this one to
excuse his procedural default or to show that failure to consider this claim
would work a fundamental miscarriage of justice. That alone means we should
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                                   No. 19-70002
deny a COA. Norman v. Stephens, 817 F.3d 226, 231–32 & n.2 (5th Cir. 2016);
see also Clark v. Collins, 19 F.3d 959, 966 (5th Cir. 1994).
       In any event, even if his default were excused, Luna’s Witherspoon claim
is not reasonably debatable. Prospective jurors in capital cases cannot be
dismissed for cause “simply because they voiced general objections to the death
penalty or expressed conscientious or religious scruples against its infliction.”
Witherspoon, 391 U.S. at 522. Exclusion is proper only if “the juror’s views
would prevent or substantially impair the performance of his duties as a juror
in accordance with his instructions and his oath.” Wainwright v. Witt, 469 U.S.
412, 424 (1985) (quotation omitted).
       To be sure, for much of the challenged juror’s voir dire testimony, he
sounded like an ideal capital juror. He repeatedly stated that whether he could
impose the death penalty would depend on “the circumstances” and that there
would be “a lot of variables involved.” He might, for instance, be “sway[ed]” if
the victim was a child, elderly, or disabled, or if the crime was “heinous” or
“brutal[].” The juror also said that the motive for the crime might influence
him.
       But at one point, he said that if the victim was not young, elderly, or
disabled, he “really d[idn’t] think” he could vote to impose the death penalty.
And ultimately, his voir dire ended with the following:
       Q: And you were there, and you have found somebody guilty of
       capital murder beyond a reasonable doubt. And then you have
       heard whatever other evidence might be presented. And you knew
       that the answers to the questions were such that the result would
       be death, would you be able to do it?
       A: I’m sorry I’m so ambivalent, but I don’t think I could.
       THE COURT: What was your answer? I don’t think I could?
       A: I don’t think I could.
The trial judge then granted the state’s motion to strike the juror for cause.

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                                      No. 19-70002
       Viewed against the juror’s prior statements indicating a willingness to
vote for the death penalty in appropriate circumstances, his last statements
raise an ambiguity. And because the trial judge takes into account firsthand
impressions of the juror’s demeanor—impressions not apparent in an appellate
record—we defer to the trial judge’s resolution of that ambiguity. Uttecht v.
Brown, 551 U.S. 1, 7, 9–10 (2007). Indeed, our review is “doubly deferential”
because AEDPA adds another layer. White v. Wheeler, 136 S. Ct. 456, 460
(2015). 7
       That much deference means that reasonable jurists could not debate the
merits of this claim. AEDPA requires deference to strikes for cause in cases
with substantially less equivocation. See White, 136 S. Ct. at 459, 461–62
(holding that trial judge had discretion to strike juror who said he could not be
“absolutely certain” that he could consider the death penalty, but later
“expressed his belief that he could consider all the penalty options”); Uttecht,
551 U.S. at 15–17 (holding that juror’s answers “on their face” permitted trial
court to strike juror for cause, when juror “stated six times that he could
consider the death penalty or follow the law” but interspersed those statements
with “more equivocal” ones about how he would have to give it “some thought”).
We accordingly deny a COA on this claim.
                                            D.
       Luna’s last claim is a challenge to the constitutionality of Texas’s jury
instructions for capital cases. To impose a death sentence, a Texas jury must



       7 Luna argues that the district court erred in applying section 2254(e)(1) of AEDPA,
under which a state court’s findings of fact are presumed correct, a presumption that can be
rebutted only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). According to Luna,
section 2254(d)(2)—which requires deference unless the state court’s finding was
“unreasonable”—should apply to Witherspoon claims. But this court recently deemed it
“prudent” to apply both subsections. Smith v. Davis, 927 F.3d 313, 324 (5th Cir. 2019). We
ultimately need not define the degree of deference with exactitude because its precise
articulation does not make a difference in this case.
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                                   No. 19-70002
answer “yes” on a future dangerousness question and “no” on a mitigation
question.   TEX. CODE CRIM. PROC. art. 37.071.          Luna challenges the jury
instructions on the mitigation question. Texas courts instruct capital juries
that they must answer the mitigation question.           A “no” answer must be
unanimous, and at least 10 jurors must agree on a “yes” answer. Id. § 2(f). If
the jury is unable to reach an answer, the defendant receives a life sentence.
Id. § 2(g). But Texas law forbids the court or counsel from informing the jury
“of the effect of a failure of a jury to agree” on the special issues. Id. § 2(a)(1).
Luna argues that jurors should be told about this possible outcome.
      The Texas Court of Criminal Appeals, on direct appeal, rejected Luna’s
constitutional challenge to these instructions, as it has before. Luna v. State,
268 S.W.3d 594, 609 & n.40 (Tex. Crim. App. 2008). This court, too, has already
held that three of the Supreme Court cases Luna raises do not clearly establish
that the jury must be informed of the effect of its inability to reach an answer.
See Druery v. Thaler, 647 F.3d 535, 544 (5th Cir. 2011) (holding that Caldwell
v. Mississippi, 472 U.S. 320 (1985), does not implicate Texas’s capital jury
instructions); Hughes, 412 F.3d at 594 (rejecting challenge based on Mills v.
Maryland, 486 U.S. 367 (1988), and holding that “no clearly established federal
law calls into doubt the Texas death penalty statute”); Webb v. Collins, 2 F.3d
93, 96 (5th Cir. 1993) (rejecting challenge based on Andres v. United States,
333 U.S. 740 (1948), under analogous Teague doctrine).
      Luna does rely on two Supreme Court cases this court appears not to
have addressed in considering this question, but neither debatably establishes
clearly established law undermining Texas’s capital jury instructions. Luna
cites a portion of Wiggins v. Smith that refers to the standard for showing
prejudice in ineffective-assistance claims arising from capital cases—namely,
a reasonable probability that at least one juror would have voted against death.
539 U.S. 510, 537 (2003).          That says nothing about what must be
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                                 No. 19-70002
communicated to a capital jury. And Jenkins v. United States, 380 U.S. 445
(1965), is “off the table as far as [AEDPA] is concerned” because it was based
on the Court’s supervisory powers over federal courts, not the Constitution.
Early v. Packer, 537 U.S. 3, 10 (2002).
      We thus deny a COA on Luna’s challenge to Texas’s capital jury
instructions.
                                     ***
      We GRANT a COA on Luna’s claim for ineffective assistance of trial
counsel during the investigation and presentation of mitigating evidence. We
DENY COAs on Luna’s other claims.




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